Slashdot Mirror
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?"
They have their priorities straight. Stopping a potential pandemic is more important than not stepping on a businessman's toes.
This happened routinely during WWII in the US with patents and forced licensing agreements for technology deemed crucial to the war effort. Even my own great grandfather's manufacturing business (springs) was confiscated due to his ethnic background.
What about the concept of "eminent domain", such as what exists in the 'states. Wouldn't that apply here?
Patent laws essentially make private property out of ideas/designs/etc. Eminent domain is the legal right of government to take private property if the need arises. It's usually applied for things like public works (roads and the like), but I can see an equivalent application in emergency situations like a looming viral outbreak.
I would assume that legally they can do this if their laws have a provision for seizure of private property in times of emergency. Of course, IANAL, and I know exactly zilch about Taiwanese law, but it seems too obvious a legal provision not to have.
Erotic is when you use a feather. Exotic is when you use the whole chicken.
Patents are "nationalized" all the time in the defense/intelligence world. If you invent something that gives the US (for example) a technological edge (say a new rocket engine, a directed energy weapon, or some such), it is very likely that the US Government will exempt itself from any protections patent law may afford you. In fact, they may classify your patent and "disappear" it from the public record. This happens all the time. It just happens that in this case, Taiwan's national interests are being served by a anti-viral compound instead of a piece of military technology. The precedents are the same and I'd expect you'd see similar rationale used in the US if it ever became necessary to do so.
Shut up and eat your vegetables!!!
Yes, but as the US tends to be the world policeman of IP law, retribution might come in the form of threats to stop defending them. There are, however, a couple of reasons the US probably wouldn't do this, which I described in a response to the parent post.
Hmm... I'm not saying you're wrong, but can't the government effectively decide/dictate its own "fair" price when invoking eminent domain? I've read a few stories in the past about people whose houses have been condemned for some highway project, complaining that they weren't paid enough for their property. So they can provide some compensation, but not the "market" price (which, let's face it, is decided by the pharmaceutical cartels -- er, I mean, companies -- anyway?). Most medicines are so ridiculously overpriced it's not even funny. (Like my one month's prescription that would cost $480 without insurance...)
At any rate, at the very least, the government can just take what it wants in the name of national security. It's what the US government did many times with new technologies that were needed for the war effort during World War II...
Brazil broke the patents for some anti-aids drugs. First, we negotiate the prices with the labs, they refuse to provide an acceptable price, then the patent were broke for the sake of thousands of people. "Under World Trade Organization (WTO) rules, a nation can break drug patents if there is a national emergency." At the time, we receive nice comments from leaders from all over the world, including Tony Blair in an MTV program. read more on: http://news.bbc.co.uk/2/hi/health/4059147.stm http://archives.cnn.com/2001/WORLD/americas/08/22/ aids.drug/
This is my first comment, and sorry about the poor english.
Oh, it's even more convoluted than that. They also subsidize research and buy most of your medicine. Push and pull at the same time. Government is schizoid, lavishly giving with one hand while taxing with the other.
But you're confusing the Taiwanese government and the US. The above applies to the Americans- what the Taiwanese has done is perfectly understandable and akin to what people have said about AIDS drugs.
Some profit is acceptable. At what point do you tell a company to just fuck off? How much higher profit can they have before you start thinking they're asking just too much? They're already making much better margins than many other industries.
And morally/ethically: how much are you willing to give to a foreign company to potentially save your countrymen and women's lives?
Information: "I want to be anthropomorphized"
Actually, drugs for HIV are so expensive that most people in the poor countries can't afford them, and there's an AIDS epidemy in Africa! There's a doctor from Thailand (Krisana Kraisintu) who's mixed the three main ingredients for the HIV-pill, without paying attention to the patents of the big drugs companies. I've read a magazine article about her where she says she's gotten death threats telling her to stop producing her own version of the pill.
Talk about being nice..
What time is it/will be over there? Check with my iPhone app!
I think this falls under the legal concept of eminent domain, which makes it legal for the state to use property for the public good. Usually this applies to real property and construction projects that will benefit the greater public, but I don't see why it wouldn't apply here.
It's not offtopic, dumbass. It's orthogonal.
It doesn't appear that Taiwan honors foreign patents via treaty: http://www.bpmlegal.com/pctco.html http://www.wipo.int/treaties/en/ip/plt/ , but I may be wrong.
