'(De-)assetizing pharmaceutical patents: Patent contestations behind a blockbuster drug' by Théo Bourgeron & Susi Geiger in (2022) 51(1) Economy and Society 23-45 comments
Recent debates in public health and social sciences have shown how biofinancialization has been fuelled by patents’ transformation into ‘patent-as-assets’. This paper traces the historical construction of one such patent-as-asset bundle: the multi-billion worth architecture of patents behind the hepatitis C blockbuster drug sofosbuvir. Following this process from the late 1980s to present times, we highlight the ontological entanglements of pharmaceutical patents and the scientific, legal, commercial and political contestations that result from the focal firms’ assetization projects. By shining a light on these entanglements, our paper points to the extraordinary historical conditions required for the assetization of drug patents as well as to their vulnerability to contestations. In particular, we highlight new forms of patent activism that threaten the ‘asset condition’ of high-priced pharmaceuticals.
The authors state
‘The philosophy is very simple. Good drugs save lives and a major side effect is they can also make you rich’. This statement was made by Dr Raymond Schinazi, one of the main scientists involved in the invention of the hepatitis C cure sofosbuvir and the owner of a company that held a string of crucial patents over the forthcoming drug, just after selling his company Pharmasset to Gilead Sciences for US$11 billion in 2011. This quote signals how pharmaceutical patents – initially designed to encourage inventors to disseminate their findings without fear of intellectual theft – have been increasingly turned into assets, allowing their holders to extract large quantities of wealth from them. However, this assetization dynamic is by no means an unavoidable or uncontested process. Following the history of the patents behind sofosbuvir, in this paper we highlight the socio-material resistances to the assetization of patents, demonstrating how this process involves numerous scientific, legal, commercial and political disputes. We outline how powerful pharmaceutical actors were able to appropriate an intricate patent architecture around sofosbuvir – and through this bundling stabilize a value regime that allowed them to turn the patents into assets. However, this assetization process has remained vulnerable to contestation by other actors including scientists involved in the invention, pharmaceutical competitors, and access to medicines activists. We demonstrate that the transformation of the patents underlying sofosbuvir into profitable assets passed through several phases between 1987 and 2020 that each entailed different forms of contestations. In the most recent period, these are mainly driven by civil society and are building a potential counterweight to the current ‘assetized’ pharmaceutical business model.
We build our conceptual argument on debates regarding biopharmaceutical assetization. Birch and Muniesa (2020) have recently called for detailed empirical investigations on how things are turned into assets, which they see as the conversion of scientific knowledge, legal and other practices into ‘identifiable and alienable property’ that ‘can be owned … and capitalized as a revenue stream’ (p. 14). Considering how patents are constructed, bundled and held together as assets helps to understand important facets of contemporary biopharmaceutical capitalism, particularly the value extraction mechanisms in the sector where the (bundled) patent-as-asset is the crucial cog in the appropriation of pharmaceutical value by ‘technoscientific rentiers’ (Birch, 2020). A move from the focus of earlier biocapital literature (for instance Sunder Rajan, 2006; Waldby, 2002) toward an examination of patents-as-assets thus allows to explain how the ‘living things’ that biopharmaceutical firms commodify are turned into future-oriented sources of rent through the construction of specific valuation and accumulation regimes (Geiger & Gross, 2021). In particular, we highlight the construction and management of patent architectures as a vital lever in the profit-seeking activities of biopharmaceutical firms.
Tracing the multiple pre- and post-market patent oppositions threatening its ‘asset form’ through the case of sofosbuvir reminds us that patents-as-assets are never fully disentangled from their multiple positionalities in legal, scientific and social practices. Emphasizing the conflictual dimensions of patents-as-assets both supports and complicates existing calls to view pharmaceutical knowledge as communal (Boyle, 2003). In reality, as we will show, there is no straight line from open to enclosed knowledge (see also Kang, 2020). At the same time, a focus on the instability of patents-as-assets highlights the fact that the making of pharmaceutical assets and the many contestations they provoke open up to civil society new forms of activism against the financialized biopharmaceutical business model (Geiger & Gross, 2018; Parthasarathy, 2017). The story of sofosbuvir’s patent contestations also includes a broader historical interest, as they contributed to major shifts in the biopharmaceutical political economy. This included the 1996 legal decision favourable to Emory University, which accentuated the rift between international and US patent law, an 18-month US Senate Committee on Finance Investigation into sofosbuvir’s price and its impact on the US healthcare system, the activist oppositions against the sofosbuvir patents in 2015 and 2017, the first of their kind in high-income countries, and the advent of European state activism against pharmaceutical pricing strategies, culminating in the 2019 World Health Assembly Transparency Resolution. The contestations around this high-profile drug continue to reverberate in the political economy of pharmaceuticals, including in the fight for widespread access to COVID-19 technologies and vaccinations by access to medicines movements. Acknowledging patents’ multiple origins and trajectories strengthens calls to infuse a public utility character into the industry, which have grown louder during the COVID-19 pandemic, and which may serve to reintroduce an explicitly moral economy that acknowledges the collective nature of the knowledge underlying an invention and a duty to make it useful to the public (Gaudillière, 2008). By putting its emphasis on the contested dimensions of assetization, this paper thus ultimately points to its potential reversibility.
