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Judge who shelved Apple trial says patent system out of sync (Reuters)
Reuters talks
with Richard Posner, a US federal appeals court judge who presided
over Apple's lawsuit against Google's Motorola Mobility, and other software
patent cases. "Posner said some industries, like pharmaceuticals, had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug.
Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets - a benefit they would still get if there were no software patents."
(Log in to post comments)
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 5, 2012 19:24 UTC (Thu) by pr1268 (subscriber, #24648) [Link]
Proprietary software companies would beg to differ. (Not that I disagree with Judge Posner).
Don't let them use inefficient models to justify blocking efficient models Posted Jul 5, 2012 19:45 UTC (Thu) by coriordan (guest, #7544) [Link]
When this point gets made, my usual reply is that software gets developed in many ways, and some are expensive and some are efficient and there's no reason to hold back the efficient models for the sake of some old costly models.
MS made Windows 95 and all its predecessors without patents, just as a community made GNU/Linux without patents.
I'd also clarify that it's only a small number of very large proprietary companies that make that argument. Most proprietary companies are small and can't wield the patent system to their advantage.
Don't let them use inefficient models to justify blocking efficient models Posted Jul 6, 2012 22:12 UTC (Fri) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> Most proprietary companies are small and can't wield the patent system to their advantage.
Why is that?
Don't let them use inefficient models to justify blocking efficient models Posted Jul 7, 2012 4:57 UTC (Sat) by wahern (subscriber, #37304) [Link]
You make a good point. Most patent trolls are small and seem to wield the patent system to their advantage quite well. And I'm sure there are many small entrepreneurs who, in the same vein as Intellectual Ventures, have formed a cottage industry around dreaming up product ideas, filing patents, and selling them for a small sum to patent trolls.
There are other organizations that do something very similar in Mexico. Kidnapping isn't usually very profitable, at least until certain critical infrastructure emerges allowing volume to compensate for small margins.
Don't let them use inefficient models to justify blocking efficient models Posted Jul 9, 2012 22:33 UTC (Mon) by SecretEuroPatentAgentMan (guest, #66656) [Link]
First of all you cannot file a patent, only an application. Grant is not guaranteed. If you want to sell you will most likely need to have a patent family with a granted US patent. And even then it is hard to sell.
These entrepreneurs are a bit more varied than just manufacturing patents or litigating based on patents. You might wish to look into this article: http://ipfinance.blogspot.com/2011/09/close-up-on-current...
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 5, 2012 20:05 UTC (Thu) by bfields (subscriber, #19510) [Link]
But their expenses are mainly covered by copyright, because the expensive part is the implementation.
I think the "advances" he's talking about here are the patented inventions, which may be expensive to implement, but probably aren't that expensive to come up with.
That's in contrast to drugs that are cheap to synthesize but cost hundreds of millions to discover and test.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 5, 2012 20:26 UTC (Thu) by pboddie (subscriber, #50784) [Link] The drug companies need to cover their testing and regulatory compliance costs: that's the principal argument for cutting them some slack that people bring out. There's also their need to scrape together some cash to pay fines and settlements, of course. (Interesting that the Wikipedia article about GSK has recently had the latest $3bn judgement relegated to just another item in a list whereas a New Zealand Ribena advertising scandal, settled for just over $200000, retains its more prominent place...)
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 17:41 UTC (Fri) by hitmark (guest, #34609) [Link]
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 5, 2012 20:23 UTC (Thu) by butlerm (subscriber, #13312) [Link]
>Proprietary software companies would beg to differ. (Not that I disagree with Judge Posner).
The type of stuff that companies actually get software patents for are mostly for innovations so obvious, so simple, and so trivial that any intelligent junior high school student with a passing familiarity with the subject matter could come up with dozens off the top of his head.
The only reason anyone applies for monopolies on them at all is those ideas (variations on themes usually floating around for decades) suddenly become commercially relevant, i.e. stopping progress in science and the useful arts becomes strategically advantageous for some company or another.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 7, 2012 5:28 UTC (Sat) by wahern (subscriber, #37304) [Link]
Therein lies the heart of the problem. As our economy becomes increasingly specialized, the meaning of "obvious" changes. A patent agent will never have as specialized a skill set as the patentee. So, to the agent many of these ideas don't seem at all obvious. (I once took a patent law class packed with actual agents from the USPTO, and we had some interesting debates.) Likewise, the legal meaning of the person with "ordinary skill in the art" has not kept pace with reality. Nowadays specialties in "the art" come and go like the seasons. (And that's because the markets come and go like the seasons.) And it's those specialties against which "obviousness" should be benchmarked. But that's 10x more impractical than even the present system.
