Compulsory Licenses & Thailand: Lessons for the Global Intellectual Property Regime

The Thai Government has issued a compulsory license for two patented drugs - Kaletra & Efavirenz; on accounted of a purported public health emergency. While the sovereign right to issue compulsory licenses on public health grounds remains undisputed, the present crisis reminds one of the threat of an uncompromising expansion of the term 'public health emergency' - resulting in rampant compulsory licensing of patented drugs. (I do not, in any way, assume that the present steps by the Thai Government are unwarranted!)

This could undermine the innovation-profit guarantee that the international intellectual property regime promises and could lead to increasing the external cost of research into critical drugs.

In response to the Government actions, one of the pharmaceutical companies whose patented product was compulsorily licensed withdrew applications to sell new drugs in Thailand.

A pharma war appears to be brewing . . .

A voluntary compulsory licensing addendum to the TRIPS Agreement may well be the cure for this problem, restraining not just the sovereign from unilateral acts but robbing a corporation from any sort of social sanction for any retaliation to the grant of compulsory licenses.