The US has done basically the same thing with US patents which have "national security" implications. In the US, the Constitutional authority for patents lies in Congress, so Congress is perfectly free to decide whether patent protection should/is offered for such things. I don't profess to know such specifics about Taiwan.
"National Security is the chief cause of national insecurity." - Celine's First Law
Ayn Rand would love this one.
What you have here is a case of two evils. To ignore patent law to save people, or to ignore people to give into greed. The drug companies are out to make money. Not something anyone should readily discourage. However, its also a fact that many companies are doing so at the great expanse of lives or what value there drug really has.
Point in fact, for any specific drug. There is generally as much marketing money spent as R&D money spent. Often times quieting the facts of studies made or of even the true effectiveness of said drugs.
As well, often times the base research for said patents comes from Tax dollars.
Now, evils aside of the "Innocent" victims.
Bird Flu and it's variants is feared to be a global killer should it ever make it into the population at large. To not allow it to be reigned in early on would be a crime committed by all and any soverign nation. How would you like to see 1/10th of the US nationality wiped out because we wouldn't allow anyone access to such drugs? (Probably an over dramatization, but historically has happened)
Also, would research really go away??? The answer is Hell No. Research will still go on, by those who care. It went on before there where Biological Patents. It would go on after too. Penecillan didn't come about because of potentially making a multi millionairre out of the CEO.
Our Patent system is currently extremely innaccurate on what its true purpose is, which is just compenstaion. There should be a feasibilty limit on what anyone can charge for a patent in relation to its true development costs and difficulty of Idea.
The companies who can produce it for cheaper wins. Or they might all specialize in certain fields. The government certifies that what is produced is really what they designed in the first place. The government can pay itself back with a tax on drugs sold. It might still be efficient since nobody is duplicating research made by others that they can't see and no area is blocked by patents.
The governement research results could be made available to you if you sign a contract forcing you to share back your own research in that domain. So if other countries want to use your drugs as a basis for their own variation of the illness, you get their improvements.
Slashdot anagrams to "Sad Sloth"
Yes. St. Thomas Aquinas addresses this in ST II-II.66.7. "It is not theft, properly speaking, to take secretly and use another's property in a case of extreme need: because that which he takes for the support of his life becomes his own property by reason of that need." Although this would not be a "secret" taking (it's in the headlines!), the principle still replies. IF (and I stress the "if" because I have no idea what the price tag was) Roche is truly being unreasonable in their demands, and IF (ditto) the need to act now is truly extreme, then the Taiwanese government does have the right to act in violation of the patent.
An editorial in a recent issue of the New England Journal of Medicine, possibly the most authoritative source in the field, pointed out how drug companies spend far more money in marketing than they do in research. Also, drug companies often outsource the pure R&D to little-known laboratories, or buy patents from them, just to re-brand the products. I've been involved in research on levosimendan, created by Finnish Orion Corp., only to be licensed as Simdax® by Abbott Laboratories, Inc.
I figure that when push comes to shove, there's money to be made even from "open source" drugs. The so-called generic drugs, although not as profitable as your typical anti-depressant or branded statin, are a good, perfectly open source market for many companies.
Personally, I do believe in using "force" on private companies when emergencies arise. This might entail paying a forfeitary fee (kinda like compulsory licensing in music.)
Force (of money) is what drug companies use to get (partially connivent) physicians to prescribe one expensive, proprietary drug over a generic one, even if the benefits of the former are unproven.
Force of marketing (as in "ad bombing") is what drug companies use to get unwitting patients to ask their doctors for Plavix®, even though saving one life with Plavix® may cost millions of dollars which could be spent elsewhere more usefully. That is, especially in countries where resources are limited and the health care system is public, that money could save more lives if used for screening programs and promotion of healthy lifestyle, for example.
Sheer force of money is also what gets people to buy Aleve (naproxene sodium) over, well... Naproxen sodium in its cheaper, unbranded, but otherwise perfectly equivalent form!
So be it: fsck them for Greater Good. Granted, a better definition for "Greater Good" would be useful.
AFAIK Brazil is not ignoring the patents for AIDS drugs. Instead, they have negotiated a deep discount with the patent holder. IIRC this is done using the (WTO?) rule - that patents can be ignored to save human lives in an epidemic - as a really big bargaining chip. Because of this heavy bargaining chip, the AIDS drug manufacturer sells their drugs really cheaply in Brazil. They still get a profit, probably a decent one too because the drugs are affordable enough that they're actually being sold...
