At the “Life, Patents and Social Justice Conference” in Cambridge recently, I spoke after Mons. Osvaldo Neves de Almeida, Secretariat of State, with responsibility for TRIPs (WTO), UNCTAD and formerly for WIPO and H.E. Archbishop Silvano M. Tomasi, Apostolic Nuncio: Permanent Observer of the Holy See to the UN Office in Geneva & WTO. To be frank, their presentations were a little conservative and, not very exciting.
To wake up the audience, I asked if, instead of being a formal academic conference with theological overtones, this was a Vicars and Tarts Party… and after, about two minutes when the laughter calmed down, I stated that I’d have come as a tart. I argued that IP stands for Intellectual Prostitution, and that Patent Attorneys don’t have morals standards, or if we do, they are low. Essentially, as a group, we are prepared to provide IP services to anyone willing to pay our fees.
Clearly this is true, and clearly it is NOT the whole picture. I was invited to that conference, as I had organized a conference on Intellectual Property in the Jewish Tradition back in 2011. I have recently reviewed a book on Intellectual Property, Entrepeneurship and Social Justice for the Oxford Journal of Intellectual Property Law & Practice, that will be published shortly, and then posted on this blog.
There have been a recent spate of articles in the Jerusalem Post that relate to patents and activities of patent attorneys in Israel, and I think it fitting to reference these articles and comment on them.
The first – Islamic State (ISIS) vs. the Jewish State is written by a Harry (Herschel) Moskoff. Moskoff is a Canadian – Israeli patent and trademark attorney who is interested in the whereabouts of the Ark of the Covenant. Moskoff sees recent political developments as a precursor to Armageddon. The article makes interesting reading. However, I don’t think that the training of Patent Attorneys makes them authorities on such issues and I note that according to the Talmud Baba Batra 12b “R. Johanan said: Since the Temple was destroyed, prophecy has been taken from prophets and given to fools and children.” See also Ezekiel 13:3 and Proverbs 15: 14. In Sanhedrin 97b the Talmud warns us against calculating the End of Days. Over the years, this phenomenon has led to various false Messiahs such as Jesus of Nazareth, Brian, Bar Cochba, Shabbtai Zvi, Jacob Frank and in recent times, Messianic Chabad.
The second, Can we eliminate the pharmaceutical side effect of the patent system? by Ron Tomer, owner of Unipharm, posits that the prices of patent protected pharmaceuticals is in some cases preventing treatment.
“Costs can range from tens of thousands to over hundreds of thousands of dollars a year per patient. As cancer treatments transform the disease to a chronic condition, sustained for many years, the expenditure on such medicines will dramatically increase countries’ health costs. The dilemma already exists today. Every year different patient groups and protesters around the world request funding for the treatment of their respective conditions. But as promising drugs for major illnesses such as cancer reach a widespread patient population, extreme situations will arise where the budgets required will increase tenfold. This could result in a situation whereby a cancer patient might be refused a chance at life for mere budgetary reasons. The “access to medicines movements” which currently operate mainly in the low- to middle-income countries might in future bring similar demands to the more developed countries. Recently the media reported that in the US over 100 oncologists call for new regulations to control soaring patient costs.”
…The conclusion is that the patent system that should provide incentive for innovation is often misused, and as such is becoming a threat to health budgets and to availability of medicines to a wider population. The solution is to find a mechanism that would limit the monopoly which drug companies obtain through patent law, awarding them adequate reward for inventiveness but nothing more. The companies may be required to submit information that will allow governments to examine the profitability with respect to these life-saving medicines and to determine the maximum monopoly that will be allowed. To determine such mechanisms, a process must be applied to prevent abuse of patent law by legislating the imposition of penalties on companies found to be abusing it by filing inappropriate and simultaneous patent applications. The legislation should allow the public (health funds and patients themselves) to sue those companies to return the profits improperly generated by such monopolies after the patents have been be declared invalid.
Clearly, Dr Ron Tomer is a stake-holder in the generic pharma industry. He may well be driven by an altruistic desire to provide affordable medical care to all, but we should bear in mind that he earns a good living out of manufacturing and distributing drugs that are off-patent, in many cases due to effective patent opposition and cancellation proceedings that Unipharm institutes. At present, Unipharm does not undertake the development of new drugs. I am sure that an article by a drug developer would include equally persuasive arguments to the effect that patent extensions for new drugs are too short. Those with strong feelings are invariably players. Never theless, the article is well worth reading.
We also note that in a 144 page encyclical letter, the Alter Pope, Benedict XVI has come out against overly strong patent rights, particularly in the field of health care. According to his Holiness, these favor the rich, developed countries at the expense of the poor. “On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care.” His successor, Pope Francis, has expressed similar views.
Where Popes make declarations, Rabbis seem to set up non-profit organizations and enlist volunteers to actively address social ills. And its not just Rabbis….
The third article of interest by Barbara Sofer who writes the Human Spirit, my favorite column in the Jerusalem Post Magazine. In Friday’s Post her article Jewish Fun related to the Tov v’Hameitiv Foundation‘s food security efforts. Tov v’Hameitiv means “is good and does good”. The foundation, started and largely financed by Rehovot based Israel and US veteran patent attorney Stanford T. Colb, plants fruits and vegetables for distribution to Israeli poor via Leket, an umbrella organization that works with the various soup kitchens and distribution centers. According to Ms Sofer, Colb Farm distributes 100 tonnes of produce a week to the poor. This is an extraordinary achievement. The farm also employs older Ethiopian immigrants and mentally challenged adults and uses volunteers to help harvest the produce.
At the Cambridge conference, I described this altruistic endeavor to a Jesuit from the United States who asked me about ‘food security’ in Israel. I also explained that left-overs from Bar Mitzvas, Kiddushim and weddings tend to find themselves at army checkpoints, at families that recently had babies, and at soup kitchens. Probably as a result of the Holocaust, many Jews find throwing away food difficult and will make great attempts to divert surpluses to those that need.
The focus of Barbara’s article was that Colb’s fields lay fallow during the Shmitta year, a seven yearly occurrence Vayikra 25: 6. I find this a little disconcerting. The Torah is a timeless document but it nevertheless reflects a bronze age vision. The Rabbis have come up with legal, technical and geographical loopholes to enable horticulture in the Shmitta year and the fundamentalist approach apparently taken by Colb seems a little odd. Now, I don’t work my garden and announce that my grapes and olives, etc. are ownerless, but this is not a serious enterprise. In the Mishnaic period, the Rabbis found historical reasons to exclude the fertile and much farmed Bet Shean valley from the stringency of Shmitta. In the modern era, the Rabbis have come up with a legal loophole to sell the fields to a non-Jew to make farming possible and more recently, have applied a similar principle to the Pruzbul, used to annul debts, wherein loans and land are administered by Rabbinic courts and are thus considered communal and not private and thus enforceable. Another approach is to use hydroponics and other technology to farm vegetables detached from the land. If this agricultural enterprise is non-profit and designed to fed the poor, surely it makes sense to utilize one or other of these approaches?
Please note – I am not arguing that Colb or Moshkoff are good or bad patent attorneys, nor am I taking sides in the complex pharmaceutical debate. I am also aware of other Patent Attorneys that are charitable or engaged in altruistic activities. These include charitable work, political activism, alternative schools and employing new immigrants.
The purpose of this blog posting is to bring recent articles to the attention of readers. Feedback is welcomed.