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all the measures designed to protect this nation and the world against
bioterrorism, none would do so little good now — or work greater
harm — than the effort to limit the profitability and patent
rights of the companies investing time, money, and scientific capacity
to protect the public against even more dangerous bioweapons than
anthrax-filled envelopes. As we bail out the airline and insurance
industries, and pump billions into defense (including billions to
assure the profitability of our private defense industry), many
politicians, led by Sen. Charles Schumer, want to seize the Cipro
patent and hand it over to generic companies in order to stockpile
government-supply depots more cheaply. But what would happen to
the development of new medicines and vaccines — essential not
only to the war against bioterror, but for the advancement of human
health in general — if companies, particularly biotech and
genomic firms, knew their patents could be seized under the guise
of a public-health emergency, as a matter of public policy?
That is the
model of biodefense and medical progress Sen. Schumer proposes,
and that the Bush administration seems to endorse. The idea that
we will make ourselves more secure against smallpox contagion or
anthrax exposure by stripping patents from the firms that developed
them is absurd in the current crisis, let alone as the foundation
for a new bulwark against bioterror. It's also ironic that Schumer
— who in the past has called for the use of generic and low-cost
drugs in favor of the higher-priced prescriptions for similar illnesses
— would be so quick to strip the patent of Cipro for use in
anthrax therapy. An article in the May 1999 Journal of the American
Medical Association by several leading biological-weapons experts
(including those consulting the Bush administration) noted that
"most naturally occurring anthrax strains are sensitive to
penicillin, and penicillin has historically been the preferred therapy
for the treatment of anthrax." The article goes on to cite
other types of antibiotics, including the class to which Cipro belongs.
So there are
plenty of drugs the government can purchase for stockpiling. Even
the administration's top adviser on bioterrorism, Dr. D. A. Henderson,
has said as much. Why pick on Cipro? Because it has a patent and
turns a profit. Hence Jamie Love, of the Naderite Group Consumer
Project on Technology, claims that protecting the patent of Cipro
means endangering the public health — since Bayer AG, the company
that makes Cipro, can't make it fast enough or cheap enough to satisfy
Schumer and Love.
This is the
politics of drug-company bashing — not public-health guidance
or medical science or biowarfare strategy — and it now governs
our response to bioterrorism. Once the government stockpiles a drug,
it becomes a goody that, following the courageous example of our
leaders in Washington, is dispensed prophylactically, in the absence
of established medical protocols. This in turn will make it easier
for anthrax to develop a resistance to Cipro, and make treatment
with other antibiotics less effective.
But Schumer
and now the administration — and others — seem less interested
in waging an effective war against bioterrorism than in waging a
public-relations battle against drug companies. The idea that patents
deny the public access to essential drugs rings true, particularly
after the campaign in Africa alleging that patents on AIDS drugs
were responsible for denying millions of Africans life-saving medicines,
by keeping generic companies at bay and drug prices too high. Yet
here, too, the assault on patents as a public-health policy turns
out to be mere camouflage for an attack on capitalism.
Dr. Amir Attaran,
a researcher at the Center for International Development, surveyed
53 African nations and found that, on average, they had only three
AIDS drugs patented. In fact, the vast majority of the countries
surveyed had no patents at all. According to Attaran, whose article
was also published in the October 2001 JAMA, if patents were
depriving Africans of AIDS drugs, countries with no patents would
have better access. But this isn't the situation in Africa. And
if patents aren't keeping the poorest Africans from getting life-saving
drugs — can they be blamed for keeping the richest country
on earth from having an affordable supply of antibiotics?
The goal of
Schumer and Love is not to protect the public against anthrax, or
to develop incentives for encouraging companies to partner with
government to create a more sophisticated bioweapons defense system.
Their goal is to create a precedent for a government official to
declare a public-health emergency, seize a drug patent, and hand
it over to a generic company or government agency again and again,
so that patents undertaken in the name of medical progress become
worthless. Sadly, the Bush administration has stitched this hatred
of capitalism into its fight against bioterrorism.
Pharmaceutical,
biotech, and genomics firms should be regarded as strategic assets
in the war against bioterror — not as enemies of the state.
They have the ability to develop early-warning systems for public-health
agencies, as well as new drugs, vaccines, and testing kits that
can protect America against emerging (or reemerging) diseases. Witness
the fate of Bioport, the sole remaining anthrax vaccine company,
and its relationship with the government — full of quality-control
problems, delays, and a haphazard research program — and you
see the future of our fight against bioterrorists in the patent-free
world of Jamie Love and Senator Schumer. You also see what the future
would be like for medical progress in general. For as a recent study
by the National Institutes of Health showed, most breakthroughs
in medicine are emerging from private companies and the private
sector.
We must not
let politicians take our nation down such dangerous and ill-conceived
paths. It is rumored that other drug and vaccine companies are stampeding
to sell their products, or give them away to the emergency stockpile,
to avoid being pilloried on the patent issue. This reactive response
is understandable, but it's not what our nation will need to defend
against a determined enemy over the next several years. To that
end, we need to strengthen the war against bioterrorism with private
capital, not impoverish such an important mission by stripping patents
from the best technologies. Most of the companies in the forefront
of this mission will be small startups. They need the fullest range
of incentives and protections, equal to those of defense contractors,
to insure that our nation is safe and strong. Similarly, to the
extent that patents are not keeping important drugs from developing
countries, but instead are encouraging investment in new and better
medicines, America should strongly protect, in any trade negotiations,
the intellectual property upon which we build a new medical future.
Ultimately, it's Saddam and bin Laden who are America's enemies,
not the nation's pharmaceutical and biotech firms. How could anyone
forget that?
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