An Introduction - Patents versus Patients: Must We Choose

Are patents a tool for promoting the development of medical treatments for patients or merely a roadblock to access to health care? This is a perennial question to which there are often strenuous opinions. This Symposium Issue complements the Second Annual Beazley Symposium on Access to Health Care, "Perspectives on Patents and Patients: Can They Coexist?," by providing a variety of perspectives on the increasingly important intersection between patents, health care access and innovation. Whether there is any need to "choose" between patents and patients is an intriguing yet controversial question. To some, patents seem to clearly undermine the goal of providing drugs at the lowest possible costs because the exclusivity inherent with patent rights provides an incentive for profits. To others, there is no conflict at all because patents are seen as the driver of innovation that will inevitably benefit all of society and even facilitate the genesis for low-cost generic drugs. So, which view is correct, or is neither? Prior to discussing whether a choice is necessary, it is important to understand some fundamentals of patent law. Patents are granted by national governments to applicants who establish that an invention is new, useful, and not "obvious" to someone in the same technical area as the inventor. 1 For example, once penicillin has been discovered and publicly disclosed, no one can thereafter claim a patent on penicillin because it to the authors for their thoughtful collaboration throughout the editorial process. We would also like to thank the Beazley Institute and our Annals faculty advisors, Professor Lawrence Singer and Professor John Blum, for their continued support, encouragement, and mentorship. (providing requirements for patentable inventions in the United States). A patent application must also comply with certain requirements to ensure that the public will be in possession of the invention. Annals of Health Law would not be "new." 2 If, on the other hand, the first person to create a drug to treat cancer obtains a patent on the drug, the inventor will be able to exclude all others from making the patented cancer treatment. 3 The ability to exclude all others can enable that inventor to charge a high cost-4 especially if it is the only drug available for that treatment. Moreover, a patent also increases costs for researchers who want to use the patented drug as the basis for developing further innovations; some researchers and companies may strategically decide …