IE 11 is not supported. For an optimal experience visit our site on another browser.

Bioethicist: Drug makers should focus on affordability, not preserving patents

India’s top court ticked off Big Pharma this week when it denied a patent to the pharmaceutical giant Novartis on a modified version of its blockbuster cancer drug Glivec.

Novartis has been making ominous noises about ever doing business in India again. Other Big Pharma companies are making similar bellicose noises. The U.S Trade Representative’s office noted that 40 other countries had granted the patent and that it might be time to pay a little more attention to India’s emerging renegade status when it comes to enforcing international property law.

But the Indian court decision has its admirers, especially those agencies who seek to advance the health of the poor in developing countries. They noted that by declining to honor the patent, the Indian court had guaranteed continued access to low-cost copycat versions of drugs for diseases like HIV and cancer. India is the world’s biggest provider of cheap, knock-off generic medicines.

The actual case that the Indian court ruled on was not a hugely strong one for Novartis. The company had tried to defend a patent extension on its highly profitable drug by slightly tweaking its chemical composition — a standard maneuver by Big Pharma when patent protection on a blockbuster drug is wearing out but one that the Indian court found entirely unpersuasive.

The whole brouhaha over patent protection misses the key moral point. Few but lawyers will shed many tears over Big Pharma’s lament that they cant possibly do research for tomorrow’s drugs if they cannot use patents to accumulate buckets of money today by enforcing patents no matter how needy patients may be. And who really wants to join the NGOs, patient advocacy groups and some governments in poor nations in celebrating the parasitic generic industry which profits by copying name brand drugs while merely pocketing their profits with no interest in making anything new or better for tomorrow?

The current frenzy about patents obscures the much more important question which is prices. Patent or not why isn’t Novartis selling its cancer drug to poor people at prices they can afford? Why does the fact that a drug company holds a patent on a vaccine give them license to ripoff the rich to get these medical goods, which they most certainly do, to Americans? The important question which battling about patents does nothing to address is how to come up with a reasonable pricing scheme for medicines that makes sense in a world with a wide variation in purchasing power.

Lawyers who make their money litigating about patents may try to convince courts and the rest of us that patents that are the key to the availability of better drugs, but they are not. When Big Pharma holds the patent on their new discoveries, access to them is not a function of their legal right to go after anyone who tries to clone or copy them. Access is a function of what is being charged, not who owns the patent. And what is being charged—the price of drugs, vaccines, and devices --is what ought to command attention from those concerned both with access to current drugs, the overcharging of rich countries for a lot of drugs and the financial incentives needed to get companies to make new and better ones.

Pharma execs who are frothing at India’s hubris in telling them that the much favored monkeying around with the composition of a drug have nothing to say when they sell that very same drug at huge price differences where their patents are honored. And agencies and foundations like the Gates Foundation have to pony up to make sure that the drug companies and vaccine manufacturers will see it in their interest to make their patented drugs available to those staggeringly poor people who need them.

Instead of creating yet another profiteering industry—the generic drug industry—which lives by trying to poach can't we all agree that drug companies have a moral duty to make their drugs available free or at minimal cost to those who have no money to pay for them at all? And shouldn’t the very rich be wondering why it is fair that the subsidize the prices of drugs for the sort of rich so Pharma can lumber on in pursuit of more medicines? That is the policy debate that the world needs to have.  Leave the patent wars to the lawyers – they do the rest of us little good! 

Arthur Caplan, Ph.D., is the head of the Division of Medical Ethics at NYU Langone Medical Center.

Related stories:

Novartis loses landmark drug patent battle in India