History and human lives – The case for patents

December 1 was World AIDS day, a time for people around the world to unite in the fight against HIV and AIDS.  While this fight continues, World AIDS day is also a time to reflect on how far science and medicine have come in battling this and other devastating diseases.  The amount of pharmaceutical and biopharmaceutical innovation in the areas of HIV, cancer, and other serious diseases over the last several decades is truly astounding.  Today, people receiving the latest medicines for HIV have a life-expectancy approaching national averages, thanks to advances in HIV testing and treatments like antiretroviral therapies.  The story is the same for people with many types of cancers, and other serious illnesses.

The argument for how a robust patent system makes these types of innovations possible is well-known.  More than in any other industry, the extremely high cost of pharmaceutical R&D, coupled with its high failure rate, requires strong incentives for industry to take the risk necessary to invent new medicines.  Given the relative ease with which many medicines can be copied at low cost, removing those incentives would bring research to a halt, not only depriving patients of life-saving therapies, but depriving the scientific community and the rest of industry of the precious knowledge needed to develop the next generation of medicines.

This is the argument.  But where is the evidence?  For this, it is critical to distinguish between invention—the mere act of creating something new—and innovation, the act of putting it to use.  Proof that patent systems spur invention is relatively easy to come by.  We can measure this in terms of sheer numbers.  In the US, for example, only around 10,000 inventions received patent protection during the system’s first half-century (1790-1836).  In the next 75 years (1911) that number had reached 1 million, and then it took only another 24 to reach 2 million (1935).  This trend continued to 7 million in 2006, and reached 8 million a mere 5 years later in 2011.  This data evinces an explosion in the conception of novel inventions that roughly coincides with the establishment and strengthening of the patent system over time.  But what about proof of real innovation?  Archives may be able witnesses to invention, but only history and human lives can attest to innovation.

The National Bureau of Economic Research did a fascinating study in 2003 which showed how patent systems around the world actually foster and influence innovation.  Looking at nearly 33,000 examples of real, economically useful innovations exhibited at two nineteenth-century World’s Fairs (1851 and 1876), the study concluded that while countries without patent laws were competitive in their overall levels of innovative activity, that activity was overwhelmingly concentrated in industries such as food processing and scientific instruments, where, at the time, secrecy alone was a sufficient mechanism to protect intellectual property.  In contrast, countries with patent systems in place exhibited innovations across a wider range of industries, which, critically, included those such as machinery where secrecy was ineffective in preventing copying.  Between the two Fairs, as progress in the manufacture of scientific instruments became increasingly dependent on machinery, innovation in countries without patent protection moved away from instruments and further into food processing, where secrecy remained an effective bar.

So, history proves the impact that patents can have on shaping not just invention, but real innovation.  And if we apply the same logic to the innovations of today, so do human lives.  It’s no secret that some of today’s most important innovations—cutting-edge medicines like those that are helping so many live with diseases like HIV and cancer—are costly and difficult to invent, but cheap and relatively easy to copy.  While we can’t perhaps point to an explosion of patents as proof that the patent system works, we can, considering the historical data, say with a good deal of confidence that a strong patent system is what made this generation of life-saving innovations possible.  Coupled with innovative efforts to incentivize industry to bring patented innovations to the developing world—such as the USPTO’s new Patents for Humanity challenge, which harnesses the strengths of the patent system to do just that—a strong patent system is also what will lead to the next generation of HIV medicines, and ultimately to a vaccine and cure for all.

As we think about the millions who have died from HIV/AIDS and the challenges that remain in defeating this disease, let’s not forget how far we have come.  Let’s celebrate the millions who are living with this and many other diseases today, thanks to science, medicine, public health, and a robust and working patent system.

Authors: Alisa Harbin is Head of Group Litigation and Intellectual Property at Novartis International. Corey Salsberg has been practicing law, specializing in IP litigation, he joined Novartis in March 2010 where he supports both IP litigation and IP policy.

Image: Plasma samples used for HIV research in Sydney are removed REUTERS/Tim Wimborne