Last summer, sitting down to enjoy a cob of golden sweet corn, I made two observations. First, my mind drifted to how that corn ended up on my plate. Over several months, a farmer tended to his soil, purchased and spread fertilizer and seed, averted insect infestations, prayed to avoid disastrous weather and harvested his crop. The farmer then loaded his truck, drove to the farmer’s market and collected 50 cents for the corn cob in front of me. In other words, the farmer invested heavily in time and money before he saw a pittance of return.
Second, as I buttered the kernels, I wondered who actually owned them. At its essence, corn is simply food. It is fruit of the earth. Yet, I had assumed the farmer had a protectable property interest in the corn he sold me, even though “food and access to water [are] universal rights of all human beings […].”1
These two observations provide an analogy to the morality of intellectual property protection within the global distribution of health care. An odd combination, I’ll admit, but bear with me.
Last July, Pope Benedict XVI issued his encyclical Caritas in Veritate. Among other things, it provided an outline for church teaching regarding degradation of charity and divisions of wealth within the global economic order. One passage, though, stuck out from the rest among the intellectual property bar: “On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care.”2
The passage comes at the end of a paragraph discussing global inequalities of wealth. Referencing intellectual property rights – which include property interests such as patents, trademarks, copyrights and trade secrets – Pope Benedict undoubtedly focuses on patents,3 and specifically, patents in the medical field. The statement’s motivation likely relates to the lack of affordability to patented medical technologies, centering on the argument that the global lifespan of patents,4 and the active protection of patents, reduces health care access within impoverished classes of both rich and poor countries. Undoubtedly, health care affordability and accessibility should demand the attention of all countries. Pope Benedict’s intellectual property statement is problematic, however, because intellectual property – and its protection – does not cause global health care discrepancies; rather, intellectual property rights provide the foundation for scientific and technological advancement.
Patents provide incentives for corporations and individuals to innovate; without a way to legally protect ideas, and thus profit from ideas, the economic interest in innovation completely diminishes. This is particularly true in the medical field, where the development of new technologies requires years – sometimes decades – to reach fruition. Just as the farmer who grows and sells corn invests early to recoup costs and gain profits much later, medical technology firms similarly invest significantly in scientific resources, testing, government approvals, and manufacturing before a new product ever reaches its market. Without legal protection for those products, firms have no assurance of recovering investments and earning profits. Patents allow firms to continually advance and create new technologies to better combat diseases.
The main cause of discrepancies in health care affordability and access is distribution. Distributing new medical technology requires doctors and nurses with the training and facilities to safely administer it to patients. In some parts of the world, such infrastructure simply does not exist. Protective and unfair trade practices further prevent access to new medical technologies by individuals in impoverished regions, while decreasing affordability for all. This, too, is similar to problems with the global distribution of food; though the richest countries produce enough food to feed the entire world, uneven distribution creates overabundance in rich countries while crippling starvation reigns elsewhere.Access to health care – as with access to food – is a universal human right;5 however, it is not the “excessively zealous” advocacy of an “unduly rigid” intellectual property regime that prevents access to health care; rather, intellectual property rights inspire advancement in technologies that allow generation of new and better cures. Without these rights – and the ability to protect them – such advancements would not exist.
Author: Andrew Pieper, ’03 B.A., ’08 J.D., is an associate in the Intellectual Property Litigation and Licensing Group at Robins, Kaplan, Miller & Ciresi L.L.P. He and his wife, Michaela Kronlage ’04 B.A., live in St. Paul with their son, Adrian. The content of this article should not be taken as legal advice or as an expression of the views of the firm, its attorneys or any of its clients.
NOTES
1 Pope Benedict XVI, Caritas in Veritate, 27 (2009).
2 Pope Benedict XVI, Caritas in Veritate, 22 (2009).
3 Patents are government-issued property interests that grant an inventor – or an inventor’s assignee – exclusive right to use, sell or import an invention for a limited period of time in exchange for the invention’s public disclosure. In the United States, Congress has codified patent laws under Title 35 of the U.S. Code, with authority under Article I, Section 8 of the U.S. Constitution.
4 As part of its Trade-Related Aspects of Intellectual Property Rights agreement, member countries of the World Trade Organization must provide patent protection for at least 20 years.
5 Pope John XXIII, Pacem in Terris, 11 (1963).
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