A. Samuel Oddi is a professor of Intellectual Property at the University of Akron School of Law.
In prior articles,[3] I have tried to point out that developing countries, and particularly the least developed countries (LDCs), are not the intended or even incidental beneficiaries of the intellectual property system–particularly its internationalization under TRIPS. I have primarily attempted to demonstrate the disadvantaged position of developing countries through cost-benefit and economic analysis. In this regard, developing countries are primarily consumers of inventions rather than inventors and as such are expected to pay the patented price of the invention with no offsetting reciprocity by the developed world. Moreover, the economic incentive to create inventions comes primarily from the developed world itself, where the money is, rather than from the impoverished developing world, as demonstrated by the dearth of inventions for treating diseases mostly inflicting the developing world. Having done this analysis, however, I had not taken into account the moral dimension created by the HIV/AIDS pandemic with its catastrophic impact on both the developed and developing world, but with even greater impact on the latter.
What particularly struck me was the initial hard-line of Big Pharma who owned patents on life-extending drugs toward HIV/AIDS victims in developing countries, who obviously could not pay developing country prices for such patented drugs. Fortunately, this position seems to be somewhat more accommodating now, in view of public and political pressure. Also amendments to TRIPS liberalized the grant of compulsory licenses for the supply of patented drugs in developing countries, with Canada being the first country to grant such a license to a Canadian company for use of patented HIV/AIDS drugs in Rwanda.
Nonetheless, the moral issue remains: Is it always immoral for a developing country that is a member of TRIPS and bound to pay “adequate remuneration” for a compulsory license under the patented drug to be unable to pay that “adequate remuneration”? My answer is no, taking into account, in addition to the payment requirement of TRIPS, tort theory, and principles of morality relating to the unauthorized taking of another’s property. Under tort theory, while you may be privileged to trespass on another’s real property and take a life-saving drug for your child, you would be legally obligated to pay for the drug and any damage caused. From a moral standpoint, the well-known philosopher Judith Jarvis Thompson concludes this conduct may constitute a “trespass” on the owner’s rights but it does not “violate” any of them and would hence be morally justifiable. However, Professor Thompson qualifies this conclusion if the owner of the drug places “immense value” on it and accordingly refuses to consent to its taking, its taking would not be justified, even if the child should die. My position is that, if it is morally justified to allow a child to die because the owner (presumably subjectively) places “immense value” on a particular piece of property (the drug), then it certainly would be morally justified to take the patent-protected property if an “immense” number of humans would die (objectively determined) if denied access to it and even if the trespasser (infringer) could not pay for it.
I am well aware of the perils of making moral judgments on the basis of a hypothetical construct; however, I believe balancing the immensity of the loss of human life against the potential loss of, at best, a perceived incentive of exclusivity derived from an impoverished country leads to a moral judgment in favor of access. Many patent-zealots and staunch libertarians may differ. Perhaps they should see the recently released movie “Contagion,” which I haven’t, but I have read the New Yorker film critic David Denby’s review, where he concludes rather profoundly for a movie review: “’Contagion’ confronts reality head on; it’s a brief against magical thinking. Soderbergh and his screenwriter, Scott Z. Burns, may not have intended it, but their movie could become an event in an ongoing political debate over the nature of American life.”
[1] A. Samuel Oddi, Plagues, Pandemics and Patents: Legality and Morality, 51 IDEA 1 (2011).
[2] “Contagion,” directed by Steven Soderbergh, opened in September 2011, so far grossing $72 million, and several evidently less successful ones entitled “Pandemic.”
[3] The International Patent System and the Third World: Development Reality or Myth?, 1987 Duke Law Journal 831; Patent TRIPs — Natural Rights and a “Polite Form of Economic Imperialism,” 29 Vanderbilt Journal of Transnational Law 415 (1996).