Not too long ago, an HIV-positive diagnosis was tantamount to a death sentence — for people in the East and the West, in the South and the North. The drug companies that perfected the antiretroviral therapies invested princely sums to find these miracle cures. To justify their investment, they rely on the promise of a patent — the twenty-year exclusive right to make, use, and sell an invention that is novel, non-obvious, and useful. The patent allows the drug company to charge high sums for the medicine, and thereby recoup its enormous investments in scientists and drug trials, while also turning a profit for shareholders and investing in research toward future breakthrough drugs. Thus patents have saved countless lives, including Thembisa’s thus far. But this structure has its limits. Indeed, the evidence is mounting that in crucial ways patents fail to promote the health of people in the developing world, and in some cases in the developed world as well.Sunder concludes -
Our theories of innovation and creativity matter. Our two-dimensional theory of intellectual-property-as-incentives has, in just several decades’ time, come to influence the way many scientists and artists alike engage the world. Standing in sharp relief from the public commitment and meaningful work of Salk sixty years ago, today many do not think twice about the claims from Big Pharma that they will not innovate at all, or worse still, that they will not share their drugs in markets like Thailand that issue compulsory licenses. We need to probe these incentive arguments on their own terms. In fact, the evidence shows that patents offer no incentive for developing drugs for neglected diseases that predominantly afflict the poor. Additionally, compulsory licenses in developing countries do little harm to innovation, because drug companies do not sell to those markets in the first place. But the problem lies much deeper than this. The legal philosopher Seana Shiffrin condemns a legal system that condones a situation where “talented people ransom their talents, withholding their creative products in order to demand greater compensation.” Shiffrin asks whether a legal system that acquiesces to such immoral demands is not itself unjust.
A one-size-fits-all patent system for drugs in the developing world is unjust on additional grounds, beyond incentives. Patents that impede access to the poor thwart both local democracy and human development. Nations must have the freedom to democratically construct patent policies to meet their humanitarian needs. For centuries countries had this freedom — nations from Germany to Switzerland took advantage of their freedom to ignore patents and copy freely knowledge that came from other parts of the globe. Indeed, the self-determination to construct one’s own patent law reflects more than a simple utilitarian calculus to promote indigenous innovation. Patent policy affects the ability of a country to stand on its own two feet, independent of foreign knowledge and industry.
Economists call the millions of people who need a drug but cannot afford it “dead weight loss.” But the millions who die needlessly because of the patent system — a number that some scholars calculate as nine million in the developing world annually — are more than an inefficiency in the system. This loss of human lives fundamentally thwarts human development at the most basic level. Furthermore, lack of access to essential medicines is patently unjust because it is preventable. Wholly unlike physical property, which will naturally lose its value if overrun by large numbers, the unique property of knowledge is that its value is not diminished by greater use — far from it, the knowledge value only grows as it is used by more people, in additional, different ways. As Thomas Jefferson wrote so eloquently centuries ago, “He who receives an idea from me, receives instruction himself without lessening mine, as he who lights his taper at mine, receives light without darkening me.” We must both adopt alternative mechanisms for developing and distributing medicines to the poor (including prizes), and fully support the use of compulsory licenses by developing countries to treat their sick poor. Patent law cannot draw the line at rectifying market failure. Our law must contend with moral failure as well.