Not All Patents Created Equal?

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  • 02/07/2007
UPitt Law Prof. Janice Mueller writes in the NEJM in mild favor of India's attempt to seize the Novartis patent for Gleevec. She notes that India has a world class generic drug industry and that Indian generics companies, for instance, supply 84% of the AIDS drugs that Doctors without Borders uses to treat 60,000 patients in more than 30 countries.

Wow. That's almost .005 percent of all HIV positive patients in all countries.

She goes on to note that under TRIPS WTO members have the flexibility to fine-tune what they define as inventive-step criteria to reflect national socioeconomic conditions. Which means that if NGOs and their fellow travelers want to argue that Gleevec is not really that much of a breakthrough for purposes of compulsory licensing that's ok. Which is pretty funny when you realize that the purpose of TRIPs according to NGOs is to make breakthrough drugs available to the poor.

But does it? Where is the evidence that compulsory licensing has really made a difference in improving health or making medicines available. The fact is, partnerships in improving infrastructure and in the development and production of new medicines are more productive than confiscation. And the fact is, patents are essential to bringing new products online every step of the way in most countries.

And what about the consequences of undermining innovation. What will happen to patented drugs in the future when they come from Indian, Singapore, China or partnerships formed by universities and the Gates Foundation?

The debate about IP and global health -- whatever that means -- has been polarized. I place most of the blame on the NGO class that is more interested in killing IP than in saving the lives of people on this planet. Drug companies have their own problems but the fact it is, the future of global health now rests in the hands of partnerships and new generation so global health entrepreneurs who most be the focus of our attention.

To this end, the following observation from is highly relevant.

We believe, under certain circumstances, that patents (as one form of IP), used solely to help achieve global health objectives, can and will speed delivery of affordable and accessible global health solutions. We also believe, under different circumstances, that patents will not help achieve these objectives and/or will hinder their attainment. Our responsibility, as IP managers and in consultation with cross-functional teams working to bring these solutions to fruition, is to determine which scenario (or ones in between) apply. When we get it "right", we save lives.

What's needed is not more interchange as to whether IP rights are "good" or "bad"; they are neither. Instead, we need to turn our attentions to how they can be used and answering highly project- and situation-specific questions like:

* Based on our experience and what we know now, can we use IP to help attain our global health objectives for this specific endeavor? If so, how?
* Might third party IP prevent us from achieving our objectives and if so, what can we do about it and when?
* What can we learn from the IP record about competitors and potential partners?
* How might we use IP management to make data and information sharing easier and hence accelerate development?

Center for Medicine in the Public Interest is a nonprofit, non-partisan organization promoting innovative solutions that advance medical progress, reduce health disparities, extend life and make health care more affordable, preventive and patient-centered. CMPI also provides the public, policymakers and the media a reliable source of independent scientific analysis on issues ranging from personalized medicine, food and drug safety, health care reform and comparative effectiveness.

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