[Ip-health] Compulsory licensing by Epstein and Kieff

Aidan Hollis ahollis at ucalgary.ca
Fri Sep 3 16:10:00 PDT 2010

For those interested...

Questioning the Frequency and Wisdom of Compulsory Licensing for Pharmaceutical Patents

Richard A. Epstein 
University of Chicago - Law School; Stanford University - Hoover Institution on War, Revolution and Peace

F. Scott Kieff 
George Washington University - Law School; Stanford University - Hoover Institution on War, Revolution and Peace

August 17, 2010

U of Chicago Law & Economics, Olin Working Paper No. 527 

Many advocates for using compulsory licensing (“CL”) for pharmaceutical patents in developing countries like Thailand rest their case in part on the purported use of CL in the United States. In this paper we take issue with that proposition on several grounds. As a theoretical matter, we argue that the basic presumption in favor of voluntary licenses for IP should apply in the international arena, in addition to the domestic one. In the international context, voluntary licenses are of special importance because they strengthen the supply chain for distributing pharmaceuticals and ease the government enforcement of safety standards. Next, this paper analyzes several of the key illustrations of purported CL for drug patents in the United States and shows that the use of CL elsewhere deviates in material ways from the standard U.S. practices. These are the compulsory copyright licenses for music; the award of damages instead of injunctions after eBay v. MercExchange, and the use of compulsory licenses in antitrust settlements. Whatever the ultimate desirability of these American doctrines, none of them seeks to reduce the payment on licenses to the marginal cost of the licensed goods. Any need to help poor people gain access should not rely on CL, but instead should rely on tools precisely aimed at that purpose, including direct government purchases of patented drugs from their manufacturers at negotiated prices.


According to the paper, bulk purchasing may be a good solution to the problem of high prices for essential, but expensive, drugs. 

One of many interesting claims in the paper (p. 9) is "Any insistence that drugs are 'special' is the sure road to policy mistakes." 

Aidan Hollis
Professor of Economics
University of Calgary, 2500 University Dr NW Calgary AB T2N 1N4 Canada
tel: +1 403 220 5861  fax: +1 403 220 5861
email: ahollis at ucalgary.ca
web: http://econ.ucalgary.ca/hollis.htm
Incentives for Global Health

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