Ciprofloxacin and Compulsory Licensing of Pharmaceutical Patents

Abstract

The recent threat of biological terrorism involving the Anthrax virus incited a debate about whether the United States government should use its powers under 28 USC §1498 to take a compulsory license on the drug ciprofloxacin in order to stockpile it. Negotiating a deal with Bayer allowed the United States to stockpile ciprofloxacin at a substantial discount while avoiding the negative consequences of issuing a compulsory license. Under 35 U.S.C. 1498, the United States government has the authority to issue a compulsory license; however, the government may not have the authority under the TRIPs agreement. In fact, under the interpretation of the TRIPs agreement that the United States has adopted in previous situations when other countries wanted to issue compulsory licenses on pharmaceuticals, the United States most likely would have violated TRIPs if it had issued a compulsory license for ciprofloxacin. Furthermore, the policy decision to have strong patent protection and to not have price controls on pharmaceuticals in the United States has led to the development of a very strong pharmaceutical industry that leads the world in the development of innovative drugs.