Patents Kill

I just got a shot, and I'm all full of nice flu vaccine. Of course, now that flu shots are freely available -- unlike last year, when massive shortages meant I went without one -- it turns out they aren't going to help much. Sure, they'll protect against those crappy old common viruses, but they're not going to do shit against avian flu. And avian flu is the one everybody is predicting will usher in the next scary pandemic.

That's why I tried to order some Tamiflu, an antiviral drug, on the Internet. I wasn't sure whether it was sold to me legally. But imagining that it was on its way gave me the warm feeling of safety I associate with the ebbing of paranoia -- just like when I stockpiled a bunch of water, canned food, and candles for "emergencies." I kept picturing this nightmarish, flu-induced apocalypse in which only the people with Tamiflu survive. Then I found out my Tamiflu wouldn't be coming. Apparently all the gray-market pharmacies are cracking down and asking for legitimate prescriptions. Plus, doctors in Vietnam are reporting that avian flu is becoming resistant to Tamiflu. Relenza, another antiviral, may be our only hope.

So far I've resisted the urge to order pseudolegal doses of Relenza too.

All this is moot in developing nations, where few people have access to flu shots or antivirals, even if they could get prescriptions. Swiss pharmaceutical megacorp Roche owns the patent on Tamiflu and refuses to give it up, which means companies that can't pay hefty licensing fees aren't able to manufacture the stuff. Roche claims it'll be able to stock the entire world with Tamiflu in the event of an emergency. And if you believe that one, I've got some dot-coms to sell you.

In India, where a pandemic could be deadlier than the recent tsunami, pharma geeks are taking matters into their own hands. Cipla, an Indian company famous for reverse-engineering popular patented drugs like Viagra, has vowed to have a generic version of Tamiflu, called oseltamivir, on the market within months. Roche reps have denied that it would be possible for Cipla to reverse-engineer the drug so quickly, but Cipla chair Dr. Yusuf Hamied told the New York Times that scientists at his company had already completed the process. Meanwhile, lawyers at Roche say they're not ruling out suing for patent infringement, even though international laws allow for suspending patents in times of emergency.

The problem is that we don't have the emergency yet, and so technically Cipla is infringing. But when exactly should these patent laws be suspended? After the pandemic is in full force? By that time it will be too late: People will be dying in droves, and it could take a year to reverse-engineer and manufacture the drug.

I think my point is obvious. There is something profoundly unjust about the patent system, especially when applied to drugs that save lives. Lawrence Lessig and other intellectual property reformers have made this point before, but it seems particularly salient now. Pandemics are just one example of how current exemptions to patent laws aren't enough. People need access to patented pharmaceuticals now, not when the emergency hits. I understand Roche wants to make money, but it's held the patent on Tamiflu for more than a decade. Now it's time to share -- and save lives in the process.

On top of the whole killing-people thing, overly restrictive patent laws also artificially retard the process of innovation. If Cipla had been allowed to use some of the techniques pioneered by patent holders, it might have invented a better version of Tamiflu by now -- one that would defeat avian flu.

One possible way to address this problem would be to create a class of drugs that could only be released under some kind of compulsory patent license. This would force companies to license their drugs, although they'd still get compensated. Since most pharma companies already make their drugs available at reduced rates in developing countries, one could imagine reduced rates on the license for developing nations too. Drugs that prevent pandemics, for example, would clearly be suitable for the compulsory license. So would drugs for diseases, like AIDS, that afflict millions.

Pharmaceutical companies would still be able to make big bucks on frill quality-of-life drugs like Viagra and Valium. Cosmetic drugs would become the cash cows, strictly patented, while crucial, life-saving drugs would be set free. I'd be happy to pay a little more for my next dose of Viagra today if it meant that some guy in India could reverse-engineer an antiviral tomorrow.

Annalee Newitz is a surly media nerd who wonders if she's going to have to go to India to get her oseltamivir.

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