It Is Not Unethical, Though It Is Often Unwise, to Override Patents

David Resnik and Kenneth De Ville (2002) have done an excellent job of outlining the issues for and against override of the Cipro patent. I would modify their argument in only two places: the reasons for the "presumption against overriding" and their five stringent conditions.

Resnik and De Ville correctly assert that the federal government has an all-but-absolute right to infringe any patent (subject only to just compensation). I would emphasize that the reason is that, among all property rights, patents are clearly purely statutory grants by the government and not natural rights; by definition they are temporary rights, grudgingly granted with the purely utilitarian goal of advancing the progress of science for the well- being of the country. Since even property rights that derive from natural law can be overridden, how much more so patent rights.

The law is replete with examples of "takings" like "eminent domain". Anyone who owns shoreline property is restricted in what he can do with it; similarly for land over a watershed (in Southern California there are several quasigovernmental water-control authorities that allocate such scarce resources for the good of all farms and municipalities that need the water, ignoring the selfish wishes of the actual owners of the land). An increasing number of people are discovering that their moveable property can be confiscated at whim by quasigovernmental authorities if said property poses even the remotest threat to society (as anyone whose nail clippers or tweezers have been confiscated by airport security knows).

My point is that we make a mistake by thinking that property rights are ever absolute; they are violated (not infrequently) for many reasons. Why should property rights granted by patents be any more inviolable? I am not sure we are morally obligated to be any more careful in our infringement of them than of any other right. The fear of a "slippery slope" seems unjustified; it is only the rarity of patent overrides that makes it seem as if they would open the floodgates to trivial abuse. U.S. society surely has enough of a tradition of defense of all property rights to make that as unlikely as the possibility that the confiscation of knitting needles at our airports will lead to the confiscation of the rest of our luggage.

Of the five conditions Resnik and De Ville propose be met to justify override, nos. 2, 3, and 4 seem right on the mark. I have problems with nos. 1 and 5.

A national emergency would certainly justify an override; but there are other possible situations that we should add: mainly, cases of refusal to produce or to license others to produce an invention. After all, in national emergencies the problem is usually the inability of the patent holder to quickly produce the item needed for national defense. Suppose, by analogy to a national emergency in which the Cipro patent had been held by a supporter of the terrorists, a group opposed to abortion purchased the patent on a new method of quickly testing a fetus for Down's syndrome—and refused to sell it because the main use would be to decide whether to abort the fetus? Or an AIDS cure was patented but not produced because the inventor was a homophobe? Resnik and De Ville introduce the concept of a "nonemergent national problem" as a way of expanding this condition; they might develop it further. I am not sure that the "numbers matter"—why not leave it to a democratic society to decide what, short of a real national emergency, is important enough to justify a taking of property.

The time limit is important, but, since patents are by definition time-limited (20 years), I am not sure how important it is; for a patent taken by the government at the beginning of World War II (as many were...