Sir Robin Jacob calls for System 2 thinking for patent law

Sir Robin at the University of Hong Kong
(photo credit: Danny Friedmann)
 Earlier this week Sir Robin Jacob delivered a thought-provoking lecture at the University of Hong Kong. The topic? Patents and medicine.

Katfriend Dr Danny Friedmann (IP Dragon) tells IPKat readers what happened.

Here’s what Danny writes:

“This Hong Kong Kat witnessed Sir Robin Jacob (Sir Hugh Laddie Chair of Intellectual Property Law) bringing some of Jeremy Bentham’s spirit from UCL to the University of Hong Kong.

Around sundown, Sir Jacob enlightened students, scholars and government officials with this year’s HKU Lecture in IP entitled “Patents and Medicine: A Matter of Life and Death” at the University of Hong Kong on 21 November 2017.

In the fully packed lecture hall the prolific Sir Robin looked at patent law through the lens of System 1 and System 2 thinking. Sir Robin used Daniel Kahneman’s “Thinking, Fast and Slow” division of thinking: System 1 (fast, instinctive and emotional) and System 2 (slower, deliberative and logical). The first kind of thinking has led to some irrational assumptions and theories not substantiated by facts, which one way or the other, conclude that patents are bad.

Sir Robin recalled that the abolishment of the patent system in the Netherlands from 1869 to 1912 did not bring the innovation to the low lands as envisioned. System 2 thinking returned to the Netherlands and new patents were granted in 1912.

An often heard criticism of big pharma is that patented medicines are too expensive. Sir Robin put the gain and risks in perspective. He gave the example of Eli Lilly which tried to develop a cure against Alzheimer’s disease, invested over a US$ billion and spent ten years in R&D to no avail. 

Sometimes the price for a cure is a high number in absolute terms. But Sir Robin made it clear that one needs to weigh the benefits and costs of using a medicine with the disadvantage and costs of not using a medicine, not only for the individual but also for society at large. I am sure Jeremy Bentham would give Sir Robin an approving nod from behind his glass case at UCL. Sir Robin used the example of Gilead Hepatitis C drug, which costs £70,000 when it was introduced. “The societal value of this cure extends not only to the personal health of the patients, but their ability to work and pay taxes, their cost of medical treatment in other ways and the cost on their families. The cost of a liver transplant was £70,000. Is the Gilead drug really too expensive?”
Also these prices are not fixed, there are hard negotiations about drug prices between pharmaceutical companies and insurance companies or states.  

Sir Robin estimated that around 20 percent of turnover of patented medicines is funneled back to R&D: “protected medicines of today are paying for those of tomorrow.”

System 1 thinking only focuses on alleged profiteering of pharmaceutical companies but there is not much attention to generic companies. Since research of medicines is expensive, and manufacturing is cheap, the generic companies can become very rich indeed, without having to do any research or advertising.

There is also a lot of System 1 thinking in regard to secondary and further medical use claims, which is often considered evergreening of a patent that has already expired. However, a new dosage for a drug, for example from three pills to one pill per day, can have beneficial effects for the individual but also society at large. It will be more convenient for the patient and the chance that he or she will forget the medicine decreases and thus the chances that the patient becomes resistant against the medicine also decreases. In case of a contagious disease this has beneficial effects to society as well.

Of course Sir Robin also discussed the problems related to pharmaceutical companies. The commercial incentives are lacking to find medicines for orphan drugs. And more surprising, for actual cures for major diseases like Alzheimer’s disease. Therefore, Sir Robin insisted that policy makers, scholars and practitioners use more System 2 thinking, to recalibrate the incentives so that they are commensurate with the risks for developing the innovative medicines that can cure, including rare diseases. Why not “offer[ing] a 30-year patent term for a major new antibiotic, or a cancer cure. And fix the prices of the patentee so that it gets an ample reward.”

