A critique of an argument against patent rights for essential medicines

Abstract

Thomas Pogge has recently argued that the way in which research and development of essential medicines is incentivized, under existing World Trade Organization rules, should be supplemented with an additional incentivizing mechanism. One might hold a stronger view than the one that Pogge currently holds, namely that patent rights for essential medicines are morally unjustified per se. Throughout this paper, 'the strong view' refers to this view. The strong view is one that enjoys considerable support both within and outside the academic community. This paper critically discusses one specific argument in favor of the strong view. This argument is named the 'Poggean argument'. This denominator is appropriate because a number of the essential premises of the argument are constituted by propositions that Pogge at some point has defended. The Poggean argument is valid, and defenders of the strong view also have some grounds for believing that the argument is sound. This belief comes, however, with what is arguably a too high cost, namely that the global institutional order becomes very demanding on taxpaying citizens of high-income countries if it is to be just. One may find acceptance of this cost relatively unproblematic, but this cost is, it is argued, unacceptable to anyone who has views on distributive justice that are sympathetic to the core tenets of libertarianism.