Drug and Medicine Patents: Is there an obligation to use them?

Tuesday 22 March 2011 @ 12.53 p.m. | IP & Media

" ...intellectual property is not like normal property. You cannot simply sit on your laurels and exclude the world from benefiting in your discovery."

An interesting article posted to the Washington College of Law “Intellectual Property Brief” website raises once again question as to what the balance should be between protecting the investments of drug and pharmaceutical companies in new drugs and medicines and the extent to which such should and must be made available to the patients who need them.

The article discusses action currently being taken against the Genzyme Corporation.  A pharmaceutical corporation producing a drug called Fabrazyme.  Genzyme is the exclusive producer of this drug,  used to treat Fabry disease (a disease caused by the lack of /or a faulty enzyme needed to metabolize lipids - the fatty substances inside the body - if lipids are not broken down they build up to harmful levels causing serious damage). Genzyme Corporation has suffered difficulties producing enough of the drug to meet the requirements of people with the disease and this has led to some patients taking action against Genzyme and the Mt. Sinai Medical School, the actual patent holder (Genzyme being the exclusive licensee of the medical school).  The suit is based on two claims:

  • a negligence claim, alleging Genzyme failed to take adequate precautions by not keeping a reserve inventory or securing secondary sources of manufacturing and

  • amore contentious argument based on US legislation known as the Bayh-Dole Act, a law put in place to “protect the public against non-use or unreasonable use of inventions.”

The second claim would see argument on the basis that: "Being granted a patent, trademark, or copyright signals the government’s reliance in you to use your discovery/work to contribute to society.  Obviously this contribution can be done in a multitude of ways, but the basic assumption is that you will somehow release your intellectual property to the general public for consumption."

Is there or should there a basic assumption that intellectual property will be realeased for use and not locked up?

For those in need of more information on Intellectual Property, contact TimeBase to trial our Australian legislation Intellectual Property Point-in-Time product for free.

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