Kobayashi Maru, what do you do?
October 22, 2005 9:32 PM   Subscribe

Taiwan ignores drug patent - To save its people from a dangerous flu, Taiwan is synthesizing a vaccine without permission. This bears a striking resemblance to a classic moral dilemma of Kohlberg's stages of moral development. Kohlberg's theory is not without criticism, including gender bias, Western-centric thinking, and external validity. Simply knowing a person's decision doesn't tell you about their stage of development; you have to know the reasoning behind it, which is hard to come by in real world situations. Conversely, knowing a person's stage of moral development (even harder to come by in the real world) does not reliably predict their decision (moreso at the higher levels). Nor does Kohlberg's theory scale to what choices societies themselves make. Decision Making is a booming field of research, but how much research is being done on morality and group decision making? Not much. (initial article via /.)
posted by Eideteker (33 comments total) 1 user marked this as a favorite
Wow, this will take me a bit to read through all of the material linked, but great job on turning an article linked on /. into a good FPP.
posted by Stunt at 9:34 PM on October 22, 2005

This bears a striking resemblance to a classic moral dilemma

Or it would if pharmacutical companies behaved morally and the patent law actually protected anyone from any genunie danger or theft. Since it's largely a device designed to make rich people richer, I say go for it, Taiwan.
posted by eustacescrubb at 9:40 PM on October 22, 2005

This behavior was very common among all now-industrialized countries. Switzerland didn't acknowledge any intellectual property rights until 1888 (and chemical substances weren't patentable until 1978), the Netherlands abolished their patent system in 1869 (as it was opposed to the principles of free trade), Jefferson thought you could no more patent an idea than you could air, and before 1891, the US allowed domestic inventors to patent any foreign invention (in reality, the practice continued much longer). To hold Taiwan to a standard that the OECD didn't ever follow until they were much wealthier, well, it sounds like Kicking Away the Ladder.

Way to go Taiwan, fight for your people.
posted by allen.spaulding at 9:48 PM on October 22, 2005

eustace: The pharmaceutical company's refusal to budge in the time-sensitive negotiations is almost a direct parallel with the pharmacist/doctor in the Heinz dilemma. There's a lot of research on what to do when there is no "right" answer; I didn't want to drown people in links. I could've also gone on a more literary-themed bender and discussed what the Nietzschean Übermensch would have done, but I GMOFB and worked all that out of my system and into my livejournal earlier.

I just hope I've whet everyone's whistles enough on the subject of moral/political (and oxymoronic?) decision-making. Google's got about a hundred results for "vigilante governments"; maybe there's another FPP in there somewhere. Nietzschean Übermensch, taking matters into your own hands, and how that scales for large groups... I feel a column coming on.
posted by Eideteker at 9:52 PM on October 22, 2005

Nice FPP. I had forgotten the Heinz dilemma.

Taiwan is synthesizing a vaccine

It's an anti-viral drug (Tamiflu, aka Oseltamivir), just so we're clear. There's no H5N1 (bird flu) effective vaccine yet.

And Roche, the company with the patent, only has one factory in the *world* that can make the stuff. According to them, it's very difficult to synthesize, and only recently (last 2 weeks) did they agree to outsource the production of the first 10 steps of the process to other factories with higher capacity. But seeing as though Roche won't have nearly enough, no matter when H5N1 hits, and their order list is first-come first-serve... I'd say the world's need supercedes a patent.
posted by gramcracker at 9:56 PM on October 22, 2005

Should not the common good - the needs of the many - outweigh the proprietary rights of the few= Roche?
Cannot the Taiwan government make an equitable payment to Roche for arrogating Roche's patent rights? How extremely pleasant it would beif both parties refrained from bluster and attorneys and simply agreed to a reasonable settlement.
posted by Cranberry at 10:09 PM on October 22, 2005

It's great that they plan on breaking patents to save lives (and profit handsomely) and all that, but Taiwan's plans may be put on hold by how well they can garden. See, a key ingredient in Tamiflu/Oseltamivir is star anise (yes, the same star anise that people use a spice for cooking and to flavor Chai tea). And the majority of the star anise in the world is grown in China, no friends to Taiwan, and what's there has been mostly pre-sold to Roche, the "legit" Tamiflu maunfacturers.
posted by Asparagirl at 10:13 PM on October 22, 2005

At least Taiwan has some form of national health insurance, so they probably already buy in bulk from the drug companies to get a better deal. In the US, the VA does that, but Medicare is now strictly forbidden from doing that (thanks to the new Medical drug "benefit").
posted by gramcracker at 10:14 PM on October 22, 2005

Well, Cranberry, I think it's not quite so easy as counting the needs. This "needs of the many vs. the needs of the few" formulation ignores the rights of the few. If 12 people will die without some medication, and the only way to obtain it is to murder Cranberry, and boil the poor victim's brain down to make it, are you still as happy with "needs of the many vs. the needs of the few?"