How anybody can promote patents is beyond me. It harkens back to communist times, where people thought you could appoint a central committee to manage industry. I really think it only exists because of a weird sense of entitlement, fostered by the fantasy of the little guy making it big by coming up with the next greatest thing. And that's pretty much like communism, where the manual laborer was promised economic justice. We've since learned that no government can promise justice wrt manual labor, yet still are addicted to the idea of justice to the inventor.
I can sort of understand pharmaceutical patents, but there's no pretense there. Almost every argument supporting pharma patents admits that it's a tax to compensate for strict market regulations. And it's equally obvious that pharma companies intensively engage in regulatory arbitrage, trying to maximize monopoly profits against minimum development and safety testing costs, which leads to products of dubious utility which probably didn't need the benefit of such rigorous testing.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 1:59 UTC (Fri) by slashdot (guest, #22014) [Link]
Single "advances" in commercial software are definitely way cheaper and generally of limited importance.
Software products which contain a ton of those "advances" as a whole aren't cheap, but they can rely on copyright protection, as well as brand and network effects, being first to market and (unfortunately) vendor lock-in.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 6:31 UTC (Fri) by Cato (subscriber, #7643) [Link]
I think a strong argument for patents in pharma but against them in software is that, for a given project (drug discovery/development or software development):
- the pharma project will tend to generate a single patent for the new drug
- the software project will tend to generate quite a few patents, and more important conflict with an enormous number - this is due to the granular and trivial nature of many software patents, and the fact that software naturally uses many different techniques in any sizeable project
For anyone developing software, the prospect of being sued is much higher than in pharma, causing a damper on innovation.
There's also a strong economic argument that software should use existing libraries/components freely (whether open source or commercial licensed doesn't matter in this case), to minimise software costs. However, this economically desirable approach can actually drive up costs due to the proliferation of patents drives up costs (due to patent licensing, indemnification and lawsuits).
I'm not a pharma or patent expert so perhaps this will be shot down, and probably someone has already made this point better elsewhere.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 6:53 UTC (Fri) by niner (subscriber, #26151) [Link]
It still amazes me how strong this myth about patents being essential for pharma research is. Noone seems to question it, even though there has not been a single proof that patents have a positive impact on research. Noone seems to question the assumption that pharma companies would stop their research without patents. Even though this would cut off their access to new products and eliminate any time to market advantages. The research which costs them only a fraction of what they spend on marketing. Research which is based on ground work, which is done in universities anyway.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 8:25 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link]
>Noone seems to question it, even though there has not been a single proof that patents have a positive impact on research. Noone seems to question the assumption that pharma companies would stop their research without patents.
You simply don't know what you're talking about. Please, desist.
Most of research is done by biotech and pharma companies. Everyone in the industry knows it, and it's been quantified: http://pipeline.corante.com/archives/2010/11/04/where_dru... In short, 76% of new drugs come from biotech and pharma companies.
And companies sure as hell won't expend about 1-2 _billions_ of dollars for clinic trials _per_ _single_ _drug_ if any Mexican el-generico company would then proceed to flood the market with cheap knock-offs.
Yeah, drug companies spend money for marketing. Try to guess why. Hint: for the same reason automotive companies do this.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 9:29 UTC (Fri) by niner (subscriber, #26151) [Link]
Actually I do already know about this study. And the more interesting number is that of the _innovative_ drugs (not just relabled old known ones) 31 % come directly from universities. And even the remaining 69 % of marketable products are based on publicly funded research. Because pharma companies do very little ground research on their own. What they do is turn this research into marketable products.
Your numbers about the costs of clinical trials is simply wrong. What you mean (at least what articles publishing such numbers are talking about) is the cost of developing new drugs, not only the clinical trials which are part of the costs. But even then the numbers are misleading.
First, they are just the _inflation-adjusted_ sum spent by pharma companies divided by the number of new drugs they brought to market in a certain period. This period includes boom years where money was spent wastefully through inflated budgets. Adjusting the sum for inflation is a simple means of inflating the number, but it does not actually make sense. R&D is a tax-deductable expense.
