Ashley Wills, senior international adviser for WilmerHale, a US law firm, has called on Thailand not to risk further damaging its international reputation by invoking compulsory licensing to get around drug patents.

At the same time he said that drug companies failed to take Thailand's request for a review of their pricing policies seriously enough at the early stages of the negotiations.

"The drug companies have underestimated the challenges facing the Thai government," said Wills, a former assistant US Trade Representative and a veteran diplomat.

So when Thai public health officials decided to go ahead to invoke compulsory licensing, the drug companies were shocked. In November last year, the Thai officials invoked compulsory licensing on Efavirenz, an Aids-treatment drug owned by Merck & Co. By doing so, it suspended patent protection and allowed the Government Pharmaceutical Organisation to produce a generic drug based on this patent.

The issue does not end there, as Thai health officials have also invoked compulsory licensing on Kaletra, a "second-defence" drug for Aids owned by Abbot Laboratories, and also Plavix, a heart-disease drug produced by Sanofi Aventis. This has prompted an uproar among US and European pharmaceutical companies, and led the US Trade Representative to place Thailand on its "Priority Watch List", a list of countries that violate US interests in copyrights and patents.

Wills, who left Bangkok yesterday, made his trip here to get first-hand knowledge on the controversial move by the Thai health officials to invoke compulsory licensing. He said he was "an ambassador of goodwill", representing "friends of Thailand" who are concerned with the direction this country is taking. However, he admitted that the law firm he is working for has drug companies as clients.

Wills said the challenge for both sides is to work together to find a solution, because developing treatment for those affected by HIV should be the ultimate goal for all.

"At stake is literally a debate about life. Understandably, emotions run high. There is nothing more primal than self-preservation. But we must establish a more robust dialogue about improving access to public health," he said.

"Drug companies must recognise the challenges facing governments in providing treatment to its citizens. Governments, on the other hand, must recognise the importance of intellectual property protection to attract investment to develop those treatments."

On May 21, representative of the drug companies and Thai health officials will meet again to try to strike a compromise. The Thai officials claim that they have tried to talk the drug companies into cooperating with them about their pricing policies, yet their responses have been negative. At the same time, the drug companies claim that they were not consulted adequately prior to the Thai government's move to invoke compulsory licensing.

Thailand's health system is not adequately funded, although it receives a budget second only to education. Prices of drugs to treat HIV/Aids are way beyond the patients' ability to pay, putting a heavy burden on public health authorities, who also argue that the practice of compulsory licensing is permissible under the rules of the World Trade Organisation. Brazil has also invoked compulsory licensing, incurring the wrath of the US.

Wills said invoking compulsory licensing would produce only a short-term gain for the Thai government. He said that in the longer term it would hurt Thailand's reputation and destroy the climate to do business in this country. He said Thailand was signalling that it did not honour intellectual copyright and patent protection.

"The decision to override medical patents is not in the long-term interests of the people of Thailand. Drug companies require intellectual-property protection to develop medicines and to make them available to those in need. Nearly three million Americans are currently working to research and develop more than 70 per cent of the world's medicines - the very medicines that Thailand's patients depend upon for survival," Wills said.

Thanong Khanthong

The Nation