As I have written in the past, a patent does not grant the right for an inventor to sell or make something. A common misconception is that once an inventor obtains a patent, he or she may exploit their invention. For example, if an inventor discovers a new and inventive use for an already patented chemical compound, the inventor would be granted a patent for the new use. However, as the compound is still patented, the inventor is not free to use it without infringing on the original patent. What a patent does bestow upon an inventor is the right to exclude others from making or selling the patented invention. In other words, the state grants to an inventor a time limited monopoly to exploit his or her invention. The idea of a state-granted monopoly is somewhat anathema in a capitalistic society. However, as a whole, we have decided that the best way to encourage and stimulate scientific advancement is to provide inventors with a monopoly so they can exploit their inventions and recoup development costs. Of course, as in any industry, monopolies generally lead to higher prices.
In most areas of technology, the higher price of patented products doesn’t raise ethical issues, as consumers generally have a choice when purchasing such products. New and inventive products usually possess an advantage that makes our lives easier and as consumers we decide whether the increased cost is worth the advantage. For example, I am currently renovating a bathroom in my home and there is a relatively new tiling product on the market that is significantly more expensive than the older products. The choice is mine: spend additional money and save hours of time or tile the older way and save a lot of money. In the end it’s not a life-or-death decision. Whichever decision I eventually make will only hurt my pocketbook (or alternatively, the relationship with my wife).
Of course, there is one area of patented technology that is rife with ethical issues: medicine. In theory, manufacturers of patented drugs can set the price of the medicine as high as they like. In reality, the situation is much more complex and, understandably, fraught with emotion. Most people don’t blink an eye when the new iPhone is released at a cost of over $1,000. Juxtapose the price of the iPhone with the recent story of Turing Pharmaceuticals, whose CEO Martin Shkreli recently raised the price 50-fold of the old antiparasitic medicine Daraprim and was quickly labelled the “most-hated man in America.” Clearly, medicines are a different ballgame and, as a result, many countries have enacted regulations concerning patented medicines as well as implementing measures to monitor and control prices. In the field of medicine, patent monopolies granted by the state are not quite so absolute.
As a patent lawyer who spent several years in a chemistry laboratory, I believe in strong patent laws to recoup the costs of research and development. Having conducted research, I can speak first-hand of the time, effort and costs that are required. Accordingly, I believe patents are useful for advancing science and technology and inventors should be rewarded for their effort. However, there are shades of grey and, in some instances, balance is needed when it comes to patented medicines.
The important question is how to strike the appropriate balance that benefits all parties: drug developers, generic manufacturers, governments and patients around the world. There are no easy answers. Drug developers argue that strong patent laws are required to recoup the billions of dollars required to bring a new drug to market. Generic manufacturers argue that much of the recent innovation in drug development has been incremental and not worthy of such strong protection. Meanwhile, governments with aging populations are witnessing their health care budgets balloon due to the increased use of pharmaceuticals. In my next column, I’ll review how patented medicines are regulated in Canada and how new trade deals, such as the Trans-Pacific Partnership (TPP), could affect such regulations.
Mike Fenwick is a patent lawyer with Bereskin and Parr LLP in Toronto and holds a master’s degree in organic chemistry.