The Ethics of Patenting Medicine

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Table of Contents

Introduction
Pertinent Aspects of intellectual property
Patents for the intellectual property
Patenting the natural creation: is it moral?
Why the need to protect intellectual property
Lockean ‘labor theory of property’
Kant and the Authorial personality
Intellectual property rights and the need to make medicine accessible
Conclusion
Works Cited

Introduction

The term ‘intellectual property’ is usually used to refer to the wide range of legal rights that have been put in place regarding new ideas and relate to patents, copyright and the related rights, trademarks, geographical indications, industrial designs, layout designs of integrated circuits and the protection of the undisclosed information (Matthews, p. 8). According to Johnston and Wasunna (p. 3), intellectual property may be defined as “the creation of the mind – inventions, literary and artistic works, symbols, names, images, and designs used in commerce.” Further, they say that the intellectual property, to great extent, shares many of the legal characteristics that are normally associated with real and personal property and hence, intellectual property “can be bought, sold, licensed, exchanged or even given away” (Johnston and Wasunna, p. 3). Generally, the world at large has been experiencing tremendous growth in trade which in turn has stimulated the development of sophisticated technology; the development of technology, to great extent, has resulted in awareness of the need to protect the intellectual property.

Pertinent Aspects of intellectual property

In the contemporary world, intellectual property has come to comprise a valuable economic asset that accounts for an ever greater ‘value added’ in high technology areas such as the pharmaceutical and the information technology industries, as well as in the audiovisual entertainment areas such as the music and cinema industries (Matthews, p. 8). According to Hettinger (cited in Vaver, p. 97) “property institutions fundamentally shape a society and that, the legal relationships between individuals, different sorts of objects and the state are not easy to justify and this is true with intellectual property.” The author in his argument expresses the difficult nature that compounds society in determining the appropriate kinds of ownership of corporeal objects such as water and mineral rights. Further, it becomes even more difficult to determine what types of ownership the society needs to allow for the noncorporeal, intellectual object which may include; writings, inventions and secret business information (Hettinger, cited in Vaver, p. 97). The basic view has been that property rights provide the mechanism for firms and other organizations to extract some portion of consumer surplus as the reward for the innovation. Today patents of property have become the core business issue in most societies; indeed, “patents are the heart and core of property rights, and once destroyed; the destruction of all other property rights will follow automatically as a brief postscript” (Hettinger, cited in Vaver, p. 97). Today, the society is fast turning into ‘post-industrial society’ in which case the manufacture and manipulation of physical goods is giving way to the production and use of information and in such case intellectual property has increasingly and in wide range become a form of ownership. Despite the improvement in information technologies and the role information continues to play in society, the owners of intellectual property continue to be faced with the ‘ghosts’ of piracy, which means, theft of information (Hettinger, cited in Vaver p.97).

There have been many arguments and expression of ideas concerning intellectual property rights and one of such idea has postulated that intellectual rights are natural rights which form a special form of property that one has a natural and moral right to control in the same way other forms of property are controlled. Therefore, much of the discussion in the paper will be to assess the extent of this idea by reviewing the various literature of intellectual rights especially with emphasis in bioethics.

Patents for the intellectual property

The development in technology and specifically in inventions has resulted in the provision of intangible assets which the governments have increasingly continued to protect through the intellectual property rights. For a long time, patents have constituted and provided the right to commercialize an invention by an individual or a group. In this case, commercialization includes the “exclusive right to make, use or sell a patented product or the exclusive right to use a patented method or process” (Nelson, p. 42). Pharmaceutical medicines are based on artificial chemicals and therefore they are regarded as inventions, for instance, Nelson (p. 42) states that, “specific quantities of pharmaceutical medicines are tangible personal property and as such like other personal property; ownership of some quantity of medicine is presumptively evidenced and transferred by possession.” Therefore, from this statement it is evident that no person can claim to own a patent by the virtue of only holding a few tablets of the medicine and it is only the inventor of the medicine who can own it and further, he or she has the exclusive right to make or sell the medicine. It widely becomes legally recognized for the inventor to own the patent of invention and no one else can own the patent unless the inventor transfers the right of ownership to another person (Nelson, p. 42).

