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Violating A Patent As Moral Choice
kuzmich writes "The Taiwanese government has announced that it will violate patent laws to manufacture a drug that can help fight bird flu virus. In doing so, they have spelled out their reasoning very clearly: 'We have tried our best to negotiate with Roche, it means we have shown our goodwill to Roche and we appreciate their patent. But to protect our people is the utmost important thing'. Not being in Taiwan, this makes me wonder how bad the situation would have to be for some of the other governments to follow a path of violating patent and copyright laws for the benefit of the general population. Are there precedents, procedures for doing so?"
It seems to me that in a case such as this, it would be perfectly acceptable to invoke the principle of Eminent Domain. If this isn't a situation that involved the public's interest, I don't know what is!
Wikipedia sez:
...an interpretive statement, the Doha Declaration, was issued in November 2001, which indicated that TRIPs should not prevent states from dealing with public health crises. Since then PhRMA, the United States and, to a lesser extent, other developed nations, have been working to minimise the effect of the declaration. TRIPs provides for "compulsory licencing", which allows a national government to issue a licence for the production of drugs without the consent of the patent owner as long as those drugs are primarily for the domestic market. A 2003 agreement loosened the domestic market requirement, and allows developing countries to export to other countries where there is a national health problem as long as drugs exported are not part of a commercial or industrial policy [1]. Drugs exported under such a regime may be packaged or colored differently to prevent them from prejudicing markets in the developed world.
Okay, so a philosopher, a philologist, and a philatelist walk into a bar...
India has tried, WTO wins again.
9
http://yaleglobal.yale.edu/display.article?id=545
AFAIK Brazil ignores patents for AIDS drugs (or ignored in the past - not sure about what is being done now). Refer to Brazil to Ignore Patent on AIDS Drug, Brazil to Ignore Patent on AIDS Drug
njyoder - do you have any background in biology or chemistry?
How were the mechanisms of blood pressure regulation discovered (picking a drug from that list at random)?
The techniques commonly used to perform high throughput screening of new drugs - who discovered those?
The synthetic organic chemistry required to actually *make* all these novel compounds? Where do you think that was developed?
The research in fundamental biology has been absolutely *essential* to the development of modern pharmaceuticals - every bit as vital as DARPAnet was to the creation of the internet.
Yes, it's true, the public sector does not develop drugs - because when public sector entities get close to developing a drug, they sell their data to a drug company to let the drug company finish the process. However, this is not a law of nature - or even of convenience. It's a massively inefficient mess, with huge amounts of wasted effort and redundant work, driven entirely by the patent system (and the desire by University administrations to secure the profit from those patents.)
Here are the refs:
(journal articles)
"Patent fiction," Health Letter (Washington, DC): vol. 20, iss. 6, Jun 2004; p. 1.
"A Free market solution to prescription drug crises," Challenge (Armonk, NY): vol. 46, iss. 5, Sep/Oct 2003; pg. 76
"Medicines and the New Economics Environment," Journal of Public Health Policy (South Burlington, VT): vol. 23, iss. 2, 2002; p. 245.
(also a policy paper you should read)
"Bird Flu Fears: Is There a Better Way to Develop Drugs?" Washington, DC: Center for Economic and Policy Research, October 2005
"Bigger Than the Social Security Crisis: Wasteful Spending on Prescription Drugs", Washington, D.C.: Center for Economic and Policy Research, April 2005
"The Benefits to State Governments from the Free Market Drug Act," Washington, D.C.: Center for Economic and Policy Research, November 2004
The good and new comes from no quarter where it is looked for, and is always something different from what is expected.
Actually, the U.S. government wouldn't have to invoke eminent domain if they wanted to do something like this. Most of the basic research that leads to these drugs, vaccines, etc. is paid for by the federal government. The gov't then licenses this technology to biotech and pharmaceutical companies to develop a practical application, like a drug. The private company keeps IP rights to the developed drug/vaccine/whatever.
In these licensing agreements, however, is a clause that allows the government, in an emergency, to manufacture the drug/vaccine/whatever, or give a license to another manufacturer to increase supply of the product. So they're not invoking eminent domain to seize IP, they're availing themselves of a contractual provision. Among other things, this means the gov't doesn't have to compensate the IP holder.
See, for example, section 5.04(b) of the Model PHS Patent License Aggreement--Exclusive, available here.
"I've got more toys than Teruhisa Kitahara."