By their very nature, drug patents can create monopolies that allow prices to be kept artificially high. In other domains that may be simply an annoyance or inconvenience, but in the world of medicines, it can be a matter of life or death for those unable to afford those inflated prices.

To get around this, various alternatives have been suggested, such as prizes – an example of how that might work for the development of drugs to treat HIV/AIDS was discussed recently in Techdirt. An alternative approach is the use of patent pools. Here's how the Medicines Patent Pool explains the system:

With the patent pool model, multiple patents are ‘pooled’ and licensed out by one entity, in order to cut down on transaction costs for all parties involved. In the case of medicines, this allows more affordable and more adapted versions of patented drugs to be produced as generics, long before their 20-year patent terms run out. Not only will the Pool help speed up the process of getting urgently-needed newer and improved HIV medicines to people who need them at much more affordable prices, it will also foster the development of needed products that do not yet exist, such as certain ‘ fixed-dose combination’ (FDC) pills containing two or more newer medicines in one pill, adapted medicines like those that can be used in hot climates without refrigeration, and HIV medicines for children.

The Pool is a win-win-win model, whereby patent holders are compensated for sharing their patents, generic manufacturers gain access to markets, and patients benefit more swiftly from appropriate and adapted medicines at more affordable prices.

This is not a matter of "expropriating" patents, but removing roadblocks and simplifying licensing mechanisms so that everyone gains. Sadly, that's not how Johnson & Johnson sees it:

on December 19, Johnson & Johnson continued to turn its back on people living with HIV/AIDS in many developing countries by telling the Pool it refused to license its patents on the HIV drugs rilpivirine, darunavir, and etravirine.

Johnson & Johnson's reason? According to Doctors Without Borders/Medecins Sans Frontieres (MSF):

Johnson & Johnson says there is no urgency for making these drugs widely available in developing countries. That’s simply not true. MSF now provides treatment to more than 180,000 people living with HIV worldwide, and is beginning to witness the inevitable, natural phenomenon of treatment failure, whereby people develop resistance to the drugs they are taking and need to graduate to newer medicines.

As MSF further points out:

Unless Johnson & Johnson and other companies take part in a collective way forward to bring affordable medicines to more people in all developing countries, they are not part of the solution as they want the public to think. They are contributing to the problem. They want to control who can make and use their drugs based on their commercial needs rather than the needs of people living with HIV.

What makes that particularly frustrating for doctors seeking to widen the availability of these drugs is that Johnson & Johnson has an entire section of its main web site entitled "Our Credo Values", which are summarized as follows:

The values that guide our decision making are spelled out in Our Credo. Put simply, Our Credo challenges us to put the needs and well-being of the people we serve first.

Moreover, that Credo even has the following commitment:

We must constantly strive to reduce our costs in order to maintain reasonable prices.

Johnson & Johnson's refusal to participate in the patent pool is not only ill-advised in terms of the negative publicity this is likely to generate, but ultimately counterproductive. As MSF notes:

Going forward, mechanisms to promote generic competition by overriding patents—as allowed by international law—in addition to voluntary initiatives, such as the Medicines Patent Pool, will be crucial to ensuring that monopolies do not stand in the way of patients' access to lifesaving drugs.

That is, when companies are persistently obstructive, countries will simply override patents altogether, as treaties permit when public health is at stake. Is that really what Johnson & Johnson wants?

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Consumerist points us to the rather stunning story of how pharmaceutical giant Johnson & Johnson tried to avoid doing an actual recall on defective Motrin it discovered by, instead, hiring people to go around the country buying up the pills. For those who already bought them? Too bad. The company did eventually do a full recall and has admitted that it probably should have told regulators that it was secretly buying up all the medicine. One of the people hired to buy up the product realized that something underhanded was going on and alerted officials. The instruction sheet he had been given stated:

"You should simply 'act' like a regular customer when making these purchases. THERE MUST BE NO MENTION OF THIS BEING A RECALL OF THIS PRODUCT!"

When the guy was questioned as to why he was buying such a large amount of Motrin he just brushed aside the questions. Separately, J&J emails reveal that execs congratulated each other on a "great job" and a "major win" for originally avoiding having to do a full recall. Feeling safer?

