(This post orginally appeared on my Patreon page.)
Many of the leading Democratic candidates, especially Sanders and Warren, have been putting forward bold progressive plans in a wide variety of areas. Sanders and Warren have both supported a quick transition to a universal Medicare program, with no premiums, co-pays, or deductibles. Several candidates have supported a Green New Deal, which in some versions would guarantee every worker in the country a decent paying job.
Such policies are really big deals. They would both have a huge impact on people’s lives and also pose serious problems of implementation. The willingness of Democrats to think big in other areas makes their determination to think small on prescription drugs surprising. Replacing government-granted patent monopoly financing of research is both a huge deal and one that can be implemented gradually without threatening massive disruptions in a transition process.
Free Market Drugs Are a Really Big Deal
First, it is necessary to realize that having drugs available at free market prices, without patent monopolies or other forms of exclusivity, would have an enormous impact on the economy and the health care system. On the first point, we will spend more than $460 billion on prescription drugs in 2019. Without patent protection, these drugs would almost certainly sell for less than $80 billion, implying a savings of more than $380 billion.
To put this $380 billion figure in context, it is more than five times the annual food stamp budget. It is more than twice the size of the Trump tax cut. If we project out the savings over the course of a decade, they would come to more than $5 trillion. That is more than three times the amount that is projected to be needed to cover the cost of full forgiveness for outstanding student loan debt. This is more than $30,000 per household. In short, there is huge money at stake by any measure.
Of course this goes well beyond a dollar and cents calculation. Millions of people facing debilitating conditions or potentially fatal diseases, struggle to come up with the money needed to pay for their drugs. This often requires patients and/or their families to battle with insurance companies. The need to raise money for drugs is also now a major use of Go Fund Me pages.
If the research was paid in advance, so drugs could be sold as generics, it would not be a struggle to pay for even the newest and most innovative drugs. The price of generics is often less than 1.0 percent of the cost of high priced drugs in the United States. For example, when the Hepatitis C drug Sovaldi was selling for $50,000 in the United States, a high quality generic version was available in India for just over $300 for a twelve week course of treatment.
There would be comparable stories for breakthrough drugs and treatments in other areas, many of which now sell for more than $100,000 a year in the United States. The most expensive now cost more than $1 million. Without government-granted patent monopolies, the prices would almost certainly be less than 1.0 percent as high, and possibly closer to 0.1 percent of the current U.S. price.
The basic story is drugs are cheap. It is rare that the manufacturing and distribution process involves major costs. Prices are a problem because of government-granted monopolies.
The patent problem goes beyond prescription drugs. It applies to medical equipment and medical tests as well. An MRI or other scan would just be a couple of hundred dollars if it was a question of covering the wear and tear on the equipment and the pay for a skilled technician to conduct the scan and a doctor to read and assess the findings. It is patent monopolies that make these scans expensive. The savings from ending reliance on patent monopolies in these other areas would probably add $100 to $150 billion annually to the total, another 1.5-2.0 multiples of the annual food stamp budget.
National Public Radio recently did a piece about a woman who had a surprise bill of $94,000 for neuromonitoring services during a surgery on her spine. The reason this process could be billed for $94,000, as opposed to perhaps one-twentieth of this amount, is that the process is patented. If the neuromonitoring system had been developed with public funds, there would be no huge bill with which to surprise patients.
In short, the main reason that so many aspects of medical care are tremendously expensive is that we give companies patent monopolies. Since they are selling items that are essential for people’s health or their life, these monopolies allow them to charge outlandish prices. This is the same story as if firefighters set prices based on what it is worth to have family members rescued from burning houses. Needless to say, we would all be willing to pay lots of money in such situations, especially if we could get a third party (e.g. our insurance company or the government) to foot the bill.
Direct Public Funding: The Alternative to Patent Monopolies
The pharmaceutical industry and its supporters in Congress try to pretend that we couldn’t possibly develop new drugs without the incentive of patent monopolies. For some reason we are supposed to believe that, even though in all sorts of jobs people work for money, they can only develop drugs with the prospect of getting a patent. I suppose you have to be on the pharmaceutical industry’s payroll to understand this logic.
