Violating A Patent As Moral Choice 967
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?"
A Simple Solution (Score:5, Informative)
This has happened before (Score:5, Informative)
Good luck to 'em all, I say; saving lives trumps patents.
Wikipedia sez... (Score:5, Informative)
Re:This has happened before (Score:3, Informative)
Given the current climate of fear with respect to the bird flu scare, I would imagine Taiwan will ultimately face little opposition for such a move.
The Wright Brothers got their patents nilled ... (Score:1, Informative)
It is the same with some countries and drugs against Aids. South Africa I think, has officially violated patents to allow cheaper mass production of drugs to help people with Aids.
Re:Not right! (Score:5, Informative)
http://yaleglobal.yale.edu/display.article?id=545
Re:Not right! (Score:5, Informative)
Re:Blown out of all proportion... (Score:2, Informative)
allowed by WTO/TRIPS (Score:5, Informative)
This is a hot topic in the international trade community for developing countries, especially in relation to AIDS drugs.
Re:Not right! (Score:5, Informative)
There already is almost no motivation for private sector research into dealing with epidemics. The market for vaccines just isn't very lucrative compared to things like allergy treatments or impotency cures, and the market size is spotty and unpredictable. Without big profits to chase, major funding for significant advances in these areas will have to be driven by government funding anyway, so dropping the patent incentive would be no big loss.
Marketting vs R&D (Score:3, Informative)
On page 60 of Mercks 2004 annual report
2004 Merck spent
$4.9B on Materials and Manufacturing
$7.3B on Marketting & Administration
$4B on R&D
To be fair the administration expenses should be a large part of that expense, but it seems clear that more money is spent on researching and producing the drugs than selling them.
Re:Not right! (Score:3, Informative)
Re:Not right! (Score:2, Informative)
Re:Not right! (Score:5, Informative)
Uhm, what incentive is there for a private company to find a cure for a disease? It's much more cost efficient when the patient has to buy the medication in regular intervals for the rest of his/her life (see diabetes, AIDS, asthma, etc etc).
This is not a theoretical statement, but current practice. I've heard of research projects getting their commercial fundings withdrawn, because they were about to develop a permanent cure instead of a temporal one.
Re:I don't blame them. (Score:5, Informative)
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
Re:Nothing new here.... (Score:3, Informative)
This is particularly sticky because some countries buy the Chinese party line that Taiwan is a province of the PRC, and others superficially (few officially) recognize Taiwan as sovreign. Taiwan didn't sign the Berne Convention on copyrights (not patents, I know the difference), and Taiwan isn't a WIPO member.
Does Switzerland or the EU formally recognize Taiwan as distinct from the PRC?
Baker's paper (Score:1, Informative)
Re:Not right! (Score:5, Informative)
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 [nih.gov].
Re:A Simple Solution (Score:3, Informative)
But again, just because you have no direct experience in this area doesn't mean it doesn't happen. I'd simply ask you why you think this DOESN'T happen? You are quite naive if you think it doesn't, and doesn't happen quite often.
The US government spends about $200 billion a year on procuring technology just for the DoD alone. That dwarfs the R&D budgets of all the major US commercial technology providers combined by an order of magnitude at least. It's funny that people think companies like Microsoft, Apple, Oracle, etc. are the technology innovators in our economy. The vast, vast amount of technology R&D happens in the context of defense contracts, not the open commercial market. Rest assured that non-trivial amounts of the IP created in those efforts never sees the light of day in the commercial market until long after the technology is no longer state of the art in the defense space.
Re:Not right! (Score:2, Informative)
Re:I Agree, but... (Score:5, Informative)
Re:Not right! (Score:3, Informative)
got any evidence to support this outrageous statement? Change "Most of the" to "Occasionally." If you don't think pharamceutical companies do basic research, you are crazy.
Re:Not right! (Score:5, Informative)
That doesn't mean they have a right to profit, it's only to claim out of pocket expenses. In this case since it is virtual property that has already paid for it's own research, it has only cost the company potential profit. They should have sold the license for a reasonable amount but they refused, now they get nothing.
