UN Puts Patents, Health Care on Dangerous Collision Course

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Infection rates of the Zika virus in South America continue to surge, putting a whole generation of at risk of the mosquito-borne illness that’s been linked to dramatic birth defects; HIV and AIDS continue to haunt the African continent, with some 60 percent of the globe’s infected population residing in a small enclave—these ballooning public health crises are set to the troubling backdrop of the two billion people in the developing world who lack access to critical medicines.

Last year the United Nations commissioned a special health care panel to study the barriers to access to those drugs, and the group is expected to release its findings within days. And yet there remains little suspense as to what the panel, formally designated the “High-Level Panel on Access to Medicines,” will propose: erase the rights of inventors. From its inception, the panel misaligned global intellectual property opposite human rights in a false dichotomy so contrived as to remove any doubt the United Nations is not serious about addressing the uniquely pressing consideration of access to critical medicines.

Consider the panel’s mandate: “to review and assess proposals and recommend solutions for remedying the policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies.” That's U.N. speak for: find solutions to erode intellectual property as the primary obstacle to global health care.

The supposed incoherence between protecting intellectual property and access to medicine is a manufactured “Sophie’s Choice,” because not only do they co-exist, they are jointly recognized in two of the most important international treatises on human rights and plainly complimentary.

Illnesses that would be cured outright or manageably treated in Western nations still carry a death sentence for many in the developing world, but the barrier is not intellectual property. The real impediments to drug access are more structural and less precise than the IP bogeyman the U.N. has constructed—limited local medical expertise, physical delivery systems to remote areas, government health infrastructures and funding mechanisms.

But rather than addressing these problems, the United Nations has fabricated a framework in which an individual’s access to medicine and an individual’s ability to protect the fruits of innovation—have been clumsily thrust into a bureaucratic cage match.

The capital investment required to bring a new, path-breaking medicine to market is so astronomical it dwarfs some nation state’s gross domestic product. On average more than a dozen years and some $2.6 billion are spent to bring just one drug to market. Of the few drugs that actually advance to clinical trials, just one of every 12 is ultimately made available for consumer purchase.

(It’s no coincidence that some of the most vocal advocates for eroding intellectual property in health care are those with financial stake in the generic drug market. In fact, one such generic drug king pin is a member of the U.N.’s panel.

To create a new drug is to take one of the riskiest wagers ever conceived. Billions are sometimes made. Billions are often lost. That’s why patent protections are so crucial—because they provide the necessary assurances to inventors that winning propositions, however few, will be protected in a way to offset all the losing ones, however great.

The biggest barrier to access to critical medicine today isn’t intellectual property, which provides the necessary encouragement to innovate even in spite of the significant risk. Patents are not the enemy of a healthy planet, no—the United Nations is, at least as long as it pretends that intellectual property is the primary obstacle to global health care.

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