In the late 17th century, English philosopher John Locke, one of the fathers of liberalism, noted that patents were the just reward for inventive activity, and the “natural right” of the inventor given their time and labour invested in the effort. Subsequently, and for the more than 300 years since, we’ve seen a difficult balance evolve between the rights of inventors and the rights of society at large.

As I highlighted in this previous post, there’s a large following that would like to see the strength, breadth and application of patent law extended in order to ensure that their competitiveness in a global economy are protected. But where does the right afforded to a corporation to protect its competitiveness infringe on, or supersede, the rights of society?

Nowhere is this debate more important than in pharmaceutical research and agronomy, especially in relation to patents that affect developing country access to drugs and seeds.

An interesting development in this field was the USPTO’s recent decision to overturn a patent held by Gilead Science on four HIV/Aids drugs. The decision, while not yet binding, could open the patents on these four drugs for distribution by generic drug manufacturers. In India, this would have dramatic ramifications on the cost of HIV/Aids treatment and the ability for developing countries to access it. For example, Cipla, an Indian generics producer, would change $700 for annual per person treatment of one of the four drugs under review, compared to the $5,718 charged by Gilead. Seems like a no-brainer.

This issue of access vs. incentive, however, frames the most challenging aspect of patent law, and evidently patent reform. How do you continue to incent innovation yet make those very innovations accessible to those who need it most? Over at Pharmalot, Gilead spokesperson Amy Flood highlights the incentive POV , “We will vigorously defend each and every claim that supports our patent protection, and we remain confident in the outcome. The process of a challenge – like the one from PUBPAT – may take time, but we do not believe the exclusivity of any of our products is in jeopardy.”

But when does that exclusivity become counterproductive? The Public Patent Foundation, the organization which took Gilead to task on these four drugs, notes that:

“Undeserved Patents and Unsound Patent Policy Harm the Public:

• … by making things more expensive, if not impossible to afford;
• … by preventing scientists from advancing technology;
• … by unfairly prejudicing small businesses; and
• … by restraining civil liberties and individual freedoms.”

So where’s the compromise that would allow sufficient incentives for continued research and innovation, while at the same time allowing for greater access for populations in need? Or is compromise even necessary – perhaps the answer lies in initiatives such as the collaborative DnDi program led by Doctors without Borders that have shown an early ability to effectively operate cost-recovery innovation and research programs, and thus are able to serve populations without the cash for patent-protected treatment. Can goodwill and collaboration trump profit-seeking?