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Intellectual Property, Patents

Is IP defensible?


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It feels somewhat bizarre writing an Intellectual Property(IP) related post on a blog whose roots are deeply rooted in the same, but which has since found its own voice, aura and direction in a multitude of other topics. Maybe it’s because its been a while since an IP story sufficiently gripped my interest to the extent I was willing to give it my time. Or maybe I feel compelled to write this post, not least to restore the topical balance (and sort of sound sensible – back to earth), lest some immature, rash and inattentive passer-by wrongly mistake me for a fundamentalist obsessed with conspiracy theories, neo-socialist poems and anarchists.

So, as an IP practitioner who is rather passionate about their work, I sometimes find myself in a twist over defending my vocation of its unintended international implications.

for this one, there's no sitting on the fence

for this one, there’s no sitting on the fence

For the uninitiated, please allow me to explain:- So generally Patents are either good or bad depending on which side of the fence one is sitting. If you are the inventor and / or owner of a truly novel invention, and it subsequently proves to be a commercial success, the chances are even if there are a few hurdles, court battles and other annoyances along the way, you will be smiling soon enough. Some have smiled to the tune of billions.

On the other hand, if you are an infringer, an out-smarted competitor who didn’t get to the honey pot quick enough, or are a low-income sick person living in a third world country which has poor healthcare, no private medical insurance policy of your own, and it so happens that you have no affluent relatives willing to pay for your medical expenses, the chances are you will not be particularly in favour of patents (or the people who own them) – even if you don’t know it yet.

However, what is interesting to me is that neither the Patent proprietors, nor the IP laws themselves are necessarily to blame.

Instead, it seems that the balance of humaneness (it is a real word even in america – i checked!) against profit has not been successfully reached in this case. In particular, it seems to me that not as many “humane” provisions (if such could be said to exist) are written into the very fabric of the current international framework of Patent laws. In other words, the balance of power appears to be squarely in the hands of IP creators and owners (which explains why they influence patent policy) perhaps disproportionately so than users or consumers – even when IP owners to a large extent depend on consumers for their IP to be of any value (think why would anyone synthesize a drug if the public wouldnt buy it?)

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For rights such as Patents, whose very crux is with a commercial benefit in mind, this play of dynamics is most prominent in the pharmaceutical and electronics arena. While there are provisions that allow a bending of the rules in a positive sense (e.g. licenses of right granted by a government to generic manufacturers for essential medicines), this will often be a result of a dispute between generics manufacturers and Patent right holders. But a less confrontational path will boil down to the good nature of the pharmaceuticals themselves to create endeavours such as “patent pools” or voluntary licenses on reasonable terms, endeavours which doesn’t always happen.

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But obviously, drug companies can’t do charity with every drug. Patent pools, compulsory licenses and free drugs have never been known to be commercial cash cows. That’s not really where the money is.

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But getting back to what is humane, in terms of access to medicines, what should IP laws of the 21st century look like, considering that by now we’ve probably exhausted all the age-old arguments of Pro-accessibility vs Pro-pharma-investment; or Pro-generics vs Anti-generics?

Is it ethical for example, for a drug company to earn billions out of the several hundred millions it has invested in research on the justification that the profits are necessary for continuous innovation? And should patent lawsuits designed to block or punish generic companies from selling cheap drugs in countries that are poor and cannot afford essential medicines be acceptable? Doesn’t that picture in itself tarnish the patent system, making it appear dysfunctional and inhumane?

Over the years, such questions have troubled pharmaceutical companies, lawmakers and policy gurus alike, producing quite an entertaining batch of case-law (1 ; 2, 3, 4, 5 to select but a few) that minimally show the medicine makers in an aggressive light.What is beyond reasonable doubt is that if the privilege of the patent system was removed, whatsoever remained or took its place(whether such led to less innovation, or somehow, more of it) would be harder to quantify, manage and balance and would take hundreds of years to perfect, to get it to the same level of functionality as the current framework – which although far from perfect is somewhat a lot more functional than its critics would be willing to admit. And you don’t need to look far to see this; how for example would the subject of remuneration work in a patent-less world? Who sets the threshold and why would anyone listen to them? What would be the incentive, or driving force, to innovate if your profits would be minimal and others would be allowed to muscle in as soon as your innovation was out? By some estimates, it has been said that only 10% of the current levels of innovation would be happening in a world without IP laws. I strongly think if attempts at a new system were ever made, it wouldn’t be long before most people realised the new animal was unworkable (and laden with too many inconsistencies), impractical in the real world – and reverted back to what we currently have.

Recently, a new study titled “Promoting Access to Medical Technologies and Innovation: Intersections between Public Health, Intellectual Property and Trade,”   by World Trade Organisation (WTO), World Health Organisation (WHO) and the World Intellectual Property Organisation (WIPO) promises to do more in  promoting  medical innovation and access to the fruit of such innovation.

In particular, according to the Director-General of the World Trade Organisation Pascal Lamy, “Access to medicines requires the right mix of health policies, intellectual property rules and trade policy settings” He went on to point out that “And coherence is key to finding sustainable solutions. This is the spirit behind the joint study: to provide well informed, comprehensive policy choices”

Without reading what the specific provisions of the study are, and how they will be achieved, I’m unsure what to make of it, in terms of how different and far-reaching it will be in comparison to all previous attempts [which like you will see here and here have taken many forms indeed] at getting the right balance for access to medicine. But as soon as I’ve read it, I will try and outline some of its broader aims.

Whichever way this turns out to be, I’m inclined to believe that if Pharmaceutical companies can be persuaded to shift the balance of power to slightly favour consumers – whom they depend on, such measures couldn’t possibly be a bad thing. In which case, IP is indefatigably defensible.

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