by Kevin Carson
Among the terms of a so-called “free trade agreement” between the European Union and India is a requirement for “data exclusivity” which will eviscerate India’s generic drug industry.
“Data exclusivity” means that the clinical trials conducted before marketing by company that originally produced the drug cannot be applied to meet the safety or efficacy requirements for the generic version. Each separate company that wants to market a generic version of a patented drug will first be required to conduct its own clinical trials as a precondition. This directly contradicts one of the arguments commonly put forward by patent apologists — that patents are an antidote to trade secrets because they require openness as a condition of obtaining a patent.
This won’t just be a death sentence for people in India who can’t afford to pay tribute to the owners of state-granted patent monopolies. It will spell the doom of people in such countries as South Africa and Brazil, where the distribution of cheap medicine for treating HIV has depended on the output of India’s generic drug industry.
Let’s be clear on something: Those who call this abomination a “free trade agreement” are liars. It’s like calling the Nuremberg Laws a civil rights act. The people in the drug industry and their lackies in Washington and Brussels heap coals of fire on their own heads every time the words “free trade” come out of their filthy, lying mouths.
Those who claim that drug patents are necessary to recoup the expenses of developing drugs are wrong. The patent system skews R&D toward gaming the patent system rather than developing the most effective drugs. First of all, there has been a dramatic shift away from fundamentally new kinds of blockbuster drugs, because it’s much more cost-effective to put money into tweaking the formulas of drugs whose patents are about to expire just enough to qualify for repatenting them — so-called “me, too drugs.” Second, a great deal of the basic research on which drug development is based is carried out at government expense in publicly funded universities. Around half of the overall cost of drug R&D is taxpayer-funded. And in the United States, under the terms of legislation passed in the 1980s, the patents on drugs developed entirely at taxpayer expense are given away — free of charge — to the drug companies that produce and market them. Third, most of the actual R&D cost for developing drugs comes, not from testing the version of a drug actually marketed, but from securing patent lockdown on all the other major possible variants.
Another example of the same phenomenon is Monsanto’s patents on “high-yield varieties,” one of the ostensible benefits of the so-called “Green Revolution.” Such varieties, as Frances Moore Lappe has pointed out, are more accurately called “high-response varieties.” That is, they’re not hardy or resilient under the normal conditions experienced by local peasant subsistence farmers, like native varieties that were developed over the course of many generations to be hardy under local conditions. Rather, they’re engineered to produce high yields under artificial conditions like heavy applications of expensive synthetic fertilizer and government-subsidized irrigation water.
“High-yield” seeds like Monsanto’s genetically modified varieties, in other words, are ideally suited to the needs of large-scale cash crop agribusiness on plantations owned by sundry landed oligarchies around the Third World — usually on land stolen from evicted peasants whose traditional titles to subsistence plots were nullified — with preferential access to government-subsidized irrigation. So Monsanto’s seeds are associated with a particular business model which is rendered artificially profitable by the state against subsistence production. The practical effect is to shift production from widely distributed small subsistence holdings to large-scale commercial production for the export or urban markets. Under pressure of eviction (essentially a modern-day reenactment of the Enclosures) and state-subsidized competition, people who were formerly able to feed themselves on their own land now lack the purchasing power to buy food from the landed oligarchs’ agribusiness plantations.
And Monsanto’s patents, which criminalize saving seed, add insult to injury by insuring that the seeds remain too expensive for any small producer who might otherwise be able to afford them.
The words “intellectual property” should be emblazoned on the standards of two horsemen of the apocalypse: pestilence and famine.
Violating copyright and patent claims is sometimes called “theft” by apologists for IP. The exact opposite is true: “Intellectual property” is theft. But more than that, it’s murder.