
Medical Patents Must Die - hammock
http://marginalrevolution.com/marginalrevolution/2011/12/medical-patents-must-die.html#hn
======
dfleming
How on earth is there not prior art (I think that's the term I want) for the
functioning of a small part of the human metabolism? It seems to me rather
obvious that the researcher, her/his ancestors, friends, you, and me all other
humans constitute prior art to that patent. I struggle with similar questions
when I see articles on how companies are patenting specific DNA sequences.

I guess my problem boils down to this. Isn't there a difference between a
discovery and an invention? Logically I think there is. A discovery is a new
understanding of an already existing reality while an invention is the
creation of something new. On that difference it seems that the latter should
be patentable but not the former. But if they truly have the patent claimed by
the article, then our system allows for the patenting of discoveries! How
bizarre. Are there other fields where discoveries are patentable. (Should
Einstein have patented his theory of general relativity or E=mc^2?)

If Prometheus Labs had created a machine that measured and calculated the
needed dosage change in a new and innovative way I could see a patent being
granted, but not on this.

Could someone who has patent experience/expertise way in and help me here?

~~~
trocker
I dont know how/what to think about this, also I didn't mean to include any
other links , so this will be my last take for today. <http://croak.eu/rDCDm9>

~~~
freemarketteddy
I request that you please refrain from using audio to voice your opinion.

------
Jach
See also:
[http://www.dklevine.com/general/intellectual/againstfinal.ht...](http://www.dklevine.com/general/intellectual/againstfinal.htm)
( _Against Intellectual Monopoly_ ) In particular chapter 9 which goes over
the pharma industry. ( <http://www.dklevine.com/papers/imbookfinal09.pdf> )

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joeblue
This specific example definitely feels like an abuse of the patent system.
However, the rest of this article relies on weak connections and examples from
other industries to argue that medical patents must die. If medical patents
die, medical innovation dies.

For a moment, let's apply the realities of "medical innovation" (researchers
across private and public fields) to internet innovation. Imagine that every
app you published took four years and $100M to get to a testable product. Keep
in mind, this is still unusable. You go out and spend millions more testing it
on "fake users" (animals). If this works, you need to go raise hundreds of
millions more to test it on your first batch of real users... then a second...
then a third.

Billions of dollars later, you realize that your app doesn't work as it was
intended. You've just spent 6 years and billions of dollars figuring that out.
There is no fail fast, in this world.

Lets say your product actually makes it to market. Congrats, now you need to
compete against copy cat app developers who can replicate your app at a
fraction of the price. How do you defend yourself? Innovative marketing? Large
email list? Good SEO? SEM? None of that works in medicine, because the
switching costs are positive for a patient.

This is why we need patents. Without them we would see a significant reduction
in medical innovation. When markets don't create enough risk-adjusted
incentives to promote innovation, the government must step in to create those
incentives. I'm not saying our system is perfect, but it's better than nothing
(at least in medicine).

I spent a long time working on a medical startup and it's orders of magnitude
more complex than most of the apps we see celebrated in our hacker community.
I would bet that the typical FDA application is longer than the entire printed
code base of most web apps.

~~~
wisty
Well, the issue is simply that testing (to FDA standards) is expensive. You
could either have the FDA fund all testing, or just allow patents on well
tested products.

You could even allow retrospective patents on some orphan drugs, if a company
is willing to invest in testing it.

Most people think it's fine to patent stuff to cover the costs of bringing a
new drug to the market.

~~~
joeblue
Letting the FDA fund clinical trials could create conflicts of interest. I
think it would be more beneficial if the FDA started conducting long term
efficacy studies to determine if newer treatments outperform older, lower cost
options.

~~~
gujk
Conflict of interest how? Isn't their more of a conflict of interest when a
drug developer is paying the fees of the drug tester?

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hendzen
Just to be clear, I think software and business model patents are ridiculous,
but I think the hate the patent system gets on HN is not very constructive.
Obviously it was put in place to solve some problems, but ended up
causing/exacerbating other problems. My question is this, what is the better
way of encouraging innovation and protecting the rights of inventors? I am not
defending the current system here, I am just curious to see what people think
would be a better system instead of endlessly bashing the system we have.

~~~
vladd
The main issue seems to be the inability of the patent office to realize
what's trivial and what's not when reviewing a patent.

It fails to do that because it's actually not a trivial thing to do at all
when you're not familiar with the field: it is very difficult for a non-IT
professional to take a look at Kruskal's pseudocode (
[http://en.wikipedia.org/wiki/Kruskal%27s_algorithm#Descripti...](http://en.wikipedia.org/wiki/Kruskal%27s_algorithm#Description)
) and to state if it solves an existing pain or it's just describing trivial
and intuitive, common-knowledge steps.

A solution would be to have patent reviewers splited in categories based on
their professional accreditation and limit their ability to accept or deny
patents to their field of expertise.

~~~
Pwnguinz
I think that's an approach that--on the outset--anyone can agree with. But the
problem is that any decent professional of a field capable of doing that are
also not the ones willing to sit in the patent office merely reviewing
applications.

It's the same principle as PG mentioned in his essay that first rate technical
people do not hire themselves out to do due diligence work for VC's, and as a
result the "experts" VC's do send over are generally a joke. What's to prevent
the same from happening in the patent review office?

~~~
vladd
You could pay them at their true value; high-end 6 figures would compensate
the dulness and they would work for a healthy cause - the patent office could
rise the patent review fees to cover up the costs, which would also have the
benefit of eliminating the trivial patent applications that can't pull the
weight of the review fees.

I doubt this will raise final consumer prices since for new inventions the
price is more often than not what the market tolerates - I think companies
will be forced to drop trivial applications as a response to the fee increase.

