Societal views on patents

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Legal scholars, economists, activists, policymakers, industries, and trade organizations have held differing views on patents and engaged in contentions debates on the subject. Critical perspectives emerged in the nineteenth century, and recent debates have discussed the merits and faults of software patents and biological patents.

These debates are part of a larger discourse on intellectual property protection which also reflects differing perspectives on copyright.

History

Criticism of patents reached an early peak in Victorian Britain between 1850 and 1880, in a campaign against patenting that expanded to target copyright too and, in the judgment of historian Adrian Johns, "remains to this day the strongest [campaign] ever undertaken against intellectual property", coming close to abolishing patents.^[1] Its most prominent activists - Isambard Kingdom Brunel, William Robert Grove, William Armstrong and Robert A. MacFie - were inventors and entrepreneurs, and it was also supported by radical laissez-faire economists (The Economist published anti-patent views), law scholars, scientists (who were concerned that patents were obstructing research) and manufacturers.^[2] Johns summarizes some of their main arguments as follows:^[3]

[Patents] projected an artificial idol of the single inventor, radically denigrated the role of the intellectual commons, and blocked a path to this commons for other citizens — citizens who were all, on this account, potential inventors too. [...] Patentees were the equivalent of squatters on public land — or better, of uncouth market traders who planted their barrows in the middle of the highway and barred the way of the people.

Similar debates took place during that time in other European countries such as France, Prussia, Switzerland and the Netherlands (but not in the USA).^[4]

Based on the criticism of patents as state-granted monopolies inconsistent with free trade, the Netherlands abolished patents in 1869 (having established them in 1817), and did not reintroduce them until 1912.^[5] In Switzerland, criticism of patents delayed the introduction of patent laws until 1907.^[4][5]

Patent trolls

A long standing argument against patents is that they may hinder innovation and give rise to "troll" entities. ^[6] A holding company, pejoratively known as a "patent troll", owns a portfolio of patents, and sues others for infringement of these patents while doing little to develop the technology itself.^[7]

Pharmaceutical patents

In 2003, World Trade Organization (WTO) reached an agreement, which provides a developing country with options for obtaining needed medications under compulsory licensing or importation of cheaper versions of the drugs, even before patent expiration.^[8]

Recently this issue has received additional coverage with regards to HIV and AIDS drugs. Governments and companies in Brazil, India, Thailand and Uganda have started to challenge pharmaceutical patents, arguing that human lives are more important than patents, copyright, international trade laws, and the economic interest of the pharmaceutical industry. Anti-retroviral therapy has long been unaffordable for people suffering from HIV/AIDS in developing countries, and proponents of generic antiviral drugs argue that the human need justifies the breach of patent law. When the Thai Government Pharmaceutical Organization started producing generic antiviral drugs in March 2002 the cost of a monthly treatment for one person plummeted from $500-$750 to $30, hence making treatment more affordable. In response the US government placed Thailand on the list of "copyright violators" despite the fact that the production of antiviral drugs is not subject to copyright, even in the United States. In 2007 the government of Brazil declared Merck's efavirenz anti-retroviral drug a "public interest" medicine, and challenged Merck to negotiate lower prices with the government or have Brazil strip the patent by issuing a compulsory license.^[9][10][11]

It is reported that Ghana, Tanzania, the Democratic Republic of Congo and Ethiopia have similar plans to produce generic antiviral drugs. Western pharmaceutical companies initially responded with legal challenges, but some have now promised to introduce alternative pricing structures for developing countries and NGOs.^[10][11]

In July 2008 Nobel Prize-winning scientist Sir John Sulston called for an international biomedical treaty to clear up issues over patents.^[12]

In response to these criticisms against pharmaceutical patents it has been pointed out that less than 5% of medicines on the WHO’s essential drugs list are subject to patent monopoly^[13] and that countries who believe that these monopolies are impeding health care may not be aware that the medicines in question, particularly for HIV/AIDS related drugs, are not patented in their country.^[13] Another response could be that, without patents or other forms of research funding, the medicines in question would not even have been developed until decades later.^{[citation needed]}

