See Adam Mossoff’s Healthcare Reform’s Impact on Drug Patents. Of all the grounds on which to oppose the creeping socialism of Obamacare, this has got to be the weakest. If anything, this is a silver lining.
Mossoff worries that pressure to reduce costs in the healthcare system may lend support to laws permitting drug reimportation; also to price controls.
As for drug reimportation: I still find it astounding that a libertarian/Objectivist could oppose free trade. But I suppose if you are in support of state-granted monopolies, which are incompatible with competition and free trade, you have to choose. After all, reasonable libertarians are in favor of reasonable amounts of competition, but not, heavens to betsy, unbridled competition!1 So here Mossoff joins the chorus of other pro-patent libertarians (e.g. Richard Epstein, Doug Bandow, and Michael Kraus) worried about the free trade of drug reimportation undermining government granted patent rights.2
As for the possibility of “price controls,” Mossoff regards this as a “taking” of Big Pharma companies’ “property rights in their drugs”–i.e., their so-called “intellectual property” rights granted by the state in the form of anti-competitive, monopolistic patent privileges (yes, granted by the same criminal, socialized state foisting Obamacare on us). These complaints are reminiscent of confused, hypocritical Tea Party types who pretend to be anti-government when they say “Keep your cotton pickin’ hands off my Social Security!” Indeed!
But as I’ve argued elsewhere,3 if the feds are going to steal from taxpayers in a socialized medical scheme to force them to fund pharmaceutical purchases for “beneficiaries” of the system, the theft is made worse when the prices are made artificially high due to the patent monopoly. I.e., the federal government is spending billions of taxpayer dollars on prices inflated by federal government laws. If the feds insist on stealing out money to purchase drugs for seniors, the least it can do is buy them at the cheapest possible price. One way to do this would be to simply issue compulsory licenses to generic drug manufacturers for any patented drug covered by Medicare. (The feds can license third parties to manufacture patented articles, without patent infringement liability; this was threatened in the Cipro anthrax drug a couple years ago. Yes, the feds have to pay “compensation” to the patent holder, but the level of compensation is bound to be less than the monopoly profits normally reaped by Big Pharma.) Or the state could weaken, or just take away their patent rights altogether. Patentarians would argue that this is a “taking” of a property right, but of course it’s not: it’s removing or weakening an unjust monopoly privilege.
On a similar note: while federal antitrust law is an abomination, it is less unjust when aimed at monopolies actually created by the state. Which is one reason why some of the same pro-IP libertarians noted above are concerned not only with free trade (reimportation) and socialized medicine undermining patent rights, but FTC antitrust actions as well.4
[Mises]
- See Ayn Rand’s Anti Dog-Eat-Dog Rule and Intellectual Property. [↩]
- See: Ideas Are Free: The Case Against Intellectual Property; Pilon on Patents; Drug Reimportation; Cato on Drug Reimportation; and Patents, Prescription Drugs, and Price Controls. [↩]
- Price Controls, Antitrust, and Patents. [↩]
- See Pro-IP Libertarians Upset about FTC Poaching Patent Turf; also, When Antitrust and Patents Collide (Rambus v. FTC); Price Controls, Antitrust, and Patents; Intellectual Property and Economic Development.; also IP vs. Antitrust; State Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law; The Schizo Feds: Patent Monopolies and the FTC; The Schizophrenic State; Intel v. AMD: More patent and antitrust waste. [↩]
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