Peter Amstutz writes "Techdirt often talks about the "mutually assured destruction" model of patent litigation. Well, here is an excellent example of the staggering costs of competing through the courts instead of the markets. Boston Scientific and Johnson & Johnson have been locked in patent disputes for years, each alleging the other infringed on the their patents. Recently, Boston Scientific was ordered to pay a staggering $1.73 Billion (with a B!) in settlement to J&J. As if that's not enough, apparently there are additional unrelated patent cases still ongoing between the companies. One wonders how much has been spent on lawyers."

Think of all this money being shuffled around having nothing to do with actually creating new products that help people or actually getting those products to market where they can help. The patent system isn't being used to promote progress here at all, but to stifle competition and hold back progress.

The problem with the view that patents should be given out for every little improvement (most of which would have come about naturally thanks to market demand) is that you end up with "patent thickets" where a ton of different companies all claim patents on some small part of a larger offering. This isn't just an argument about "ownership" or "rights" in some cases. It can also have direct impact on keeping people alive.

For example, just witness the patent battle going on in the medical device market concerning Boston Scientific, Johnson & Johnson, Medtronic and... famed patent hoarder Acacia. Boston Scientific, Johnson & Johnson and Medtronic have all been suing each other concerning various patents used in stent and catheter technology. Acacia has now jumped into the fray by acquiring patents from Datascope and setting up yet another shell company called Cardio Access.

In all of these cases, everyone is claiming ownership over some piece of the technology used in stents and catheters, basically suggesting that others can't use that part of the technology without paying them. The end result is that we're all put at greater risk. Either stents and catheters won't be able to be as useful as they should be because they can't use the best possible technology -- or if they do use that technology, they get priced much higher to pay for all of these licenses from everyone else. And, of course, with all of these patent lawsuits (and rewards -- since Boston Scientific has already had to pay out the two largest patent fines this year, totaling $750 million), money that could have been spent on making a better product is instead going into lawsuits.

Last summer, we wrote about the absolutely ridiculous situation where Johnson & Johnson decided (against all common sense) to sue the American Red Cross (ARC) for trademark infringement over using (get this...) the red cross to sell products to raise more money for ARC. Beyond just being a really bad PR move to sue one of the world's most respected charities, the legal specifics were quite murky as well. Basically, ARC and J&J had worked out an agreement over a century ago to effectively share the use of the trademark (it's a bit more complicated than that, but that's the basic agreement). On top of that, there are laws preventing anyone from falsely using the Red Cross symbol -- and J&J claimed that the companies that ARC licensed the symbol to were doing just that. Luckily, the court has thrown out most of the case, claiming that the law seemed pretty clear in allowing ARC to use the symbol in commercial products, even licensing it out. In fact, the court noted that back in the 80's J&J engaged in a similar promotion where it donated some money from certain products sold to ARC. The judge also noted how ridiculous it is to claim that a charity was doing this for nefarious purposes: "The fact that the ultimate purpose of these licensing activities is a 'charitable purpose' -- i.e. to raise funds that A.R.C., a not-for-profit organization, can utilize for its charitable endeavors -- only further emphasizes their legitimacy." There are still a few parts of the case left unresolved, but the big parts have now all been dismissed.

Trademark law can do funny things, especially in this age where many IP lawyers and the popular press have misrepresented the purpose of trademarks. It's reached a point where many people now believe that trademark law is about ownership and control -- when it was really designed for consumer protection (so that consumers wouldn't be tricked into buying "Bob's Cola" thinking it was "Coca Cola"). A bunch of people have been submitting this latest story of trademark-gone-mad, where health-care products conglomerate Johnson & Johnson is suing the American Red Cross for violating its trademark on (you guessed it) the red cross symbol. The thing is, Johnson & Johnson may be on the correct side of the law in this case -- though, the wrong side of decency and common sense. J&J does own the trademark on the red cross symbol and has had a licensing arrangement with the ARC for over a century. However, the ARC has been licensing the symbol to make branded products such as "baby mitts, nail clippers, combs, toothbrushes, hand sanitizers and humidifiers." The ARC then sells these products as a way of raising money for all of its good work. Based on trademark law, of course, J&J will claim that it needs to protect the trademark or risk losing it entirely. But, that only shows one of the more ridiculous aspects of trademark law. And, it's not like J&J is going in with a light touch on this either. The lawsuits wants these products destroyed and is also seeking punitive damages. That's going well beyond the "we're forced to protect the trademark under the law" claim. It just makes them look like a bunch of bullies who would kick babies if it would make them money. While J&J was clearly concerned about the value of its trademark, it's not clear if they realized the value of good PR.