Patents have been praised by many, because they are seen to play crucial roles in any society. Many writers have extensively provided wide literature on the role of patents in society, with such explanations including: patents are regarded to comprise an incentive that is used in the growth of the private sector in the specific areas where they are granted (Cullet, p. 141). The pharmaceutical industry is argued to spend a lot of resources in the area of research and development and as a result, patents help the industry to recover the huge resources spend in R&D. Such an argument is reinforced by Cullet (p. 141) when he state that, “the patent system thus allows firms to charge prices that are higher than the marginal price of production and distribution for the first generations of patients, who are expected to absorb the cost of developing the drug.” At the same time, as the field of medicine continues to advance and expand, patents become necessary tools that can protect and defend against the encroachment on an inventor’s idea by others. Other writers have argued that patents are generally important to ‘encourage the pharmaceutical industry, for instance, through exclusive licensing of the patented invention the industry is in a position to pick up the results of the research and translate them into new products(Johnson and Wasunna 8). Moreover, “without a patent and the ensuing exclusive license, some people have argued that, companies and especially the pharmaceutical companies will not be interested in investing the resources to develop inventions or discoveries generated with public or other monies” (Johnson and Wasunna 8).

Other people have argued in disfavor of patents, claiming that the patents systems especially by the nonprofit organizations have had a negative impact on access both to the end products that include drugs and the diagnostic tests to information and materials that are essential and useful for further research and therefore patenting of materials has hindered further progressive research (Johnson and Wasunna, p. 8).

Patenting the natural creation: is it moral?

The utilitarian argument has been that the patenting of nature should not happen at all. The argument gives several reasons why society should be opposed to the patent of nature. First, patenting the products of nature will in the long-run inhibit scientific innovation and discovery. For example, Resnik (p. 75) wonders and imagines at the detrimental effects that will be as a result of patenting the products of nature by stating “imagine the negative effects of allowing scientists to patent newly discovered species, mathematical formulas or natural phenomena such as fission?” He further states that the private ownership and control of natural phenomena would greatly have negative effects on the development of science and technology. The utilitarian argument is that the intellectual property laws and policies need to largely promote the social goals in a society (Resnik, p. 75).

Secondly, the natural products which also include knowledge which humans possess are totally the things that have been created by God and not the humans (Resnik 75). Therefore to Resnik patenting the products of nature “is to play God or to exert undeserved and improper authorship and dominion. However, if this argument was to be translated into understanding language of patent law, then it can be argued that God’s act of design or creation will out rightly undermine the claims of individuals to the originality of the said invention, for it will be true that God is the original creator and hence humans cannot claim that to that part (Resnik, p. 75).

Why the need to protect intellectual property

Louis Pasteur once noted that, “Science knows no country, because knowledge belongs to humanity and that it is the torch which illuminates the world” (Taplin, p. 71). After these words by Pasteur which largely expressed the nature of science and its role to the society, the contemporary world has realized development tremendously and it is characterized by globalization and fierce competition. Today, the argument has increased on the need to reward innovations of individuals for the prospect of further discovery tomorrow (Taplin, p. 71). Intellectual protection is regarded on the ground that if enough was to be applied in society, there will always be a few that are commercially viable. The law recognizes and even postulates on the need to protect people’s intellectual rights, for example, Article 27(2) of the Universal Declaration of Human Rights (UDHR) states that “[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which [s]he is the author” (Lewinski and Hahn 17). Further Article 15(1) (c) of International Covenant on Economic, Social and Cultural Rights (ICESCR) provides for the protection of material and interests of authors by referring to science on top of culture. What this means is that the authors of ideas have moral right for their work to be recognized, for instance, the European Court of Human Rights accepts that property or the concept of ‘possession’ in Article 1 of the first protocol is no limited to material property and can also include immaterial property such as intellectual property rights (Torremans, p. 205). Therefore, what can be discovered from this is that intellectual property is regarded as a form of human right and hence, human rights instruments will grant it some form of protection (Torremans p. 205).