It's about time more goverments took this bargaining approach to make drugs available to those who need them and to stomp on those who see $$$ signs in other peoples misery. Sure we need profitable drug companies, it's not cheap to get a new drug to market. However in return for expenditure by the drug companies, taxpayers contribute serious money to police the quality (and patents) of the drugs.
Everyone is a victim of a disease at one time or another and lack of sanitation and quality medicines will turn a "simple" illness into a death sentence. In the interests of public health, governments should have an obligation to demand reasonable contributions from patients, taxpayers and drug companies. If patent law gets in the way, change it.
Re:This oughta be good (Score:2, Informative)
Re:Not right! (Score:5, Informative)
USA also threatened to ignore patent (Score:4, Informative)
You know, I actually asked this once. (Score:4, Informative)
But that's a rather weak case [csicop.org], so never mind.
Re:Not right! (Score:4, Informative)
Re:Not right! (Score:3, Informative)
China already has to get involved. The precurser chemical for Tamiflu is shikimic acid, which can only be derived from a plant called star anise. The only sources of significant quantities of that variety of star anise in the world are four provinces in China. One company has contracted to buy the whole crop of star anise.
Guess which company?
Canada did this recently (Score:2, Informative)
Re:Not right! (Score:5, Informative)
José Serra, the Health Minister in the previous administration in Brazil (he unsuccessfully ran for president in 2002, losing in the runoff election to the current president, Luís Inácio Lula da Silva, and is now mayor of the city of São Paulo), was responsible for Brazil's AIDS policy, which has been very successful and is recognized as a model for government AIDS policies worldwide. One major part of the policy included making the best AIDS drugs available to patients free. The problem is that the drug companies were jacking up the prices, and Brazil's AIDS budget was not going to be large enough to be able to continue this critical part of the policy that had been so successful in controlling the spread of AIDS and the number of AIDS-related deaths.
Serra tried to negotiate with the multinational pharmaceutical companies selling the AIDS drugs in Brazil, but they didn't want to negotiate. Serra showed them that he had the power, in the event of a national emergency, to make a declaration permitting Brazilian companies to break patents. He told them it would not be difficult to make the case of AIDS being a national emergency. One of the two companies decided to negotiate and rolled back some of its price increases. The other (Roche) balked, so Serra went ahead with the process of issuing the permission to break the patent.
The pharmaceutical companies got the US government to complain to the WTO, but the complaint was eventually dropped. The pharmaceutical companies negotiated with the Brazilian government (the negotiations continued through the change of administrations and are still ongoing, nearly three years after the change) and the Brazilian government continues to buy the drugs.
FWIW, Serra is very highly respected by health professionals in Brazil. In addition to standing up to the multinational pharmaceutical companies on the AIDS drugs, he also stood up to them on generic drugs. He helped push through a new policy permitting generic drugs in Brazil, greatly reducing the cost of medications for the Brazilian people. The pharmaceutical companies, for obvious (but shameful) reasons, opposed the introduction of generics in Brazil. Brave guy. Lula, the current president, is also man of exceptional bravery, having been one of the founders of Brazil's labor movement when the government of Brazil was a right-wing military dictatorship, but that's another story. In addition to the accomplishments mentioned above Serra was responsible for pushing through a modern organ donation law in Brazil.
Re:must be done carefully though, in both cases (Score:5, Informative)
Now that Roche have got themselves a nice protectionism program going with the patent system, they don't think any other company, or nation in this case, should do to them what they did to their UK competitors. If any of the founding bandits were still haunting the boardroom at Roche, they would recognize the supreme justice of the current situation.
Re:Not right! (Score:4, Informative)
In a free market capitalist economy competition is what drives improvement. The ability to develop and produce more, cheaper. Kill competition by granting monopolies and you dont get more development, you get less. Take away competetive pressure and companies grow fat and inefficient, just like state-run monopolies. The inefficiencies drive costs and lead to massive wasted resources. Remember, not even 20% of the income of the pharmcorps is spent on R&D. They spend twice what they spend on R&D on marketing and administration.
The unfortunate economics of monopolies means that it will only get worse; pricing in monopoly fields isnt driven by competition, it's driven by available capital and the cost at which people will do without instead. The more money available in the insurance systems, the more money the pharmcorps will charge. And promptly spend on marketing, convincing doctors to prescribe patented headache pills, instead of generics.
