Download This PaperPatents, Partnerships, and the Pre-Competitive Collaboration Myth in Pharmaceutical Innovation
73 Pages Posted: 29 Mar 2015
Date Written: March 27, 2015
Abstract
Public-private partnerships offer a promising alternative paradigm for pharmaceutical innovation in complex disease areas where there are both strong commercial interests and significant public need. They have the potential to reduce the tremendous waste associated with duplicative unsuccessful drug development efforts and to encourage the sharing of knowledge essential to accelerate pharmaceutical innovation. Patents threaten the potential of partnership strategies, however, by making it harder to sustain robust systems of knowledge sharing. Policymakers have tried to avoid this problem by focusing partnership strategies on areas deemed to be “pre-competitive” — areas of collaboration without competition and typically also without patents.
This Article suggests that the current “pre-competitive” approach to partnership strategies in pharmaceutical innovation is fundamentally flawed for two reasons. First, it ignores the competitive market pressures that both shape what is deemed to be “pre-competitive” and fuel tensions within partnerships between sharing knowledge and staking out proprietary rights to gain competitive advantage. Second, it limits partnerships to areas where sharing already occurs instead of concentrating them in areas where greater sharing is badly needed but unlikely to occur.
Instead of a “pre-competitive” partnership strategy, we need a partnership strategy that works in areas of competitive collaboration. To support such a strategy, we need to recalibrate the balance of access and exclusion to knowledge that patents and other sources of exclusivity provide in the drug discovery and development process. The Article concludes that a targeted statutory patent fair use may begin to push the pharmaceutical industry towards more collaborative innovation, and that public and private efforts to accelerate cures for Alzheimer’s disease provide a natural area for such an experiment.
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