Researcher works at a lab bench

Do Pharmaceutical Patents Generate Unique Global Health Duties?

By Govind Persad

Imagine a Harvard MBA graduate trying to decide between jobs at Pfizer and at Snapchat. Both are immensely wealthy firms. Many of Pfizer’s products benefit global health. Snapchat’s are at best neutral and may even harm health. Yet many see Pfizer as distinctively culpable for global health deficits. These arguments often depend on the fact that Pfizer holds intellectual property (IP) in pharmaceuticals, whereas Snapchat holds cash and non-pharmaceutical IP.

In a recent paper in the Yale Journal of Health Policy, Law, and Ethics, Examining Pharmaceutical Exceptionalism: Intellectual Property, Practical Expediency, and Global Health, I argue for two conclusions:

  1.  Holders of pharmaceutical IP (like Pfizer) aren’t uniquely culpable for global health deficits. Other actors (like Snapchat) who fail to use available resources–including ordinary property and non-pharmaceutical IP–to address health deficits, or who affirmatively cause health deficits, also bear responsibility.
  2. But laws requiring pharmaceutical IP holders, but not others, to address global health deficits are nevertheless justifiable. Legal responsibility needn’t perfectly mirror moral responsibility.

Arguments that pharmaceutical IP holders are culpable for global health deficits have prompted policy proposals:

These proposals all focus on pharmaceutical IP holders. Why? I examine and reach skeptical conclusions about several reasons pharma IP holders might have unique duties.

  • They (and not others) own what patients need
    • Much pharma IP involves nonessential medicines. And other firms and individuals control the physical medicines themselves or have wealth that could be used to buy medicines.
  • They (and not others) interact with needy patients
  • They (and not others) are able to help at low cost to themselves

    • Pharma IP holders aren’t unique in being able to help at low cost. Pharma IP is non-rival (one person using it doesn’t prevent others from doing so). But so is non-pharma IP. And eliminating even non-rival rights involves costs. Similarly, not all IP holders are wealthy, and many non-IP-holders are wealthy.
  • They (and not others) affirmatively cause global health deficits
    • Others also cause these deficits by asserting non-IP property rights. Many big pharma firms have acted anticompetitively, but this conduct often does not depend on their IP rights

If I am right that pharmaceutical IP holders aren’t uniquely culpable for global health deficits, what follows? One possibility is the use of “pull” or “push” programs like prizes, grants, and IP buy-outs, rather than focusing on IP rights. Another is to continue imposing duties on pharma IP holders but empower them to collect contribution from other firms who are also in a position to assist.

Ultimately, though, we know that a “legislature may select one phase of one field and apply a remedy there, neglecting the others.” Requiring pharmaceutical IP holders to address global health deficits can therefore be legally acceptable, and a potentially effective strategy for improving global health, even if IP holders lack special moral responsibility.

 

Govind Persad

Govind Persad

Professor Persad’s research interests center on the legal and ethical dimensions of health insurance, health care financing (both domestic and international), and markets in health care services, as well as professional ethics and the regulation of medical research. He has been selected as a 2018-21 Greenwall Faculty Scholar in Bioethics for an ongoing research project on health insurance and protection against financial risk. His articles have appeared or will appear in the George Washington Law Review, Emory Law Journal, Boston College Law Review, and Yale Journal of Health Policy, Law, and Ethics, among others. He was selected as a Health Law Scholar in 2017 and as a BioIP Scholar in 2018 by the American Society of Law, Medicine and Ethics.

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