[carlmr]

This isn't the same though, this is invalidating patents for drugs that have been developed that no one is producing anymore.

Patent protection makes sense to inventivize development and production. In this case development already happened and only production stopped. So it doesn't make sense to uphold this patent.

[dodobirdlord]

If losing your patents in a position like this is a possible outcome, it changes the investment calculus. As it stands, there’s still the possibility that administrations or laws will change and governments or insurance companies will come around to wanting to buy it at a price that recovers the investment, or some other company will believe that they can persuade buyers to buy at a worthwhile price and buy the patents or the production rights off of the current owners. Or maybe some other company will profitably deploy a derivative technology and they can sue to recover some of their investment. For all of these reasons the patents and trade secrets are still worth something. If finding yourself in this position means that you are stripped of your patents and receive nothing, that makes drug R&D an even riskier investment proposition. Being stripped of patents by the government after having bankrolled clinical trials because the government refused to pay the price required to recover the investment would be a brazen show of bad faith and a real stab in the back. The patents will expire in a decade or so anyway, do we really need the government to go out of its way to screw these people out of their last possibility of making back some of the money they spent on this socially valuable work? If we think that it’s so important that this treatment be made immediately available to people at a low price, maybe the government should buy the patents early for the several hundred million dollars that they cost to produce?