A Short Commentary on Allen Alvarez’s Case: Protecting Intellectual Property Versus Making Essential Medicines Affordable: A Case of Weighing Long-Term Versus Short-Term Interests?

The case highlights, as I see it, two rather separate issues of potential conflict between interests: first, the need to balance the interests of inventors against those of the public, be they consumers or patients; second, within the utilitarian perspective itself a conflict between long term and short term interests of the public is indicated. In this second conflict the inventor is no longer a part of the picture, his interests are already taken care of, one might say. The issue here is that the patented medicine, in most cases, is so highly priced, that many patients cannot buy it. The high price is made possible by the market exclusivity created by the patent. When the drug eventually comes off patent, competitors typically drive down prices so that more patients will benefit from this invention from then on. If no protection of the investment in innovation were offered, the drug would not have been invented, at least not in a long time, so the argument goes, and no one would benefit. The two issues of potential conflict are, very reasonably, treated together in the text because of their common feature of being brought about by ethical concerns regarding patents.

A central justification for granting patent protection for pharmaceutical inventions is that patents stimulate innovation, to the great benefit not only for the inventors, but for the public as well. The second issue then is that when new inventions are thus facilitated, lack of access to essential drugs, while any particular drug is under patent, is the situation for an alarmingly high number of people because of the patent price.

The purely utilitarian balancing between interests, central to the first relation — the inventor/public relation — does not seem to be readily at hand in the conflict between short term and long term public interest. To illustrate, say that a large number of patients — in the millions — are effectively cut off from treatment because they cannot afford the price of a life-saving medicine. The medicine will be under patent for 10 more years, a period of time in which many of the patients will die if left untreated. A utilitarian argument might well be put forward making the point that the alternative, that the medicine is not developed at all, is far worse. These patients would still have no cure, and furthermore, no one would be cured, not even after ten years, nor in the time to come. Any given number of present patients’ need for treatment always risk being outweighed by the concern for an indefinite number of future patients in a utilitarian “balancing.” The long term interest simply tends to wipe out all other concerns.

To seek tools external to utilitarian reasoning to do a reasonable balancing of perspectives, like appeals to human rights for health, departs from the very reasoning that justified the IP protection in the first place. The question that therefore needs to be answered is whether or how the second balancing could indeed be accomplished internal to the utilitarian framework. Unless the question is answered, it can be argued that the ethical justification of patents on essential medicine is not complete.