Criticism of patents
Encyclopedia
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
.
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. 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. Johns summarizes some of their main arguments as follows:
Similar debates took place during that time in other European countries such as France, Prussia
, Switzerland and the Netherlands (but not in the USA).
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. In Switzerland, criticism of patents delayed the introduction of patent laws until 1907.
", owns a portfolio of patents, and sues others for infringement of these patents while doing little to develop the technology itself.
(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.
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.
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.
In July 2008 Nobel Prize-winning scientist Sir John Sulston called for an international biomedical treaty to clear up issues over patents.
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 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. 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.
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.
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).
Software patent debate
The software patent debate is the argument dealing with the extent to which it should be possible to patent software and computer-implemented inventions as a matter of public policy. Policy debate on software patents has been active for years. The opponents to software patents have gained more...
and biological patents.
These debates are part of a larger discourse on intellectual property protection which also reflects differing perspectives on copyright
Anti-copyright
Anti-copyright refers to the complete or partial opposition to prevalent copyright laws. Copyright is known as the owner's right for copies to be only made by the owner or with his/her authorization in form of a license....
.
History
Criticism of patents reached an early peak in Victorian Britain between 1850 and 1880, in a campaign against patenting that expanded to target copyrightCopyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
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. Its most prominent activists - Isambard Kingdom Brunel
Isambard Kingdom Brunel
Isambard Kingdom Brunel, FRS , was a British civil engineer who built bridges and dockyards including the construction of the first major British railway, the Great Western Railway; a series of steamships, including the first propeller-driven transatlantic steamship; and numerous important bridges...
, William Robert Grove
William Robert Grove
Sir William Robert Grove PC QC FRS was a judge and physical scientist. He anticipated the general theory of the conservation of energy, and was a pioneer of fuel cell technology.-Early life:...
, William Armstrong and Robert A. MacFie
Robert Andrew Macfie
Robert Andrew Macfie was a Scottish business man and from November 1868 to February 1874 a Liberal Party Member of the British Parliament representing the constituency of Leith Burghs near to Edinburgh.-References :...
- were inventors and entrepreneurs, and it was also supported by radical laissez-faire
Laissez-faire
In economics, laissez-faire describes an environment in which transactions between private parties are free from state intervention, including restrictive regulations, taxes, tariffs and enforced monopolies....
economists (The Economist
The Economist
The Economist is an English-language weekly news and international affairs publication owned by The Economist Newspaper Ltd. and edited in offices in the City of Westminster, London, England. Continuous publication began under founder James Wilson in September 1843...
published anti-patent views), law scholars, scientists (who were concerned that patents were obstructing research) and manufacturers. Johns summarizes some of their main arguments as follows:
- [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
Prussia
Prussia was a German kingdom and historic state originating out of the Duchy of Prussia and the Margraviate of Brandenburg. For centuries, the House of Hohenzollern ruled Prussia, successfully expanding its size by way of an unusually well-organized and effective army. Prussia shaped the history...
, Switzerland and the Netherlands (but not in the USA).
Based on the criticism of patents as state-granted monopolies inconsistent with free trade
Free trade
Under a free trade policy, prices emerge from supply and demand, and are the sole determinant of resource allocation. 'Free' trade differs from other forms of trade policy where the allocation of goods and services among trading countries are determined by price strategies that may differ from...
, the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
abolished patents in 1869 (having established them in 1817), and did not reintroduce them until 1912. In Switzerland, criticism of patents delayed the introduction of patent laws until 1907.
Patent trolls
A long standing argument against patents is that they may hinder innovation and give rise to "troll" entities. A holding company, pejoratively known as a "patent trollPatent troll
Patent troll is a pejorative but questioned term used for a person or company who is a non-practicing inventor, and buys and enforces patents against one or more alleged infringers in a manner considered by the target or observers as unduly aggressive or opportunistic, often with no intention to...
", owns a portfolio of patents, and sues others for infringement of these patents while doing little to develop the technology itself.
Pharmaceutical patents
In 2003, World Trade OrganizationWorld Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
(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.
