Property Rights v. Public Access

There's a sudden outbreak of disease in Africa. A U.S. pharmaceutical company manufactures a patented medicine that can cure those afflicted, but developing African nations and their residents cannot afford the treatment. How is this medicine made available to those who need and can least afford it while still compensating the drug's manufacturer for the years of research and development put into creating it?

This question and others at the intersection of intellectual property rights and public access are the focus of a line research by Daniel Cahoy, associate professor of business law at Smeal. His work in this area recently helped him to win a Fulbright award to pursue questions like these in Canada this fall.

Cahoy will spend four months at the University of Ottawa as the Fulbright Visiting Chair in International Humanitarian Law, studying how different governments reconcile the tension between human rights and intellectual property law. His primary focus will be on how different regimes, specifically Canada and the United States, balance the need to protect property rights in the pharmaceutical industry while also increasing access to needed medicines in developing countries.

"It's important to protect intellectual property rights because, at least in theory, they give us an incentive to invest in research—that incentive is that you get a limited property right that gives you some ability to recoup your investment," Cahoy explains. "The idea is that we get more innovation and more creativity with intellectual property rights."

However, he says, it's not always clear that granting these property rights necessarily creates an incentive. In some cases, companies innovate regardless of property rights, and creating these rights when they're not necessary can lock up information and prevent the public from accessing it.

"On the flip side, it's important to protect public access because a lot of the intellectual property rights relate to important technology and are tying up important information," Cahoy says. "So we want the rights to perform their incentive task, and then make sure that people have access to the information as soon as possible. In areas like medicines and energy, it's more important that we draw those lines clearly."

In a 2007 paper, Cahoy proposed a plan that would ensure that developing countries get access to needed medicines while also compensating pharmaceutical patent holders through compulsory licensing. Compulsory licenses are used to force drug patent holders to relinquish their property rights during a time of crisis. In "Confronting Myths and Myopia on the Road from Doha," Cahoy proposes a three-tiered approach to enable international governments to compensate pharmaceutical patent owners for compulsory licenses based on their ability to pay. Another paper, co-authored by Cahoy last year, examines the impact of patent compulsory licenses on foreign direct investment.

"I find IP law most interesting in those areas where the public need is the greatest, in areas like essential medicines and energy technologies," Cahoy says. "Those are some of the areas that generate some of the most interesting research questions in IP law."

Cahoy's interest in this boundary area between IP rights and public access was piqued when he was practicing as a litigating patent attorney in New York City at the intellectual property-oriented law firm of Fitzpatrick, Cella, Harper & Scinto. A patent attorney licensed to practice before the U.S. Patent and Trademark Office, Cahoy joined the Smeal faculty in 2001 because it allowed him to delve deeper into issues that he wouldn't have time to investigate in practice.

While at Smeal, Cahoy says he has also developed new interests in several areas of business and law. He worked with Min Ding, Smeal Research Fellow in Marketing, on a project that applied experimental economics concepts to jury studies in order to make them more accurate and predictive. He has also researched government regulation of pharmaceuticals, energy, and the environment.

In addition to his research agenda, he teaches business law courses to undergraduate and MBA students at Smeal, which allows him to employ some of the skills he learned dabbling in improvisational comedy.

"In teaching, you have to communicate concepts in a personal way so that you're not just a talking head in front of a large group of people," he says. "This job seems to be perfect combination of all the things I love about law."