A Patent Problem

Universities like Harvard are often characterized as ivory towers, citadels of learning insulated from the vagaries of the real world. But whatever the truth of this trope, universities for the most part understand themselves to have certain responsibilities toward the rest of the world.

Keeping that generous public spirit in mind, I’d like pose a problem which we, as a University community, can help to correct. Most people in the world do not have access to the medicines they need. In Africa, for example, less than one percent of the 4.1 million HIV positive individuals currently in need of treatment actually receive it. Most of the other 99 percent simply cannot afford the drugs. But universities like Harvard can help to keep drug prices down in developing countries, if they adopt the right policies.

Let’s take a step back to gain a better understanding of the dilemma. Pharmaceutical companies own patents which protect them from so-called “generic” competition. If a pharmaceutical company has patented a drug in a particular country, then it has the exclusive right to produce that drug. This means that it can set the price as high as it likes, without fear of competition. Patents are, of course, necessary and important. They help to secure pharmaceutical companies the profits which they need in order to fund research and development. But profits are one thing; profiteering is quite another. Sometimes, for instance, pharmaceutical companies will patent drugs in poor countries, effectively denying large segments of a population access to medication.

Here’s a little example: Back in the 1980s, a researcher at Yale discovered a compound which looked to be a promising new drug to fight the AIDS virus. Yale, in turn, licensed the compound to Bristol Myers Squibb (BMS), a British pharmaceutical corporation. BMS proceeded to develop the drug, later named d4T, and to patent it in several countries, including South Africa.

South Africa, with the most HIV positive citizens of any nation, is the undisputed ground-zero of the global AIDS crisis. In 2001, seeking to acquire cheaper generic versions of d4T in order to treat dying South Africans, the Nobel Prize winning organization Doctors Without Borders requested that Yale act in conjunction with BMS to drop its patent protection in the country. But Yale wouldn’t budge; at least not until a group of Yale students began to mobilize around the issue, mounting a stubborn media campaign to shame the university and BMS. Eventually the students prevailed, and together Yale and BMS ceased enforcement of the South African d4T patents. As a result, the price of d4T in South Africa fell to one-thirty-fourth of its previous level. That’s a big deal, a very big deal.

So what’s the moral of this heartwarming tale? Yes, it does offer hope that even in this day and age student activism can rear its head and help make the world a little more just. But it also tells us something about the power of patents, and suggests the unique role that universities occupy in their formulation. Because universities are situated “up-stream” in the research process, they have the ability to exert tremendous leverage over the extent of drug patents. When a university licenses a potential new drug to the private-sector, it can choose to do so in a way that helps to ensure that the drug will be made accessible to the world’s poorest, or it can choose to do so in a way that is indifferent to such considerations.

Yale chose the latter alternative, and so it was only ex post facto—after the licensing agreement had already been signed—that student pressure could remedy the situation. But if Yale had previously adopted a policy requiring it to use licensing conditions that precluded the filing of certain developing country patents, the whole problem could have been preemptively defused.

So what about Harvard? Does our licensing policy have specific provisions to ensure that developing nations will have access to our health-related discoveries? As it happens, the first principle enumerated in Harvard’s patenting policy statement reads: “The policy should encourage the notion that ideas or creative works produced at the University should be used for the greatest possible public benefit.” That’s certainly the right sentiment, but it’s awfully vague. Without the addition of more precise language, it’s hard to believe that such a general principle can fully ensure that drugs licensed out of Harvard will “be used for the greatest possible public benefit.” Indeed, Yale had its own “public interest” patenting clause on the books throughout the whole d4T affair.

Harvard’s vague policy gives it too much discretion in individual cases. There is a concern that universities, wary of jeopardizing their friendly working relationships with the drug companies, will not always put the health of individuals in developing countries before pharmaceutical interests. Precise language is needed to ensure that Harvard and other universities will consistently make the ethical choice. Drug companies will likely resist, but if universities act together to adopt new licensing conditions, they will have little choice but to play along. Harvard, being Harvard, should be a leader in this effort, setting the example for other universities to follow.

Until universities begin to adopt more exacting policies, activists like those at Yale will be playing a perpetual game of catch-up. Every new d4T will mean yet another battle, another struggle for access. This is not a sustainable solution. At the University of Minnesota, for example, students are currently struggling to get their school to drop developing-country patents on Abacavir, another critical AIDS drug. We need to nip these problems in the bud. Universities like Harvard should adopt policies that ensure that their health-related discoveries truly benefit the global public welfare.

Sasha Post ’05 is a social studies concentrator in Adams House. His column appears on alternate Thursdays.