The Bayer Boondoggle

Anthrax Crisis Shines a Light on Pharmaceutical Company Thuggery

Drug companies have come up with other ingenious ways to extend their patents: Schering-Plough patented both metabolized and purified versions of Claritin, stretching its exclusive marketing rights on the antihistamine to a total of over 21 years. Glucophage was granted special patent protections intended to promote pediatric research, even though the medication for adult-onset diabetes seems of little value to kids. And Bristol-Myers Squibb lengthened its Taxol patent by employing protections for drugs that treat uncommon diseases—which Taxol does. But the drug is also widely prescribed for breast cancer, and the typical course of treatment for that disease now runs about $20,000, reportedly more than 20 times what the drug costs to produce.

In the midst of what seems to be a biological attack, there was, in the case of Cipro, a perfectly legal high road leading away from such tawdry tactics. The patent law includes a clause that allows the government to override exclusive marketing rights during a public health crisis. New York Senator Charles Schumer suggested this route in the U.S., and in Canada, the government almost took it. Such moves would have set an important precedent, particularly for international health advocates who are primed for an upcoming World Trade Organization conference where drug patents will be front and center. Mostly they'll be talking about AIDS, which has killed some 22 million people worldwide—and might have killed far fewer had cut-rate drugs been made available to people in developing countries.

A true break on Cipro might have made a dent in the pharmaceutical industry's armor. Instead, while feigning stern negotiations, the Bush administration gave Bayer what amounted to a loving squeeze. "It was a missed opportunity," says Larry Sasich, a pharmacist who keeps tabs on the drug industry for Public Citizen. Sasich has seen such close calls before, starting 40 years ago when Congress rejected a bill that would have forbidden drug companies from patenting minor chemical changes unless they were truly superior. Sasich is also dubious about the prospects of future efforts. "Other opportunities to take on [the drug companies] will come up in the next few years," he predicts, "and we'll miss those, too." It is the American way.

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