The industry’s argument gets even more bizarre when we consider that it is the biggest advocate of increased funding for the National Institutes of Health (NIH). NIH and other agencies get more than $40 billion a year to do biomedical research. This money is primarily spent on basic research.
Somehow we are supposed to believe that this money is well spent, but if the government were to spend more to replace the industry’s patent supported research and clinical testing it would be the same thing as throwing the money in the toilet. The industry’s argument is especially bizarre since many important drugs have actually been developed with government funding. In addition, the NIH has supported thousands of clinical trials.
One interesting comparison is the $2.6 billion that the industry claims it costs it to develop a single drug through patent monopoly financing, with the dozens of drugs and treatments that have been developed by the Drugs for Neglected Diseases Initiative with a cumulative 15-year budget that is less than half of this amount. While there are differences that make the two efforts not strictly comparable, the comparison shows why it is difficult to take seriously the pharmaceutical industry’s claims that we have the best possible system for financing research.
There is a good argument for not having all research done directly by the government, but there is no reason that it could not be contracted out to private companies who would operate under long-term contracts. The condition of getting a contract would be that all findings are posted on the Internet as soon as practical and that all patentable inventions would be placed in the public domain.
The incentives for a company operating on a long-term contract would be to try to make a case for having a contract renewed and expanded. This would mean doing as much as possible to improve public health in the areas for which they have contracted research. This includes not just developing useful drugs, but also scientific breakthroughs that could lead others to develop useful drugs or other treatments.
In this way, the incentives are directly at odds with the patent system. Under the patent system, companies have incentive to keep their findings secret (apart from having to disclose information to get the patent) in order to be best positioned to be able to profit from them. Under this public funding system, they would have incentive to publicize their findings as widely as possible so that they could get credit if they eventually lead to the development of a product or process with important public health benefits.
Another huge advantage of this system is that it would take away the corruption that is endemic to the system of patent supported drug research. Patent monopolies give drug companies an enormous incentive to push their drugs as widely as possible, even when they may not be the most effective drug or have harmful side effects. Purdue Pharma would not have been pushing OxyContin so vigorously if it were selling at generic prices. While the opioid epidemic is an extreme case, drug companies exaggerate the benefits of their drugs and conceal negative side effects all the time.
Going from Patent Monopolies to Free Market Drugs
There is one other important aspect to the switch away from patent monopoly supported research to direct public funding; it can be done piecemeal. There is no reason to deny companies the opportunity to go ahead and do research with the expectation that they will recover the costs with their patent monopolies. They just would have to worry that they will be competing with a new drug that is every bit as good, or possibly even better, selling at generic prices.
We don’t even have to try to displace patent supported research all at once. There is no reason the government can’t add $4 or $5 billion to its annual spending on NIH to support the development and testing of drugs in specific areas, such as cancer or heart disease. This can allow us to both see how the effectiveness of direct funding compares to patent supported research and also to uncover whatever problems exist with this mechanism.
Given this simple story, it is difficult to see why none of the more progressive Democratic presidential candidates have taken up the cause of ending patent-monopoly financing of prescription drug research. This failure is especially peculiar, since both Sanders and Warren (along with Senators Booker, Gillibrand, and Klobuchar) were sponsors of a bill that would provide some public funding for research that would lead to new drugs being introduced as generics.
It’s great to see the candidates proposing plans that would bring down the cost of prescription drugs. It would be even better to see them propose plans that would stop the government from making them expensive in the first place.
 As a practical matter, it would probably be desirable to “copyleft” the patents. This system, which comes from the Free Software Movement, involves having a patent that is in the public domain for anyone who intends to use it in a process/product which will also be in the public domain. If someone wishes to use the patent for profit, then they have to negotiate terms of its use. This would be helpful in arranging a system of reciprocal research support with other countries. (This is discussed in somewhat more detail in chapter 5 of Rigged.)