;)
I believe that Taiwan is doing the right thing, since the manufacturer of the bird flu drugs did not want to sell them the drugs for a price they were able/willing to pay.
I believe the rules for negotiating price are a bit different when one of the parties can write the law
The USA did this to Bayer in the early 20th century (WWI?) with aspirin. IIRC, Bayer held German and US patents on the drug. The US gummint decided that the drug was vital to national security and directed other folks to manufacture it. Bayer was never compensated for its loss, and came close to closing. Bayer never regained US market share, either.
That depends what you mean by 'Taiwan'.
Bribes are rarely paid either to or by governments, but pass between corrupt individuals and corporations. It takes more than the will of the government to prevent corruption (I'm sure the US is opposed to corruption, but in the past US corporations have made and received bribes; and at least equally so in Britain) and preventing corruption doesn't magically make the money involved available for the public good, although it may (e.g.) reduce defence spending in the medium term by permitting a (more) free and efficient market to develop.
John.
Yes but Eminent Domain, at least in this country, requires just compensation.
Tell that to all the people forced out of homes or businesses for amounts of money that are far below what their property is assesed at when they refuse to sell for the government's ridiculously low offers. They just say "well, tough luck, we're taking it anyway and that's all you're getting, assessments be damned".
i am a soviet space shuttle
"The majority of the expenses associated with new drug discovery are actually made in the public sector - by Universities and so forth."
0 05-03-17.1145.pdf
Private R&D spending on pharmaceuticals exceeds public R&D spending. This is actually true for R&D in general ($132 billion federal vs. $190 billion industry), and it's true for pharmaceuticals ($30 billion federal vs. $49 billion industry). For the first 3 figures, see here:
http://www.aaas.org/spp/rd/rd06main.htm [chapters 2 & 4]
For the last figure, see here:
http://www.phrma.org/publications/publications//2
The last is an industry organization, but r&d spending is part of companies' public SEC filings and the figures are in line with the aggregate numbers.
It's a fallacy that public and private pharmaceutical r&d are substitutes. Public r&d tends to focus on basic science while private r&d focuses on specific drug development and testing. Here it is from the horse's mouth:
http://ott.od.nih.gov/Reports/211856ottrept.pdf
The public sector would be just as good at developing drugs as it would be at making cars and televisions (see Union, Soviet).
"these additional resources are a *fraction* of the total increase in drug prices that result from the patents they are awarded"
If patents over-compensate drug companies, then we'd see a lot more entry into the (apparently very lucrative) drug business by new firms until these extra-ordinary returns are competed away. Even with patent protection, lucrative business models attract entry by competitors until excess profits are competed away.
Imposing Libertarian views on everyone online since 1992.
Drug companies like to whine about how much money they spend in R&D for a given drug - but they don't spend that much money. The money goes into marketing, and into profit. Developing a fancy shmancy drug might involve a 6 million dollar large scale surveys, it might involve 20 senior scientists and 40 assistants for 2 years. If the senior scientists make 200,000 a year and the assistants make 100,000 lets say R&D salary is 16 million then. Perhaps there are 20 million in facilities costs, property taxes on those facilities, which is a one time cost for the company as they can reuse their facilities. being enormously generous, and factoring in lots of mishaps, lets say there is a 10 million dollar budget for materials - including buying time on electron scanners, glassware, test monkeys, cable TV for the break room, etc, This still all adds up for a startup R&D cost of 52 million dollars, and a running cost of 32 million dollars. Ive probably overlooked lots of costs, and been naive about others, lets jump the R&D cost up to 100 million dollars just to be safe - this still doesn't require 40 years of price gouging patent control to be profitable. Rather, companies skimp on the R&D and spend on the advertising. Their ultimate goal is to sell drugs - whether those drugs are better or worse than the competition is 80% in the mind of the consumer. If a new class of drugs comes out, to compete, they can just buy a patent from a smaller group. The money goes into competitive advertising, the R&D that sells drugs is in the minds of the consumer. GJ Thailand!
This is not an abstract statistic. Real people, your friends and family included, will get the virus, have fever, cough blood and die within a few days... simple as that. I've heard that 98 of 100 will survive the bird flu pandemic... seemingly not bad, but do you realize what that means? Think of a hundred people you know about (I'm sure you can) now think of the bird flu randomly killing any two of those people... are you ok with that? This is the future we are going to be dealing with all too soon.
