Over at Xconomy, there’s a provocative piece entitled “Diamonds Are Forever: Why Not Drug Patents?”. You have to give the author (Carl Weissman) credit for not playing to the crowd, I guess. So what’s his reasoning?
I can own a tangible good forever, I can own a trademark virtually forever, I can own a copyright for my entire life plus 70 years. But property which is more intrinsically a part of me - my idea, my invention, the product of my intellect - I am only allowed to own that for 20 years after I reveal it to the patent office.
Rationally, it seems obvious that all property - whether tangible or intellectual - should be subject to the same rules and laws of ownership. If you can own a gemstone forever, you should be able to own an invention forever. In fact, if a society wishes to impose differential standards for ownership rights to different types of property, wouldn’t it make more sense that preferential treatment be given to those items which are the product of your talent, your creativity, your self, over those things which you earn or purchase based upon that product of your efforts? The logical extension of this argument, in any free society, is that you should be able to own all property, whether purchased or invented, physical or ethereal, for as long as you wish. Patents, trademarks, copyrights, title - all should be perpetual.
Of course, since patents and copyright aren’t perpetual, someone must, along the way, have made a case for why they shouldn’t be. I’m going to stick with patents in this post, since copyright isn’t nearly as relevant to the drug business, but I refer you to this discussion and the links therein for some reasons why copyright is probably too lengthy in the US already. (A quick note: no creative work has gone into the public domain in this country since 1978. This is a state of affairs we can blame partly on a cartoon mouse, which also benefits some guys in capes).
The idea behind a patent system is that you will disclose your idea, in enough detail that others can follow it and build on it. In return, you will get a licensed monopoly on it for a set period of time, after which it becomes available to all, to profit from as best they can. We can argue about how well this ideal is realized – how full the disclosures are, how long the rights should last (and how long they really do). But I think that the basic idea is a sound one.
But Weissman just brushes it off, as far as I can see. His piece addresses some of the possible objections, but mostly by assertion. He points out that me-too drug efforts manage to populate therapeutic spaces (such as with the statins), and says that this shows that no monopolies would be created by perpetual drug patent rights. But any analysis of the drug landscape has to take into account that it came about under the current patent system. Everyone knows that Lipitor, for example, is going to expire eventually, and that their own drugs will, too. And everyone has planned accordingly. It’s not possible to draw conclusions about a perpetual patent regime by bringing up examples from the current one, since it’s so different. It’s only possible to draw these conclusions from the inner recesses of one’s own body – the brain, of course I mean.
His next point is drug pricing:
”With a perpetual patent, drug companies would be free to think longer term about pricing (without the artificial addition of patent lifetime in the equation). They would set prices lower in order to discourage new competitors from entering their market. This would enable the innovator to retain greater market share, and generate higher long term sales. The likely result is pricing near, if not lower, than current generic pricing.”
I’m not necessarily buying this one, either, since I think that drug companies will, like anyone else, try to maximize profits. And I think that the ability of (somewhat) lower prices to discourage competition is low, compared to the lure of more immediate higher profits. But really, drug pricing isn’t my biggest concern with this whole idea. That comes up here:
”In fact, with perpetual patents, the public good is better served because the incentive to discover and develop drugs is maximized. Secure in the knowledge that they will own the products of their own discovery and development efforts, drug companies will be able to assess the true risk vs. reward of any development programs free of artificial time limits imposed upon their ownership of those products.
Now here’s where I really part company with this idea, once and for all. I see where he gets this idea – patent rights are the incentive for discovery, so stronger patent rights are an incentive for even more discovery, right? But that first sentence is almost totally wrong; let me see if I can spell out why. No, what keeps us discovering new drugs is the fact that our patents are going to expire.
There, that wasn’t hard. But it’s true. The time limits we work under are one of the things that keeps everyone moving. We work hard before filing, because we’re afraid that someone else will scoop us. And we work hard after filing, because the clock has begun to tick. Every patent is a wasting asset, which is what seems to be driving Weissman crazy. And sometimes it drives me crazy, too, but I think his solution is even crazier.
I’m not arguing for shortening patent terms, either, just in case someone gets that idea. There’s a range where companies have the best chances to realize the return on their ideas and their labor, and I’m not sure that we’ve quite found it. But I know for sure that the patent lifespan needed is somewhere between zero and infinity. And I know that the argument for infinity does not convince. Just because a time limit is artificial doesn't mean it's wrong, or that there should be no time limit at all.