

Supreme Court of Canada Voids Viagra Patent for Insufficient Disclosure - edj
http://www.michaelgeist.ca/content/view/6693/125/

======
Osiris
The problem I have with software patents is that they basically do the same
thing. They request monopoly power over the invention while not disclosing how
someone in the field could implement it, which would require source code, etc.

Since software patents don't disclose enough for another programmer to
implement the invention, I don't see how they are benefiting society. They
don't share the knowledge but still get the monopoly benefit.

~~~
Tipzntrix
Personally I think a lot of software patents explain well enough that I could
implement their "invention".

It's just that the invention is so simple/obvious to us that I wonder how they
got a patent and no prior art was found.

~~~
Sniffnoy
Agreed.

I'd also like to note that the quid-pro-quo model of patents suggests that, in
fact, it shouldn't be enough for the solution to be non-obvious: It should
have to be non-obvious _even once you have been told such a thing exists_.
Because if the mere knowledge of the existence of something would be
sufficient to render how to do it obvious, the inventor cannot hope to keep
its workings secret once it is released, and so we are trading for something
that would be worthless anyway.

~~~
throwy2
there's a logical flaw in your argument, though, because where you say "we are
trading for something that would be worthless anyway" it assumes the choice is
between "trade secret" and "disclosed." But there is really also a choice
between "trade secret, people know it exists and what it does but must guess
at how" and "trade secret, no one knows it exists or what it does".

In other words, for some kinds of trade secrets, perhaps inventors might not
even let you know of the existence of their invention, since without legal
protection this knowledge would render the competitive advantage it confers
worthless - even though before disclosure, skilled practitioners did not think
to use it, as it is quite novel and those skilled in the art have not come up
with it despite its obvious utility once disclosed.

Thus inventors might secretly enjoy its benefits or fruits. (This is easy
enough to imagine; there could be a closely guarded manufacturing process in
use right now that the public and other manufactuers do not even knows exists,
and is not in the final product. The manufacturer simply makes an end product
more cheaply, say. But telling us what the process is would give it away.)

Imagine, for example, that Google uses some kind of trade secret as part of
ranking web pages. We don't even know what the process is, let alone how it is
done. Naming the process would render it public and unprotected. So, it
remains the only search engine that uses it, secretly.

------
graeham
Worth mentioning the patent was set to expire in Canada in ~18 months anyways.
The US patent was set to expire in early 2012 but coverage appears to have
been extended to 2019. The bigger resulting effect here might be from the
establishment of a precedent of the wording that the court is expecting in
patent filings. In the full ruling below, the main missing disclosure I can
see is:

"Only sildenafil, the subject of Claim 7 and the active compound in Viagra,
had been shown to be effective in treating ED at the time of the patent
application. Although the patent includes the statement that “one of the
especially preferred compounds induces penile erection in impotent males”, the
patent application does not disclose that the compound that works is
sildenafil, that it is found in Claim 7, or that the remaining compounds had
not been found to be effective in treating ED."

The full ruling is here
[http://www.canlii.org/en/ca/scc/doc/2012/2012scc60/2012scc60...](http://www.canlii.org/en/ca/scc/doc/2012/2012scc60/2012scc60.html)

~~~
PotatoEngineer
Ouch, that's nasty. A patent claim that lists a bunch of compounds, of which
only one works? No wonder the court struck it down; the filing itself is
actively obstructing knowledge.

------
aroberge
The Supreme Court of Canada is extremely well respected by a majority of
Canadians and this ruling is a very good example of the reason why it is so
well respected.

~~~
waterside81
Fellow Canadian here - indeed. You'd be hard pressed to guess which way a
particular Justice leans politically, unlike our cousins to the south. Heck,
our Chief Justice excused herself from Conrad Black's potential hearing
because she didn't want to be in a conflict of interest. That's integrity
right there.

[http://www.thestar.com/news/canada/politics/article/1285112-...](http://www.thestar.com/news/canada/politics/article/1285112
--chief-justice-withdraws-from-deliberations-on-conrad-black-s-order-of-
canada)

~~~
jpzeni
We just lean differently up here - federalist instead of sovereigntist. Take a
look at this political cartoon that was in Le Devoir during the reference re
secession of Quebec - <http://jpzeni.wordpress.com/?attachment_id=64>

------
ars
Now the most important question here is how will this effect spam levels.

Will they go up due to cheap viagra in canada hawked in the US?

Or will they go down since anyone who wants cheap viagra can get it from
Canada?

If the US does not issue a similar ruling, one thing you can expect is
histrionics about banning drugs from Canada, even more than there already is.

------
namank
Hahahaha...this is why I love the Canadian legal system! Courts here go back
to the founding principle behind a law and not just conclusion resulting from
rules of the game.

Go Canada.

------
protomyth
I do wonder if this will have an effect on investment and research into
medicines. If the cost of creating drugs (used to work in clinical trials)
becomes greater than the return, I can see some problems.

------
heliosvc
Patent laws generally could certainly be improved.

But by far the biggest problem is software patents. There's no need to make
all patents (software, hardware, pharma, etc.) the same because the industries
_and the cost structures / innovation cycles_ are very different.

------
rpledge
With generic drugs coming on the market, Pfizer will certainly soon face some
stiff competition.

~~~
jgw
They must be disappointed that their patent just didn't stand up.

~~~
tehayj
It was quite obvious they couldn't keep it up for any longer. The harder the
competition, the better the fight.