Recently this issue has received additional coverage with regards to HIV
HIV
Human immunodeficiency virus is a lentivirus that causes acquired immunodeficiency syndrome , a condition in humans in which progressive failure of the immune system allows life-threatening opportunistic infections and cancers to thrive...
and AIDS
AIDS
Acquired immune deficiency syndrome or acquired immunodeficiency syndrome is a disease of the human immune system caused by the human immunodeficiency virus...
drugs. Governments and companies in Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
, India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
, Thailand
Thailand
Thailand , officially the Kingdom of Thailand , formerly known as Siam , is a country located at the centre of the Indochina peninsula and Southeast Asia. It is bordered to the north by Burma and Laos, to the east by Laos and Cambodia, to the south by the Gulf of Thailand and Malaysia, and to the...
and Uganda
Uganda
Uganda , officially the Republic of Uganda, is a landlocked country in East Africa. Uganda is also known as the "Pearl of Africa". It is bordered on the east by Kenya, on the north by South Sudan, on the west by the Democratic Republic of the Congo, on the southwest by Rwanda, and on the south by...
have started to challenge pharmaceutical patents, arguing that human lives are more important than patents, copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, 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
Merck & Co.
Merck & Co., Inc. , also known as Merck Sharp & Dohme or MSD outside the United States and Canada, is one of the largest pharmaceutical companies in the world. The Merck headquarters is located in Whitehouse Station, New Jersey, an unincorporated area in Readington Township...
's efavirenz
Efavirenz
Efavirenz is a non-nucleoside reverse transcriptase inhibitor and is used as part of highly active antiretroviral therapy for the treatment of a human immunodeficiency virus type 1....
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.
It is reported that Ghana
Ghana
Ghana , officially the Republic of Ghana, is a country located in West Africa. It is bordered by Côte d'Ivoire to the west, Burkina Faso to the north, Togo to the east, and the Gulf of Guinea to the south...
, Tanzania
Tanzania
The United Republic of Tanzania is a country in East Africa bordered by Kenya and Uganda to the north, Rwanda, Burundi, and the Democratic Republic of the Congo to the west, and Zambia, Malawi, and Mozambique to the south. The country's eastern borders lie on the Indian Ocean.Tanzania is a state...
, the Democratic Republic of Congo and Ethiopia
Ethiopia
Ethiopia , officially known as the Federal Democratic Republic of Ethiopia, is a country located in the Horn of Africa. It is the second-most populous nation in Africa, with over 82 million inhabitants, and the tenth-largest by area, occupying 1,100,000 km2...
have similar plans to produce generic antiviral drugs. Western
Western world
The Western world, also known as the West and the Occident , is a term referring to the countries of Western Europe , the countries of the Americas, as well all countries of Northern and Central Europe, Australia and New Zealand...
pharmaceutical companies initially responded with legal challenges, but some have now promised to introduce alternative pricing structures for developing countries and NGOs.
In July 2008 Nobel Prize-winning scientist Sir John Sulston called for an international biomedical treaty to clear up issues over patents.
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 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. 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.
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.
Patents and Tragedy of Anticommons
A theoretical problem with patent rights was discussed by law professors Michael HellerMichael Heller (law professor)
Michael A. Heller is the Lawrence A. Wien Professor of Real Estate Law at Columbia Law School and is one of America's leading authorities on property...
and Rebecca Sue Eisenberg. Based on Heller's theory of the tragedy of the anticommons
Tragedy of the anticommons
The tragedy of the anticommons is a neologism coined by Michael Heller to describe a coordination breakdown where the existence of numerous rightsholders frustrates achieving a socially desirable outcome. The term mirrors the older term tragedy of the commons used to describe coordination...
, 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).
See also
- Anti-copyrightAnti-copyrightAnti-copyright refers to the complete or partial opposition to prevalent copyright laws. Copyright is known as the owner's right for copies to be only made by the owner or with his/her authorization in form of a license....
- CopyleftCopyleftCopyleft is a play on the word copyright to describe the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work...
- Copyright commandeering
- Creative CommonsCreative CommonsCreative Commons is a non-profit organization headquartered in Mountain View, California, United States devoted to expanding the range of creative works available for others to build upon legally and to share. The organization has released several copyright-licenses known as Creative Commons...
- Fair dealingFair dealingFair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations....
- Free cultureFree Culture movementThe free culture movement is a social movement that promotes the freedom to distribute and modify creative works in the form of free content by using the Internet and other forms of media....
- 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
- PatentleftPatentleftPatentleft is the practice of licensing patents for royalty-free use, on the condition that adopters license related improvements they develop under the same terms...