[Nettime-bold] nader and love: USG can suthorize generic cipro production

[t byfield <tbyfield@panix.com>]

     [ugh, 'intellectual property' everywhere--and with it issues
      of corporate welfare. in this latest installment, ralph na-
      der and jamie love point out to the USG's secretary of DHHS
      that, contrary to his public statements, he has the author-
      ity to put public welfare (or some imaginary version of it)
      before the interests of the megapharmacorp bayer. so why is
      it that all the konspiracy theorists ranting about how 'in-
      teresting' it is that state security forces and israel have
      'benefited' from the attacks missed the $ angle? nevermind,
      i know why. cheers, t]

<http://lists.essential.org/pipermail/random-bits/2001-October/000685.html>

Nader/Love letter to Tommy Tompson on Cipro patent and use of 28 USC 1498

   James Love love@cptech.org
   Thu Oct 18 14:42:01 2001

 http://www.cptech.org/ip/health/cl/cipro/nadethom10182001.html

 October 18, 2001

 Tommy G. Thompson
 Secretary of Health and Human Services
 The U.S. Department of Health and Human Services
 200 Independence Avenue, S.W.
 Washington, D.C. 20201

 Dear Secretary Thompson:

 We were shocked by your comments in the October 17, 2001 Washington
 Post, indicating that you do not have the legal authority to authorize
 generic production of ciprofloxacin, a drug used to treat victims of an
 anthrax attack. This, of course, is not true. As your own staff is well
 aware, you may use 28 USC 1498 to issue compulsory licenses for patents,
 and you could immediately authorize the five companies who have already
 satisfied US FDA requirements for the quality of their products to speed
 the manufacturer of ciprofloxacin, and indeed this could and should be
 done for any other medicine needed to confront the current crisis.

 By failing to act, you are putting Americans at risk. By acting to
 authorize generic competitors to manufacture ciprofloxacin, you would
 reduce public anxiety over the supply of the drug, and take steps to
 introduce competition which would ensure redundant capacity and a more
 favorable procurement environment.

 It is our understanding that public health authorities are seeking a
 stockpile of 1.2 billion pills in order to ensure that there are
 treatments for 10 million Americans. It is obvious that the fastest and
 most efficient way to accomplish this is to authorize every qualified
 pharmaceutical company who can supply the drug to do so. Anything short
 of this is cutting corners. Why put the lives of millions of Americans
 ar risk?

 Americans are facing a public health crisis that demands leadership and
 action. It is unacceptable, in the face of a biological assault against
 US citizens, to fail to secure adequate supplies of medicines in the
 event that anthrax exposure spreads. Moreover, you may soon find we
 confront a different access problem for another medicine, in the face of
 a different biological or chemical threat. You need to ensure that there
 are systems in place to protect the public health, and you must use
 every necessary mechanism to ensure an adequate, affordable supply of
 medicines.

 Under 28 USC 1498 it is clear. You can authorize immediately the
 production of needed medicines. As you and your staff know, the US
 government has used 28 USC 1498 in many cases for less serious matters,
 to authorize contractors to use patents held by others in order to
 provide goods and services for the government. This includes cases
 involving pharmaceutical products, in far less difficult circumstances.

 Bayer, the giant German pharmaceutical firm, currently markets
 ciprofloxacin on an exclusive basis in the United States. Drug stores
 are charging in some cases more than $700 for a two month's supply of
 medicine that can be obtained for as little as $20 in some foreign
 county generic markets, and now it seeks to be the exclusive company
 that can supply 1.2 billion pills to the federal government. Bayer
 stands to make hundreds of millions if not billions of dollars in the
 wake of the September 11 terrorist attack on Americans.

 In the absence of adequate government stockpiles, families who cannot
 afford the hundreds of dollars per month per family member for
 ciprofloxacin risk not having access to this product, should the need
 arise. This is an unethical and unnecessary form of rationing. Some
 government officials and those who can afford the high prices have
 secure supplies of ciprofloxacin. It is your duty to see that all
 taxpayers and especially those who are less affluent are protected, and
 are protected as soon as is possible, not as soon as it is possible for
 one firm, Bayer, to supply the market. And it would make sense to have
 redundant sources of supply, for all of the obvious reasons.

 More generally, you need to be forward looking, should other cases arise
 with similar constraints on the access to medicines, and you need to
 find ways to obtain whatever medicines may be needed. You need to
 provide a framework for acquisition of needed medicines, including the
 steps that will be taken to address issues of pricing and affordability.

 In this review, you should examine US government obligations for
 compensation under 28 USC 1498, to see if there is a need for statutory
 changes that would ensure that firms cannot exploit the current
 situation, or engage in bio-terrorism profiteering. In that respect, you
 are urged to look at models such as those in HR 1708 which would give
 the US government the same tools that most European countries have to
 protect consumers from abusive prices, refusals to license technologies,
 unreasonable restrictions on the use medical research tools, and other
 areas of public interest.

 Your official responsibility is to protect the public's health, and not
 to defend large profiteering pharmaceutical companies, which are already
 making a fortune because of our country's current problems. How do you
 define the patriotic choice here?

 Sincerely,

 Ralph Nader

 James Love
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