There has also been philosophical justification for the protection of intellectual property since it constitutes a human right. For example, the deontological justification for intellectual property emphasize that rights are imposed with respect to persons who are entitled to intellectual property as a matter of natural rights or as a matter of human rights (Dutfield and Suthersanen, p. 52). The rules within the intellectual property laws recognize the moral rights of attribution and the integrity of individual authors and inventors and that such rules are created based on the more general deontological view which postulate that such rights do manifest the duty that people should have towards respecting the creator’s dignity, name and also honor and they always arise from the natural principle of the inviolability of persons (Dutfield and Suthersanen, p. 52).

The intellectual property rights (IPRs) as an issue has been contentious with some sections of the people disputing and opposing the fact that IPRs constitute a category of fundamental human rights. Their argument is based on the fact that human rights have international recognition and are protected in the by the international law while the IPRs can be regulated by individual state different from each other (Sinjela p.viii). This is to say, human rights are regarded as fundamental, inalienable and universal entitlements whereas IPRs are largely statutory rights that are granted by the state which are temporary and can be traded or revoked and hence, according to them intellectual property rights lack the fundamental characteristic of human rights and cannot thus be regarded as such (Sinjela viii).

The argument further elaborates how IPRs may be or have been a hindrance for the realization of human rights. For example, the argument is that the realization of the right to food, health and education has been undermined by the high license fees and the royalties brought about by the present IP protection involve the issue of human dignity (Sinjela ix). The patents in health sector, for instance, have resulted into the concern that this would undermine access to essential drugs at low cost and hence would lead into the lack of realizing human rights in most developing countries (Sinjela ix). Indeed, examples of rise in cases of HIV/AIDS in developing countries have boosted those arguing for the removal of the patents (Schulz par 2). Also, the argument has been fueled by the fact that some developed countries have in the past sought to restrict generic drugs and the parallel imports by invoking the provisions of the TRIPS Agreement. Lastly, intellectual property patents have been blamed for restricting the right to education and freedom of expression, freedom of the press and for free speech (Sinjela ix).

Lockean ‘labor theory of property’

The Lockean theory states that all resources that are given by God are entirely part of the ‘commons’ other than one’s own body (Dutfield and Suthersanen, p. 54). But despite this, God as the supreme creator has gifted every person with the right to use or employ labor on such common resources, and that where an individual has worked on such resources given by God either through employing ‘mixed labor’ (Sterckx, p. 5); indeed, the end product of that labor should become that person’s personal or private property. This theory rests on the belief and profound understanding that ‘everyone has an inalienable right to his labor’ (Dutfield and Suthersanen, p. 54). However, the theory does not only give justification to the creator’s rights but also goes ahead to give such rights to the corporations, investors and even artistic performers.

On the other hand, the Hegelian theory is based on idea of personality. Hegel was convinced that property is the initial and final embodiment of freedom and individuality and if an individual fail to have a sphere of property in his or her life that person will have failed to attain self-conscious knowledge as a free person (Dutfield and Suthersanen, p. 58). Additionally, “to achieve personality and to be a person, an individual must control his or her external and internal environment and control his or her resources and the control to Hegel is through the property rights” (Dutfield and Suthersanen, p. 58). Hegel recognizes and also admits the importance of intellectual property when he states that, intellectual property is inalienable, “…I can alienate my property is that it is mine only in so far as I put my will into it. Hence I may abandon anything that I have or yield it to the will of another and so into his possession, provided always that the thing in question is a thing external by nature” (Dutfield and Suthersanen, p. 58). Therefore, intellectual property are the products of the mind and can become ‘things’ which may then be produced by people and these products constitute an “individual’s own private personality and the ‘universal essence of [his] self-consciousness are inalienable and imprescriptible” (Dutfield and Suthersanen, p. 58).

