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THAILAND’S LAWFUL COMPULSORY LICENSING AND ABBOTT’S ANTICOMPETIVE RESPONSE Sean Flynn sflynn@ 202-294-5749 April 26, 2007 Today, on a global day of action against Abbott Laboratories, a Thai network of people living with HIV/AIDS (TNP+), AIDS ACCESS Foundation and an alliance of supporting organizations and individuals will march to the Thai Ministry of Commerce to demand that the Thai Trade Competition Commission instigate criminal actions against Abbott. The complaint alleges that Abbott breached the Competition Act by refusing to supply drugs in Thailand in response to a legal government compulsory license. This memo explains why (1) Thailand was fully within its rights under its own law and under the WTO TRIPS agreement in issuing compulsory licenses to procure medicines, and (2) why Abbott’s refusal to supply several medicines to Thailand in response, and its refusal to license generic provision of its products before the license, may violate Thailand’s Competition Act. A. Background on the Thai Licenses and Abbott’s Response Thailand recently joined the ranks of nations that have taken advantage of the flexibilities in the TRIPS Agreement authorizing compulsory licenses for pharmaceutical patents to increase access to medicines in its health system. Between November 2006 and November 2007, the Ministry of Health granted licenses for patents on two antiretroviral drugs; Efavirenz, sold by Merck as Stocrin, and Lopinavir+Ritonavir, sold by Abbott as Kaletra. A compulsory license was also issued for the clopidogrel, a heart medication sold by Bristol Myers Squibb as Plavix. The licenses were issued for government use, and include a 0.5% royalty rate. Other countries that have issued compulsory licenses for AIDS medicines include Indonesia, Malaysia, Ghana, Eritrea, Mozambique, Zambia, and South Africa. The license for Kaletra arose from Thailand’s need to gradually shift its treatment priorities to so-called “second-line” AIDS medications. Tha