In rejecting the Swiss pharmaceutical giant Novartis’s patent for its blockbuster cancer drug Glivec, India’s Supreme Court has rudely shaken up the complicated debate over innovation. At one level it is a conscientious vote against corporate greed but at another it is fraught with possibilities of slowing down innovation.
The court ruled that Novartis could not claim incremental changes in their original patent to be newly patentable innovations. Pharma companies are known to slightly tweak their original innovations and claim new patents in order to prevent some of their biggest selling drugs from falling into the realm of generic drugs. The Indian ruling has huge implications for access to patented drugs which are so prohibitively priced that many poor people around the world are forced to choose a slow death over buying medicines.
India is the world’s leading generics producer from which millions of poor patients from around the world source their medicines because they are affordable. This is a nearly impossible debate for pharmaceutical companies to win because of its strong emotional and humanitarian dimensions. The basic argument of drug companies is that it is unfair that they have to spend billions of dollars in creating new medicines which can be copied by others because of deliberately lax patent laws and enforcement in developing countries. There is some validity to that argument but, unlike many other areas of innovation and intellectual property rights, medicines are so fundamental to human survival that perhaps it is time to have a different global regime for them.
It is now becoming known that the oft-cited claim that every new drug costs a billion dollars in research and development is highly exaggerated. Somehow the figure of a billion dollars has become the received wisdom. Now there are many who say that it costs way less to develop new drugs. We have to accept that it costs pharmaceutical companies substantial amounts to develop new drugs and they are entitled to recoup those costs by pricing the eventual products relatively high. The question is how high, for how long and how much it really costs. Also, patent offices around the world must closely examine whether, motivated entirely by their bottom lines, these drug makers deliberately try to pass off incremental improvements as entirely new innovation.
Perhaps one way to control the insane pricing of some of the drugs is to drastically shorten the patent protection span. Another way could be to have a differentiated pricing structure based on income levels of patients. However, the ideal way is to keep drug development and manufacture outside strict confines of corporate bottom lines. We do want to reward innovators but not so much as to make their innovations outside the reach of a vast majority of people.
Drugs, unlike many other forms of innovation, are a unique case because they are about the very survival of people. Imagine someone living in dehumanizing poverty in Africa or Asia. It is bad enough to be poor but that is made worse by a disease such as chronic leukemia, which Glivec treats. Then you discover that even though a drug which can treat the disease exists, it is so expensive that it would take someone at that level of poverty an entire lifetime to pay for one year’s supply, if even that. Drug patenting and pricing must be treated as a global humanitarian issue and must be freed from the clutches of the powerful drug lobbies. It is indecent for humanity as a whole to let everything be dictated entirely by the market. No one reasonable will make a case in favor of distributing medicines free of cost other than in exceptional circumstances. But there is a strong case to be made in favor of a pricing structure that brings medicines within the reach of everyone.
We cannot claim to be a civilized society and simultaneously pricing a great majority of its members out of something as essential as good health.