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Patents Kill

By Annalee Newitz

I JUST GOT a shot, and I'm all full of nice flu vaccine. Of course now that flu shots are freely available—unlike last year, when massive shortages meant that I went without one—it turns out that they aren't going to help much. Sure, they'll protect against those crappy old common viruses, but they're not going to do shit against avian flu. And avian flu is the one that everybody is predicting will usher in the next scary pandemic.

That's why I tried to order some Tamiflu, an anti-viral drug, on the Internet. I wasn't sure whether it was sold to me legally. But imagining that it was on its way gave me the warm feeling of safety that I associate with the ebbing of paranoia—just like when I stockpiled a bunch of water, canned food and candles for "emergencies."

I keep picturing this nightmarish, flu-induced apocalypse in which only the people with Tamiflu survive. Then I found out that my Tamiflu wouldn't be coming. Apparently, all the gray-market pharmacies are cracking down and asking for legitimate prescriptions. Plus doctors in Vietnam are reporting that avian flu is becoming resistant to Tamiflu. Relenza, another anti-viral, may be our only hope. So far I've resisted the urge to order pseudo-legal doses of Relenza, too.

All this is moot in developing nations, where few people have access to flu shots or anti-virals, even if they could get prescriptions. Swiss pharmaceutical megacorp Roche owns the patent on Tamiflu and refuses to give it up. That means companies who can't pay hefty licensing fees aren't able to manufacture the stuff. Roche claims it will be able to stock the entire world with Tamiflu in the event of an emergency. If you believe that one, I've got some dotcoms to sell you.

In India, where a pandemic could be deadlier than the recent tsunami, pharma geeks are taking matters into their own hands. Cipla, an Indian company famous for reverse-engineering popular patented drugs like Viagra, has vowed to have a generic version of Tamiflu called oseltamivir on the market within months.

Roche reps denied that it would be possible for Cipla to reverse-engineer the drug so quickly, but Dr. Yusuf Hamied, chairman of Cipla, told The New York Times that scientists at his company had already completed the process. Meanwhile, lawyers at Roche say they're not ruling out suing for patent infringement, even though international laws allow for suspending patents in times of emergency.

The problem is that we don't have the emergency yet, and so technically Cipla is infringing. But when, exactly, should these patent laws be suspended? After the pandemic is in full force? By that time, it will be too late. People will be dying in droves, and it could take a year to reverse engineer and manufacture the drug. I think my point is obvious.

There is something profoundly unjust about the patent system, especially when applied to drugs that save lives. Larry Lessig and other intellectual-property reformers have made this point before, but it seems particularly salient now. Pandemics are just one example of how current exemptions to patent laws aren't enough. People need access to patented pharmaceuticals now, not when the emergency hits.

I understand that Roche wants to make money, but they've held the patent on Tamiflu for over a decade. Now it's time to share, and save lives in the process.

On top of the whole killing people thing, overly restrictive patent laws also artificially retard the process of innovation. If Cipla could use some of the techniques pioneered by patent holders, it might have invented a better version of Tamiflu by now—one that would defeat avian flu.

One possible way to address this problem would be to create a class of drugs that could only be released under some kind of compulsory patent license. This would force companies to license their drugs, although they would still get compensated. Since most pharma companies already make their drugs available at reduced rates in developing countries, one could imagine reduced rates on the license for developing nations, too. Drugs which prevent pandemics, for example, would clearly be suitable for the compulsory license. So would drugs for diseases like AIDS that afflict millions.

Pharmaceutical companies would still be able to make big bucks on frill quality-of-life drugs like Viagra and Valium. Cosmetic drugs would become the cash cows, strictly patented; but crucial life-saving drugs would be set free. I'd be happy to pay a little more for my next dose of Viagra today if it meant that some guy in India could reverse-engineer an anti-viral tomorrow.

Annalee Newitz ([email protected]) is a surly media nerd who wonders if she's going to have to go to India to get her oseltamivir.

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From the October 26-November 1, 2005 issue of Metro, Silicon Valley's Weekly Newspaper.

Copyright © 2005 Metro Publishing Inc. Metroactive is affiliated with the Boulevards Network.

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