Does the patent system need fixing? – The Property Chronicle
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Does the patent system need fixing? Medical breakthroughs are becoming more expensive and less life-changing

The Economist

Patents are a rather controversial topic among pro-market thinkers. Some are very much in favour of them, seeing intellectual property as just another kind of property and as entitled to legal protection as any other. Others see patents as government-sponsored market power, a latter-day version of the ancient Chinese salt monopoly.

The main argument in favour of the patent system is that it spurs innovation. And while that is probably true, it’s important to spell out precisely how. Absent a system of intellectual property protection, firms would seek to keep their innovations secret, like the Coke recipe. The key feature of the patent system is that firms disclose their innovations, in exchange receiving a period (usually 20 years) of exclusive exploitation of that invention.

A patent does not necessarily grant market power. Just because a product is unique does not mean it can face no competitors. For example, many pharmaceutical medicines are only minor chemical variants of one another. These are known as “me too innovations”. It is sometimes suggested that there is little social gain from me too pharmaceuticals, but that is rather confused. First of all, a me too medicine is only granted a patent if it is actually different in some non-trivial way. That difference may make it more suitable for certain kinds of patient, mean it has slightly less bad side effects, or another kind of incremental gain. Being just a little better is easy to scoff at but important to human welfare.

More straightforwardly, however, me too medicines compete with each other. If one is too expensive relative to the others, then in a well-functioning health system it won’t be prescribed — the extra cost won’t be worth the minor medical gain. Indeed, in some pharmaceutical reimbursement systems, pricing is based on what is called “therapeutic equivalence”, so a patient buying a medicine will only be reimbursed at the price of the cheapest drug in that class (including the original innovation and the me toos).

For a golden age in the 20th century, the patent system appeared to produce wonder drug after wonder drug, curing ailments that had killed for thousands of years and alleviating or eliminating systems that had persecuted sufferers throughout their lives. More recently it has come to seem as if the low-hanging fruit has been plucked and each new innovation is becoming more expensive and less life-changing. At the same time, across much of the developing world people continue to die from diseases that seem as if they should have cures but that it is not profitable for patent-based pharmaceuticals companies to research.

These problems have been noted and studied for decades, with a series of well-trailed alternatives to the current system being debated. Some of these alternatives have been repeated in a study out this week from the UCL Institute for Innovation and Public Purpose. Among its authors is well-known economist Mariana Mazzucato.

Many of their criticisms and solutions are familiar: a combination of the already-implemented (measures to steer innovation to address specific health areas, as is already the case with paediatric medicines, or the use of volume discounts for pre-committed large purchases); the long-debated (the use of prizes to incentivise research into medicines to treat ailments that exist in the developing world); the counter-productive (over-riding patents to produce generic variants, claiming spurious “rights to treatment”); and the plain silly (rules forbidding pharmaceutical companies from buying back their own shares or mandating the inclusion of patient representatives on the boards of pharma companies). Those final two examples each reflect a confused prejudice against profits and finance, and a wildly wide-of-the-mark allegation that pharmaceutical companies are too short-termist.

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