But even if we revise it to something a bit more nuanced, say "the greatest good for the greatest number," the question remains "what is the common good?" Roche, of course, might say that by doing what feels good and right in the short term and ignoring their "intellectual property rights," you damage their ability to improve and develop such medications and streamline their manufacture, dooming many more people in the long term, while bringing undeserved troubles down upon others by weakening the rule of law that makes international trade possible.

I admit that I myself am a moral primitive and would do exactly what the Taiwanese propose.
posted by tyllwin at 10:40 PM on October 22, 2005

tyllwin, I believe Tamiflu is already on the market. Although recent drug recalls have undercut anyone's confidence in the pharmaceutical industry, it is to be hoped that it is not in need of more research and development.

It is challenging to type while laughing hysterically at boiling my brain for Rx! but to my way of thinking, there is no contest between saving lives and making money.
posted by Cranberry at 11:00 PM on October 22, 2005

Most countries' patent law contains provisions that apply to exactly this case, i.e. that a particular patent cannot be enforced if it's for the greater good of the nation or something like that.

I'm not familiar with Taiwanese patent law, but I suspect that it contains precisely such a provision. Also, in such cases, the patentee usually receives money in the form of equivalent license fees.

Incidentally, the exact same thing happened during the Anthrax hysteria in the U.S., when it took Congress only a few days to call for declaring the patent on a vaccine (or cure?) by German drug giant Bayer void.

Also, regarding the question whether we might not be better off without those pesky patents, it's worth keeping in mind that Roche's vaccine probably wouldn't exist if there were no possibility to protect it. That's because it costs hundreds of millions of dollars to develop a drug like that (and get FDA approval etc.) but only hundreds of thousands to synthesize it. (Speaking orders of magnitudes here, not exact amounts.)
posted by sour cream at 11:08 PM on October 22, 2005

In the Heinz dilemma, I question the society that would allow the druggist to do this.
There are several things Heinz can do, however acting is different from believing.
On one level I suspect the druggist would have a variety of very serious injuries as a result of various kinds of trauma until he was convinced he shouldn't charge 10X over cost for medicine. Perhaps fatal, but certainly enough to convince him to get into another line of work since he has the moral reasoning of a cat.

On another, I may accept the death of my wife, but I would work to prevent such a state of affairs from continuing to exist.

Either way, I wouldn't simply steal it.

I'm not sure which path I would ultimately follow, but both lead to a resolution of the state of affairs of what is in premise a group of unlikely certainties (e.g. there's no possibility of getting the town to shame the druggist into lowering his price? Often simply bearing witness is enough.)

Here we have a series of uncertanties. The situation is based on fear, not an actual epidemic. The legal fight hasn't even been started. Taiwan says it will not market the drug commercially and will just make enough to renew their stocks. Ok. So should they then pay a royalty fee of some sort? (etc)

The problem with decision making is that often the assumptions are false and the objectives are obscure. We produce medicine to cure illness. The ultimate objective is not living well or comfortably but to assure it's continued existence.
I would gladly die if it meant my kids would live (given the ultimatum) I would prefer to negate the possibility of such an ultimatum occuring again and would sacrifice my children if it meant that would be so.

At some point we must realize it is either us or the endless void. Living well - that is the aquisition of greater amounts of money - is a reasonable goal, since I want my kids to outperform your kids.
But that too ultimately fails. We realize money is just a tool. Not an end in itself such as life.

Heinz, in the dilemma, is the victim of poor moral reasoning. He is the victim of the druggist's incorrect objective.

He can treat it as a 'living well' scenario, or eradicate the scenario by changing the environment for it.
In the first instance he accepts the druggist's (and much of societies') assumptions that "as long as we have a contract, what I get for me is ok."
In the second he recognizes that the objective is not simply to make sure his wife lives, but to eliminate the foundation of the poor reasoning.

