Protecting Intellectual Property Rights in the Face of a Potential Pandemic

Issues surrounding medicine patents truly test the moral groundings of patent law.  Specifically, when companies develop and patent drugs that treat life threatening diseases, the inherent morality behind restrictive patent laws seems to lose legitimacy.  The objectives underlying intellectual property must be weighed against the immediate humanitarian agenda.  The anti-patent camp can argue that corporations should not profit from diseases and that public health is priceless, worthy of any sacrifice, including rights to property.  However, even in such exceptional circumstances, one cannot lose sight of the principles behind patent laws and their practical utilitarian objectives.  

Tamilflu, used to treat the avian flu, was developed and is privately held by Roche.  The avian flu is a lethal virus which spreads from poultry to humans directly in contact with them [i].  The major concern is that the virus could mutate to transfer from person to person [ii].  In such a case, studies have shown that even a mild outbreak could result in 1.4 deaths and cost $330 billion while a worst-case scenario could lead to deaths upward of 142 million [iii].   

The fear is that Roche lacks the capacity to produce enough Tamilflu treatment to combat a large outbreak of the virus [iv].  In “Tamilflu, the Takings clause, and Compulsory Licenses…” [v], Amanda Mitchell explores the options available to the US Government in resolving the inadequate supply of Tamilflu.  The first option considered is compulsory licenses which allows the US Government to use patents without the owner’s permission, after which, the owner can sue for infringement.  Furthermore, the government may take an even more extreme approach of “Eminent Domain” which utilizes the Government’s constitutional power to take title of property on the basis of public interest and provide reasonable compensation.  Although, this right is typically reserved for taking title of land, it may also be used for taking possession of patents.  The Government would have to compensate for the whole cost of a patent, which by considering the potentially large demand for Tamilflu, could be very high.  Nonetheless, Roche stands to lose by either approach as they lose their dominant power in the Tamilflu market.   

Although it is difficult to argue against the morality of overpowering pharmaceutical companies to serve the public health, Governments must show restraint in taking a strict adversarial approach.  The enormous profit which a company stands to gain from finding a cure to dangerous viruses is the driving force behind their innovation.  Ideally, the companies would require only humanitarian motivates to develop their drug, however, development is very costly and there is no guarantee the investment will be successful.   Moreover, corporations are currently very effective agents in developing new drugs.  Governments must be careful to preserve incentives for investing in costly research to solve the world’s health problems.   

It is not argued that pharmaceuticals are perfect or that they should be left free to do as they please.  There is great need for reform to develop and execute laws that compel these companies to compromise their profits when possible to serve the humanitarian agenda.  However, one must also not punish them for being in an industry which provides life saving medication.  There is a tendency to be more critical of pharmaceutical companies because they profit from saving lives, as opposed to providing luxury goods.  Alternatively, society is more accepting of companies exploiting our desires instead of our needs.  Instead of condemning the pharmaceuticals for providing life saving products, we must commend them.   

It must be restated that regulation is necessary as pharmaceuticals hold a great deal of power in relation to public interest.  However, governments must exercise their powers with discretion.  Infringement of pharmaceuticals’ rights to property must only be exercised as required and compensation must be fair.  In the case of Tamilflu and Roche, there are other ways to compel corporations to increase the supply of their drugs.  By taking an adversarial approach, governments may misuse their powers in the name of public interest; which could serve to hurt that exact cause.   

Protection of pharmaceuticals has a utilitarian grounding by motivating medical innovation, and is also grounded in justice, as the products developed save lives.  Although, there is a great need for regulation and reform, governments must use their powers with discretion to assure companies like Roche continue to develop the drugs that can protect us from new viruses such as the avian flu.   

[i] Mitchell Amanda, “Tamilflu, the Takings clause, and Compulsory Licenses: An Exploration of the Government’s Options for Accessing Medical Patents” California Law Review (2007) Volume 95 at 538.[ii] Ibid, at 538.[iii] Ibid, at 538.[iv] Ibid, at 539.