This is why any discussion as to what incentive there is for drug companies to develop vaccination to the bird flu seems so ridiculous to me. First off, bird flu (when it happens) will only last for one season... no matter how you slice it, there could never be any real market (as there is with AIDS) to continuously fend off bird flu long-term... it is an immediate, one-time emergency. Second, with the first point in mind, there doesn't always have to be a financial benefit to making a life-saving vaccine. There are plenty of ways of making money on other drugs that do provide continuous streams of revenue (like heartburn pills, anti-depressants... almost anything, really). Here's an idea for the drug companies: relinquish your patent, work with the government willingly to save lives from this global pandemic. Let taxes offset the cost of production and offset the rest of the production by jacking up the prices on your other, non-critical drugs. I'm not sure about everyone else, but I'd gladly welcome a kick in my taxes and pay an extra $10 per box of Prilosec (or whatnot) to know that my loved ones and I will be safe from this coming pandemic.
Food for thought: The children and the old people will be the safest from the bird flu because of their weaker immune systems. It will be people in the prime of their lives who will die the most quickly and violently because the bird flu attacks the lungs and a healthy immune system, in trying to kill the bird flu, will also attack your lungs! This is a gruesome prospect, the likes of which the most of us have (hopefully) never before had to deal with.
I sincerely believe that we as a people can prepare for and prevent this, but first we have to make the decision to do so.
I just want to be clear on this: are pharmaceutical megacorps good or bad ? The way I see it, they are effectively imposing a ransom on health. Why are drugs so expensive ? Because they are in demand. It's basically like saying "If you don't pay, you're gonna die. So exactly how much money have you got ?" And they jack up the price accordingly.
Health care and medicinal research should either be government-communized so everyone can have access to proper treatment and medicine, or shot to hell so as to skim off the weak and purify the breed through natural selection.
Now I still hate humans and wish most of them would die a horrible death for my primal amusement, but I think I'd rather see fully subsidized health care for all, and toss these glorified drug dealers back into the ranks of the working poor.
The less rich people there are, the less poor people there are. Now I'm not saying to swing into full-on communism, but maybe as a modern society we could find an efficient mix of various ideologies in order to benefit humankind as a whole. Capitalism at the expense of lives only breeds more hatred.
-Billco, Fnarg.com
If my understanding of patent law is right, even if taiwan did do its own independent research and made the medication now, it would not be able to use it because it was patented before. With patents the first to make the invention gets all the rights. Do you think that makes sense during a crisis?
Taiwan does have the money, but the BBC article failed to point out that Roche has been insufficient in supplying Tamiflu to meet worldwide demand. Taiwanese government plans to address the supply issue by manufacturing the drug in solutions. This has at least two benefits:
Beyond meeting the supply, Taiwanese government does plan to compensate Roche for what Tamiflu is worth. As I understand it, a negotiation is still going on, but it is true that Taiwanese government has went ahead to produce the drug. BBC does not make it clear either.
I once had a signature.
Oh, come on, don't be so naive. Pharma companies such as Roche have developed drugs that are extremely efficient against many forms of cancer, yet those drugs don't exist on the market for the sole reason there's not enough profit to be made. Not that they'd lose money over it (ever seen big pharma posting losses?), just that the profit margin wouldn't be big enough. Instead, the molecules end up in veterinary drugs that improve productivity (the case for one of Roche's molecules primarily developed for a certain -an severe - kind of ovarian cancer) or in a sealed envelope at the bottom of vault, never to be seen again, a complete and utter loss of knowledge.
The same goes for research. For instance, did you know several pharma companies barred researchers from developing any kind of AIDS vaccine for the past 20 year? If such a vaccine existed, it'd have to be mass produced as a generic in the face of the epidemic, which is now killing millions in under-developed (read poor) countries. Instructions were given to only develop treatments as long and expensive as possible to maximize profit.
My ex-wife works for one of Roche's competitors and she told me of several efficient drugs being shelved because the marketing dept decided the profit forecast was too slim. Thousands of people (obviously not enough) with multiple sclerosis, Crohn's disease or AIDS are being left aside dying and/or suffering on the altar of profit and (I guess mostly) shareholders' dividends.
Pharma companies are truly evil, probably a lot more than all other industries put together. The welfare of human beings definitely isn't one of their objectives and hasn't been for quite some time now. Remember they have no interest whastoever to see us fit and healthy!
