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that the idea behind patents is to ensure that innovative products reach the market,9
rather than to promote research for its own sake.
I.a) Intellectual Property Rights and Pharmaceuticals
The central question is: How extensive should the patent protection be? Should
pharmaceutical companies be granted a broad protection for their innovation? And
does the broad protection support the main purpose of patents – to encourage further
innovation? One of the main arguments for extensive intellectual property protection
is that patents serve public good by providing an incentive to innovate.10 The expensive
process of development is supposed to be granted profitability due to granted protec-
tion from copying and subsequent competition. However, it is disputable whether
patent protection brings the desired innovation.11 When given extensive IP protection,
pharmaceutical companies may focus on prolonging already existing patents rather
than developing new ones. Moreover, research in developed countries is focused on so
called “lucrative diseases,” so even when there is some development, it does not occur
in a way beneficial to developing countries that are in need of drugs for “neglected
diseases” such as malaria or tuberculosis.12
Moreover, it is not clear whether IP protection actually encourages research and
development. Would pharmaceutical companies engage in the expensive and lengthy
process of innovation without the guarantee of protection to their invention?13 The
fact is that testing of a new drug can cost over 2 billion dollars and take more than
a decade.14 However, the innovative process is so lengthy and expensive mostly because
of the strict regulatory regime of pharmaceutical industry. If the regime allowed an eas-
ier (shorter, less expensive) procedure, shorter patent protection would be justifiable.
Patent supporters also claim that patents provide tools for others to innovate. By
publishing their ideas, the patentees increase the speed of technological advance be-
cause others can build on these ideas.15 However, current reverse engineering tech-
niques make it now possible to copy a product even without the disclosure of knowl-
edge. This further undermines the case for a stronger patent protection.
9 Cameron, supra note 1 at 440.
10 “A question of utility,” The Economist (8 August 2015), online:
node/21660559> [Economist].
11 Ibid.
12 Jan Skuhravý, “Intellectual Property Rights and Essential Medicines” (2003) 5 Common L. Rev. at 41.
13 The numbers differ depending on the source from 500 million USD to 2 billion USD: Christopher P.
Adams & Van V. Branter, “Estimating The Cost of New Drug Development: Is It Really 802 Million?,”
Health Affairs (March 2006) online >.
14 “Time to fix patents,” The Economist (8 August 2015) online
leaders/21660522-ideas-fuel-economy-todays-patent-systems-are-rott
15 Cameron, supra note 1 at 461.