Law in Contemporary Society

More Questions Than Answers

-- 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 artery 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, to be 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?

These first two questions are ones I would like to explore in further revisions. I would appreciate any suggested reading on the topic, but will also be independently researching current literature on point.

The third question is the one of greatest personal importance, yet it 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 to what end they intend to use their degrees, yet are drafted by the other team before anyone has a chance to recognize exactly what's going on.

Enter Eben Moglen. This semester, we received a raging heads up about where this conveyor belt we are on is headed. Would my life be simpler right now if this had not happened? Certainly. I would not be thinking twice about the implications of my first summer assignment, one that provides support for the defense of a patent held by a large pharmaceutical company. But is the resolution to these moral concerns ambiguous or difficult? Not even a little bit. I could easily write 1000 words framing this decision as one involving trade-offs and compromises, gray areas and complications, but it boils down to a very straightforward choice, and I'm not going to try and convince myself or anyone else otherwise. The primary limitation for me is the uncertainty and risk of deviating from the safe and predictable career path I am currently following. So I would also like to utilize the revision process to formulate an alternative plan, to the extent possible, or at least to become more comfortable with the idea of not having a concrete and stable ten year plan. We law students are a risk averse bunch, which is perhaps one reason the current system has worked so well for so long. But to allow such a character trait to become a liability is no better than allowing oneself to become a cog in the corporate law machine; the only difference is that the former involves being a slave to internal forces, the latter external.

All right, don't let me stop you. I can't give you an alternative to a ten-year plan, because I don't know anyone who actually has a complex career who could give you a ten-year plan. On the one hand, I have tenure, which enables one to have a forty-year-plan in early life, if that's what one wants. Or you can use the base it provides, if you're a law professor, to learn continuously and to respond adventurously to what comes up.

Any law practice can provide the base for such an effort, because any law practice can afford a living at whatever level it is you choose to design it to produce. If you let the sum of money it must produce choose the composition of the practice, you'll be sorry about all the other compromises. But in your own practice, they're under your control.

If you're going to bust pharma patents, you need another specialty that pharma hostility won't interfere with. You could do pharma-specialized consulting in med mal practice, for example. But you could also be providing continuing legal education for pay, or doing consulting practice, or twenty other things, for which you can (now or later) train yourself, as you adapt your practice to ongoing conditions.

The requirement of a ten-year plan is nonsense, for any entrepreneur. If you plan to be someone else's bossee, you can make such a plan, unless you lose the job. If you plan to join an army, you can make such a plan, as long as you don't mind going where the army chooses to put you. But if you want to do your own thinking, why not be realistic about how the doing your own steering business really works?

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r8 - 22 Jan 2013 - 20:09:49 - IanSullivan
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