Your label of "Kobayashi Maru" is apt, Eideteker.
(Perhaps one of my answers is akin to a Klingon solution.)

What is Taiwan's objective? What is Roche's objective?

Solution is simple then. Life first, money later.
posted by Smedleyman at 11:22 PM on October 22, 2005

Yeah, boil my brains, down, Cranberry, and all you'd get is a rather nasty soup, and here I've got yours curing a pandemic.

I don't know that I believe the argument I ascribe to Roche. Part of my moral primitivism is a over-readiness to assume bad faith. But, in fairness to them, if they were to reply that a lack of ability to make money off of Tamiflu was going to prevent them from spending the research dollars required to determine, say, that its effectiveness is doubled when given in combination with _fill in the blank_; or to make subtle changes to produce a Tamiflu II; or to develop the processes that would allow them to cut production costs by 90%; I couldn't swear it was provably false.

Thus, I really can't know with certainty that saving those people at Roche's expense might not kill more victims in the long run. As I said, I'd do it anyway, but I wouldn't have your degree of confidence that it was a right action.
posted by tyllwin at 11:23 PM on October 22, 2005

In the first instance
Re: my earlier solutions (beating/killing the druggist to change his or other druggist's attitudes or bearing with it, but working to change the legal environment)
posted by Smedleyman at 11:26 PM on October 22, 2005

I admit that I myself am a moral primitive and would do exactly what the Taiwanese propose.

That does not make you a moral primitive, as you suppose, but someone advanced to Stage 5 or 6.

Theoretically, one issue that distinguishes stage 5 from stage 6 is civil disobedience. Stage 5 would be more hesitant to endorse civil disobedience because of its commitment to the social contract and to changing laws through democratic agreements. Only when an individual right is clearly at stake does violating the law seem justified. At stage 6, in contrast, a commitment to justice makes the rationale for civil disobedience stronger and broader.

I'm fascinated by this discussion, having just come from watching The Third Man, with its central speech about moral dilemmas.

It's also clear that Kohlberg does not offer a prescription for judging individual cases. For instance, "social contracts" are what may lead political claques to breaking laws and constitutions in their pursuit of "universal principles"; moral judgement of this sort is heavily involved in why all-white juries usually absolved whites and punished blacks despite a matrix of legal and constitutional authority telling them otherwise. The universality of these principles, in other words, is not clearly defined, which is why we have laws in the first place.
posted by dhartung at 11:31 PM on October 22, 2005

While I do support the Taiwan initiative in theory I do not hold much trust that they can synthesize a version of the drug as good as the original.
posted by cmacleod at 12:05 AM on October 23, 2005

As sour cream points out, patent law everywhere includes provisions providing for compulsory licencing in cases of public emergency. Even the TRIPS agreement has one such clause.

And yes, during the anthrax hysteria, both the US and Canada invoked such provisions. In fact, in a rather disgraceful and haphazard manner to force Bayer's hand to lower the price of their drug. Disgraceful because the existence of a public emergency was debatable, haphazard, because (particularly Canada) they just ignored their own legislation rather than using the channels provided by law for such a move. I think Canada had to compensate Bayer afterwards.

I also have my doubts as whether the avian flu qualifies as a genuine emergency (yet), and the article says to little to discern whether Taiwan is following proper legal channels. Because of Taiwan's uncertain legal status, they probably have more elbow room than other countries in that respect: Taiwan is not a member of the World Intellectual Property Organisation. In any case they seem to have chosen a cautious, gradual approach, preparing the production facilities in order to crank them up in the case of a human outbreak, which would clearly be an emergency.

The hypocrisy in all this, is that while industrialised countries seem all too ready to override patent law in the face of simple hysteria, they are not allowing poor countries to do the same for the genuine emergency of AIDS. This is disguised in transparent legalisms (since most African countries can't hope to produce antivirals for themselves, they need to import them from other countries like India, and industrialised countries, while accepting that the patents be lifted in Africa, won't allow the drugs to be produced in India), but is a shame nonetheless.

Brazil and South Africa also were confronted with this dilemma with AIDS. Brazil took a very consequent legal line to declare a public emergency and strike the antiviral patents with a solid legal grounding. South Africa, with its rather confused AIDS policy, dealt with it rather more haphazardly. Both were hauled over the WIPO coals by the US, but let go after the anthrax fiasco and a public campaign by NGOs.

