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Two Pathologies of Patents
and Why Prizes Might be Better
Amy Kapczynski
Assistant Professor of Law
University of California at Berkeley Law School
UNU Merit Conference
Jan. 29, 2008
Two (More) Pathologies of Patents
from a Public Health Perspective
Formal requirements
of patentability don’t
match practices of
innovation
Patents push us
towards commodity /
technological solutions
Disconnect with
Innovation Practices
Drug candidates may not be novel, may be obvious -but we may have no evidence that they actually work
Diluting standards of patent law undermines
functions of restrictions on patentability (e.g. limiting
static and dynamic inefficiencies)
--> Prizes likely better: more tailored, and don’t
produce exclusivity
Real Non-Excludability
Statins vs. exercise / diet
Checklists vs. new treatments in the ICU
--> Patents can’t incentivize this kind of research; this
likely distorts research towards technologies and
commodities
--> Prizes could pay for this kind of research (but when
prizes and when grant funding?)