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EFF: Supreme Court to decide standard for proving invalidity of a patent
The Electronic Frontier Foundation has sent out a
release celebrating the US Supreme Court's decision to take up a case -
on request from Microsoft -
which may make it easier to invalidate patents. "EFF argued in its
brief that the Federal Circuit's requirement that an accused infringer
prove patent invalidity by 'clear and convincing' evidence unfairly burdens
patent defendants, especially in the free and open source software
context. The standard undermines the traditional patent bargain between
private patent owners and the public and threatens to impede innovation and
the dissemination of knowledge."
(Log in to post comments)
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 0:33 UTC (Tue) by Burgundavia (guest, #25172) [Link]
The irony behind this case is that i4i, the company which brought the suit against Microsoft, actually makes real software products and thus really isn't a troll. So if they lose, the patent picture will be better off, but at the cost of a company which actually tries to be a software company.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 1:10 UTC (Tue) by butlerm (subscriber, #13312) [Link]
The only moral advantage a non-troll has over a troll is a non-troll has vulnerabilities where a competitor can hit them back, leading to an uneasy balance of power. It would be far better if we just abolished the nearly the entire patent system in the first place. There is not a lot of evidence that the patent system does society as a whole any good, and reams of evidence that far from promoting progress in science and the useful arts, the patent system is the greatest impediment to technological progress ever devised.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 9:20 UTC (Tue) by Seegras (subscriber, #20463) [Link]
> There is not a lot of evidence that the patent system
> does society as a whole any good,
Actually, there is none. No investigation ever, in any field, could find statistical significance in support of patents having any beneficial effects.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 10:32 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link]
One word: drugs.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 11:35 UTC (Tue) by Randakar (guest, #27808) [Link]
You're on them? :p
Seriously though: Are state-sponsored monopolies on the results of drug research *really* beneficial for society? In my experience this dependancy of big-money corporations on their patents has them pushing drugs on everyone, even when said drugs are not actually the best solution to the medical needs the drugs purport to adress.
These companies make a ton of money if a patient needs their drug every day, and none if they can solve the underlying problem with a one-off solution. The result is that potential solutions that permanently solve the problem do not get funding. At all. Especially if the solution might be cheap.
In this light I do not care how much money goes into new drug research. Patents are distorting the medical industry, too. And that really is all I need to know.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 11:52 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link]
>Seriously though: Are state-sponsored monopolies on the results of drug research *really* beneficial for society?
Yes. Pharma and biochem companies produce discover most of novel drugs.
http://pipeline.corante.com/archives/2010/11/09/where_dru...
>In my experience this dependancy of big-money corporations on their patents has them pushing drugs on everyone, even when said drugs are not actually the best solution to the medical needs the drugs purport to adress.
Yet drug discovery and testing costs A LOT. But once a drug is discovered and tested it's usually trivial to replicate its synthesis. So without patents companies won't have incentives to do new development.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 12:19 UTC (Tue) by Randakar (guest, #27808) [Link]
And with that last statement things go into dubious territory.
Yes, this stuff costs a lot to research. Yes, reproduction of the results is cheap. However, that completely ignores:
- Other ways of sponsoring fundamental research.
A few weeks ago an article popped up on research into some disease affecting older people's brains - Alszheimers, I believe. (Not sure.) What basically happened in that particular case was that the fundamental research into this problem is prohibitively expensive, up to the point where the best course of action turns out to be several universities and companies combining forces to fund said research. Patents aren't used because no single company or organisation has the means to go this path alone in the first place.
- The fact that said drugs may not be the best solution in the first place. Sure, patents make it possible to put 500 million into drug research, but as it turns out there are cases where the 500 million investment isn't what society really needs - it needs the 5 million investment into a solution that might make the problem go away entirely.
- The minor detail that such an assertion "fundamental drug research will go away without patents" is based on thin air to begin with. There will still be a need for these drugs, therefore someone will pony up the money for this research. The patients are still there. Their medical care costs governments a lot of money. Money they can save if they invest in research.
I do not believe the patent system's presumed benefit is worth the cost. Not in this case, nor in any other case.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 12:32 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link]
So? Certainly patents are not the only solution. Universities also play a large part, so that's why NIH is also necessary.
But neither of them can replace others. Academia can't replace pharma/biotech industry, and industry will be at least uncomfortable without academia.
