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Money, Patents, and Killing People

By Posted by Alan Wexelblat

Under the heading "IP That Kills" I've visited this topic several times in the blog. Today we have two more entries on the sad roster of how we use intellectual property control regimes to kill people.

First, a story from ABC News on a sudden spike in the cost of preventing a premature birth. The company KV Pharmaceuticals just raised the price of a progesterone shot that has been successfully used for years to help women avoid premature birth, and the high risks to mother and child associated with this situation. The shot used to be USD 10; now it's $1,5000 per dose, or as much as $30,000 for a full term pregnancy. As you can imagine that's a substantial sum for someone who has low or no health insurance. Where ten bucks might be affordable for a lot of people, fifteen hundred out of pocket is not - even at reasonable income levels.

What makes this extra-special galling is that KV is not recouping any costs here. They didn't develop this treatment, didn't invest the hundreds of millions that some drug companies pour into the process of drug discovery and getting new treatments to market. No, instead the FDA just handed KV sole rights to produce the drug - that is, a legal government-protected monopoly. Patents give this sort of monopoly protection, presumably in return for the work done to invent a thing.

In this case, the work done to bring the shots to market was done back in the 1950s. Squibb used to make the shots but withdrew the product in 1999. Since then, availability has been spotty, but it's cheap and most women seem to have been able to get the supply they needed. The FDA's action was supposed to ensure a reliable supply of this life-saving medicine. Instead, their monopoly grant and KV's outright greed will end up killing people who cannot themselves, or whose insurance will not, pay the massive surcharges.

Lest we think that it's purely the US system that is this level of fucked up, let's take a look north of the border to Canada. Here we have an extensive piece by David Ng on boingboing that dives deep into Canadian Bill C-393.

The issue Ng explores is government decision-making around the question of whether "a person's income should determine whether they live or die from something like HIV/AIDS." We're not talking about Canadians dying from HIV/AIDS - remember they have an excellent government-funded universal healthcare system. Instead, we're debating whether Canadian companies will be allowed to make and export cheaper generic versions of anti-HIV medications. This is exactly the issue I highlighted in my post from almost exactly a year ago, which itself pointed back almost exactly a year to the identical debate. Three years of the same battle being fought, and how many people have died?

Part of the reason we're still having this debate, and the heart of Ng's post, is that even though Canada tried to do the right thing - establish a regime under which the governmental monopoly grant of a patent could be modified - the resulting system was so complicated it was unusable. Canada's Access to Medicine Regime (CAMR) should provide a way out of the swamp - override or modify patent monopoly grants in cases of humanitarian need, without destroying the patent system entirely or capriciously. Unfortunately, it's too complicated and unworkable.

Which brings us back to C-393. It's what we software types call "a patch" meaning a code fix applied to make a system work the way it was intended. In this case the code being patched is the legal code, but the principle is the same. If C-393 becomes law no new abilities will be granted and nobody will get to do things that they couldn't under CAMR. According to Ng the target markets for these generics represent a "single digit percentage" of the drugs' sales, so the financial impact can be limited.

Unfortunately, it looks like C-393 isn't going to pass, either because of outright opposition or due to political maneuvering. And if it doesn't pass CAMR will continue to be bolluxed up and people will continue to die, needlessly.

Full post as published by Copyfight - The Politics of IP on March 16, 2011 (boomark / email).