Quoting a World Health Organisation report, Trevor Jones (director of research and development at the Wellcome Foundation, as of 2006) argued in 2006 that patent monopolies do not create monopoly pricing. He argued that the companies given monopolies "set prices largely on the willingness/ability to pay, also taking into account the country, disease and regulation" instead of receiving competition from legalized generics.^[10]

Patents and Tragedy of Anticommons

A theoretical problem with patent rights was discussed by law professors Michael Heller and Rebecca Sue Eisenberg. Based on Heller's theory of the tragedy of the anticommons, the authors, while not disputing role of patents in general in motivating invention and disclosure, argue that biomedical research was one of several key areas where intellectual property rights may become so fragmented that, effectively, no one can take advantage of them as to do so would require an agreement between the owners of all of the fragments. On the other hand, authors weren't sure if the problem they predict, is persistent or transitional (in the latter case, holders of intellectual property rights will find ways to address the problem when it arises, for example, via patent pools). ^[14]

Software patents

Main article: Software patent debate

See also

• Anti-copyright
• Copyleft
• Copyright commandeering
• Creative Commons
• Fair dealing
• Free culture
• List of patent legal concepts
• List of patent related topics
• List of people associated with patent law
• Criticism of the United States Patent and Trademark Office
• Notable reexaminations
• Patentleft

References

1. ^ Johns, Adrian: Piracy. The Intellectual Property Wars from Gutenberg to Gates. The University of Chicago Press, 2009, ISBN 978-0-226-40118-8, p.247
2. ^ Johns, Adrian: Piracy, p. 249, 267, 270
3. ^ Johns, Adrian: Piracy, p. 273, citing W.R. Grove: Suggestions for Improvements in the Administration of the Patent Law, The Jurist n.s. 6 (January 28, 1860) 19-25 (online copy at Google Books), and B. Sherman, L. Bently: The Making of Modern Intellectual Property Law (CUP 1999), 50-56
4. ^ ^{a b} Johns, Adrian: Piracy, p. 248
5. ^ ^{a b} Chang, Ha-Joon. "Kicking Away the Ladder: How the Economic and Intellectual Histories of Capitalism Have Been Re-Written to Justify Neo-Liberal Capitalism". Post-Autistic Economics Review. 4 September 2002: Issue 15, Article 3. Retrieved on 8 October 2008.
6. ^ TROLL OR NO TROLL? POLICING PATENT USAGE WITH AN OPEN POST-GRANT REVIEW
7. ^ "Patent troll definition and description". http://www.worldwidewords.org/turnsofphrase/tp-pat1.htm. Retrieved 2008-02-15. 
8. ^ Decision removes final patent obstacle to cheap drug imports
9. ^ "Drugs give HIV patients longer lives in victory for anti-patent activists". Health & Medicine Week. August 2004. http://www.newsrx.com/newsletters/Health-and-Medicine-Week/2004-08-02/080220043339965W.html. 
10. ^ ^{a b c} Anderson, Tatum (June 2006). "Africa rises to HIV drug challenge". BBC News. http://news.bbc.co.uk/2/hi/business/5027532.stm. 
11. ^ ^{a b} "Brazil’s HIV-drug break down". gay.com. May 2007. http://www.gay.com/news/article.html?2007/05/03/6. 
12. ^ McGrath, Matt (July 2008). "Sulston argues for openmedicine". BBC News. http://news.bbc.co.uk/2/hi/science/nature/7490384.stm. 
13. ^ ^{a b} http://www.ip-institute.org.uk/pdfs/Perceptions%20of%20IP.pdf
14. ^ Heller, Michael; Eisenberg, Sue (May 1, 1998). "Can Patents Deter Innovation? The Anticommons in Biomedical Research". Science 280 (5364): 698–701. doi:10.1126/science.280.5364.698. PMID 9563938. http://www.sciencemag.org/cgi/content/full/280/5364/698.