IN CIPRO WE TRUST: BUT HOW DO WE FEEL ABOUT OUR DRUG PATENT LAWS? (2002 Third Year Paper)

Abstract

In many ways, the terrorist attacks of September 11, 2001, crystallized national debate over drug patents both in Canada and the United States. This became clear when, at the height of the anthrax attacks in October, NBC's Tom Brokaw paid the following homage to the top anti-anthrax drug: In Cipro we trust. On the one hand, the public was eternally grateful for the research and development that led to the patented, life-saving CIPRO. On the other, the Canadian and United States governments insisted on obtaining national stockpiles of the drug at much-reduced prices. In fact, these conflicting attitudes toward CIPRO revealed a greater reality. Competing policy objectives—providing incentives for pharmaceutical innovation while ensuring timely access to affordable medicines—are the raison d'etre of many drug patent regimes, including those in Canada and the United States. Legislators and regulators alike keep searching for the best balance between these conflicting goals. This paper explores these issues through a comparative study of Canadian and United States drug patent regimes. Part II is an overview of the legislative and regulatory framework currently in place in both jurisdictions. In at least one significant respect, the regimes in Canada and the United States are unique, vis-a-vis the rest of the world. Pursuant to complex procedures, a drug patentee is entitled to an automatic injunction against a proposed generic competitor. Parts III and IV consider how these drug patent rules have played out in the case of CIPRO both before and after September 11, again in Canada and the United States. The purpose of the CIPRO case study is twofold: (1) to show how legal incentives provided to drug manufacturers can be misused, leading to possible anticompetitive outcomes; and (2) to demonstrate how current laws may not adequately address the new, suddenly pressing objective of bioterrorism defense. Finally, Part V looks at pending legislation directed at readjusting the balance between pharmaceutical innovation and generic competition.