Cheers,
-- It's always darker before it goes pitch black.
What is particularly unfortunate is that many drugs (including tamiflu and the superior inhaled drug relenza) were invented by relatively small biotechs. (OK, Gilead isn't small any more, but Biota is *tiny*). Small biotechs are absolutely reliant on the fees and royalties they generate through licensing their inventions to Big Pharma, who have the money to get them through the FDA approval process and marketed.
Break a patent for Roche or GSK, they'll be annoyed but hardly notice the change in cash-flow. The biotech, however, will lose its sole cash-flow life-line. Biota are collaborating with Japanese pharma Sankyo to produce a second-generation antiviral for influenza that looks like being needed once-weekly for both prophylaxis and treatment. Be a real pity to destroy promising biotech-level research like that by cutting profits at the Big Pharma end of town.
Disclaimer: Yes I work for a biotech - own shares in them too.
So far as I understand it, the reasoning isn't to take profit away from Roche. The problem is that while Tamiflu is very effective at preventing the flu, there simply isn't enough should H5N1 mutate into a human -> human transferable virus. A single dose of Tamiflu will protect a single person from contracting the flu for a single day. Given that the typical flu season is roughly 100 days, give or take, each person would need 100 doses to protect themselves. Right now, the Canadian gov't has stockpiled approximately 22 million doses. As of July of this year, Canada's population, according to the CIA world factbook, is 32,805,041 people, that's less than 1 dose per person. Canada alone would need 100x the current amount to protect the majority of it's population from a pandemic of H5N1, let alone the rest of the world. The patent would be broken to allow for more companies to create the drug, rather than Roche alone who simply can't meet the current demand.
They are some of the most unethical businesses around. DOes anyone realise that legally a drug company could have found a good cure for HIV, or Cancer, and decide through profit analysis that it is worth more to them to keep treating the disease rather than cure it. They patent the procedure/enzyme/Gene and then no one else has access to their research, or can produce a product based on that patent. I wonder what sort of negotiations Taiwan put forward which were rejected by Roche. I wonder what price they put on the drug? Could they not have agreed under very specific circumstances to allow the creation of the drug? Is it that if there IS a pandemic too bad for the rest of the world if Roche can't produce enough of this drug, at the end of the pandemic they'll make billions so good for them? Is that what it's about? Human lives too often become reduced to numbers on a profit-loss chart. I say good for Taiwan.
-Gel214th
Because, to quote Dow (buyers of Union Carbide and inheritors of the Bhopal Disaster legacy)
And I doubt their shareholders will support you (nor will the US govt) since one of the answers to this Dow statement (by a Dow shareholder) was
Remember that we're talking about tens of thousands of deaths, still ongoing...
"The way we can tell it's C# instead of Haskell is because it's nine lines instead of two." -- wadler
Fortune ran an article this month on this very subject. Had a nice scientific angle to it, rather than just an emotional-political bias. Also illustrates that lovely topic "natural selection" or "evolution" to be perfectly rude.
The gist of it is, if you dump Tamiflu into the environment to save a bunch of chickens, which is what the Asian governments are discussing [not, as you might think, to save a few sidereal infected humans] you're going to destroy Tamiflu's effectiveness. To put this in perfect perspective for you, if THEY push Tamiflu into the environment when the virus hasn't even crossed over to a human pandemic state, the virus will adapt, and by the time it's crossed over and YOU are SICK AND DYING, Tamiflu will have zero affect on the virus, and YOU will have no defense, making your chance of death about 25% based on historical projections. So Monday, when you get to work, look around, and imagine 1/4 of those people not there because some fucking QUACK in ASIA had to save some DUCKS.
Some cultural suffering v. My survival = ROAST DUCK Here's more background material from Foreign Affairs, written by some smart people that may shed additional light on the subject.
Of course it kills itself off, eventually. In 1918, the Spanish Flu (a variant of bird flu) took with it about 50 million people. It killed more people than World War I. A repeat of that incident is what everyone is so scared about.
That said, it is impossible to say how lethal this variant is, since of course only the people who got seriously ill went to hospitals. For all we know, there could be a million people who never got anything worse than a runny nose.
In this you hit the bullseye. Always wash your hands when you come inside. Always wash your hands before eating. That won't guarantee that you won't get the flu, but at least it lessens the chances.
Forget magic. Any technology distinguishable from divine power is insufficiently advanced.