IP: Re: Canada Overrides Patent for Cipro to Treat Anthrax -- 2 items worth reading

[David Farber <dave () farber net>]

> Date: Fri, 19 Oct 2001 18:49:59 -0400
> To: farber () cis upenn edu
> From: Jonathan Weinberg <weinberg () mail msen com>
>
>
> At 05:27 PM 10/19/2001 -0400, you wrote:
> and to show I do send out all sides
>
> > From: "John Fulton" <jfulton () westcapital com>
> > To: <farber () cis upenn edu>
> >
> > Canada's action is the equivalent of a socialist country "nationalizing"
> > privately owned industry. This can always be done in the name of the
> > "common good." In America, we respect property rights and I believe that
> > the laws governing ownership of property fall under that precious list of
> > freedoms that you so often cite when quoting Ben Franklin, unless in this
> > case you'd prefer a bit of temporary security.
>
>
>         Although it wouldn't have occurred to Ben Franklin to apply that 
> reasoning to patents.  Back in Franklin's time, patents weren't much 
> thought of as property at all; they were thought of, rather, as legally 
> conferred "monopolies." The Framers were ambivalent about them: Jefferson 
> wrote in 1813 that "generally speaking, other nations have thought that 
> these monopolies produce more embarrassment than advantage to society; 
> and it may be observed that the nations which refuse monopolies of 
> invention, are as fruitful as England in new and useful devices."  The 
> notion that patents, copyrights and the like are "property" is 
> essentially a product of the twentieth century (the phrase "intellectual 
> property" didn't come into common use until after World War II).
>
>         And in fact, patents and copyrights wear the mantle of "property" 
> rather uncomfortably.  The contours of a piece of real estate, after all, 
> are pretty straightforward, and we have a long common-law tradition 
> governing what rights are associated with real estate ownership.  But 
> patent rights aren't written in the heavens -- the contours of the patent 
> right in this country at a particular moment in time depends on the 
> policy decisions Congress has enacted into law regarding whether it 
> should give inventors exclusive rights to exploit their inventions for a 
> limited time, and if so which inventions are covered, and how long the 
> exclusivity should last, and under what circumstances, and what counts as 
> a violation of the inventor's exclusivity, and a bunch of other 
> issues.  Congress is supposed to make these decisions by asking the 
> question Jefferson asked: which resolution of these issues will produce 
> the most "advantage to society"?  The current U.S. patent statute, on the 
> one hand, gives Bayer rights in Cipro continuing through today, and 
> allows it to block importation of the generic drug that is cheaply 
> available outside this country; on the other hand, it provides for a 
> compulsory license that allow the U.S. government to do essentially what 
> Canada did here.  One might argue with the decisions underlying either of 
> these prongs.  But it makes no sense to freeze into stone a particular 
> vision of the patent statute and to argue that unless Congress grants 
> inventors that particular set of exclusive rights, it's invading "freedom."
>
> Jon
>
>
> Jonathan Weinberg
> Professor of Law, Wayne State University
> weinberg () msen com


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