At the second PASSIM workshop on ‘Patens as Capital’, Prof Susi Geiger presented her research on ‘Transparency as a flank movement to patent activism in pharmaceutical markets’. Providing a concise overview, introducing the issue of pharmaceutical patentability and its impacts on the right to healthcare, the presentation elaborates on the economic perspective of the social contract inherent to the exclusive rights provided by patents. Prof Geiger shows why this contract is not adequately fulfilled by considering both upstream- and downstream problems. In particular, the presentation elaborates on why the standard arguments pro patent, and the industries reference to CSR, donations and voluntary licensing fail in reflecting the economic reality. This is concerning when regarding how IP is owned and moved around in economic entities as a type of capital, for example by investment firms. The situation is of particular concern when considering for example how the EU neo-liberalised their markets, opening for multinational corporations, and, in this process, privatised the last remaining public pharmaceutical companies. The role played by government becomes further problematic with respect to the “gunboat diplomacy” adopted by Western countries aiming to create and protect IP system that are specifically tailored toward the benefit of ‘their’ industries.
Against this background, the presentation provides an overview of now historic activism that opposed the current international patent regime. Three waves of activism are introduced: 1.) actions taken by HIV/AIDS activists in the West who wanted to be involved in the decision making and development of medications for their needs, 2.) activism in low-income countries against the proliferation and abuse of patent rights, and 3.) activism pushing towards more focussed innovation concerning rare diseases. From this, two shifts are identified, the first indicating a revival of patent activism in high income countries, and the second being the rise of transparency activism. The latter of these constitutes an activism that is initiated by states that identified the need to require the pharmaceutical industry to be more transparent as to their research, their pricing strategies, and the value of the IPs they hold. Prof Geiger elaborates on this type of activism and related issues addressing the role of the state and the industry, indicating that transparency is something states can buy into while changing IP systems is not. This is the case even though the transparency activism is a result of the recognition that current patent rights have simply become too strong and thus offer to much leeway for abuse. Lastly, the presentation is supported by current findings and indications that can be taken from the recent experience with Covid and the many controversies that surrounded the protection of pharmaceutical patents in the midst of a pandemic.
The discussion following this brilliant presentation introduced further interdisciplinary considerations concerning a deeper explanation of state involvement, while it was also reflected on whether patents constitute the actual problem, or whether the main problem lies in their abuse. Further debates concerned whether transparency in licensing may reinforce the current patent system, or whether transparency could be utilised to help in enhancing the efficacy of compulsory licensing. The discussion then concerned the interplay between the application of the law, and economic and political perspectives, including pressure exercised by the industry to prevent an access to medicines centred application of the TRIPS exceptions. In this vein, questions arose as to the strategy of the industry adopted to counter these activist movements. Lastly, the discussion concerned the location of transparency in regard to where transparency statements should be included, for example in CSR statements. In this context it was argued that annual reports are notoriously scarce in providing information that actually matters.
If you missed the stimulating discussion, you unfortunately simply missed it. Prof Geiger’s insightful presentation, however, you can watch here on the PASSIM Blog right now:
Susi Geiger is a Full Professor of Marketing & Market Studies at UCD College of Business, she currently leads the EU Horizon 2020 European Research Council project MISFIRES (see misfires.ucd.ie for more information).
Video by LiU communications officer Per Wistbo Nibell. Text by Marc Stuhldreier who also chaired the event.