The American health care system proves again and again that in capitalism, the maximization of profit takes precedence over individual and societal well-being. We recently saw the example of Gilead Sciences manipulating patent laws to extend the life of one of its drugs and delay the launch of another, potentially safer, option. Gilead’s efforts are just one example of how capitalism uses patent laws to maximize profit at the expense of the common good.
In the world of HIV/AIDS treatment and prevention, many of the newer treatments focus on using a combination of different drugs that target different parts of the virus’ replication cycle. One such drug that is often part of combination pills is tenofovir. Older versions of this drug are found in various HIV/AIDS treatments. One that is popular for both treatment and prevention is Truvada, a combination of tenofovir and another drug called emtricitabine. Although drugs like Truvada are often effective, older versions of tenofovir have been known to cause bone or kidney problems.
Gilead evaluated alternative versions of tenofovir that it could incorporate into its HIV/AIDS drugs but decided in 2004 to stop development and commercialize a new version because it said it would not be sufficiently different from the existing treatment. Despite this claim, internal memos indicate that the company believed the updated formula was less toxic based on studies conducted at the time on lab animals. However, the company also recognized that the new version of tenofovir posed a risk to its patent-protected predecessor in its existing pill formulation.
Gilead executives developed a “patent extension strategy” to keep the prices of its tenofovir-based drugs high. By delaying the release of the updated version until just before the existing patents expired, he was able to extend the period that at least one of his HIV/AIDS treatments remained protected. That strategy was potentially worth billions of dollars because it would allow Gilead to switch patients to the new drug just before cheaper generics hit the market. Others would continue to be exposed to the potentially more toxic version of the drug, which the company saw as a necessary implication to maximize benefit.
Start delay and consequences
As a result of this strategy, Gilead did not introduce the updated version of tenofovir until 2015, almost a decade after it might have been available had its development not been halted in 2004. This release delay is the subject of state and federal lawsuits, with thousands of patients alleging that Gilead unnecessarily exposed them to kidney and bone problems by giving them the older, less safe version of the drug.
An example of a combination drug with the new version of tenofovir is Descovy, which was launched in 2016 and is another very effective drug for treating and preventing HIV/AIDS. To be clear, this new formulation of tenofovir is not without risks; it can lead to weight gain and high cholesterol. Almost all medications carry some risk. But Gilead’s decision remains a red flag because, at the time of its decision, the company, while believing the new version of tenofovir to be safer, repeatedly delayed its release to protect its profits.
Even knowing the risks of the new version of tenofovir, decisions like these by pharmaceutical companies continue to put patients at risk by limiting treatment options for healthcare professionals who, like me, prescribe drugs to treat or prevent HIV/AIDS. As a result, treatment options are more limited, making it difficult to work with patients to help them make the safest, most informed decisions about their healthcare.
The perverse results of pharmaceutical patents
Gilead’s actions illustrate the various perverse consequences of drug companies using patent law to their advantage. In the article “Perverse Results from Pharmaceutical Patents in the United States,” Warren Grimes, a law professor at Southwestern Law School in Los Angeles, discusses many ways the pharmaceutical industry uses and manipulates patent law to not only help their bottom line but to manipulate the development of pharmaceutical research itself. Grimes discusses the process of “evergreening,” a practice of extending the life of patent protection by obtaining new patents on slightly modified versions of a drug. Companies also go to great lengths to manipulate medical professionals into prescribing the most profitable patented drugs, even when there are cheaper alternatives.
The lucrative nature of the patent system provides an incentive for companies to focus on drugs that require frequent administration, such as palliatives, rather than preventatives or cures. This misallocation of resources can impede important public health advances and limit access to potentially life-saving treatments.
A similar dynamic occurred recently as the COVID-19 pandemic swept across the world. Companies were developing vaccines and treatments, almost expecting the public to congratulate them on their innovation. Instead of pooling knowledge and resources to develop and implement the best possible treatments and preventive measures, companies competed with each other. Meanwhile, billionaires and pharmaceutical giants fought at every turn to prevent the withdrawal of intellectual property rights for treatments and vaccines for COVID-19. Bill Gates, for example, famously championed global programs to maintain the monopoly on patent rights and to rely on the charity of rich countries and pharmaceutical giants to bring vaccines to most of the world. Not only did Gates help discourage the global health community from sharing patent-free technology to fight COVID, but he also helped persuade Oxford University, which originally planned to manufacture an openly licensed vaccine, to sell the vaccines instead. Patent rights to a pharmaceutical company.
Bourgeois legality will not protect us
Whether it’s HIV/AIDS drugs, COVID-19 drugs, or vaccines during a global pandemic, the pharmaceutical industry and the billionaires who run it will always put profits ahead of patients’ lives. Companies keep claiming they are “innovative”, but the tenofovir story shows us how pharmaceutical companies suppress innovation to secure profits under capitalism. Whenever they can, they use legal frameworks for their own benefit at the expense of public health.
As attacks on basic human rights—whether the right to an abortion or the right to gender-responsive healthcare—become more frequent in the United States, many are turning to legal frameworks to protect the public. As patent law makes clear, such a strategy is completely ineffective. Legal frameworks in capitalist society are often created by the ruling class for the ruling class. We cannot trust bourgeois legality to get us what we need.
Imagine if we lived in a society where the world’s greatest scientific minds could come together to improve the health of individuals and society, a society where pharmaceutical companies are not run by profit-maximizing billionaires but by researchers and the broader public. Treatments that could benefit the general public would never be delayed for reasons of profitability. Safer drug formulations like the new version of Tenofovir would never be delayed. The scientific advances that would be possible through the collectivization of knowledge are almost unimaginable.
This case only underscores the need not only to reform or adapt patent law but to abolish patents altogether. All pharmaceutical companies and all research projects must be under the control of the entire working class to ensure that any new scientific or medical breakthrough benefits everyone and not the bottom line of big business or billionaires. Achieving this with regard to medicines would mean nothing less than the full appropriation of the means of producing medicines.
Unfortunately, in an economic system that prioritizes profit maximization, this can never be the case. Achieving these goals cannot be achieved by supporting capitalist political parties beholden to the same billionaires and big corporations that always prioritize profit over public health. We must build a workers’ party with a socialist platform that truly fights for public health and against a capitalist system that harms us all.