Sure, it's sometimes better to spend $50000 in the right place instead of $5000000000 in the wrong place. But how do you find them?
So far patents work fairly OK, they really help to providt funding for new drugs. A small fact - there's almost no patent trolls in pharma industry.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Dec 1, 2010 13:50 UTC (Wed) by Randakar (guest, #27808) [Link]
I guess we'll just have to disagree on that point. I'm european. I distrust excessive use of drugs, much more than the americans seem to do. I see the distortion caused by pharma companies pushing doctors to sell their product. I see the distortion when third world countries have to disable their IP laws just so they can cheaply synthesize badly needed HIV inhibitors in order to help their people. Some of that may not be the fault of patents but something smells wrong about
That being said, even if I were to accept patents as something that is good for pharma it's the exception rather than the norm. And I expect that is only so because the abuse hasn't spread to there yet.
In short, I don't think the whole "it works for Pharma" argument cuts it.
It's like this:
I feel the X-Prize foundation is on to something here. Let the government or industry award fixed cash prizes for solving particular problems. Add a bit of sponsoring and media attention and you have achieved the same thing, possibly for about a 10th of what it is costing society at the moment. And please, for the love of all that is holy, ditch the bloody contraption that is shooting people left and right.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Dec 1, 2010 14:52 UTC (Wed) by Cyberax (✭ supporter ✭, #52523) [Link]
I'm not arguing that patents work in general, but they definitely work for pharma. Even if it's an exception which proves the general rule.
Yes, there are instances of price gouging and some patent stupidity even in pharma. But it works, overall.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Dec 2, 2010 16:40 UTC (Thu) by Seegras (subscriber, #20463) [Link]
> I'm not arguing that patents work in general,
> but they definitely work for pharma.
Yes, the patent system works for pharma, in the sense that the idea: "somebody invents it the rest can license it fron the inventor" works there. As opposed to all other fields.
However, even there, there is no evidence that patents foster innovation. All the statistics turn up non-significant.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 14:33 UTC (Tue) by niner (subscriber, #26151) [Link]
So surprise, US based companies get most drug registrations _in the US_. That's the only information the linked article gives. I completely fail to see how this is in any way a proof, that patents are necessary for medical research and development of new drugs.
Quite to the contrary, even the article mentions that most innovative and new drugs come from universities, because they do most of the basic research. What pharma companies do is mostly recombining of well known ingredients and indeed, that strategy, while still quite profitable, is increasingly becoming a problem, since it's getting harder to apply for new patents for essentially the same drugs.
So one could even assert that as long as there's a possibility to protect those well known drugs by patents, there's even less incentive to do new research.
And yes, while it costs quite a lot to research, test and register drugs, reality is, that pharma companies spend a multitude of their R&D expenses on marketing. So how realistic is the idea, that without patents, pharma companies would abandon any advantages like time to market to get rid of a rather small part of their budget?
So again, what _proof_ is there that patents actually are necessary for medical research to be conducted? Medical research, just like about any other kind of research, has existed long before the patent system. So I guess the proof might be quite hard to find.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 14:40 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link]
>So surprise, US based companies get most drug registrations _in the US_. That's the only information the linked article gives. I completely fail to see how this is in any way a proof, that patents are necessary for medical research and development of new drugs.
Sorry, I've given a link to incorrect article. Here's the correct link: http://pipeline.corante.com/archives/2010/11/04/where_dru...
Let me quote the relevant part:
So yes, pharma/biotech do the majority of new research. Universities actually fare pretty well here, but still they do not dominate.
Also, having lived in USSR, I know a bit about using academia to do applied research. In general, it doesn't work out well. Academia is great for fundamental research.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 15:05 UTC (Tue) by niner (subscriber, #26151) [Link]
This still does not in any way link this research to patents.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 15:19 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link]
Let's put it that way - almost none of research by pharma/biotech would have happened without patents.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 15:37 UTC (Tue) by niner (subscriber, #26151) [Link]
That's an assumption at best and I've still not seen any evidence at all that it is true. And my arguments about R&D vs. marketing budgets and time to market considerations still stand.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Dec 1, 2010 21:21 UTC (Wed) by Kluge (guest, #2881) [Link]
>What pharma companies do is mostly recombining of well known ingredients and indeed, that strategy, while still quite profitable, is increasingly becoming a problem, since it's getting harder to apply for new patents for essentially the same drugs."
