Caviar and Ostriches

-- By CamilaTapernoux - 23 Apr 2012

A paraphrase from a discussion with Eben:

"Fifty years from now, every new mother will be approached shortly after giving birth with an offer. 'I will give you this bottle,' the offeror will propose, 'containing all of the drugs your child will need to live a long, healthy life free of disease. This is my price.'

If the mother can afford the bottle, her child will never fear cancer, never suffer from heart disease, never live with diabetes.

And if not, nature will take its course."

Does this sound like a scene from a futuristic story penned by Orwell or Huxley? Perhaps, yet under the U.S. patent system, it is already occurring. Pfizer's 1999 patent on Lipitor was the equivalent of such a panacea for everyone suffering from high cholesterol and the consequent development of coronary heart disease. Under the patent, a one-month supply of the cholesterol-lowering drug in New York cost between $105 and $132; thanks to these patent-enabled prices, Pfizer made $2.4 billion from sales of the drug in the second quarter of 2004 alone. Meanwhile, cholesterol levels were shown to be the best predictor of mortality from coronary artery disease, and those who could not afford Lipitor were without an alternative to stave off its onset. Just another instance of the rich being treated kindly, the poor, justly.

Enter the Public Patent Foundation, a non-profit which bills itself as recognizing that while "a properly functioning patent system can help a vibrant innovative economy, great care must nonetheless be taken to avoid the negative effects that over-patenting, unmerited patenting and excessive patent rights can have on society." In 2004, 12 years before the Lipitor patent would have expired, PUBPAT successfully filed a formal request with the United States Patent and Trademark Office to revoke the patent. In its filing, PUBPAT submitted prior art showing the patent was anticipated by earlier work of other inventors and should thus have never been granted. After the court rejected the patent, Pfizer conceded to give up its original broad claims. The entire affair cost a mere $8,000.

A happy ending, sure, but one that begs the question: if at the end of the day a judge, a pharmaceutical company, and a public interest group all agreed that the patent was invalid, why was it granted in the first place? More importantly, how do we prevent it from happening in the future? And lastly, how can I utilize my legal education to do so?

This last question, the one of greatest personal importance, is deceptively earnest, for it presupposes the fact that I intend to use my license to serve this goal. Certainly my moral convictions lie firmly with those of the Public Patent Foundation; yet actions speak louder than words, and I will be spending the summer at a firm noted for its work enforcing patents that "belong" to Big Pharma companies and defending such companies in cases just like the one discussed above. But this presents an opportunity to learn as much as it presents an opportunity to compromise. To learn on Big Law's dime the anatomy of a patent reexamination request and use the skills I acquire for the other side. The difficulty is of course obvious, and just one variation on the challenge faced by all law students who come to law school with inchoate but firm ideas of what they intend to do with their degrees, yet are drafted by the other team before anyone has a chance to recognize exactly what's going on.

Enter Eben Moglen. 100 students in one class at one law school received a raging heads up about where this conveyor belt we are on is headed. We

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