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Patents kill, part II

Here's a pretty old post from the blog archives of Geekery Today; it was written about 17 years ago, in 2005, on the World Wide Web.

I said it before, and I’ll say it again: patents kill people.

In contrast to previous flu pandemics in 1918, 1957 and 1968, the world now has an armoury of antiviral drugs to help contain an outbreak, if the H5N1 virus circulating in birds mutates and starts to spread easily between people.

Yet Switzerland’s Roche Holding AG <ROG.VX>, which makes the best of the products, Tamiflu, finds itself on the defensive as critics demand it allow production of generic versions, in a row echoing past patent controversies over AIDS.

Patents will not stand in the way of producing the drug for mankind, the company’s chief executive, Franz Humer, insisted in an interview with Reuters on Thursday.

But just how far his company will go in issuing licences to generic producers is not yet clear.

Roche says it can satisfy current levels of demand for a normal flu season and deliver on stockpiling orders it has received from governments around the world.

That is not good enough for the likes of U.S. Senator Charles Schumer, who called this week for the Swiss group to license production of Tamiflu to five U.S. drug companies within the next 30 days.

The World Health Organisation, meanwhile, says there are not nearly enough supplies of Tamiflu and other antivirals, such as GlaxoSmithKline Plc’s <GSK.L> less popular inhaled drug Relenza.

The drugs, while not a cure, reduce the severity of influenza and may slow the spread of a pandemic, which experts fear could kill millions.

Roche and the broader pharmaceuticals industry need to get the balance right between ensuring access to potentially life-saving treatments and protecting intellectual property rights that are essential for innovation.

— Reuters 2005-10-20: Drug industry tries to avert bird flu PR disaster

Now, mealy-mouthed moderate rhetoric about balance is extremely popular in the intllectual enclosure debate — both with the intellectual protectionists and with liberal reformers such as Larry Lessig. I think that’s a serious misstep by the would-be reformers–if you give an inch to the enclosure movement you’ve effectively conceded that they have a perfect right to take a mile. And this is the mad end of the balance rhetoric: once you concede that the intellectual enclosers have a legitimate proprietary interest in forcing other people not to peacefully trade in drugs matching their formula, you have given them the means to insist that we have to figure out the right balance between the violent protection of their monopoly and efficient production of antivirals that could halt a global pandemic in its tracks. But balances imply trade-offs; in this case, the trade-off between your life and monopoly profits for patent-holders.

To hell with that. This is not the time, the place, or the issue for moderation or for balance or for half-way liberal reformism. Compromise is an understandable political move, when considering the sort of legislation you’re willing to provisionally support; but in matters of life and death (and make no mistake, that’s what patent protectionism is) it is neither useful, nor desirable, nor intellectually legitimate. We are talking about grave and gathering threats to people’s lives here; can we get a little righteous indignation, please? Can we get a little principled radicalism instead of oh-so-moderate calls for balance?

The good news is that if you and a few million of your fellow citizens die in a global bird flu pandemic, you can rest assured that you will have caused a PR disaster for the intellectual protectionists. They apparently aren’t going to suffer any moral qualms if they consign millions, especially among the world’s most vulnerable people, to their deaths in the pursuit of monopoly profits. But it may be bad for their business image. I am sure this would comfort you. If not for the fact that you were dead.

Further reading

2 replies to Patents kill, part II Use a feed to Follow replies to this article

  1. Se

    And to to think we are going to sign a “Treaty of Free Commerce” (“free” my ass!) here making big concesions to US farmaceutical companies concerning intelectual property rights….

  2. Discussed at atopian.org



    The always informative Crooked Timber has recently had a series of posts defending same-sex marriage from a series of badly argued posts over at Volokh. They continue with this amusing (in a don’t-know-if-I-should-laugh-or-cry kind of way) post on the ap

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