Patent induced high drug prices worsens economic inequality and makes the next pandemic worse.

A human right is realized when all persons have secure access to its object, to what this right is a right to.

States and particularly governments have a responsibility to make this happen principally by not taking measures that prevent such secure access. Governments currently award and enforce 20-year product patents on pharmaceuticals in accordance with the TRIPS Agreement they included in the 1995 founding treaty of the World Trade Organization. Patent enforcement involves preventing generic manufacturers from offering patented medicines at competitive prices. So protected from competition, patented medicines are often sold with exorbitant monopoly markups that effectively deprive many poor patients of access to them.

It is true that governments, in their 2001 Doha Declaration, explicitly declared that their "Agreement can and should be interpreted and implemented in a manner supportive of [World Trade Organization] members right to protect public health and, in particular, to promote access to medicines for all."2 But these words did not result in universal access to important new medicines_far from it.

In 2013, an important hepatitis C drug, sofosbuvir, was introduced by Gilead Sciences in the United States at a price roughly 3,000 times its variable cost of production US$84,000 per course of treatment and at lower but similarly unaffordable prices in poorer countries. Five years after its introduction, only about 7% of the 71 million persons living with hepatitis C had been treated. * The others continued to suffer-and to spread the disease. Many who catch hepatitis C nowadays would not have done so if the new drug had reached a larger percentage of the relevant patient population. Insofar as patients suffer or die because willing and able generic manufacturers are prevented by law from selling them the medicines they need for their grave diseases, the governments that adopt and enforce these laws are arguably violating the patients' human rights.

It is true that Egypt could and did reject Gilead's patent application, finding that sofosbuvir lacks novelty and inventiveness. It is true that Malaysia could and did issue a compulsory license permitting generic production of sofosbuvir for domestic consumption. It is true that the world's "least developed countries" are not required to grant patents on new pharmaceuticals and, lacking domestic manufacturing capacity as they do, may ask a capable state to issue a compulsory license for export to them though the required process is so cumbersome that it has been used only once in the last 20 years, when Canada licensed its firm Apotex to deliver three batches of anti-HIV/AIDS combination therapies to Rwanda.°

While the so-called TRIPS flexibilities could be used to substantially improve access by poor people to new medicines, they are not in fact so used. One key reason for this is that weaker states are reluctant to risk sanctions imposed upon them by powerful pharmaceutical firms and their even more powerful governments. For example, the Office of the US Trade Representative issues Special 301 Reports that place states on a Priority Watch List if they are deemed insufficiently supportive of US firms' legitimate business interests, prominently including their intellectual property rights.

It should also be mentioned that some pharmaceutical firms have licensed important new pharmaceuticals for generic production in some poorer countries. Gilead has done this with sofosbuvir. But understandably, these voluntary licenses do not include "the majority of middle-income countries, where most of the hepatitis C burden lies. For example, Argentina, Brazil, China, Georgia, Iran, Mexico, Peru, Turkey, and Ukraine are all excluded from Gilead's voluntary license."

That poor people overwhelmingly lack access to new medicines is a foreseeable effect of our globalized innovation regime, which makes innovators reliant on monopoly markups and therefore highly motivated to prevent low-priced sales of their proprietary pharmaceuticals. Originators plausibly fear that such sales would undermine their income from selling their product to the rich and well insured at hundreds, even thousands, of times the cost of production. And they have no chance to earn meaningful profits from sales to the poor, seeing that 42% of the human population--well over three billion people-are so poor that they cannot even afford a healthy diet valued at the purchasing-power equivalent of US$3.66 per person per day on average.

In the case of infectious diseases, patents provide an additional incentive to price medicines out of the reach of less affluent patients, as doing so keeps the target disease alive, thereby ensuring future demand. If sofosbuvir were universally accessible, the incidence of hepatitis C, and hence demand for its cure, would dwindle fast. Thus, a patent-holding firm profits even from those who cannot afford its product, as they infect others who can. That pharmaceutical firms have this incentive is not a criticism of them. It is an indictment of the innovation regime our governments are upholding in our names. This regime is not merely unjust by excluding the poor but also counterproductive by undermining population-level strategies to contain, suppress, and eradicate infectious diseases.

It is worth noting that patent incentives would work poorly in the pharmaceutical sector even if extreme poverty were eradicated. In ordinary markets, as people become more affluent, more of what they need is supplied by competing producers and sellers at prices near the variable cost of production diets improve.

With an important patented medicine, by contrast, the single seller finds it profitable to raise the price in response to rising ability to pay, ensuring continued exclusion of the less affluent. Here the proportion of patients that it is optimal to exclude depends on the shape of the demand curve. If a minority is much richer than the rest, this demand curve can be highly convex and the profit-maximizing price may then exclude a large majority of the patient population, as happened with sofosbuvir. The patentee rationally sacrifices sales to most potential buyers because lowering its sales price would entail an earnings loss from reduced markup exceeding the earnings gain from increased sales volume. Given large financial inequalities, both globally and in most countries, patented medicines routinely exclude most of the patients who need them.

These inequalities would continue to aggravate the human rights impact of pharmaceutical patents even if all incomes worldwide were to double or quadruple. Even in an affluent population, patents on an important product that has no close substitute will exclude the hindmost-in sharp opposition to the "Leave No One Behind" motto of the Sustainable Development Goals. As pharmaceutical patents deepen the impact of financial inequality by cutting many patients off from the medicines they need, so greater financial inequality-reflected in a more convex demand curve broadens exclusion from patented medicines.