Against Intellectual Monopoly

investigated, or at least we could not find any trace
of an answer to it. It therefore remains an open question: did patentability of
basic biomedical innovations create an incentive to engage in more socially
valuable research projects and investigations?
    Even worse, we also could not find anything in the field of health economics addressing what, in our view, is an even more basic question: where
do medical and pharmaceutical discoveries of high social value come from?
This left us on our own, trying to figure out what a fundamental medical discovery or a truly innovative medicine was, a topic we know nothing about.
Being two theoretical economists, we appealed to the law of comparative
advantages to figure out whom to ask: doctors, medical doctors more precisely. Consulting a large number of medical journals leads to the pleasant
discovery that the British Medical Journal, a most distinguished publication, had decided to inaugurate its new series by helping us out. The editors of
the BMJ asked their colleagues and readers something very close to our
fundamental question: which medical and pharmaceutical discoveries are
truly fundamental and where do they come from? In their own words:

    We asked readers to nominate milestones, which you did in good numbers. A panel
of editors and advisers narrowed the field down from more than 70 to 15. We invited
champions to write on each one; their contributions make up the commemorative
supplement we are publishing on 20 January. And we are now inviting readers to
vote for which you think is the most important of these medical milestones (see
bmj.com). The result will be announced on 18 January [2006].29
    In no particular order, here come the selected fifteen (we could not get
hold of the group of seventy, which, we suspect, would have not moved the
bottom line an iota): penicillin, X-rays, tissue culture, ether (anesthetic),
chlorpromazine, public sanitation, germ theory, evidence-based medicine,
vaccines, the Pill, computers, oral rehydration therapy, DNA structure,
monoclonal antibody technology, smoking health risk.3o
    How many entries in this list were patented or due to some previous
patent or were obtained during a research project motivated by the desire
to obtain a patent? Two: chlorpromazine and the Pill. Is this a fluke? We
do not think so. In the same issue of the BMJ you can find references to
other similar lists. A particularly interesting one was compiled since 19992000 by the U.S. Centers for Disease Control and Prevention: a top-ten
list of public health achievements of the twentieth century in the United
States. How do medical patents score on this one? A nice and round zero.
The editor of the BMJ, recognizing the intrinsic arbitrariness of any topN list, somewhere in the editorial presentation names her three beloved
ones among the excluded: "Where are aspirin, Helicobacter pylori, and Medline?" Good point, and we ask, Do they owe anything to patents? Not a
chance.
    Even if one tries to stack the odds in favor of patents as much as possible, the bottom line changes only slightly. To do this we went to the Web
site of Chemical and Engineering News magazine,31 where a "List of Top
Pharmaceuticals," divided by therapeutic categories, can be found.32 These
were the pharmaceutical products selling the most worldwide at the time
of the survey (2005), and there are forty-six of them. Why forty-six and not
fifty or one hundred? We have no idea; we did not compile the list. Each
entry in the list links to a well-documented page telling the story of the drug
and a number of other scientific and commercial details related to it. Using
this abundant information, we went out and counted how many of these wonder drugs of today do not owe their existence to patents in any meaningful sense, either because they were never patented and those inventing
them did not have a patent as their aim or because they were discovered by
companies operating in countries where drugs could not be patented at all.
One would expect that pretty much all the entries in this list were patented
at one point in time or another. Well, here is the summary of our daylong
reading about all kinds of modern medicines.

    Patents had pretty much nothing to do with the development of
twenty of the forty-six top-selling drugs (aspirin, AZT, cyclosporine, digoxin, ether, fluoride, insulin, isoniazid, medical marijuana, methadone,
morphine, oxytocin, penicillin,