by Ilana Mercer
Bayer AG, the German pharmaceutical giant and manufacturer of the anthrax-fighting drug Cipro, is experiencing a windfall. The sudden demand for Cipro could not have come at a better time for a company that had been in a slump and was hemorrhaging due to a considerable operating-profit shortfall. The financial press’ accounts of how Bayer was scouting for bailout partners have now given way to detailing Bayer’s moves to triple its production of Cipro. With Cipro, Bayer will be vying for some of the $643 million the Bush administration plans to put towards increasing stockpiles of antibiotics.
Indeed Bayer is scrambling to fill every order placed by government. The company is running its facilities 24 hours a day, seven days a week, has placed its Connecticut plant on an accelerated production schedule, and has even reopened a defunct German plant. Try as it may, the likelihood that Bayer will meet consumer demand for Cipro is slim, if not anorexic.
In a command economy, government would decide when the demand for anthrax tablets has been satisfied, but not in a free market. In a free market, consumers direct supply and demand. And in a free market, increased demand leads to increased supply, as producers compete with one another to satisfy the demand. When the demand for Cipro has approximated the supply of Cipro, buyers – not the government – will have indicated their needs have been satisfied. But Bayer’s promise to triple the production of Cipro – cranking out 200 million tablets over the next three months – may do little to satisfy a demand driven by almost as many Americans.
When there is a shortage of a good, it is safe to say that it is a result of government incursion into the economy. In the Cipro shortfall, the likely culprits are FDA regulations and the patent system.
FDA regulations go some distance towards explaining why our choices are limited so as to make Cipro the only drug that has been approved for the treatment of the inhaled – and the most lethal – form of the disease. But FDA regulation does not explain why, once a shortage has occurred in an already approved drug, the self-regulating market mechanisms cannot kick in to overcome the scarcity. The FDA process has, moreover, been streamlined in recent years in order to allow for the introduction of various AIDS drugs.
In contrast, the patent system hasn’t changed an iota in terms of the length of the patent granted. As bad as FDA regulation is, patent law constitutes even more of a barrier to entry into the pharmaceutical market. In the case of Cipro, the acute scarcity of the drug is indeed a creation of the law. The anthrax panic, preceded by the September 11 events, has amplified the manner in which patents subvert the market and invite – even require – further central planner tinkering.
How would consumer demand have been heeded in a market unhampered by patent? The same events that have hitherto occurred would have unfolded; the sudden urgent demand for the drug would have been followed by a shortfall of supply. Large demand and short supply would initially send the price of Cipro rocketing. Profits in an unhampered pharmaceutical market would signal to the many drug makers that it’s time to enter into Cipro production.
These processes have all transpired, save one: Drug makers are not permitted to respond to the street signs of the free market, to profits. The law prohibits pharmaceutical companies from competing for Cipro market share, supplying the demand, and, in the process of creating competition, dealing a blow to the Bayer monopoly price tag. Because of specific patents Bayer has obtained, other companies cannot bring supply and demand into equilibrium, thus satisfying buyers.
Whether one thinks that granting to an inventor a near 20-year monopoly on the manufacture, use or sale of a product is the right thing to do, is quite apart from acceding that a patent places a barrier on entry into the market. This barrier is the essence of monopoly. Capturing a large market share by pleasing consumers does not a monopolist make. But appealing to government for a grant of privilege that gives the rent seeker the legal power to restrict access into the market, so that he is undeterred by competition, qualifies. Making sure that there is only one price and that a competitive price – a function of the presence of other sellers in the market – cannot arise, is also the practice of a monopolist.
Certain provisions in India’s patent law, while making her something of an untouchable to the international pharmaceutical kingpins, account for a thriving generics industry. Compare the monopoly price of $350 U.S. for a course of Cipro to the competitive price for Cipro set by profitable Indian generic companies. The latter is roughly $20 for a course of treatment. Cipro does not have a competing substitute in the market that is not covered by Bayer’s patent. The patent has survived challenges, which would explain why, in turn, the monopoly price remains unchallenged. In the absence of competition, the product’s high price does not markedly reduce sales or force a market adjustment on the seller. This patent has pretty much guaranteed that Bayer reaps a considerable profit irrespective of price or less-than-robust sales.
On how the patent holder can generate scarcity and draw a monopoly profit, the distinguished free market economist Sir Arnold Plant wrote: “…Whereas in general the institution of private property makes for the preservation of scarce goods, property rights in patents…make possible the creation of a scarcity of the products appropriated which could not be otherwise maintained.” In his essay Property and Ownership, Plant noted that the legislator enables the beneficiary of a patent to secure an income from the monopoly conferred upon him by restricting the supply in order to raise the price.
A patent, in effect, allows an inventor to forcibly prevent others from practicing the patented invention, even if another inventor arrived at the invention independently, an exceedingly common occurrence. Merely arriving first at the patent office can give inventor A a legal edge over inventor B, who stumbled in 5 minutes later. Try as it may, the law fails to nullify the moral claim to practice an invention that inventor B can assert.
The validity of the moral claim of concurrent inventors notwithstanding, the fact that Bayer’s Cipro patent expires only in December 2003, and the fact that Bayer is the only company that is allowed to produce ciprofloxacin until then, leaves us with the reality of shortages. There is no telling whether Bayer might relent and license the drug to other drug makers, thus enabling generics to fill the demand generated in the aftermath of September 11. The anthrax threat has, however, drastically altered the consumer’s tolerance.
It is the aim of the U.S. government to be able to treat 12 million people for 60 days of incubation. This is the calculus of probabilities courtesy of a central planner. But why is the government justified in facilitating access to the medication for only a fraction of the population? If every single paying American wishes to secure a course of Cipro, if only as a psychological antidote, why not? Tommy Thompson, U.S. secretary of Health and Human Services would like to control what American consumers access. If the present rise in firearm sales is anything to go by, Americans are looking out for themselves. Americans want Cipro, and they want it now!
Not content with Bayer’s assurances to meet demand, Sen. Charles Schumer (D., N.Y.) inadvertently expressed what amounts to unease about the hampered drug market. “I’d still feel a lot better with several competitors,” said the Senator, adding that “it goes without saying that if we increase the number of manufacturers producing ciprofloxacin, we are more likely to have enough on hand, should we need it”.
The fact that Secretary of Health and Human Services, Tommy Thompson, has gone ahead and asked Congress to suspend the patent on Cipro is neither here nor there. It tells us nothing substantive about the patent system, but speaks volumes about the nature of government. It tells us that government can as easily revoke monopoly privileges as it can revoke genuine liberties. It tells us that when you make the law – just or unjust – you can also break it.
Ilana Mercer [send her mail] is a freelance writer. She has written on intellectual property for Mises.org (where a version of this article first appeared), for Insight Magazine, the Financial Post, and Ideas On Liberty. Please visit her website.