Chris Dent

Patents Associated with High-Cost Drugs in Australia

Australia, like most countries, faces high and rapidly-rising drug costs. There are longstanding concerns about pharmaceutical companies inappropriately extending their monopoly position by “evergreening” blockbuster drugs, through misuse of the patent system. There is, however, very little empirical information about this behaviour. We fill the gap by analysing all of the patents associated with 15 of the costliest drugs in Australia over the last 20 years. Specifically, we search the patent register to identify all the granted patents that cover the active pharmaceutical ingredient of the high-cost drugs. Then, we classify the patents by type, and identify their owners. We find a mean of 49 patents associated with each drug. Three-quarters of these patents are owned by companies other than the drugs originator. Surprisingly, the majority of all patents are owned by companies that do not have a record of developing top-selling drugs. Our findings show that a multitude of players seek monopoly control over innovations to blockbuster drugs. Consequently, attempts to control drug costs by mitigating misuse of the patent system are likely to miss the mark if they focus only on the patenting activities of originators.

Stare Decisis, Repetition and Understanding Common Law

The works of Michel Foucault have not, so far, been employed so as to enable an adequate understanding of the functioning of the law. This article begins to remedy this situation. Past uses of Foucault’s work have failed to provide a satisfactory account of the relationship between the juridical and the disciplinary aspects of ‘the law’ in general. The application of his ideas to the practice of the common law offers a way forward. In this article, we use Foucault’s ideas of discursive formations and discursive practices to understand the operation of the doctrine of stare decisis in the common law. It is uncontroversial to assert that the doctrine is difficult to define — this analysis demonstrates that this signifies its ‘always/already’ nature. The understanding applied here indicates that stare decisis is best seen as a set of discursive practices — the most significant of which relates to the repetition of past legal statements. The doctrine, as a result, is both fundamental to the operation of the common law as a discursive formation and constitutive of those who participate in, and perpetuate, it — the lawyers and judges.

Copyright, Governmentality and Problematisation: An Exploration

The Copyright Act covers a large range of subject-matters: it includes civil and criminal actions for infringement and appears to envisage a wide range of potential infringers – from a child downloading music to international criminal cartels engaging in large-scale piracy of movies. The Act’s breadth suggests that an appropriate framework for its analysis is Foucault’s governmentality. Such an approach is not straightforward. The Copyright Act, for example, may be seen as a unifying set of practices; alternatively, it is arguable that copyright is not unified by a single ‘problematisation’. That Parliaments have enacted a number of legislative instruments under the broad category of copyright does not necessarily mean that all the practices associated with the instruments are directed at the same government rationalities. The copyright regime, for example, may be understood to maintain practices of self-expression, to accommodate changing technologies, and to sustain, in part, the economic order of society. In order to gain a more nuanced perspective of the problematisations of copyright, and therefore of the regulation of conduct creative individuals, a thorough genealogical investigation of copyright practices needs to be undertaken – an investigation that may be based on the theoretical understandings presented in this article.

'The Privileged Few' and the Classification of Henwood v. Harrison: Foucault, Comment and Qualified Privilege

This article considers the treatment of one nineteenth century English defamation decision, Henwood v Harrison, in light of Michel Foucault’s understanding of the construction of discourses. In particular, the processes of classification applied to the decision are examined. That is, the manner in which later barristers, judges, commentators and digest compilers categorised Henwood v Harrison is argued to be an example of an internal discursive control. The treatment of the decision as representing a precedent for either a broad privilege defence to defamatory statements or narrower defences of comment or qualified privilege can be seen as both representing the arbitrary nature of classification and as indicative of the changes taking place in English common law at the time.

Relationships between laws, norms and practices: the case of road behaviour

The road rules are the only area of ‘law’ about which almost every citizen is given explicit instruction, and with which most citizens engage on a daily basis – as a driver, a cyclist or a pedestrian. This makes these rules the ideal site for an exploration of the interaction between the law (or, more properly, regulations), the norms that are linked to the law and the practices adopted by road users that relate to those norms. This exploration will be done using the work of Michel Foucault. His work will be supplemented by a categorisation of the practices exhibited by individuals into ‘normative practices’, ‘practices of habit’ and ‘spontaneous practices’. The manner in which the interests of the road users impact on the decisions made by them, in light of their learnt practices, provides insight into why, in some cases, road rules are breached.

