According to report that the EU, pushed particularly by Germany and France, would file a complaint to WTO against Thailand on compulsory licensing. EU will fail to do so since compulsory licensing is legitimate. Compulsory licences are explicitly allowed under the 2001 Doha Declaration on TRIPS and the Thai Public Health and Patent Act (section 51). Thailand’s use of compulsory licences is fully compliant with international and national law. Governments all over the world, including US, Canada and Italy, use compulsory licences to protect the public interest, ensure equitable access, promote innovation, and control anticompetitive prices.

Recently, report of a WHO Mission conducted by seven experts from WHO, UNDP, WTO and UNCTAD leading by Germán Velásquez (Bangkok, 31 January to 6 February 2008) stated that WHO supports measures which improve access to essential medicines, including application of TRIPS flexibilities. National authorities may consider the full range of mechanisms in seeking greater access to essential medicines. Compulsorylicence may be used for patented essential medicines not affordable to the people or to public health insurance schemes.

One may argue that EU may sue Thailand at the WTO for failure to negotiate for voluntary licences before issuing compulsory licences. But EU will also be failed for this complaint to WTO because Thailand gives evidence of attempted negotiations for more than two months. Actually, under Thai Patent Act, compulsory licensing by government for public non-commercial use can be made without prior negotiation. European Union laws set 30 days as sufficient period for prior negotiations before issuing a compulsory licence in their laws and they have not been sued for failure to comply with TRIPS because 30 days is not a reasonable period of time. If the EU wants to sue Thailand for more than 60 days of attempted prior negotiations, to be consistent EU should follows their own laws

(The relevant EC Regulation No 816/2006 Article 9.1 can be downloaded from
http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_157/l_15720060609en00010007.pdf ).
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Vithaya Kulsomboon PhD, MPHM
Chair of Social Pharmacy Department , Faculty of
Pharmaceutical Sciences
Chulalongkorn University,
Patumwan, Bangkok 10330 Thailand
Tel 218-8285 2188-238 Fax 218-8336