[Ip-health] FT: Sacrificing at the altar of patents

[Spring Gombe]

Sacrificing at the altar of patents

By James Boyle

Published: April 28 2008 13:00 | Last updated: April 28 2008 13:00

The patent system takes a lot of heat.  It gets criticised (rightly)
for the ludicrous patents that are granted =96 on crimped sandwiches,
say, or methods of swinging on a swing. It is assailed (rightly) when
patents are extended to cover the most abstract subject matter =96
algorithms and business methods =96 despite the evidence this will hurt
innovation.  It even gets brickbats when patents are handed out over
gene sequences, or improved versions of traditional natural
insecticides.

There is one criticism, though, that cannot fairly be levelled against
the patent system or the drug companies who depend on that system:
that it is their fault there is not enough research into the diseases
of the global poor.

             True, patents alone will never fund the search for a
malaria vaccine or the attempt to eliminate tropical parasites that
tragically kill or blind millions of people every year.  Why?  Because
the people who suffer from those diseases are too poor to provide a
potential commercial market for the drug.  Without the prospect of a
commercial market, the patent monopoly will not act as an adequate
incentive.  It is designed to funnel research into commercially
profitable markets.  That is a feature, a design choice.

             The patent system is a tool to promote a certain kind of
innovation.  Whether we are critics of that system or proponents, we
ought to realise that alternatives, adjustments and supplements are
needed if we are going to find cures for the diseases of the global
poor or, for that matter, for rare diseases in the developed world.
That ought to be something that we can all agree on. We can then get
down to the tricky job of designing systems to encourage such
research.  Will state-funded prizes for the first company to create a
viable vaccine work better than guaranteed purchase schemes =96 an offer
to buy a fixed amount at a specified price?  Should we have
international experimentation, trying different methods of encouraging
innovation around the world and seeing which works better?

              There ought to be easy, non-partisan consensus on the
need to experiment with supplements and alternatives to the patent
system. Those (like me) who believe that patents actually work well to
incentivise research into the diseases of the rich and those who
believe they do not, should agree that under no circumstances will
they encourage research into the diseases of the poor. The patent
system alone cannot do that job.  Blaming that system and the drug
companies who use it is like blaming a screwdriver for not being a
hammer, or like blaming Microsoft for doing no research on Aids
medicines.

             The drug companies ought to be cheering on the search for
alternatives that is proceeding in international forums such as the
World Health Organisation.  =93Give us a better set of  incentives!=94
they should say.  =93Design us a system that lets countries experiment
with multiple ways of encouraging innovation.  Keep the patent system,
by all means, but acknowledge that it will leave huge and vital
problems of human health unmet.=94  If patents were merely a policy to
promote innovation, that is what we would be doing.  Unfortunately,
for many in this debate, patents are not a policy, they are a
religion.  They are willing to sacrifice at the altar of that
religion; in this case to sacrifice the global effort to solve the
problem of neglected diseases =96 and the people who are dying from
those diseases.

             Today, a Working Group of the WHO will meet to address
exactly this issue.  The Working Group has a long and bureaucratically
unlovely name, but its goal is a noble one =96 to explore strategies to
solve the problems I described here.  Unfortunately, a lobbying
campaign has been mounted to derail this project =96 denouncing any
exploration of alternatives as a heresy against the patent faith.
(Rather like saying that those who design screwdrivers are obviously
committed to the destruction of hammers.)  Astoundingly, the
professional organisation of American university technology transfer
officers (the AUTM) was even temporarily persuaded to go along. It
announced it would join a well funded campaign of advertisements in
major newspapers criticising this benign effort.  Why?  "Prize
systems, a medical R&D treaty, and compulsory patent pools are being
advocated as alternatives to patents and IP protections at the April
28 meeting. These solutions could pose a challenge to our current and
very successful system of innovation and tech transfer.=94

             The AUTM has since discovered that =96 like Senator Clinton
=96 it misspoke.  But how could this Kafkaesque episode come about in
the first place? To understand that, we need to understand two things:
fear and idolatry.

             Drug companies are afraid.  Their industry rests on a
legal monopoly - a right to charge thousands of dollars for a pill
that costs pennies to make.  Why?  Because otherwise we would not get
the pill in the first place.  They (rightly) fear an attack on this
system.  And with fear comes idolatry; the imbuing of a human creation
=96 the patent system =96 with a semi-divine status that precludes
rational assessment of it.  We must worship at the altar of patents.
We must defend them everywhere, absolutely =96 even when they do not and
could not work  Benign experimentation with supplements to the patent
system should be attacked as heretical.  Fear, uncertainty and doubt
must be spread.

             What the drug companies (and for a while the university
technology managers) seem not to have realised, is that this kind of
behaviour makes it harder, not easier,to defend patents. That is cause
for regret in those, like me, who think the patent system often works
very well. But if the campaign succeeds in derailing WHO=92s commendable
search for alternatives, then we will be sacrificing not just truth,
but lives, at the altar of patents.  That is a kind of idolatry we
should all have outgrown long ago.



James Boyle is William Neal Reynolds Professor of Law at Duke Law
School.  His new book, The Public Domain: Enclosing the Commons of the
Mind, will be published by Yale University Press this autumn.

Copyright The Financial Times Limited 2008
--------------------------
Spring Gombe
spring.gombe@keionline.org