The legal aspect is not inconsequent from the moral point of view: patent law is always a balance between immediate and long-term public good. If it was to be abolished, it would certainly have an immediate positive effect, by increasing competition, and lowering the prices of many patented products. The long-term effect, however, would be mostly negative, as innovation would be discouraged. This emergency provisions are aimed to prevent situations in which the short-term damage would clearly be superior to the long-term benefit. However, if they were too easily invoked, and the legal certainty of patents damaged, the effect would be similar to that of abolishing the patent system altogether, in terms of discouraging innovation.

I don't take these matters lightly. I make my living from patents, and I have always been concerned about the moral aspects of the patent system, not just out of morality, but sheer self-preservation: I am crucially, painfully aware that the fundament of the patent system is that it be perceived by the broader public to benefit public good. If it ceased to do so, it could be abolished by the legislators with the stroke of a pen. Unfortunately, there has been plenty of short-term thinking in these matters in later years: people looking for their own private short-term benefit, without stopping to consider that their long-term private welfare is linked to that of the public. That brings the patent system into disrepute and ultimately in danger.
posted by Skeptic at 1:37 AM on October 23, 2005

tyllwin: I believe one possible answer to your dillema is that under any just set of laws, the right to life is more heavily weighted than the right to intellectual property.
posted by [expletive deleted] at 2:15 AM on October 23, 2005

On one level I suspect the druggist would have a variety of very serious injuries as a result of various kinds of trauma until he was convinced he shouldn't charge 10X over cost for medicine

Either way, I wouldn't simply steal it

I'm curious, Smedleyman. You appear to believe that it's more moral to use physical intimidation and violence to achieve your goals, than theft or deception.

How does that reasoning work? Is it another illustration of the way US culture sees property rights as sacrosanct, while believing that the state should never have a monopoly on the legitimate use of coercion to achieve one's goals?
posted by PeterMcDermott at 2:48 AM on October 23, 2005

there's no moral dilemma here once getting past the moral bankruptcy of "intellectual property."
posted by 3.2.3 at 6:33 AM on October 23, 2005

3.2.3: there's no moral dilemma here once getting past the moral bankruptcy of "intellectual property."

Sorry? What's morally bankrupt about it? Would you mind to elaborate?

As you can see above, I'm far from glad about the abuses and shortsightedness in the field in recent years. But I also know that inventors, including (I would say: especially) the people who develop new life-saving drugs, deserve a living and resources for their research, and that, even if not perfect, intellectual property, and specifically the patent system appear to have been the most efficient means to achieve that. Do you have an alternative to propose? And I mean one that has proven effective in the past.

It is entirely appropriate that many of the people who complain most loudly about intellectual property merely parrot half-digested arguments and show themselves to be entirely incapable of creative thought.
posted by Skeptic at 7:26 AM on October 23, 2005

Yes, I believe Canada did compensate Bayer.

The mechanism involved is called "compulsory licensing", included in the relevant international treaties, which allows a country to, in effect, force the patent-holder to license their intellectual property to them for a fee set by the country. It *is* supposed to involve payment, albeit payment at a level less than the patent-holder's normal price.

The most disgusting example of first-world exceptionalism I can recall was the anthrax scare (as discussed above). The supreme hypocrisy of invoking compulsory licensing for a situation that killed like a dozen people, while simultaneously dragging our feet on third-world compulsory licensing for AIDS, affecting millions, was lost on the media but not on the relevant policymaking communities.
posted by onshi at 7:50 AM on October 23, 2005

Whoop, I added nothing skeptic hasn't already said. Sorry.
posted by onshi at 7:51 AM on October 23, 2005

The Chilean government has already declared that if the pandemic breaks here, they'll fuck off the patents and buy from 'pirate' drug-makers (from India or Brasil) or get chilean companies to make their own.
posted by signal at 7:58 AM on October 23, 2005

Acceptance of the idea of _some_ validity to intelelctual property is not teh same thing as accepting the current situation.
posted by Space Coyote at 8:01 AM on October 23, 2005

See, the problem (which Smedleyman brings up) is that if this were the Heinz problem it's almost unimaginable that the society wouldn't ALSO have extreme sanctions against the druggist if he refused the prescription. (well, unless they're living in Galt's Gulch, but we won't think about that. Except to ponder what Kohlberg might have to say about it. Tee hee.) Kohlberg doesn't address this himself since it defeats the purpose of his test, but in any rational society, a person in a position of power would not be "allowed" to let someone die through inaction.

