Red pill blue pill

Friend and ex-coworker John Siracusa—the man who taught me to always validate my web markup—has a podcast, Hypercritical, ostensibly about Apple Computers but increasingly about whatever he wants to complain about. Last Friday's episode covered a variety of topics, but of interest to me was his discussion of patents, beginning at 1:16:30. Examining the mess that is the modern patent system, he talks about how as a programmer he has long been against software patents, but that as time has gone on he's become against process patents until he's arrived at the point that he sees all patents as a hindrance to innovation and commerce.

Siracusa isn't the first to advocate scrapping patents altogether (here's an annotated treatise if you're interested in delving deeper), and I'm not going to summarize his arguments, but there was one point he raised to which I wanted to respond. Siracusa mentioned that he thinks the strongest case for patents was pharmaceutical companies and their need for an incentive to foot the bill for the research, development, and clinical trials. The argument goes, why would anyone front so much money to bring a drug to market without the assurance that competitors wouldn't swoop in with their own versions of the product?

This case for patents carries emotional weight—when it comes to potential life-saving treatments, who wants to stand in the way? But if we can view the argument with a dispassionate eye we can see that drug patents fail in ways characteristic to the patent system in general. Patents incentivize treatments for the most lucrative medical problems and not the most pressing ones. One of the most devastating diseases in the world in terms of the number of people affected and the severity of suffering is malaria; however, it's a disease limited to the tropics, and unfortunately the populations most hit are not markets with deep pockets. On the other hand, we sure do have a lot of erectile disfunction meds available these days—because boner pills are by definition made for sale to rich old men.

The fact that business models are built around the pursuit of exclusive products also leads to avoiding incremental innovation, even when that might be the most expedient course. There may be alternative therapeutic uses for existing medicines, or there may be more effective formulations, or better production methods, or new modes of delivery—but when R&D is focused on what is patentable, obvious and fruitful research will be passed over. In the absence of intellectual monopolies, companies might turn to more focused improvements and diversification as a way to distinguish themselves, instead of looking for the next big payday.