Examining Pharmaceutical Exceptionalism: Intellectual Property, Practical Expediency, and Global Health

34 Pages Posted: 22 Nov 2019 Last revised: 25 Nov 2019

See all articles by Govind Persad

Govind Persad

University of Denver Sturm College of Law

Date Written: November 19, 2019

Abstract

Advocates, activists, and academics have criticized pharmaceutical intellectual property ("pharma IP") rights as obstacles to access to medicines for the global poor. These criticisms of pharma IP holders are frequently exceptionalist: they focus on pharma IP holders while ignoring whether others also bear obligations to assist patients in need. These others include holders of other lucrative IP rights, such as music copyrights or technology patents; firms, such as energy companies and banks, that do not rely on IP; and wealthy private individuals. Their resources could be used to aid patients by providing direct medical assistance, funding prizes or biomedical research, or purchasing pharmaceutical patents and granting rights to the disadvantaged.

After identifying this exceptionalism, this Article evaluates several arguments in its defense. These are that pharma IP holders are unique in (1) owning what poor patients need, (2) being in special proximity to these patients, (3) being able to assist at low cost to themselves, (4) having a professional duty to help these patients, or (5) being implicated by their past conduct in these patients' plight. It concludes that none of these arguments are compelling: while IP holders have a duty to help, this duty is not fundamentally different from the duties others owe.

Even though this project criticizes exceptionalism, it does not absolve pharma IP holders of duties to help the sick. Rather, it argues that spreading the costs of aiding patients in need across a greater number of market actors, via publicly funded "pull" programs like prizes and patent buyouts or "push" programs like grants, would be preferable. So would allowing pharmaceutical firms to seek contribution from others who are able to help. However, if others cannot be held to account, imposing burdens on pharma IP holders can be justified in order to promote global health: treating wealthy firms arbitrarily is preferable to ignoring the urgent needs of the global poor.

Keywords: pharmaceuticals, drugs, intellectual property, access to medicines, patents, High-Level Panel, TRIPS, bioethics, health law, global health

JEL Classification: K11, K32

Suggested Citation

Persad, Govind, Examining Pharmaceutical Exceptionalism: Intellectual Property, Practical Expediency, and Global Health (November 19, 2019). Yale Journal of Health Policy, Law, and Ethics, Vol. 18:2, No. 157, 2019; U Denver Legal Studies Research Paper No. 19-18. Available at SSRN: https://ssrn.com/abstract=3490253

Govind Persad (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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