I can't think of any way in which the above is true. The point of the patent system is to provide incentive for innovation by granting patents for *novel* inventions. So if your contention is that pharma companies get patents for non-novel drugs, then the most obvious response would be to reform the patent system, not abolish it. Just how well the patent system currently distinguishes novel from non-novel drugs is something I don't have a strong opinion on, but I definitely disagree that new drugs are derived from "mostly recombining well known ingredients".
There are classes of medication for which there are multiple similar drugs (all patented) on the market. I think this is often a good thing, since there is little reason to think that the first instance of that class of drug to be patented is the best one or optimal for all patients. For drugs like statins that are taken for long periods of time, this is particularly important, but it's also true for some antibiotics.
>So one could even assert that as long as there's a possibility to protect those well known drugs by patents, there's even less incentive to do new research.
It's true that a company with a (temporarily) secure revenue stream may not be as desperate for new sources of income as a company without one, but doesn't the fact that any new drug will also be patented, and thus profitable, increase the incentives for new research? And anyway, without the profits patents provide, the long-term, risky research necessary for drug development would be hard to fund.
>And yes, while it costs quite a lot to research, test and register drugs, reality is, that pharma companies spend a multitude of their R&D expenses on marketing. So how realistic is the idea, that without patents, pharma companies would abandon any advantages like time to market to get rid of a rather small part of their budget?
To the extent that their accounting is accurate, pharma companies spend most of their R&D expenses on R&D. There are claims that they spend more on marketing than R&D, and that may be true, but that isn't really the point, is it?
>So again, what _proof_ is there that patents actually are necessary for medical research to be conducted? Medical research, just like about any other kind of research, has existed long before the patent system. So I guess the proof might be quite hard to find.
No one is saying that patents are necessary for medical research to be conducted. But I think it's highly unlikely that any company would go through the uncertainty and expense of large clinical trials and FDA review without some kind of exclusivity. That doesn't have to be in the form of patents. The FDA currently grants varying periods of exclusivity for newly approved drugs. Properly done, that program might be enough to replace patents in the pharmaceutical field.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Dec 2, 2010 12:25 UTC (Thu) by paulj (subscriber, #341) [Link]
It has been widely reported that pharmaceutical companies game the patent system by making minor modifications to drugs and then patenting the result. This is done either because a patent is about to lapse on drug, and they wish to persist their monopoly or, worse, sometimes done to obtain a patent on a public domain drug. This is particularly profitable where regulatory regimes favour drugs manufactured by large pharmas over generics in various ways, e.g. by mandating that where a drug is "licensed" that public health agencies may no longer purchase the older, generic and functionally identical drugs.
A recent instance of this was described by Channel4 news last month, about the drug "Firdapse" from "BioMarin", who are exploiting EU level regulatory frameworks to extract monopoly rents from UK (and no doubt many other EU) public health bodies on what should be a public domain drug:
http://www.blacktriangle.org/blog/?p=2154
There's a lot of extremely naive comment here about how pharma is one area where patents "work".
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 17:22 UTC (Tue) by ibukanov (subscriber, #3942) [Link]
> Yet drug discovery and testing costs A LOT.
This is not true for mayor drugs discovered during the last 100 years. Most of them discovered by accident by an open-minded researches often working on unrelated things. See, for example, http://www.independent.co.uk/life-style/health-and-famili...
Also the best discovery in medicine that saved millions of lives in US was an advice "Do not smoke".
On the other hand the "War on Cancer" that US administration has started in seventies produced pretty much zero results with billions of taxpayer dollars spent.
As the patents simulate exactly these government-style monopolies, the conclusion, based on historical data, is that they bad in pharmaceutical industry.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 20:17 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link]
>This is not true for mayor drugs discovered during the last 100 years. Most of them discovered by accident by an open-minded researches often working on unrelated things.
Again, not true. Initial discoveries were sometimes accidents. But later drug development based on these discoveries was generally deliberate and very un-accidental.
For example, most of anti-cancer drugs were discovered by large-scale assays. Most of antivirals were discovered and developed by drug companies as well. Ditto for advanced cardiac drugs.
>On the other hand the "War on Cancer" that US administration has started in seventies produced pretty much zero results with billions of taxpayer dollars spent.