"in turn we will sacrafice the insentive"
A monopoly is an extremely inappropriate incentive in a free market, and the likelyhood is it does more damage than good. A vast amount of the medical research is already funded by various states, and something along the lines of granting per-use payments, government contracting for development or tax breaks for patents would be far more in line with other extra incentives in the free market.
Re:Not right! (Score:5, Informative)
The issue here is complicated because of trade deals the US and other nations have set up. Essentially these deals set the USA up to pay for the research and development costs for drugs for the world. In return the US would bill its consumers very high rates for drugs in order to finance this and provide the "poor" nations of the world with "cheap" drugs. This funky set of deals set up the USA to fleese its sick and elderly as a secret way to assist the "poor" nations populations who by the theory could not afford to finance their own medicine.
The deals worked for a short time until the "poor" nations started generic production. This bloomed a "cheap" drug market for the world leaving US consumers paying 10 to 20 times the price paid by others in the world. The Big Pharma guys who were going to provide US workers with jobs under this scam promptly went of shore this is why the developments and owners are multinationals. This has shattered the underpenning of Social Security in the USA. It has also left drug development nearly 100% funded by the US Government under contract fictions that appear private or they would violate the trade deals. This is because the trade deals left the US with a "drug monopoly." Of course it is falling apart.
With all of this corporate and government con game going on, there is no Pandemic. It too is a fiction. Bird Flu is indegenous to the Americas. It in no way fits the profile of a "Pandemic." It is too lethal to be a viable pathogen. It kills itself off. What we are looking at is the last gasp of the Big Pharma guys trying to shake down the taxpayers of the USA for a pile of money while they run off shore with the money . All of this before the USA runs out of cash trying to pay for the retirement situation that is coming in 2015. They all know that any flu epidemic can be contained by a campaign to support hand washing. There is no threat except of stupid people. The fact that a foreign nation is now going to make large quantities of the drug Tamiflu threatens the money in this con game.
Tamiflu, assuming Bird Flu were to mutate into a dangerous flu "Pandemic", would be of no value. The disease kills in about 9 days. It is symptomatic only 2 of those days. By the time a person knew they were getting sick, getting a prescription would not save them. Its value is probably null anyway as it appears it is ineffective against the disease. Its only value would be prophalaxis and that is questionable. Taiwan is just raiding the money game here.
This is state sponsored terrorism using a "virus" as a mafia enforcer threat to shake its people down for money. This is because vaccination is also of no value against bird flu as it kills fertile eggs. (The place one would make a vaccine) In reality there is only one defense against the bird flu. It is nothing more nor less than a public campaign for good hygene and hand washing. That program would so devastate the healthcare industry by negating their profits that nobody is going to consider it. Sorry folks it is all about money. Thanks to Taiwan, the international floating crap game has been raided. Maybe the whole US monopoly will come down on this one and we all will be better off including those of us in the USA.
Re:Not right! (Score:3, Informative)
Jerks like you will put a price in dollars on fucking anything, even your grandmother.
And you find nothing wrong with this.
Ever wondered why people are willing to die hurling airliners into your skyscrapers????
Why is this being modded interesting/insightful? The ad hominem virtually overwhelms any merit to be found in the more relevant (and quite valid) point against the life vs. property/money concept.
The reference endorsing the 9/11 attacks is particularly appalling and counterproductive. How does that invective increase your position's superiority over the one you are attacking? It doesn't of course. It's simply a vicious, mean-spirited rant--when in fact you do have a worthy point to make--converting life to property/money is an atrocity.
Leave off the anti-American sentiment and personal attacks. Expand your argument on the salient point. It will bolster your position, and increase your credibility (and then the interesting/informative mods will be validated, IMO). Personal attacks are pointless in rational discussion and generally indicate a losing proposition in a debate.
Rational discussion, on /.? Whatever am I thinking?
Re:Not right! (Score:3, Informative)
In your kneejerk rush to shill for the multinational pharmaceutical companies and make the "case" for their price gouging, you seem to have confused two separate issues.