Second, many of the clinical trials which are included in your number are so called seed-trials. They are not for getting approval for a new drug, but are actually a marketing means to get physicians to apply their drugs.
Third, most new drugs are not in fact new but slight variations of existing drugs with the sole purpose of getting new patents when the patents of these blockbusters expire.
Depending on the study you read, average costs of developing new drugs are somewhere between $ 55 million and 12 billions. This alone should tell you, that the numbers published are simply no indicator on whether patents are needed for continued development of drugs or not.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 12:13 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link]
Would you read my link, please? This study also considers innovative drugs (targeting unmet medical needs) - generally the same percentage holds.
>Your numbers about the costs of clinical trials is simply wrong.
See: http://www.nature.com/nrd/journal/v9/n3/full/nrd3078.html... (but of course, Nature is a part of the conspiracy).
>First, they are just the _inflation-adjusted_ sum spent by pharma companies divided by the number of new drugs they brought to market in a certain period. This period includes boom years where money was spent wastefully through inflated budgets.
This year, pharma and biotech companies in the USA spent around $65B in total R&D costs. And that's after all the downsizings. For comparison, NIH budget is around $31B.
>Depending on the study you read, average costs of developing new drugs are somewhere between $ 55 million and 12 billions. This alone should tell you, that the numbers published are simply no indicator on whether patents are needed for continued development of drugs or not.
$12B is actually closer to truth, if one considers failed drugs. Remember Exubera? The costs of its development were more than $5B and they have never been recouped. And the number of failed drugs is growing.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 12:40 UTC (Fri) by drag (subscriber, #31333) [Link]
There are more then one way to fund research. Patents are just one possibility. Unfortunately the regulatory and political realities surrounding drugs pretty much exclude any other model. Another thing that is apparent is that the major drug companies couldn't support themselves without patents and other government protections they enjoy.
I think there is a lot more similarities between drugs and software here then is readily apparent at first glance. It seems each type of drug that gets released is a variation on a existing theme.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 13:40 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link]
> There are more then one way to fund research. Patents are just one possibility.
With other possibilities being?..
Universities do some R&D, but they are notoriously poor in producing actual marketable drugs.
>Unfortunately the regulatory and political realities surrounding drugs pretty much exclude any other model.
>Another thing that is apparent is that the major drug companies couldn't support themselves without patents and other government protections they enjoy.
And it's not like pharma companies are capitalist sharks with 300% of income making out like bandits. The average profit margin for big pharma is about 15-20% with some years actually resulting in losses.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 14:05 UTC (Fri) by pboddie (subscriber, #50784) [Link] Universities do some R&D, but they are notoriously poor in producing actual marketable drugs. CERN does some R&D, but it is notoriously poor at putting the next model of the iPhone on the retailers' shelves. Universities are under quite a bit of pressure to deliver research that can be "productized" or "monetized" by commercial actors. Strangely enough, funding is still pretty hard to come by, but that's hardly surprising: no-one wants to pay for stuff that either doesn't directly benefit them with large "returns on investment" or will benefit their competitors just as much. And it doesn't help that decision-makers and politicians are easily influenced and impressed by "headline figures" like "number of spin-offs" and "number of patents". Why even admit a problem when things look just fine?
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 14:35 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link]
>Universities are under quite a bit of pressure to deliver research that can be "productized" or "monetized" by commercial actors
Actually, no. Academia research is mostly funded by research grants and the main criterion for funding there is scientific novelty.
In pharma it looks like this:
That's a typical workflow for drug development. Yes, most drugs fail even before the clinical trials and the general public doesn't even hear about them.
Occasionally, several additional steps happen:
So I really really don't like people that claim things like: 'R&D for most drugs is done in academia!'. Because it's true, after a fashion. However, R&D for most FAILED drugs is also done in academia, and the failed drugs outweigh working drugs at about 20 to 1.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 23:44 UTC (Fri) by pboddie (subscriber, #50784) [Link] Universities are under quite a bit of pressure to deliver research that can be "productized" or "monetized" by commercial actors OK, hold that thought...
