Viagra, Patents, and Responsibility to Society

From Michael Geist at his excellent blog on intellectual property law and policy in Canada:

The Supreme Court of Canada this morning [November 8] shocked the pharmaceutical industry by voiding Pfizer’s patent in Canada for Viagra. The unanimous decision provides a strong reaffirmation of the policy behind patent law, namely that patents represent a quid pro quo bargain of public disclosure of inventions in return for a time limited monopoly in the invention.

Disclosure is… a crucial part of the patent bargain.

The court clarifies that this involves not only a description of the invention and how it works, but rather a much more practical level of disclosure “to enable a person skilled in the art or the field of the invention to produce it using only the instructions contained in the disclosure.” In this case, the court finds that Pfizer failed to provide sufficient disclosure.

Seems that, rather than doing one patent for the drug, Pfizer filed for two separate patents for the drug’s components. As a result, the invention could not be reproduced with the description in a single patent. Pfizer “‘gamed’ the system.”

What I find interesting is that the Canadian Supreme Court so clearly states what is implicit in our own founding documents. Patents and copyright are granted in order to provide an incentive for people to take on the risky business of innovation. At the same time, they are time-limited so that all can benefit from the good that is created in the long run. Advantage leans early on to the creator and later on to the society. That’s the balance. Uphold both goods to seek the common good.

Here in the US, that balance has tilted toward the creators’ side. In a real practical sense, that’s why people download music illegally and mail order drugs from Canada. Nice to see a neighbor seeking the balance.

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