One is generic drugs, which don't violate patents. Generic drugs are available in the USA and many other places. Serra wanted to make them available to Brazilian consumers. The multinational pharmaceutical companies opposed the project to bring generic drugs to Brazil, and that is indeed shameful. They were not protecting patents or other "intellectual property;" they were only protecting the price-gouging they were doing with no viable alternatives available in the market. What Serra did was to bring Brazil's medication market into the modern world, opening up competition. That's how capitalism is supposed to work for consumers. The multinational pharmaceutical companies didn't want to allow legal competition, so they could charge whatever they damn well pleased for drugs in Brazil. What Serra did in helping push through the generic drug legislative project was nothing short of heroic, and I think Milton Friedman would agree that bringing in more competition is a good thing.
The other issue is the patent breaking for the AIDS medications. The point on that issue is that the medications had already been priced. But then somebody in the pharmaceutical companies saw the large demand in Brazil (because essentially every AIDS patient was being represented in the purchases) and saw in that an opportunity to gouge. So they jacked up their prices. The normal pharmaceutical company argument, that things like R&D costs are built into the prices of the drugs, don't apply in this case, because they had already set a price and sold the drugs for years at that price, then suddenly decided to jack up the prices in Brazil. The Brazilian government was even willing to negotiate reasonable price adjustments, but the outrageous price increases suddenly applied to these treatments would have made Brazil's AIDS policy completely inviable.
The patent-breaking threat is not a case of Brazil deciding it wanted the drugs for free or even cheaper. Serra tried very hard to get the drug companies to negotiate. In fact, he got one to the table and an accord was eventually reached. But the other decided price gouging on AIDS drugs was an important part of its business plan in Brazil, and so refused to negotiate the size of its unnecessary price increases. Serra (and since Serra left office, his successor in the current government) therefore went ahead with the patent breaking action.
As for the argument that if drugs are more profitable, that gives the pharmas more incentive to create new drugs, there may be some truth to it. Serra tried to allow these companies to continue to sell their drugs at the previously set prices, allowing even for reasonable adjustments. But the companies thought they saw an opportunity to drastically increase the prices on medications already in wide use, and their profits with it. As a result, they may end up losing all their profits from Brazil. Brazil really has no choice. The government can either continue its policy, probably the best one in the world at containing the spread of AIDS and limiting the number of AIDS-related deaths, but in so doing not allow the pharmaceutical companies to just make up new prices completely out of line with the established and market-accepted prices, or the government can allow the drug companies to jack up their prices at will, which would mak
Re:Not right! (Score:5, Informative)
That logic is simply ridiculous, with the high population densities of cities and the speed and frequency with which people travel. You're seriously suggesting that a human-transmissible bird flu wouldn't be a "viable pathogen" because it would kill everyone in Taiwan too quickly to spread? Even if that were true, which is isn't, wouldn't you expect the Taiwanese to be concerned about that?
The idea that a human-transmissible bird flu would be dangerous has already been demonstrated by the 1918 flu epidemic that killed 20-50 million people. The 1918 virus was recently reconstructed, and it was found to be very similar to the bird flu viruses that are around in Asia today. The actual scientific paper, available here [sciencemag.org] states:
"Until now, the exceptional virulence of the 1918 pandemic influenza virus has been a question of historical curiosity. Herein, we demonstrate the successful reconstruction of the 1918 pandemic virus in order to understand more fully the virulence of this virus and possibly of other human influenza pandemic viruses. Because the emergence of another pandemic virus is considered likely, if not inevitable (25), characterization of the 1918 virus may enable us to recognize the potential threat posed by new influenza virus strains, and it will shed light on the prophylactic and therapeutic countermeasures that will be needed to control pandemic viruses."
Tamiflu, assuming Bird Flu were to mutate into a dangerous flu "Pandemic", would be of no value. The disease kills in about 9 days. It is symptomatic only 2 of those days. By the time a person knew they were getting sick, getting a prescription would not save them. Its value is probably null anyway as it appears it is ineffective against the disease. Its only value would be prophalaxis and that is questionable.
A scientific paper demonstrating Tamiflu's effectiveness against the H5N1 virus is here
A paper demonstrating Tamiflu's effectiveness against the 1918 flu virus (which is similar to the virus we fear will emerge) is here. [pnas.org]
Re:Not right! (Score:3, Informative)