Patently untrue. Cancer survival rates are slowly increasing.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 20:42 UTC (Tue) by ibukanov (subscriber, #3942) [Link]
> But later drug development based on these discoveries was generally deliberate and very un-accidental.
But this cannot justify the existence of patents for the initial idea as a competition between companies to develop a drug based on the discovery could be more effective than a single company having a monopoly on the idea.
> most of anti-cancer drugs were discovered by large-scale assays.
And where is a novelty in such mass-scanning that deserves patents?
Also, if such scanning would be an effective method, then we would get plenty of drugs available. Yet the reality is that the survival rate increases rather slowly despite all those efforts and money spent. On the other hand, if a miniscule amount of those funds would be spent on advertising to the public a healthy diet, the result would be significantly more lifes spared with improved quality of life.
So again, the patents lead to gross miss-allocations of resources.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Dec 1, 2010 2:30 UTC (Wed) by Oddscurity (guest, #46851) [Link]
There's a pretty steep markup on drugs, part of which will be marketing, part recovery of research costs, but plenty of it pure profit; a generic with the same compound will generally cost a fraction.
So even if it's true that big pharma has to have patents to earn enough of that pure profit to turn into future research - they might have a legitimate case if they were privately held, rather than trying to maximize shareholder value; I digress - let's say it's true big pharma can't do research without patents.
Fair enough, consider the cost difference to the end user of the same drug at the vastly inflated price versus the generic version. Now multiply that by all patients taking the same medication and their average dose.
Consider how much can be saved on health insurance and - with cheaper drugs - how many more people can afford them and thus not need more costly alternatives down the line, and so on.
I'd think all those savings must vastly outweigh the actual funds big pharma currently spends on research. If a fraction of those savings were then directed by a non-profit into the same research big pharma did, but without the profit motive, and the resulting compound made available in the public domain, we'd all benefit.
But maybe that's crazy talk. ;)
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Dec 1, 2010 6:57 UTC (Wed) by dlang (✭ supporter ✭, #313) [Link]
isn't the difference between generics and the brand drugs the fact that the generics don't have to repay the development costs?
also, remember that the profits on one drug need to pay for the losses for drugs that don't pan out
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Dec 1, 2010 12:46 UTC (Wed) by Oddscurity (guest, #46851) [Link]
I'm well aware of that. What I'm trying to say is that I believe that the difference in cost between a generic and brand drug is greater to an extent that the development costs and research costs on failed drugs still leave a very healthy margin of pure profit.
In other words if all drug research were done by non-profit organisations, the results made available as generics, then the savings over the traditional model would be such that these non-profits can get paid to do their work and drugs would be cheaper.
That said, it's just a hunch. Still, if that equation doesn't pan out for 1 nation alone, then surely if you do the same math on a larger scale big pharma must be pocketing (as pure profit) so much that we'd be able to get the same or more development done for less.
Then again, I could be wrong. At this point it's a thought experiment: if (for the sake of argument) the Red Cross did all drug research world wide, making available the fruit of their research to the public domain, would then the cost savings in health care be so immense that even a fraction of that saving be enough to fund this organisation's research.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Dec 3, 2010 1:02 UTC (Fri) by zlynx (subscriber, #2285) [Link]
If the government or a nonprofit controlled all that "saved" money, research would be bound up in the bureaucracy of that organization.
As it is now, if anyone has an idea for a new drug they can attempt to develop it themselves without approval from anyone.
In fact, nothing stops a nonprofit like the Red Cross from funding their own drug research, patenting the results and using the revenue from sales to fund more research.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 13:26 UTC (Tue) by vonbrand (subscriber, #4458) [Link] Whether the drug is patented or not, whoever produces it will be interested in you buying it for life. But it stands to reason that comming up with some temporary solution (i.e., take insulin daily) is much, much easier to come up with a definitive solution (one shot of this, and you are cured of diabetes). In the diabetes case there has been slow progress in this direction, despite the claim above.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 15:38 UTC (Tue) by ThinkRob (subscriber, #64513) [Link]
> Whether the drug is patented or not, whoever produces it will be interested in you buying it for life. But it stands to reason that comming up with some temporary solution (i.e., take insulin daily) is much, much easier to come up with a definitive solution (one shot of this, and you are cured of diabetes).
