Slashdot Mirror
Should a New Technology Change the Patent System?
linuxizer writes "Congress seems poised to turn an effort to create a pathway for generic biotech drugs, such as Remicade, into the exact opposite. Instead of the 5-year protection that traditional pharmaceuticals get, or the 0-year protection that the FTC recommends, the bill offers 12-year exclusivity with renewability for minor changes. The issue is highly charged, with activists waging a campaign to change the bill. Yet it also raises interesting questions for other technologies. To what extent do the traditional contours of patent law need to change in response to new technologies with a different set of market realities (biotech drugs are 22 times more expensive on average, and development costs for generics will be substantially higher) and in what direction? Need every new technological category get its own patent rules, and how do those rules get decided?"
Need every new technological category get its own patent rules, and how do those rules get decided?
Depends on the leaders of that category. The people with the most money will give tiny amounts of that money to the lawmakers. Then a bill is introduced and these weird rules probably get tagged onto some bill that has a much more important focus (like health care or one of the various wars we are engaged in). Since all the lawmakers received money from the the people with money, nobody objects.
Here's one of many examples in which a bill titled "Affordable Health Choices Act" gets tiny peppering of patent law attached to it like this (which is in regards to the category 'interchangeable biological products'):
... (i) a final court decision on all patents in suit in an action instituted under subsection (l)(6) against the applicant that submitted the application for the first approved interchangeable biosimilar biological product; or
...
(ii) the dismissal with or without prejudice of an action instituted under subsection (l)(6) against the applicant that submitted the application for the first approved interchangeable biosimilar biological product;
What's worse is that no voter immediately cares. Everyone cares more about things that directly affect them--like their health or their kin dying on some god forsaken soil. The immediate threat of these lobbyists is not only unseen but no one is held accountable down the line. You have to get someone not too politically savvy to be the poster child/target for this stuff if it's a whole bill you're introducing -- like Sonny Bono on copyright extension. Oh and there's another neat little thing in American politics where if you vote for that bill and then something like this gets added and you vote against the bill, your opponents label you as a "flip flopper", "waffler" or "indecisive."
Now, I paint a picture where opposition to lobbyists never arises because no one makes it a serious issue. But there are a few examples of this working positively. Example is the generic drug manufacturers do actually have some money and realize they are getting the short end of the stick so you have these lobbying wars occasionally. The really ironic thing is that name brand drugs are more expensive for the consumer. But often the consumer is on a health plan where they pay a small percentage or a copay on their drugs. If it is a copay and the consumer buys the $100/dose Calvin Klein drugs instead of the $1/dose Walmart drugs, someone (like your health care provider) is paying a lot more. Now, imagine what kind of state our health care would be in when there can't be any generic drugs for 12 years? Won't matter if you're a copay or a percentage, you'll be taking that $100/dose because it's your health and you can't exactly put a price on your health.
My work here is dung.
Of course not, unless by 'change' you mean 'abolish.'
But for these sorts of pharmaceuticals, I have to question the wisdom of allowing patents at all. Nobody really properly understands how most of this works, it's almost entirely statistics. That's not to trivialize the importance of new drugs, but patent exclusivity will discourage widespread use, reducing the statistical information we can glean from the new drugs, and making combining treatments much less safe.
Of course, the same argument works fairly well against the current pharmaceutical patent system, but again, this is Slashdot.
Without a recoup period, there is no incentive to develop new treatments. 5 years is probably a good balance. 12 is probably too long. And 0 is the type of braindead proposal you'd get at a discussion site like Digg or Fark.
When you buy your house, a lot of your money is ostensibly tossed down the drain to pay for the interest on your loan. However, this interest is actually the cost to you to borrow that money. So the lower the interest, the lower your cost to borrow money. If you had no interest to pay and had no incentive to pay back a loan on time, there simply wouldn't be a loan market. No one would lend to you because there would be no hope of getting any return on their investment. Just as you expect use of money as the benefit of borrowing, they expect a small rate of interest to recompense them for their loss of the use of the money.
In many ways, the financial and pharmalogical industries are very similar in this regard.
To encourage invention or innovation, the system MUST go back to the original reason for patent protection in the first place. The idea is that new ideas should be protected so the patent "owner" can develop said idea and turn it into a product. If there is no ability or intention to DIRECTLY make a product to take advantage of the protection, then the protection should be removed.
This means that patent trolls would all go away, since none of them have any intention to make a product based on the patents they own. It is one thing for a company like AMD or Intel to file a patent and make use of their inventions, and another for someone sitting in an office to buy a patent just so they can file lawsuits against anyone who makes a product that might infringe on the patent in question.
So, for all of these companies that file patent related lawsuits, they SHOULD be looked at to see if they have taken even a few steps towards making a product. If there has been no effort made to create a working product based on the technology, they should be fined for filing a lawsuit in the first place.
The problem with your reasoning is that it leaves no possibility for a Research and Development for-profit business. Take ARM CPUs for example. Their business model is that they develop designs for real CPU cores (which is, in a sense, a real product, but in another sense, is not). But, they are a 'fabless' semiconductor company - they don't *build* or directly sell any actual products (except for, probably, some demo/marketing units which they ship to manufacturing partners).
They license their CPU designs out to manufacturing partners, who integrate them into all sorts of devices - cell phones, game consoles, netbooks, DVRs, DVD/Blu-Ray players, automated manufacturing devices, medical devices, etc. Anything which needs a CPU could potentially use an ARM CPU design.
So, what is so *wrong* about the ARM business model? I don't think most people would call them a patent troll, and yet without patents, they would collapse overnight. But, by your (rather vague) definition, they wouldn't likely get patent protection?
Brand-name drugs are generally given patent protection for 20 years from the date of submission of the patent. This provides protection for the innovator who laid out the initial costs (including research, development, and marketing expenses) to develop the new drug. However, when the patent expires, other drug companies can introduce competitive generic versions, but only after they have been thoroughly tested by the manufacturer and approved by the FDA.
Traditional pharmaceutical patents last for 20 years.
It's NOT me! It's the meds! I'm on 1000mg of Fukitol.
You're assuming that someone with what amounts to a monopoly on a drug will somehow eventually want less profit and voluntarily drop their prices? Speaking of drugs, can I have some of what you're having?
The solution to the never ending patent rubbish that is coming out is:
1) All R&D needs to be logged (in terms of cost).
2) All patents are protected and valid until the net profit of selling any item has reached the level of costs, or 1 year if no progress on the the patent has been made to monetize anything.
3) After R&D costs are covered, the patent becomes public knowledge and usable in any capacity by anyone.
4) Any litigation from a patent holder can only be back tracked 1 year prior to the declaration of accusation. No, oh you've been abusing my patent since 1985, cough up Billions please...
This will help innovation of new products based on older patents by opening them up as soon as they become viable.
This will stop people sitting on patents (trolls).
You may ask about well, if on the day the patent opens some foreign firm floods the market in cheap XYZ drug...Well, no...Because said company may not develop until the patent has been released...Thus, the lawyers will be happy because they can still litigate companies who abuse this rule, patent holders will have a lead time to get profits, future innovators can innovate still and the whole world will advance much much quicker...
And no, I have not thought through everything and I am sure there are some holes in this that a eagle-eyed slashdotter will notice...but it could be a good starting point.
When all is said and done, nothing changes...
Yes, I'm sure the revolution will start any second now. Tweet when it kicks off, will you?
If you were blocking sigs, you wouldn't have to read this.