Well, I missed my own blog’s symposium on Madhavi Sunder’s new book, From Goods to a Good Life: Intellectual Property and Global Justice. (I think I need a course called “Time Management and the Good Life.”) But I did read a chapter that is available online, here. Â I look forward to reading the whole book, but I wanted to highlight this part of it for those interested in patent law and related pharma IP rights.
The chapter focuses on access to drugs in less developed countries (LDCs), and makes the following case:
Not too long ago, an HIV-positive diagnosis was tantamount to a death sentence â€” 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 . . . . Thus patents have saved countless lives. 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.
The chapter begins by telling the moving story ofÂ Thembisa Mkhosana, one of thousands of South Africans who cannot afford theÂ third-lineÂ antiretroviral treatments needed to survive AIDS. Â Â â€œMy blood test results have worsened dramatically,â€ Mkhosana told a reporter, â€œAnd now I suddenly have fever and am in pain. Iâ€™m really worried.” Â “I know that Iâ€™m going to die,â€ she said, but â€œwho is going to lookÂ after my children?â€ Â Her story appears in this video.
Mkhosana’s plight raises difficult interpretive issues. Â Is she “collateral damage” from a patent system that depends on the strict rules that deny her access to the medicine she needs? Or is this an entirely avoidable tragedy, a consequence of misapplied and misinterpreted laws?Â Sunder makes the case for the latter view very convincingly, while providing a compact and accessible account of the development of international patent policy over the past 20 years.
Sunder acknowledges the importance of patent law to incentivizing the development of new drugs. However, as she wisely notes, one canâ€™t squeeze blood from a stone, however important the â€œskin in the gameâ€ ideology has become to advocates of â€œfree-marketâ€ healthcare.Â According to Sunder, â€œcreation of generic drug markets for the poor ought not significantly impact the bottom line of BigÂ Pharma, which derives only 5 to 7 percent of its profits from this part of the world.â€Â It may well be possible to make up for some of that figure by cutting back on promotional budgets in the developed world. It’s also a rather trivial figure compared to tax avoided or evaded on the tens of trillions now hidden away in tax havens.
On the other hand, Big Pharma has a number of justifications and excuses for aggressive assertion of their patents. Spokesmen aver thatÂ they are only concerned about what would happen to their profit margins if drugs circulated in an uncontrolled manner. They claim that, ifÂ poor countries are permitted to manufacture vast quantities ofÂ their drugs, those countries may sell them on the black or grey markets.Â That, in turn, would reduce the return on such drugs in theÂ developed world, leaving less money for research in the future.Sunder responds that, “The grey-marketsÂ concern is a valid oneâ€”but . . .the World Trade Organization has begun to craft creative solutions to thisÂ problem (requiring generic drugs made for developing world markets toÂ be distinctively labeled, for example).” Â As surveillance of both people and goods is better perfected by state security apparatuses and RFID technology, the grey market concern should also become more technologically manageable, enabling finer-grained and more effective price discrimination.
Access to drugs is a key area where ordinary markets simply can’t be expected to achieve humane and rational results. Â In 2008, the purchasing power of the average American dog wasÂ higher than that of forty percent of the worldâ€™s population.Â Given the extensive extant involvement of the U.S. government both in the domestic pharmaceutical industry and in the international negotiations determining its powers and duties abroad, there is a special moral obligation for U.S. citizens and politicians to assure the widespread and equitable distribution of lifesaving drugs. As Sunder states:
Economists call the millions of people who need a drug but cannotÂ afford it â€œdead weight loss.â€ But the millions who die needlessly becauseÂ of the patent systemâ€”a number that some scholars calculate as nineÂ million in the developing world annuallyâ€”are more than an inefficiencyÂ in the system. . . .Â We must bothÂ adopt alternative mechanisms for developing and distributing medicinesÂ to the poor (including prizes), and fully support the use of compulsoryÂ licenses by developing countries to treat their sick poor. Patent law cannotÂ draw the line at rectifying market failure. Our law must contend withÂ moral failure as well.
Sunder’s eloquent case for access to drugs commends respect and admiration for the Health Impact Fund, Knowledge Ecology International, Medecins sans Frontieres, and other groups for trying to close this gap.