Note that this doesn't actually contradict what I wrote at all. In fact it rather helps if the research does fit into an agenda that involves identifying drug targets. "Scientific novelty" is a different metric entirely. So I really really don't like people that claim things like: 'R&D for most drugs is done in academia!'. Because it's true, after a fashion. So you don't like people making claims that are to some extent true? Really, your argument is with people who claim that drug companies, whether established or spun out from academia, take advantage of existing work and pick up the rewards, but you're not actually disputing that. Instead you're just pointing out that they do research, too, and also shoulder the bulk of the financial risk in bringing a drug to market. The only real issue of dispute, if we accept the above, is whether monopolies are the correct instruments to encourage such levels of investment.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 7, 2012 2:31 UTC (Sat) by Cyberax (✭ supporter ✭, #52523) [Link]
>So you don't like people making claims that are to some extent true?
Sure. If they're saying something like "Isaac Newton invented iPad!" (after all, differential equations were used during iPad's design and development).
>Really, your argument is with people who claim that drug companies, whether established or spun out from academia, take advantage of existing work and pick up the rewards, but you're not actually disputing that.
Universities can develop drugs on their own. Occasionally they actually do this, but not many academics are interested in spending years working on a drug only to find out that it doesn't actually work. Companies have no such problem, because they are not (in general) interested in academic acclaim.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 7, 2012 16:24 UTC (Sat) by pboddie (subscriber, #50784) [Link] Really, your argument is with people who claim that drug companies, whether established or spun out from academia, take advantage of existing work and pick up the rewards, but you're not actually disputing that.Yes, they do this because THEY ALSO TAKE THE RISKS. Drug development is a high-risk endeavor with 90% chance of failure. Is it really so hard for you to finish reading a paragraph?
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 15, 2012 22:45 UTC (Sun) by jospoortvliet (subscriber, #33164) [Link]
Be a bit nicer please. This was an enlightening discussion - the jabs at each other don't make it any better though...
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 22, 2012 11:33 UTC (Sun) by rich0 (guest, #55509) [Link]
Perhaps, but what other mechanism would you propose?
I'm all for having some publicly funded drugs that go all the way to market and are freely licensed (or perhaps freely licensed to manufacturers in countries that reciprocate with similar levels of investment).
However, nobody is doing this now, and until they do you need to give people SOME reason to spend hundreds of millions of dollars testing out candidates that come from academia. Very little money is made on unpatented drugs (sure, lots in the aggregate, but little on any individual drug, and there is a ton of liability for newer drugs).
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 15, 2012 11:01 UTC (Sun) by JanC_ (guest, #34940) [Link] Yeah, drug companies spend money for marketing. Try to guess why. Hint: for the same reason automotive companies do this. Drug marketing is actually forbidden in several countries, because it's considered dangerous—both for economic (social security cost) & health reasons.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 15, 2012 13:05 UTC (Sun) by Cyberax (✭ supporter ✭, #52523) [Link]
Yes, if we're talking about direct-to-consumer marketing. However marketing to doctors is usually allowed.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 15, 2012 22:46 UTC (Sun) by jospoortvliet (subscriber, #33164) [Link]
SHOULD be illegal too, I'd say...
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 22, 2012 11:38 UTC (Sun) by rich0 (guest, #55509) [Link]
The problem is that very little research is done on unpatentable drugs. There are a few that make headlines (niacin comes to mind), but most of the research on actual drugs is funded by drug companies.
I'm talking about drugs here - not basic research into medical problems. Find me a pill you can actually buy cheap in a store, and then look up the last time somebody spent $20M+ on a clinical trial for it.
Keep in mind that clinical trials are a lot of work and usually are fairly boring - they're not the sort of thing that gets a lot of attention in academia unless somebody else is footing the bills and doing the hard work (sure, there is some big PI named on every one of them, but they and their grad students aren't the ones sorting through tons of patient visit reports and keying in data, or putting 30 pills into each bottle and keeping track of whether they're placebos or not).
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 5, 2012 19:31 UTC (Thu) by pyellman (guest, #4997) [Link]
This guy is my doppelganger, at least when it comes to this subject.
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 5, 2012 22:07 UTC (Thu) by daniel (subscriber, #3181) [Link]
Do tell...
Judge Posner Posted Jul 6, 2012 0:47 UTC (Fri) by pr1268 (subscriber, #24648) [Link] (My apologies if this goes too far off-topic, but his comments on this link do shed some light on changing attitudes among even conservative judges.)
Judge who shelved Apple trial says patent system out of sync (Reuters) Posted Jul 6, 2012 1:53 UTC (Fri) by slashdot (guest, #22014) [Link]
Applause!
Support this guy!
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