Kant and the Authorial personality

Immanuel Kant argued that “authors did not imitate nature, but rather ‘spoke’ original works derived from their inner personalities” (Dutfield and Suthersanen, p. 55). Kant was purely emphasizing the need for the ethos of the fundamental freedom of every person to personal development and the human dignity that should be enshrined into the law. For example, as a result of Kant argument, German and France enacted into the law the intellectual property rights of creators, for instance, in relation to their criteria of originality where the work of a creator or an author must constitute the personal intellectual creation of the author and also it must reflect the moral rights which should allow the author or the creator to control the way his or her work should be perceived by the public (Dutfield and Suthersanen, pp. 55-56). The importance of this is to ensure rules facilitates the easy and mass usage of works, but at the same time ensure that creators receive adequate and just remuneration for each type of exploitation and use (Dutfield and Suthersanen, p. 56).

In 1785, in an essay titled ‘On the Injustice of Counterfeiting Books’ Kant proposed to outline using mathematical models why the authors had rights to control the piracy of books. Through his adequate argument, Kant individualized the notion of the author by refusing the impression that authors were just like craftsmen. Kant therefore internalized the source that most authors draw inspiration from to be the self and rejected the notion that invention by the man originated from an extrinsic muse or inspiration such as from God (Dutfield and Suthersanen 56). To him, this internal, author-centered inspiration was equal or same with ‘original genius’ which could be explained as, the work of the author, the product of the author and hence the property of the author (Dutfield and Suthersanen, p. 56). For instance, books can be regarded as just usual products but to great extent they are manifestations of authorial personality and speech. Hence, for Kant, counterfeiting a book is to “countermand the author’s will” (Dutfield and Suthersanen, p. 57).

Mitchell (p. 15) states that authors have natural rights the rights can be expressed in a number of ways: first, authors are the conceptual and moral center of intellectual property theory whereby all the moral imperatives associated with intellectual property need and must be resultant of the moral rights of authors. Second, authors have a natural right to property in their works. For instance, they have no more obligations to share their intellectual property than they do to share their tangible property. And lastly, authors have no moral debts in their authorship because they create works “out of thin air” (Mitchel, p.l 15). Therefore, intellectual property rights laws and regulation becomes necessary in order to sustain the conditions of creativity.

Intellectual property rights and the need to make medicine accessible

Today pharmaceutical products remain a major means by which the health care service industry delivers therapy to fight disease and enhance the quality of life. The access to vital, high-quality medicines should be seen as a basic human right and as a matter of life and death particularly to communities in Africa (World Bank, et al. 2). The HIV/AIDS disease is decimating population at an alarming rate, with Africa constituting 60 per cent of the population of people with the disease (World Bank, et al. 2). The response to this has been efforts aimed at prevention, testing and the providing appropriate medication and health care that has included the provision of antiretroviral (ARV) medication. For many, it has not just been the case of accessing but also affording the drugs; therefore, concerns have been directed at making the drugs more affordable (World Bank et al. p.2). The access to drugs has been hampered by related factors that have included; poverty, inadequate funding, lack of appropriate chemical industry capacity, poor social and medical infrastructure and amenities, inadequate legislation and the existence of patents on ARVs (World Bank, et al. 2).

Patents further have limited access to medicines since of the monopoly granted to the holders which curtail competition and hence give the holder the right to prescribe the price and in most cases they put prices high. Many writers have written on the need to provide low-cost medicines that will be affordable by the majority and therefore enhance there human rights (Banerjee para. 2; Schulz para. 1-3). Pogge on the other hand suggests for the adoption of a Health Impact Fund which he claim will ensure provision of medicine for the poor, reward the scientists and corporation for their innovation and also enable companies to recover their production costs (Schulz para. 3).

Conclusion

The intellectual property rights have largely been regarded as natural or human rights; hence the individuals have the power to decide on how to use them. More so, they have gained legal recognition where they are widely protected. What needs to be emphasized is that the medicine industry affects humanity and any invention or discovery in terms of medicine should be directed towards the benefit of the majority in society. This does not mean the inventor needs not to be rewarded but there should be various methods of rewarding and recognizing the inventor’s work while at the same time the invention be used to benefit the human society at large.

Works Cited

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