How pharmaceutical companies game the patent system | Tahir Amin | Big Think

How pharmaceutical companies game the patent system

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When a company reaches the top of the ladder, they typically kick it away so that others cannot climb up on it. The aim? So that another company can't compete. When this happens in the pharmaceutical world, certain companies stay at the top of the ladder, through broadly-protected patents, at the cost of everyday people benefitting from increased competition. Since companies have worked out how to legally game the system, Amin argues we need to get rid of this "one size fits all" system, which treats product innovation — "tweaks" — the same as product invention.

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TAHIR AMIN:

Tahir Amin is an attorney with more than 25 years of experience in intellectual property law. Amin’s pioneering work challenging patents has established a new model for treatment access, one that restores balance to the system by upending the structural power dynamics that allow inequities to persist.

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TRANSCRIPT:

TAHIR AMIN: There's a great quote by a German economist from the 1700s, and it got translated into a book by a Cambridge professor, it's called Kicking Away the Ladder. And the idea being, when you reach the top of the ladder, you kick it away so that no one can climb up it. And that's how the laws and the trade rules get framed in intellectual property, is you don't want someone to compete. So intellectual poverty really is about the political economy of comparative advantage and who holds the power and who really can then dictate how economies work in this modern economy.

Pharmaceutical companies—typically what they will do in the small molecule space, which is the organic chemistry space—so there's a lot of products that are based on small compounds—what they'll typically do is get the first patent, and it's the broadest coverage to protect the area that they want to do the research in. And typically, the first patent could cover millions of compounds, which they've screened. And then they will get into looking at which of those compounds have the best properties for a particular disease area they're going to look at, and then they will formulate it.

And typically, in the first patent, they will cover all those aspects broadly so that they've ring-fenced off the area so that nobody gets into that research space. And then typically, they'll add another patent, which we'll talk about how they deliver the product, the compound, into the body. And then they will then find various ways to tweak the dosage form. They'll say, "Well, we used to have three pills and we'll make it into one," or "We will change the coating of the drug to get fast/extended release."

Now, people might say, well, something innovative in terms of putting three pills into one, it never existed before for a particular product. "That's inventive, that's innovative." I would say it's more innovative in the sense of somebody just applied it, but the basic science behind it has already been done, and it's known that it can be done.

Now, science isn't exact, for example. Some things don't work with every particular chemical or every particular bio-logic. But largely, you would know to try it. It's been done before, you know that there's a root there. So for me, that is not an invention. That is probably maybe more innovation in the sense of, "I've taken existing science, I've reapplied it, I've come up with a different product." Now, for the purpose of the patent system, I don't think you should get 20 years for that. I think, yes, your investment should be rewarded. That's fine. That, for me, is an incremental iteration of existing science, of existing knowledge. But the counterargument to that then is, "Well, if we don't give them something— if we don't give companies this incentive, they won't come up with these slightly varied formulations." And my answer to that is, "Fine, we want those, but you don't get 20 years for it."

And I think that's where this one size fits all, "putting everything into the patent system as the incentive" model is skewed now, because companies have worked out how to game the system. And I think this is where we need to step back and realize, do we need a different model for those low-hanging fruit type, slightly innovative tweaks? I don't call them inventions, because, for me, innovation is a byproduct of invention. Invention comes first. That's the really new path-breaking science. Innovation is just commercializing it.

When we use the term plan...

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