The other change I would make would be to limit the patent validity to 10 - 15
years max, so after the rich people pay for the research, the invention
becomes available to the masses close to the actual production cost.

~~~
Pwnguinz
Just to add on to what hendzen said, they are already rather expensive as it
is: $15,000 for 20 years (in Canada, where I'm from). Hardly affordable for
the average small-time inventor. A friend of mine whom just patented a method
of preventing over-the-shoulder spying for PIN input devices and could only
afford to buy patent protection for 1 year (and for some odd reason, it cannot
be increased with future payments--so whatever you commit to buying in the
outset is how much protection you'll receive, period.) Increasing it further
would simply make the price far too prohibitive.

As for limiting the patent validity period, the current 20 years that most
nations follow is not all that long depending on the circumstance. A better
method (if it's even regulatable) is X years of protection OR until you recoup
your original investment + X % of return (whichever occurs first). The problem
is to then police the claims of cost to invent the patent, which is a whole
can of worms on its own.

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rplnt
All patents must die. After some time. Creators and investors are entitled to
their money, their inventions must be protected somehow. That's all right. But
not forever for god's sakes. Let's make it 5-15 years depending on the
industry or something else. So much it's enough time to make fortune. But not
so much that you can troll with that patent after half of the century. Even
though the investors are paid and inventor is dead.

~~~
rayiner
Patents right now at 17 years from issue or 20 years from filing (a process
which can take several years to culminate in issuance).

------
vladd
The patent system reminds me of an airplane going down, but whenever I read
statements like "Medical Patents Must Die" I remember that nobody has a
solution to make it fly again. The captain might be wrong, but the first
officer doesn't know how to fix it (which is a fundamental step of
communicating concerns inside the cockpit - see
[http://en.wikipedia.org/wiki/Crew_resource_management#Commun...](http://en.wikipedia.org/wiki/Crew_resource_management#Communication)
).

We don't know enough about the human body, the human genome, the diseases
around us and their cure. Those things take huge amount of money to research
and huge one-time payments that have no certainty at the end of the research
tunnel. When a cure is found, no person alone can reimburse its cost.
Abolishing patents via a blanket rule would make all medical capital fly out
of the window and the only research performed would be the one in government-
sponsored laboratories. If that's the solution we want to agree upon, be
upfront and state it clearly, otherwise let's not destroy what works without
better alternatives.

~~~
hypersoar
The article is not talking about drug patents. It is talking about a current
case which will decide whether or not to allow patents on medical treatment,
even when the patents on the drugs have expired. The patent in question in the
case regards a method for adjusting the dose of a drug. Medicine has done
without these patents until now.

Ars Technica had an article about this the other day, which I thought was more
compelling than the linked post:

[http://arstechnica.com/tech-policy/news/2011/12/oblivious-
su...](http://arstechnica.com/tech-policy/news/2011/12/oblivious-supreme-
court-poised-to-legalize-medical-patents.ars)

------
daspion
One cannot patent anything that naturally exists. But one can patent
strategies. Business methods, medical, and, until recently, tax strategies can
be patented. Tax strategy patents were recently banned in the America Invents
Act. There has been legislation to ban medical strategy/method patents, and
frankly I'm surprised it hasn't been banned yet legislatively. And the federal
courts in the past have limited business strategy patents (Bilski v. Kappos).
It seems to me SCOTUS should move to limit medical strategy patents in their
decision. But if they don't, this may spur Congress to actually do something.

------
EGreg
Whether or not the correlation is obvious is not the point. There is a long-
standing doctrine that SCIENTIFIC DISCOVERIES ABOUT NATURAL LAWS AND PROCESSES
should not be patentable.

If a discovery is made about the correlation between a measurement of
something NATURAL in the body, and a dosage of a drug that should be
administered, or between the dosage that is administered, and the effect is
has on the body, this is MEDICAL KNOWLEDGE. THIS IS SCIENCE. It is not a
patentable thing, because doctors cannot dispossess themselves of this
knowledge once being told it. They are always able to USE THE KNOWLEDGE IN
THEIR HEAD when treating a patient.

Therefore, this development seems to me to be atrocious, as it represents the
first step in patenting KNOWLEDGE of natural phenomena.

IP law wants to encourage creativity by giving exclusive monopoly rights in
creations, but at the same time BALANCE it with giving the public the freest
possible access to the results. This is now being attacked at every turn.
MPAA, RIAA are lobbying for SOPA and PIPA. Copyright lengths are still being
extended. And now, new forms of patents are being considered. If these come to
pass, I am afraid for freedom in America -- we will get the great firewall of
China -- and all because of IP.

[http://www.techdirt.com/articles/20111208/14521817014/mpaa-b...](http://www.techdirt.com/articles/20111208/14521817014/mpaa-
boss-if-chinese-censor-internet-without-problem-why-cant-us.shtml)

~~~
gujk
How is the action of manufactured drug more natural a process than a cotton
gin ginning cotton?

~~~
wtallis
You can't patent the fact that a cotton gin works, nor can you patent the use
of a cotton gin. You can only patent the design of the gin itself.

With drugs, you should only be able to patent the design of the drug itself,
and probably also the method of synthesizing the drug. You should not be able
to patent the idea of using aspirin to treat headaches.

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protomyth
This is basically the medical equivalent of a business process or strategy
patent. I am really not sure how a law needs to be worded, but this whole
class of patents needs to be removed.

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WayneDB
I read this as "Medical Patients Must Die", but it might as well have actually
said that, since money and "getting mine" is really the only thing that
matters the vast majority.

If the troublesome patent goes away, you can rest assured that something
equally as troubling will almost immediately fill the void. Until we live in a
world where something else is more important, we can't have nice things.

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hastur
Darn, at first I read "medical _patients_ must die". ;)