In short: using System 2 thinking in patent law is a matter of life and death.” 
Sir Robin Jacob calls for System 2 thinking for patent law Sir Robin Jacob calls for System 2 thinking for patent law Reviewed by Eleonora Rosati on Thursday, November 23, 2017 Rating: 5


  1. The patent system is a free market tool, and so Big Pharma's decisions on R&D have to be taken given the present patent system. Changing patent term for individual sectors or even inventions to incentivise certain R&D starts to distort the free market. Already one could argue that Big Pharma is being damaged by the patent system by having lived off patents on blockbuster drugs for so long that they are no longer efficient or innovative in their R&D, and so are suffering from the 'patent cliff'. So there are equally good arguments for shortening patent term for medicines to incentivise Big Pharma to keep topping up their pipelines.

  2. I agree with Cola's comment above.

    Further, it ignores data exclusivity provisions. In the US, antibiotics can obtain 5 years extra exclusivity through GAIN. In Europe, there are already orphan drug provisions that allow 10 years data exclusivity when the orphan indication is added to the label, even if the active is already known. Orphan designations are often allowed for cancer indications. Orphan drug provisions prevent people marketing similar drugs for the same indication. For example, the orphan drug indication for nilotinib prevented the same indication being added to the label for imatinib (see T-140/12 Teva v the European Medicines Agency).

  3. The biggest problem the pharma industry has, and other industries that require R&D investment to survive, is ignorance. Cola.

  4. It is a comfort to me that at least one judge has read up on Daniel Kahnemann and his "thinking fast, thinking slow" ideas. It would comfort me further, to know that judges are well read on the further development of the notion, as espoused by Jonathan Haidt in "The Righteous Mind". Judges (and lawyers and police persons) are all too prone to make their mind up early, and then bend all the evidence thereafter, to fit their early assessment of the case.

    Haidt explains it with the "Elephant and Mahout" idea. The elephant is System 1 and the Mahout is System 2. Once the elephant has charged, in the wrong direction, there is very little that the mahout can do about it. Changing direction is not a practical possibility. Only two other elephants, one each side of the rogue, can bring the rogue elephant to reason, and the correct path. That is why all EPO Decisions are made by a trio of "elephants", with one each side of the First Member/Rapporteur.

    BTW, the Mahout (System 2 in our brain) is a superb PR operator. Deep-thinking System 2 can always rationalise the wrong direction charge of our primitive System 1 brain, finding good (plausible) reasons why the knee-jerk System 1 way of thinking was right all along.

    The much cited "confirmation bias" is but one manifestation of this System 1/2 thinking, with which we humans are blessed/cursed since our days on the African Savannah, needing to react instantaneously and instinctively to each flutter of the grass, with our primitive System 1 brain, if we want to stay alive.

    What does Robin Jacob have to say about all that, I wonder.

  5. The "trio of elephants" idea presumes that the other two elephants (somehow) are not prone to the very same mistake of the first elephant.

    What does more damage then: one single rampaging elephant or a herd of rampaging elephants?

  6. Like all analogies, it ain't perfect. but think of all those cowboy films when a horse gets spooked. how do they rein it in? Why, with a more well-behaved horse on each side.

    We are not talking herds of wild elephants here. Just one domesticated one, with a rider; an impulsive one, who has got hold of the wrong end of the stick, and won't let go.

    Which judges do the most damage? Why, a Supreme Court, a herd which goes off gadding in the wrong direction, in a Land where there is Binding Precedent.

  7. Of course there is an elephant and rider. This is why there is always the war to put the black hat on a party.

    Or to make the case be "simple"

    I think some judges are better than others at discerning what is rational and what is a stretch.

  8. Be that as it may MaxDrei (with the nod to the danger of a Supreme Court), your view of the opposite - NO stare decises - as somehow bringing about a Darwinean evolution is one of the oddest and self-contradictory viewpoints that you advance.

    (and that's saying something)


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