What to Learn from Martin Shkreli: The Media is Not Comfortable Discussing Patent Law
Turing Pharmaceuticals recently raised the price of their drug, Daraprim, dramatically from $13.50 per pill to $750 per pill. Daraprim is mainly used to treat toxoplasmosis, a complication that only requires treatment in individuals with weakened immune systems. On September 8, 2015, the Infectious Disease Society of America and the HIV Medicine Association wrote a letter to Turing asking for the price to be reduced to increase access to the drug. The media began reporting on the price hike on September 18, 2015. By September 23, 2015, the public outrage at the price increase led Turing Pharmaceuticals CEO Martin Shkreli to announce that the price would be reduced. Between September 18 and September 23, most major news outlets wrote stories about the issue. A consistent element of the coverage was an unwillingness to discuss patents that reveals the low level of public discourse in this area.
Daraprim’s price increase was not enabled by a patent. Turing does not have patent protection or market exclusivity for Daraprim. The increased price comes from the economic realities of this drug and the diseases it treats. The parasite that causes toxoplasmosis is common but treatment is rarely required. Due to low overall demand for the drug and expensive barriers to entry, like proving bioequivalence to gain FDA approval, there is little economic incentive for a manufacturer to invest in a generic version of Daraprim.
The major flaw with the coverage of Daraprim was a failure to report that the Daraprim patents expired. From reviewing the news stories released on this subject, only the New York Times article explicitly explains that the patents for Daraprim have expired near the end of its lengthy article; other news stories either do not mention patents at all or discusses patents incorrectly. In contrast, every news story on Daraprim reports that the drug was approved by the FDA in 1953 and has since been used to treat Toxoplasmosis. The patent on any drug that has been in use for 62 years will have expired. Patent protection being temporary is an important part of the patent system. By not addressing patents at all, the media created the implication that patents played a role and sowed confusion on how patents work. The failure of the media to mention explicitly that there were no existing patents in this case could lead the public to misunderstand the timeframe surrounding patents or assume that this was a case where the patent system had failed.
Beyond choosing not to report that the patents were expired, many news articles incorrectly reported on the patent status of Daraprim. For example, the LA Times article suggests that a solution to the problem of increased prices would be the government “licensing the patent to generic manufacturers.” The article fails to mention that there is no patent in this case. The article on Daraprim from People.com is incorrectly titled “Former Hedge Fund CEO Purchases Drug Patent, Hikes Price 4000 Percent.” Both of these articles included information on the age of the drug and these mistakes imply that patents were the issue. The mistakes reveal fundamental misunderstandings about the issues in the Daraprim case and pass those misunderstandings onto the public.
The low level of public discourse on issues of patent law should be concerning. In the Daraprim case, we have seen how poor public relations and public outrage can lead to the changing of a drug’s price. The potential for public outrage will now be considered when setting the price for drugs. Additionally, a voting populace that understands the fundamentals of patent law will be able to better understand the issues and hopefully avoid rash changes to patent law based on isolated outrage. In the case of Daraprim, we have seen that the media does not have a solid grasp on the fundamentals of patent law and will choose to avoid discussing patent law even at the most simple level.
Zach Travis is a J.D. candidate, ’17, at the NYU School of Law.