Not All Practices are Equal: An Exploration of Discourses, Governmentality and Scale-Free Networks

Foucaults ideas surrounding the notion of governmentality are built upon the intersection of multiple discourses and discursive practices – a “complex topography of rule”. The notion of disciplinarity is well accepted in the literature; however, there are few attempts to conceive how practices, from a range of discourses, relate to each other. Everyday observations indicate that not all learnt practices are equally important to a given subject. To say that all these practices are inculcated in order for the subject to be able to conduct themselves appropriately does not provide insight into the relative importance of particular practices to a specific subjects constitution. The central contribution of this article is that the sum of practices acquired by a subject may be conceived of as a network; more specifically, as a “scale-free network”. The adoption of this perspective adds texture to the Foucaultian tradition in a way that emphasises the connections between acquired practices – the perspective facilitates the conceptualisation of the sum of practices in terms of a topography of practices. This approach is explored through an examination of the background, training and work of patent examiners. Examiners make a useful example as they operate within both the scientific and legal discourses and, therefore, learn and express practices associated with both discourses. This network-based approach offers a new perspective for understanding practices that occur in multiple disciplines – that is, it offers a useful conceptualisation of the processes by which discursive practices are ordered (thereby facilitating acquisition).

New insights in patent history: an application of evolutionary theory

Inventions have been protected, in England, by patents since the sixteenth century. The patent system has undergone significant change since that time - in the nineteenth century, major legislative reforms were undertaken in the shadow of an abolitionist movement; and in the twentieth century, the system began to accommodate radical technological developments. This research applies insights from evolutionary theory, allowing a focus on the range of parties involved in the system and an acknowledgement of how these parties have changed as the system and society have developed.

Legal academics, our creativity and why we do it: insights from Foucault

We, as researchers and lecturers, produce new knowledge that attracts copyright, but standard understandings of intellectual property (IP) – the right as an incentive to create – do not appear to fit our circumstances. Expressed differently, the individual is at the centre of the justifications for IP law though there is little engagement, in the literature, with how the law operates on individual creators. This article addresses the problem by adopting a Foucaultian approach to explore the interaction of the (constrained) decisions of individuals and the societal policy of innovation. Foucault’s work is ideal for this endeavour as much of it focuses on the practices of the individual. For us as legal academics, and most likely for the many other innovators in society, the practices around creativity are the result of, to use Foucault’s term, the governmental rationalities that we have all been inculcated with. More specifically, the understanding of the role of “proper conduct” and the norms of behaviour provides greater insight into the previous simplistic understanding that some individuals are intrinsically motivated to create. The argument concludes with the assessment that copyright may not be important to the creativity of academics; instead, the IP right is of greater relevance to the publishers of our work – given the alternative role for copyright to facilitate the exchange of new creations.

A Regulatory Perspective on the Interests and Motivators of Creative Individuals

The copyright regime is based on the assessment that many, if not most, individuals are creative. To date, much of the literature assumes that copyright law is an effective instrument of innovation policy simply because the legislated rights to reproduce a creation are seen to be an incentive—even though it is acknowledged that many creators are, in fact, “intrinsically motivated”. There have been few attempts to provide a more expansive understanding of the relationship between the diverse reasons a person has to create and the law in this area. To try and correct this state of affairs, this article uses insights from regulatory theory to better understand those who produce copyrightable works. Specifically, this work discusses the motivators of creative individuals in terms of the categories of “internal motivators”, “external motivators” and “reputational motivators”. This understanding suggests that the notion of “copyright as a carrot to creators” is an overly simplistic assessment of the contexts in which individuals create.

‘Gray, meticulous and patently documentary’

Patents are seen as a key part of the modern economy and operate as a mode of regulation of technology and innovation. The histories of the system, to date, have not explored the role that patents have in the governance of our society. This article suggests that the historical methods of Michel Foucault are broad enough to undertake this task. The article, then, explores both the archaeological and the genealogical methods in order to assess the benefits, and limitations, that arise from the use of each of them in the context of a history of the laws, and practices, as they relate to patents of invention.