divide between the private and social value of antibiotics has led to a
troubling supply and demand incentives and an increase in antibiotic-resistant infections. Further, they maintain that “the patent system helps spur
innovation of new drugs, but pending patent expiration may lead antibiotic
manufacturers to waste their products by promoting drug use for a broad
array of minor clinical conditions, rather than trying to assure that their
products are limited to the most urgent cases.” 84 Thus, the development of
antibiotic therapies is not profitable in a patent-centered market which
requires pharmaceutical companies to capitalize on sales during the drug’s
patented years, as antibiotics are only effective if their use is conserved.
Large publicly traded pharmaceutical companies, despite having
beneficent mission statements and legitimate aims of developing novel
medical treatments for the public benefit, are also beholden to their
shareholders. 85 The pharmaceutical industry could reasonably determine that
it is not economically viable to risk expending capital on antibiotic R& D
when other drug categories have higher earning potential. 86 Thus, it would be
reasonable for a publicly traded company to reject antibiotics R& D in pursuit
of a new “Blockbuster” drug for a therapeutic area with a wider patient
population. 87 Indeed, as of 2008, only five of the fifty largest pharmaceutical
companies are home to active antibiotic-development programs. 88 Bearing
this in mind, it comes as no surprise that companies are dissuaded from
investing in the development of antibiotic drugs.
Even when drug companies invest in R& D for antibiotics, they are drawn
only to the largest markets. 89 Of the six most dangerous groups of
microorganisms demonstrating increasing rates of antibiotic resistance, only
MRSA has seen some advancement due to its clinical notoriety and increased
market incentives. 90 On the other hand, the remaining five priority pathogens
with smaller potential markets have far fewer new agents in the pipeline. 91
Comprehensive and coordinated planning among various sectors of the
healthcare industry is necessary to overcome this tension between
pharmaceutical innovation and antibiotic conservation.
Antibiotic resistance arises from many factors cumulatively, and thus
85. See Spellberg et al., supra note 62, at 161 (explaining that “corporate directors have a
fiduciary responsibility to invest their R& D dollars in a manner that maximizes the likelihood
of return on investment.”).
87. See id.
88. Theresa Braine, Race Against Time to Develop New Antibiotics, 89 BULL. WORLD
HEALTH ORG. 88, 88–89 (2011), http://www.who.int/bulletin/volumes/89/2/11-030211/en/.
89. Kesselheim & Outterson, supra note 83, at 120.
90. Id. at 117–18.