Glaxo Patent Giveaway: Charity or "Theft"?

I saw this headline on Google Fast Flip, and had to read it.  I'm
always game for an anti-big-pharma story: even though I appreciate
their efforts to relieve suffering, I do like to take notice of their
shadier practices.

href="http://business.theatlantic.com/2010/01/is_glaxos_charity_really_theft.php">Is
Glaxo's Charity Really Theft?

Jan 20 2010, 5:30 pm

by Daniel Indiviglio



Is there a fine line? Corporations have a duty to shareholders to
maximize profits. But when they donate to charity -- which is regularly
done these days, often through foundations -- this takes money out of
shareholders' hands or stifles future growth. It instead provides that
money to some cause that management deems appropriate. But Glaxo-SmithKline's
recent decision to put thousands of chemical compounds which may cure
malaria into the public domain gives this question a new dimension,
adding additional complexity...

The story does not go where I expected.  It is not talking about
some kind of charity scam, in which they get PR karma for doing
something that really only benefits themselves.  Rather, the story
is about the fact that Glaxo is releasing some of the compounds it has
developed, into the public domain.



Indiviglio's story is posted on the Atlantic business
blog.  It is based upon an article in the (UK) Guardian. 
The Guardian version is reasonably thoughtful, whereas the Atlantic
version is frankly offensive.

Indiviglio begins with the unfounded assertion that "Corporations have
a duty to shareholders to maximize profits."  This provides a
frame for the discussion that follows, leading to a distorted view of
the issue. Although he does not draw a firm conclusion, there is only
one conclusion implied by his treatment of the subject: shareholders
should have been given the opportunity to approve of the release of
these compounds to the public domain. 



It helps that he contacted a company spokesperson for clarification,
but it appears that he asked the wrong questions.  So it did not
really clarify anything.



He quotes the href="http://www.guardian.co.uk/science/2010/jan/20/glaxo-malaria-drugs-public-domain">Guardian:

GSK will publish details of 13,500 chemical compounds from
its own library that have potential to act against the parasite that
causes malaria in sub-Saharan Africa, killing at least one million
children every year.



It took a team of five investigators a year to screen the two million
compounds in GSK's library - its entire collection of potential drugs
and possibly the biggest such library in the world.

Indiviglio's view:

Here a company is surrendering its intellectual property
for the greater good. While this might be admirable on a moral level,
I'm not so sure shareholders should be pleased...don't get me wrong: on
many levels a donation like this seems wonderful for the world. And if
shareholders go along with it, then by all means, Glaxo should donate
away. But without explicit shareholder approval, I'm a little unclear
how this is different from taking investors' money and misappropriating
it.

What to make of this?  First, as I mentioned, his opening
statement,  "Corporations have a duty to shareholders to maximize
profits" is simply false.  The reason is this: maximize is a
strong word, like "always" or "never."  Arguments built upon such
assertions sound compelling, but are difficult to support.  All
you have to do is find one exception, and the argument falls
apart. 



If it is true that corporations should always maximize profits,
that means that they should ignore legal and ethical obligations if
they can get away with it.  This leads to the paradoxical
conclusion, that corporations are morally obligated to be immoral.



It is more reasonable, and more accurate, to say that the duty to
maximize shareholder profit is one duty out of many; key
decision-makers ought to weigh this duty heavily when they make
decisions.   That is the abstract view.  But what about
the details of this specific decision?



In practical terms, it is not possible for Indiviglio to assess the
potential impact of this decision.  Glaxo released 13,500 chemical
entities into the public domain.  He correctly states that "Maybe
one of those compounds also holds a cure for some other disease
completely unrelated to malaria, unbeknownst to Glaxo."  This is
true, but it also is true that the crumpled-up McDonald's bag that I
passed on the expressway might contain a winning lottery ticket. 
I have a moral obligation to provide for my family.  Did I act
unethically when I failed to stop and pick up the bag?



Drug companies generate compounds, literally by the million, using a
shotgun approach.  They know full well that the overwhelming
majority of them will never lead to anything marketable.  Few will
even be remotely interesting.  That's the first important point.



The second important point is that drug companies can only pursue a
finite number of leads.  There are only so many scientists, so
many labs, so many R&D dollars.  If the company does not have
the resources to develop a particular compound, then the potential for
that compound is exactly zero. 



The third important point is that drug development often is not done
solely in-house.  Commonly, the company relies upon basic science
research that is done in academia.  This may not be research that
is done on the exact chemical entity that the company is pushing down
the pipeline.  Rather, it is research that is done to elucidate
fundamental pharmacodynamic principles, perhaps using related
compounds. 



To illustrate: a company may have a compound that shows promise in
screening tests, but which also shows signs of hepatotoxicity that
would prohibit it from being used in humans.  If someone would
take that compound, and figure out exactly how it performs its
beneficial function, then it could be possible to develop a product
with the benefits, but without the risks.  That would be
good.  Whether this idea applies to the compounds that Glaxo
released, is something that neither Indiviglio nor I could possibly
know. 



Indiviglio did the right journalistic thing by calling the company
spokesperson, but he asked the wrong question:

I spoke to a spokesperson from Glaxo this morning. She
informed me that the board is generally supportive of the initiative,
but no formal shareholder feedback has been solicited.

How are shareholders going to assess the value of the compounds that
the company released?  It simply is not possible for more than a
few of them to have any idea.  The correct questions have to do
with the manner in which the compounds were selected.  Was the
company duly diligent in its efforts to screen the compounds, to select
ones that would most likely be of value in basic research, but be
unlikely to turn into a blockbuster?  The thresholds are due
diligence and reasonable confidence.  Five scientists
spend a year on this project.  The scientists within the company
devote their professional careers to selecting which compounds to put
in the pipeline, and which to put on the shelf.  They probably are
pretty good at it, as much as anyone can be.