Is This A Defense Against Big Pharma Gouging....

[eniwetok]

There are only a couple places in the Constitution that STATE INTENT... the Second Amendment and the Patent clause...

The Congress shall have Power....

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;


This means drug patents exist ONLY to the extent they promote science and the useful arts... it's NOT for what the market will bear allowing the public to be gouged.

So can patents be withdrawn if a company then charges outrageous prices for pharmaceuticals? Have patents ever been challenged on these grounds?

[Cicada]

1. You added the words "to the extent"

Patent holders have exclusive rights because giving them exclusive rights encourages the progress of science. There is nothing in there about rights holders having to act in a pro social way. During the term of the rights they can choose not to do anything with the invention, if they want. The limited term assures that society will benefit even if the right holder is a creep. The Wright Brothers blocked useful progress by others so we were way behind other nations when World War One started. They did not act in ways promoting the common good. But after the term ended we could benefit (actually when the war department gave them massive amounts of money to let others make planes too).

We could easily limit price gouging in drugs in other ways though. Such as by adding a surplus profits tax on super profitable drugs. We often do that on oil when the price goes way way up. I think we should take a third of the price or more on those drugs as a surplus tax.

[eniwetok]

2. there are more issues with patents that just drugs...

"Patent holders have exclusive rights because giving them exclusive rights encourages the progress of science."

This is the ONLY stated reason that Congress has this power. Laws to the contrary... such as the copyright extension designed to let Disney keep control over Mikey Mouse, seem vulnerable to a constitutional challenge since it was not intended to promote progress... only protect profits.

"There is nothing in there about rights holders having to act in a pro social way."

I wonder about that. From a constitutional perspective the monopoly is granted ONLY to encourage progress in the science and useful arts. Everything comes down to that intent... and I'd argue the intent might provide some legal limitations on an inventor. But I suspect this is unexplored legal territory. But then so was the Right's ludicrous bastardization of the Second Amendment to negate the militia... and they prevailed.

"During the term of the rights they can choose not to do anything with the invention, if they want. The limited term assures that society will benefit even if the right holder is a creep."

I'd argue many patents do nothing more than create proprietary monopolies that stifle progress. When the consumer electronics manufactures got together 20 years ago to create the DV mini digital video cassette... they pooled all their best ideas. As so as soon as the consumer format was developed, Sony and Panasonic both developed incompatible pro-sumer variants to create vendor lock. It's difficult to see how such patents promote progress.

[Cicada]

5. Maybe we need mandatory licensing

Radio can play any song whether the copyright holder agrees or not but must pay fixed fees to ASCAP to be distributed to song owners. Maybe we need something like that in other fields.

[eniwetok]

6. how would that work in terms of drugs?

[Yo_Mama]

3. No, Congress has the absolute power to grant exclusive rights for a limited time

You are misinterpreting that passage. The power granted is after the comma. The purpose of the power is stated before the comma. It does not change the power granted to Congress.

The solution to this problem is to lobby Congress. The greatest abuses are in the older drugs that are being reformulated and given quasi-monopolies by the FDA.

We need to bang heads in Congress to get reasonable controls.

[eniwetok]

4. not following...

You are misinterpreting that passage. The power granted is after the comma. The purpose of the power is stated before the comma. It does not change the power granted to Congress.

Here's Art 1

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;


It seems to me that Congress's ONLY power is to create monopolies to serve the stated purpose... and if a patent request violates that stated intent it can be denied... likewise if the patent owner acts in a manner that goes beyond the intent to promote progress... then the right might be revocable. Profit is acceptable as a motivator for progress... but for no other reason. I realize this is stretching the accepted understanding of this clause... but this is more reasonable than when the Gun Nuts bastardized the Second and got the Supreme Court in Heller to negate the militia clause.