When IP laws hinder healthcare

In my last blog post, I discussed the development of intellectual property law within the trade industry. With TRIPS (the Trade-Related Aspects of Intellectual Property Rights) as a minimum standard for IP protection, the United States has broadened IP laws even further through a combination of bilateral and multilateral free trade agreements (FTAs). This protection is specifically crucial for the pharmaceutical industry, considering that 10-30% of drugs in developing states are counterfeit. But the balancing act of enacting IP protection is especially important in these nations because too stringent of laws may serve as a great obstacle to growth.

The Trans-Pacific Partnership (TPP), which is currently the largest U.S. FTA to date, was just agreed upon by 12 Pacific Rim nation states. In addition to eliminating barriers to free trade and heightening environmental standards between and across these nations, the TPP calls for stricter standards for intellectual property. The United States government claims that, “TPP’s Intellectual Property (IP) chapter will help Americans take full advantage of our country’s innovative strengths and help to promote trade and innovation, as well as to advance scientific, technological and creative exchange throughout the region.” This statement is accurate, as existing United States’ intellectual property law is used as a foundation for the agreed-upon provisions in the TPP. However, many of the nations that are parties to the agreement are unlikely to be able to execute the high standards set by the U.S. This is especially true for Vietnam, the weakest and poorest party to the partnership.

The TPP sets a 5-8 year data exclusivity standard for biologics and allows for the process of evergreening, which occurs when drug companies request patents for new uses of old drugs. These are only a few of the strict IP provisions presented in the TPP. Judit Rius Sanjuan, a legal adviser to Médecins Sans Frontières has said, “I am sure it will increase the prices of medicine. It will take components of US law and export them to other countries, and create a new global norm that will change the way the TRIPS agreement was negotiated.” This was exactly the case in Guatemala after the Central American Free Trade Agreement was ratified. Whereas many drugs in the US had already become available in generic forms, Guatemalans were still paying high prices for name brands.

Because it controls the majority of intellectual property worldwide, there is great incentive for the United States to require heightened IP standards. And actually, in many fields such as the tech and film industries, these strict standards are satisfactory. But where human health is involved, it has for a long time been common practice to loosen IP laws. The U.S. has previously relaxed IP requirements in bilateral FTAs with Colombia, Panama and Peru, even including the use of compulsory licensing. If the TPP is ratified, drug prices will likely surge throughout developing nations around the globe, at which point the US will be called upon to help pick up the pieces. This should have been of consideration within negotiating the TPP, among other pitfalls that will come to light if the agreement is approved by Congress.


Read the full text of the TPP at the USTR website here.


A video from June, 2013 that speaks to more issues within the IP chapter of the TPP:

5 thoughts on “When IP laws hinder healthcare

  1. Jessica Thomulka

    First, I want to thank Elizabeth for this interesting discussion of intellectual property rights. I think it is interesting that she mentions, in her first blog post, the impact of intellectual property on other industries because I just got done commenting on another blog post about the implications of intellectual property and copyright infringement with respect to 3D printing.
    As a chemist I have participated in the research and development process from the advent of an idea all the way through the patent application process and I can say without a doubt that intellectual property rights are extremely important for innovation. I cannot imagine developing a product without have rights and protections against infringement upon my work.
    The method of the TPP negotiations is alarming; closed door sessions and secret meetings create an inherent lack of trust with the public. Intellectual property is all about protecting an individual’s rights to their work in an attempt to incentivize innovation. In turn this creates a collaborative environment where inventors can build off of each other’s ideas with respect to their own work. It allows for a free exchange of idea with protection of interests.
    There is quite an ethical dilemma when discussing intellectual property in terms of the United States’ engagement with the international community. It is clear that the United States is a global leader in the healthcare and pharmaceutical industry. As a leader in these pursuits it can be assumed that the United State holds most of the patents on pharmaceutical, most of which are exclusively manufactured in the US. This begs the question, is it just for the United States to impose such strict intellectual property provisions in countries where they lack access to life-saving medicines? Does an inventor’s right to their own intellectual property outweigh the needs of an ill person in a third world country? There are arguments for both sides.
    The blog mentions that the TPP will increase the price of medicines and this does not seem good for the ethical argument I just presented. Now even fewer people will have access to the drugs they need.
    These heightened IP standards are also troublesome for domestic use. Just recently the Supreme Court ruled that human genes are not patentable. This is good for the healthcare industry, but we do not know where the Supreme Court stands with pharmaceuticals and other life-saving procedures. Will someone be able to patent the methods and procedures for a cure for cancer in the future? It will be interesting to see where this discussion leads in the future.

