Plagues, Pandemics, and Patents: Legality and Morality
A. Samuel Oddi
University of Akron - School of Law
May 12, 2011
IDEA, Vol. 51, No. 1, 2011
U of Akron Legal Studies Research Paper No. 11-8
This article provides a brief historical review of the devastation inflicted by plagues and pandemics and then considers the only recent availability of medicines to prevent, cure, or at least ameliorate the effects of these underlying diseases. It is extremely costly to develop these medicines and to obtain government approval for their distribution. The patent system accordingly plays a key role in providing the incentive to make such investments in developing pharmaceutical inventions. The patent system has become internationalized under the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS"), which requires member states to provide patent protection "in all fields of technology," including pharmaceutical inventions. The tension is clear between the need for access to life-saving medicines on a world-wide basis and the need to provide a strong incentive via the patent system to insure that such medicines are developed. The tension is particularly acute with respect to the least-developed countries that do not have the ability to pay for such patented medicines and do not even have the technical infrastructure to replicate such medicines. To alleviate this tension somewhat, it has been proposed to amend the compulsory licensing provisions of the TRIPS Agreement to enable these least-developed countries to import patented medications from suppliers in other countries working under compulsory licenses. It is questionable whether this amendment will be a viable solution, particularly if there is a severe pandemic.
The primary purpose of the present article is to address the moral issue of whether a developing country unable to pay for patented medicine may be morally justified in securing that medication from whatever source to prevent the significant loss of life of its nationals. This argument follows the general moral proposition that taking another's property may be justified to save one’s own or another’s life, but that the property owner is entitled to compensation for the loss. The legal proposition is the same: requiring compensation of the owner where the taking may be necessary to save life or property and may be quite reasonable under the circumstances. The further proposition is also accepted that a violation of law is a prima facie moral violation. These propositions are conceded in the article and are then extended to the situation where the developing country is incapable of paying for the patented drug and is faced with the significant loss of life of its nationals. The conclusion drawn from the analysis is that even though the law may have been violated, there is no moral violation by the developing country in securing the patented drug while not being able to compensate the patent owner at the TRIPS mandated level of "adequate remuneration."
Keywords: Patent, Intellectual Property Rights
JEL Classification: K1, K10, K19
Date posted: May 15, 2011
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