It may stand to reason, but your reasoning may not be as sound as you think.
You cited diabetes mellitus. Fair enough. That *does* seem like the sort of thing that a conniving pharmaceutical company would love; instead of getting to sell a short course of cure, the drug companies get to sell a lifetime of treatment.
But what about bacterial illnesses? Many of them could certainly be managed with suppressive treatments or supportive therapies while not being completely cured -- yet somehow we continue to develop new antibiotics, almost all of them aimed squarely at eliminating various infections.
I suspect that the answer lies somewhere in the middle; yes, logically there is an economic incentive not to research a cheap "miracle" cure for a manageable condition -- but in practice, the reason that such a cure isn't on the market is likely because such a treatment doesn't exist. Where a disease can be cured, it often is (as scores of antibiotics indicate.)
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 16:14 UTC (Tue) by jackb (subscriber, #41909) [Link]
When it comes to type II diabetes drug companies can connive all they want but nearly all of those cases are preventable (or treatable by lifestyle changes alone) if people cared enough to change their eating and exercise habits before it developed.
Not all chronic conditions are like this but many of them are and if people really cared about their health they wouldn't need to worry as much about how evil the drug companies are because they would need a lot less drugs in the first place.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 16:20 UTC (Tue) by Trelane (subscriber, #56877) [Link]
"they would need a lot less drugs in the first place."
Not making a statement about your argument; purely in case you're interested:
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 16:43 UTC (Tue) by jackb (subscriber, #41909) [Link]
I could make an argument that my usage was correct when referring to reducing the dosage of multiple drugs but yes, I should have said fewer drugs.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Dec 2, 2010 9:10 UTC (Thu) by mp (subscriber, #5615) [Link]
Purely in case you are interested.
Merriam-Webster's dictionary of English usage: http://books.google.com/books?id=2yJusP0vrdgC&pg=PA592
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 15:45 UTC (Tue) by ccchips (guest, #3222) [Link]
Yes - drugs.
So, a company that made ridiculous amounts of money from a particular drug makes a trivial change to the formula and then patents *that* when the first patent expires.....
It's been done. Lunesta.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 15:47 UTC (Tue) by Trelane (subscriber, #56877) [Link]
or combines two or more of its previous drugs.
On a side note, my wife has a very funny take on the Lunesta commercials. You know, where the butterfly goes around putting people to sleep.
She calls it the Butterfly of Death.... ;)
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Dec 3, 2010 0:57 UTC (Fri) by zlynx (subscriber, #2285) [Link]
But the original formula, *because* of the existence of the expired patent, is now public domain.
If the original formula is carefully followed there is *no possible way* to win a patent infringement lawsuit.
Not a lawyer, but in my opinion any other result would be insane.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 7:11 UTC (Tue) by AndreE (subscriber, #60148) [Link]
It's not ironic. It's actually ridiculous.
When a large company uses software patents to hinder smaller firms' competitiveness, that is considered acceptable. When a smaller firm does the same to a larger firm, that is somehow considered undesirable and the law must be changed.
All this case confirms is that there is a rule for the privileged and a rule for the unprivileged. In fact, one of the earlier statements by Microsoft in this issue was that the impact of their infringement was so large that their infringement should effectively be ignored.
I don't support software patents, but considering the hypocritical behaviour of Microsoft and their partners I am not excited in any way by this "victory". I remain skeptical that any changes to the patent approval process that might ensue will actually have a huge positive impact.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 9:19 UTC (Tue) by drag (subscriber, #31333) [Link]
Anything that makes patents weaker is a win. It does not matter who is involved in it.
But certainly there will be nothing "huge" about it one way or the other.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 10:23 UTC (Tue) by dgm (subscriber, #49227) [Link]
Not really. If you need to shell a lot of money in order to get a patent invalidated, then that's a game only the Microsofts, IBMs and Oracles can play. Small fish are, well, you know the word.
EFF: Supreme Court to decide standard for proving invalidity of a patent Posted Nov 30, 2010 21:17 UTC (Tue) by moofar (guest, #70283) [Link]
On the comments so far: seriously? Why must 99% of you respond to some random person's unsubstantive or uninformed comment? Try responding to the article itself which is actually worthy of commenting on ITSELF.
My personal response: Even Microsoft is fighting some aspects of the rediculous patent system. This is good news for us all.
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