  2. Daniel Kelly

    I was not concerned with the secrecy of the TPP’s creation until reading this article because of my longstanding desire to remain more or less neutral about the President’s actions, mostly in response to idiotic bellicose comments made. This, however, seems like a legitimate issue and the substantive effect of such an oversight would leave the American people and the other nations involved with the TPP without their rights as human beings. The right to have proper and mostly affordable medical material may seem obvious to some but corporate entities have no understanding, by my count, of any kind of moral conundrum. These are the same people who would ruin an economy and demand that the people bail out their failed investments, and then fight against legislation that prevents them from acting inappropriately. Or corporations which use the people of other nations as essentially slave labor, then mark up the extremely cheap products simply because they can. The issue of these medical patents being used as a weapon against foreign development, competition and progress does not sound far-fetched, and while they could use this power for good such as providing incredible service at a reasonable price. Or using their power to make real progress in the fights against dangerous diseases, but they do not and so their input cannot by any measure be justified. My point being, that if I actually trusted the Pharmaceutical corporations to practice their power responsibly and use patents as a means of actually making medical progress, then I would whole heartedly support draconian government measures that persecute small businesses. If I trusted corporations to not be completely evil and act with a sense of respect for human life, I would give my effort in supporting their right to make a marginal profit. Yet they are not compassionate, they do not just make a marginal profit, and because these corporations feed off of the life and work of others to produce incredible evil, I would never support these theoretical TPP supports. I find it incredibly challenging as a Liberal individual to support the Democratic Party when they are unable to block such measures, if they even want to. Yet I equally find it difficult to support conservatives who far more clearly have their interests in mind but I find it anachronistic to believe that either party has the interests of the American people, or any people for that matter, in mind when they propose these deals. This is not an issue about the American “worker” because they will survive the deal, and it is not about the American people being sold out by Liberals in the white house. It is a cancerous control that lobbyists hold over Washington and the political system in general, which is more interested in attacks against one another rather than the moneyed interests. Namely, I am frustrated that this kind of morally reprehensible agreement could be made and supported by such an idealistic president.

    And now mostly political diatribes, if you want to have a last thought on the TPP specifically look to the last sentence.

    This may sound incredibly damning of the entire Political System, and sadly if you look at history there are far too many times that monetary interest have fueled the worst of humanity in politics. Yet I have read of a wonderful time in American History when people actually believed in the combined sense of justice and fairness. Though it may now seem idyllic to a cynical American audience, but for goodness sake it is entirely possible to bring back a time when service to the Government meant serving the interests of everyone, now a global interest. If anyone truly loves America as much as they claim, then that time will come again. It requires people to look at what is best for the people as a whole and to actually do it, regardless of the political nonsense and make decisions based on their moral compass. It would look an Obama who took his idealism and never sacrificed on it, or Bush maybe taking a more critical eye when tax breaks were designed that could possibly have a negative effect. It means a Bill Clinton that fought against the repeal of Glass-Steagall, or someone like Ike who everyone still seems to like. It would look like an FDR who went against his class and support measures that helped Americans and pushed us into a war which he believed was right (though admittedly his methods were sometimes disingenuous). A decent moral president would look at every detail of the TPP and ask himself how this could positively or negatively affect people. If the effect is out of reach drug production that destroys the lives of people across the world and crushes competition, if it means an incredibly un-American way of distributing power to a very few. If it ignores the basic Republican and Democratic principles of the United States and contradicts the basic human rights of all involved then a moral president would stick to his principals and stand against that law.

  3. Ryan Jolluck

    The TPP includes many provisions that can prove to have negative ramifications throughout the countries and citizens of the countries involved. Despite being called a free trade agreement, it includes many policies that involve current laws, internet privacy, copyright, and intellectual property. Countries in the TPP include Australia, New Zealand, Singapore, Malaysia, Vietnam, Japan, U.S., Canada, Mexico, Chile, Peru, and Brunei. What you have here is a large spectrum of economic power, government types, laws, and policies.

    1. Ryan Jolluck

      The TPP aims to unify many divisions in order to bring greater economic prosperity. But in reality the TPP aims to benefit international corporations and businesses. Corporations have been heavily involved in creating the TPP since its conception. It is clearly evident how much they have influenced the treaty to promote their own interests. The secrecy of the agreement was meant to leave the input of the public and their ability to influence the agreement while it was being created. With the final agreement settled and published publically a few weeks ago, the only thing left to do is for the politicians of each of these countries is to vote for its execution.

      1. Ryan Jolluck

        When it comes to IP, patents, and healthcare, there has been strong criticism. Doctors Without Borders have criticized its provisions related to medicine and pharmaceutical firms. The organization has stated “We consider this the worst-ever agreement in terms of access to medicine… It would create higher drug prices around the world—and in the U.S., too”. The document has provisions allowing for “pharmaceutical firms unprecedented protections against competition from cheaper generic drugs, possibly transcending the patent protections in U.S. law”. Critics have stated that “TPP’s protections for pharmaceutical companies could dump trillions of dollars of additional health care costs on patients, businesses and governments around the Pacific Rim… The draft text includes provisions that could make it extremely tough for generics to challenge brand-name pharmaceuticals abroad. Those provisions could also help block copycats from selling cheaper versions of the expensive cutting-edge drugs known as “biologics” inside the U.S., restricting treatment for American patients while jacking up Medicare and Medicaid costs for American taxpayers”.


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