Senator Charles Schumer (D-N.Y.) rightly chastised House leaders last month (Oct. 19, 2001) for panicking in the face of anthrax attacks. But Schumer’s own behavior has been a shameful spectacle of political panty-bunching. Count him among the many Chicken Littles talking out of both sides of their mouths – telling Americans to go about business as usual, yet at the same time advocating sky-is-falling measures that simply stoke public hysteria.
Schumer’s panic-button proposal, which calls on the federal government to trash patent rules so generic drug makers can sell knock-offs of Bayer’s antibiotic Cipro before the patent expires, is an opportunistic heist of intellectual property rights. The Naderites are salivating all over this scheme. Schumer’s maneuver would set an appalling precedent for the feds to declare an “emergency” and infringe on drug patents any time the anti-capitalist Left made unsubstantiated claims of pharmaceutical price-gouging.
This is not, as one knee-jerking reader put it in an e-mail to me, “putting profits ahead of people.” If Schumer’s plan goes through, it will come back to haunt us in countless ways. Our ability to persuade other countries to honor American patents, copyrights, and trademarks – not just on drugs, but on all products — will be fatally compromised. Why should China respect Microsoft’s intellectual property rights if we don’t respect German-based Bayer’s? Why should Brazil change its American-unfriendly patent laws, as our government has argued to the World Trade Organization, if we don’t play fair?
As is its usual practice, the New York Times has only allowed big government activists to be quoted on their interpretation of the terrible statute (28 U.S.C. 1498) that lets the feds infringe on privately held patents with impunity. Sen. Schumer and his leftist allies say the practice is “routine.” They sniff that since patent holders receive “reasonable” and “entire” compensation, this commonplace abandonment of the rule of law is no big deal. Nonsense. The statute forces the victims of patent infringement to go to court to seek compensation from the federal government – compensation which is rarely just, and far from entire. Under the law, no patent owner has been able to recover litigation costs of his suit against the government.
This would be a nightmare not only for foreign companies such as German-based Bayer, but for small patent holders right here in the U.S. Unlike big, multinational drug firms, domestic start-ups can’t weather the huge cost of defending their rights when the government strips them of their life’s work — and prevents them from recouping the costs of research and development through their patents. Stunts like Schumer’s will scare the pants off of American innovators.
Worst of all, Schumer’s proposal sends a message to the rest of the world that we’ve been beaten. That we can’t operate under normal rules. That we are in such desperate need for Cipro pills that we’ll cut off our heads to get it.
Schumer wants to break the law despite the fact that Bush administration officials say the current stockpile of Cipro is adequate; despite the fact that Bayer is drastically increasing production and says it can meet demand; despite the fact that there are ample supplies of other antibiotics that protect against anthrax effectively; despite the fact that anthrax is not contagious; and despite the fact that the risk of anthrax exposure, while petrifying, is extremely low.
I am neither a mindless alarmist nor an apathetic stoicist about the anthrax threat. It’s real, it’s here, and though remote, it’s scary. But Schumer’s legislative response is as embarrassing as the ghastly sight of Denny Hastert and Dick Gephardt holding hands and running from Capitol Hill earlier this week. Republicans, who are supposed to represent the party of free enterprise, have been largely mute on Schumer’s radical plan. They are “studying” it.
Studying it? Get a grip, gentlemen. Schumer’s proposal is theft, pure and simple. Call it what it is and get back to work defending our way of life, instead of fleeing from it. This is no time to lose our heads.
