The myths about patents

The pharmaceuticals industry claims that patents allow them to make new drugs profitable and encourage innovation. The reality is quite different.

Myth No. 1: Patents help fulfil the needs of public health

The industry claims that patents enable research and development to create drugs that respond to the needs of public health. In actual fact, priorities in terms of the research and development (R&D) of new medicines are essentially determined by the market, and not according to actual public health needs. The current model, based on patents, validates de facto the domination of pharmaceutical multinationals. The poorer populations of the Global South, who do not provide a profitable market, are impacted by the absence of R&D for effective remedies for illnesses that affect them almost exclusively. And when the treatments already exist, these populations are faced with the exorbitant prices of new drugs.

Myth No. 2: No patents, no incentive to innovate

The pharmaceutical industry claims that patents encourage innovation. Their logic is that, without the right to patent inventions, there would be no incentive to make innovations in the research and development of new medicines. In fact, in spite of a constant increase in the number of patents, the number of new substances approved by the regulatory agencies is not following the same curve, while R&D expenditure is increasing. In addition, a study conducted in the United States showed that between 2005 and 2015, 78% of drugs associated with new patents were not for new ones but for existing substances. Worse still, several independent studies have shown that two-thirds of new medicines marketed each year do not show significant therapeutic benefit and that one drug in six is actually less effective than those already on the market. To maintain profits and increase market share, pharmaceutical companies do not hesitate to file multiple patents for the same substance, thereby prolonging the period of exclusivity of a product and delaying the production of generic drugs. This practice – known as “evergreening” – is part of the business model for this sector. It jeopardizes access for populations to essential medicines, especially in economically weaker countries, and hinders the discovery of new pharmaceutical substances.

Myth No. 3: Patents are essential in maintaining a balance between private and public interests

Originally, patents were established to guarantee a balance between private interests (rewarding inventors by granting them exclusive marketing rights to recoup their investment) and public interests (where society benefits from progress and knowledge is propagated). Harmonized from 1995 over a duration of 20 years by the regulations of the World Trade Organization (WTO), patents are supposed to stimulate innovation. However, several decades later, there is still no empirical evidence that this is the case. Worse still, patents have become efficient tools for protecting investments, are designed to exclude competitors and to raise share prices, rather than to benefit society. While pharmaceutical companies have been able to quickly develop vaccines, treatments or diagnostic tests against COVID, it is thanks to the massive public subsidies obtained from governments (more than $100 billion have been articulated), which have also significantly reduced the risks of R&D – while the countless patents filed by these companies, on the other hand, have prevented a fair distribution and allowed them to privatize profits. The private-public balance has clearly been broken.

Remedies to restore public interest exist

With scant regard for the particular needs of public health in poorer countries, the TRIPS Agreement validated the globalization of an R&D model based on patents granted to pharmaceutical companies. Nevertheless, the instruments known as the “TRIPS flexibilities”, such as the compulsory licence, make it possible to compensate for certain shortcomings in the patent system and to re-establish access to lifesaving drugs. However, one must have the opportunity and political courage to use them.