[Ip-health] FT: Sacrificing at the altar of patents
michael.davis@law.csuohio.edu
michael.davis@law.csuohio.edu
Tue Apr 29 04:28:02 2008
Two disastrous problems with this missive is that it relativizes
everything, when some things are too important to be treated that way, and
it buries the really decisive issues under a seemingly unassailable
implied defense of the status quo.
"[P]atents actually work well to incentivise research into the diseases of
the rich...."
This confuses "working" with "working well." Patents may work to motivate
research (although we really have no factual evidence of that), but that
they "work well" even in that limited context is an outrageous unsupported
assertion. To the extent they work by depriving the poor of the funds
needed to address really serious disease, it cannot be said that they
"work well," even in one person's opinion. To the extent that they work
through massive inefficiency, by effectively subsidizing private industry
with what should be public funds, this kind of approach sells out any hope
for reform, even though it is couched in what seems to be a lawyer's
"reasonable" middle way. There is not too much middle way between truth
and obfuscation. As long as needed funds are wasted on the patent welfare
system for inefficient pharmaceutical companies, there will never be
enough of the pie left to do what this tract suggests. While unintended,
it is a defense of the status quo, not a serious proposal for reform or
even experimentation.
Mickey Davis
> 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
>
>
>
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Mickey Davis
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