It might be possible, but he'd then find his business the subjects of protests and all sorts of negative publicity and he's end up being run out of town on a rail. Thus, in a general sense, it's in the druggist's best interest to go ahead and fill the prescription since the threat of moral sanction is a rather compelling one. It's interesting, really, that the conflict in Kohlberg's problem is ultimately brought on by this - the trouble is caused by the pharmacist not thinking through the situation, NOT by Heinz being overly eager to get the meds. I think it was intentional, though, since if you recognize that you are likely to recognize that Heinz is morally impowered to obtain the meds.

Anyway. The difference here, when you're talking about an international corporation, is that there is NO societal sanction. It's too big. How many people in America have even HEARD of Roche? The company could leave entire countries to die, and their business still wouldn't really suffer (besides the sudden lack of Taiwanese customers) because any outraged parties could never generate enough interest to punish them for it

And this really makes the situation worse since, ultimately, there's no incentive for Roche to behave "rightly" in this case. They gain nothing for handing over the drugs; they lose nothing for withholding them. And since ultimately inaction costs less in real money than action, it makes sense from their perspective to twiddle their thumbs.

So what this really speaks to is the need for more ways of holding those in power accountable for their actions. The increasing gap in power we see, even between entire governments vs multinational corporations, is going to cause more and more rifts like this. We have to figure out a way to restore the power balance, and restore some form of accountability to ALL concerned (from the annonymous slandering blogger to the giant pharmaceutical company) before the entire system breaks down.
posted by InnocentBystander at 8:38 AM on October 23, 2005

Cranberry: You might be amused by this:


Cranberry juice may help prevent viral cellular adhesion. If so, cranberry juice may work better than Tamiflu, which some tests on individuals infected with avian flu suggest only works if used in THIRTY times the normal dose.
posted by kablam at 10:11 AM on October 23, 2005

Since it's largely a device designed to make rich people richer, I say go for it, Taiwan.

If you ever invent something that is of great value to society, I assure you that you will definitely like Western patent laws a great deal.

it is to be hoped that it is not in need of more research and development

Yes, but the next drug, the one that the profits from Tamiflu were going to pay for, needs R&D, and the investors need a profit or else they'll stop investing. What if you'd decided that the drug that funded Tamiflu's development didn't need any profits? No Tamiflu.

That said, this all seems like a tempest in a teapot to me, as Tamiflu is apparently not very effective against avian flu.
posted by kindall at 11:25 AM on October 23, 2005

kablam - I definitely prefer the purchase of supermarket juice to boiling my brains. I have no moral/financial dilemma about anyone using cranberry juice for Cosmopolitans or for treatment of bacterial or viral infections.
Of course I do question KING cranberry. Modesty dictates Empress Cranberry, long may she reign.
posted by Cranberry at 1:25 PM on October 23, 2005

Well if its mobs attacking druggists versus the endless void, I'm all for the void.
posted by nervousfritz at 3:06 PM on October 23, 2005

but in many of these cases, how much of the actual R&D money was paid for by the government?
posted by Iax at 8:10 PM on October 23, 2005

Kind of unusual that for all the controversy and effort the Taiwan government is going through, they're only making 6kg of generic Tamiflu. If it really is just 6kg, I'm surprised Roche didn't just take 6kg off the production line, bag it up, and Fedex it over.

BTW Taiwan isn't the only one testing the limits of international drug patent recognition. Earlier this month Brazil successfully leveraged compulsory licensing against Abbott to bring down the price per tablet of the anti-HIV combination therapy Kaletra from $1.17 to $0.68, the lowest anywhere in the world (US retail is ~$4.06). Details here and here.

Frankly I'm not that concerned about the worldwide stocks of Tamiflu or Roche's production capabilities - I'm more worried about antiviral resistance in H5N1. With 12% of all influenza A strains resistant to the major flu medications, a Tamiflu-resistant avian flu virus is a frightening realistic possibility. Here's hoping the affected Asian countries properly administer their flu medications.

Iax: Probably very little. The government (NIH) does basic research - it doesn't do much drug development or clinical testing which represents the bulk of pharma expenses.
posted by junesix at 11:24 PM on October 23, 2005

If you ever invent something that is of great value to society...

Like mixing breakfast cereals?
posted by MikeKD at 5:29 PM on October 24, 2005

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