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Criticism of patents

The criticism of patents, sometimes associated with the term "anti-patent", is the complete or partial opposition to prevalent patent laws, and constitutes a particular form of criticism of intellectual property. A patent is a branch of intellectual property covering "industrial property" which is protected by patents or trademarks. Patents cover inventions, including new solutions to technical problems, and industrial design, awarding protection against any use without authorization of the owner.[1] Anti-patent arguments have been advanced with regards to affordable generic anti-AIDS drugs in developing countries and software.

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 troll", owns a portfolio of patents, and sues others for infringement of these patents while doing little to develop the technology itself.[2]

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[edit] General criticism

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.[3] 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.[4] Johns summarizes some of their main arguments as follows:[5]

[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).[6]

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.[7] In Switzerland, criticism of patents delayed the introduction of patent laws until 1907.[6][7]

Patents have also been criticized by modern developmental economist Ha Joon Chang as interfering with the adoption of technology by nations in the development stage, pointing out that in their early stages of economic development, many European nations did not have patent laws either, citing the Netherlands and Switzerland as examples.[7]

[edit] Pharmaceutical patents

Recently anti-patent arguments have been advanced 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.[8][9][10]

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.[11][12]

Campaigns for affordable access to medicines, such as Oxfam, argue that developing countries are dependent on foreign pharmaceutical companies. Quoting a recent World Health Organisation report, Trevor Jones argues that patent monopolies do not create monopoly pricing. He argues 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.[9]

Under World Trade Organization (WTO) rules, a developing country has options for obtaining needed medications under compulsory licensing or importation of cheaper versions of the drugs, even before patent expiration.[13] In July 2008 Nobel Prize-winning scientist Sir John Sulston criticised the "moral corruption" of the medical industry. Amongst others Sulston said that the world is at a crisis point in terms of getting medicines to sick people, particularly in the developing world. Sulston called for an international biomedical treaty to clear up issues over patents.[14]

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[15] 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.[15] However, the strongest response may be that, without patent protection, the medicines in question would not even have been developed until decades later. If a drug with a 20 year patent would otherwise not have been developed until 30 years later, the patent system actually causes that drug to become available royalty-free 10 years sooner.

[edit] Software patents

[edit] See also

[edit] Further reading

  • MacFie, Robert A. (ed.): Recent discussions on the abolition of patents for inventions in the United Kingdom, France, Germany and The Netherlands. Evidence, speeches, and papers in its favour. London: Longmans, Green, Reader, and Dyer, 1869. Online copy at the Internet Archive
  • Robert Andrew Macfie, Lord John Maclaurin Dreghorn, Michel Chevalier (eds.): Copyright and patents for inventions. Pleas and plans for cheaper books and greater industrial freedom, with due regard to international relations, the claims of talent, the demands of trade, and the wants of the people. Volume II. Edinburgh, London, Paris, New York, Philadelphia, 1883. Online copy at Google Books

[edit] References

  1. ^ World Intellectual Property Organisation. "Understanding Copyright and Related Rights". WIPO. pp. 6–7. http://www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909.pdf. Retrieved August 2008. 
  2. ^ "Patent troll definition and description". http://www.worldwidewords.org/turnsofphrase/tp-pat1.htm. Retrieved 2008-02-15. 
  3. ^ 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
  4. ^ Johns, Adrian: Piracy, p. 249, 267, 270
  5. ^ 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
  6. ^ a b Johns, Adrian: Piracy, p. 248
  7. ^ a b c 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.
  8. ^ "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. 
  9. ^ a b Anderson, Tatum (June 2006). "Africa rises to HIV drug challenge". BBC News. http://news.bbc.co.uk/2/hi/business/5027532.stm. 
  10. ^ "Brazil’s HIV-drug break down". gay.com. May 2007. http://www.gay.com/news/article.html?2007/05/03/6. 
  11. ^ Anderson, Tatum (June 2006). "Africa rises to HIV drug challenge". BBC News. http://news.bbc.co.uk/2/hi/business/5027532.stm. 
  12. ^ "Brazil’s HIV-drug break down". gay.com. May 2007. http://www.gay.com/news/article.html?2007/05/03/6. 
  13. ^ (WTO Press Release)
  14. ^ McGrath, Matt (July 2008). "Sulston argues for openmedicine". BBC News. http://news.bbc.co.uk/2/hi/science/nature/7490384.stm. 
  15. ^ a b http://www.ip-institute.org.uk/pdfs/Perceptions%20of%20IP.pdf


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