The patent system has long been criticized for limiting access to pharmaceuticals. Patents grant inventors a limited period of exclusivity with an attempt to allow recoupment of investments in the invention process. In the pharmaceutical industry, this exclusivity and the resulting lack of competition leads to exorbitant prices. High prices limit access to potentially life-saving medicines and hinder achievement of the “highest attainable standard of health,” which several international instruments recognize as a human right.
The pharmaceutical industry claims patents are essential to encourage innovation in risky, lengthy and costly research and development (R&D) processes. But it has yet to put forward indisputable evidence to the actual effects of patents on innovation.
Increasing use of artificial intelligence (AI) in research intensifies the existing debates on pharmaceutical patents. Inventions created or enabled by AI raise questions about patentability and patent policy in general. Faster and more efficient R&D weakens justifications for pharmaceutical patents.
While continued incentivization is essential, lawmakers must consider alternative systems, which prioritize access alongside incentivization in order to advance health care as a human right. One way to increase access while maintaining the necessary incentives for innovation is to reform standards of patentability, leaving some essential medicines enabled by AI outside the sphere of patent protection, and fund R&D through prize funds and tax incentives in the absence of patents. Alternatively, a shorter exclusivity term, followed by a licensing period allowing competitors to make and sell the related medicines against a licensing fee, will enable competing products to enter the market earlier and drive prices down and provide innovating companies a method to recoup investments.