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DBL%20Hendrix%20small.png College chemistry, 1983

Derek Lowe The 2002 Model

Dbl%20new%20portrait%20B%26W.png After 10 years of blogging. . .

Derek Lowe, an Arkansan by birth, got his BA from Hendrix College and his PhD in organic chemistry from Duke before spending time in Germany on a Humboldt Fellowship on his post-doc. He's worked for several major pharmaceutical companies since 1989 on drug discovery projects against schizophrenia, Alzheimer's, diabetes, osteoporosis and other diseases. To contact Derek email him directly: derekb.lowe@gmail.com Twitter: Dereklowe

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June 4, 2009

Perpetual Patent Motion Machine

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Posted by Derek

Over at Xconomy, there’s a provocative piece entitled “Diamonds Are Forever: Why Not Drug Patents?”. You have to give the author (Carl Weissman) credit for not playing to the crowd, I guess. So what’s his reasoning?

I can own a tangible good forever, I can own a trademark virtually forever, I can own a copyright for my entire life plus 70 years. But property which is more intrinsically a part of me - my idea, my invention, the product of my intellect - I am only allowed to own that for 20 years after I reveal it to the patent office.

Rationally, it seems obvious that all property - whether tangible or intellectual - should be subject to the same rules and laws of ownership. If you can own a gemstone forever, you should be able to own an invention forever. In fact, if a society wishes to impose differential standards for ownership rights to different types of property, wouldn’t it make more sense that preferential treatment be given to those items which are the product of your talent, your creativity, your self, over those things which you earn or purchase based upon that product of your efforts? The logical extension of this argument, in any free society, is that you should be able to own all property, whether purchased or invented, physical or ethereal, for as long as you wish. Patents, trademarks, copyrights, title - all should be perpetual.

Of course, since patents and copyright aren’t perpetual, someone must, along the way, have made a case for why they shouldn’t be. I’m going to stick with patents in this post, since copyright isn’t nearly as relevant to the drug business, but I refer you to this discussion and the links therein for some reasons why copyright is probably too lengthy in the US already. (A quick note: no creative work has gone into the public domain in this country since 1978. This is a state of affairs we can blame partly on a cartoon mouse, which also benefits some guys in capes).

The idea behind a patent system is that you will disclose your idea, in enough detail that others can follow it and build on it. In return, you will get a licensed monopoly on it for a set period of time, after which it becomes available to all, to profit from as best they can. We can argue about how well this ideal is realized – how full the disclosures are, how long the rights should last (and how long they really do). But I think that the basic idea is a sound one.

But Weissman just brushes it off, as far as I can see. His piece addresses some of the possible objections, but mostly by assertion. He points out that me-too drug efforts manage to populate therapeutic spaces (such as with the statins), and says that this shows that no monopolies would be created by perpetual drug patent rights. But any analysis of the drug landscape has to take into account that it came about under the current patent system. Everyone knows that Lipitor, for example, is going to expire eventually, and that their own drugs will, too. And everyone has planned accordingly. It’s not possible to draw conclusions about a perpetual patent regime by bringing up examples from the current one, since it’s so different. It’s only possible to draw these conclusions from the inner recesses of one’s own body – the brain, of course I mean.

His next point is drug pricing:

”With a perpetual patent, drug companies would be free to think longer term about pricing (without the artificial addition of patent lifetime in the equation). They would set prices lower in order to discourage new competitors from entering their market. This would enable the innovator to retain greater market share, and generate higher long term sales. The likely result is pricing near, if not lower, than current generic pricing.”

I’m not necessarily buying this one, either, since I think that drug companies will, like anyone else, try to maximize profits. And I think that the ability of (somewhat) lower prices to discourage competition is low, compared to the lure of more immediate higher profits. But really, drug pricing isn’t my biggest concern with this whole idea. That comes up here:

”In fact, with perpetual patents, the public good is better served because the incentive to discover and develop drugs is maximized. Secure in the knowledge that they will own the products of their own discovery and development efforts, drug companies will be able to assess the true risk vs. reward of any development programs free of artificial time limits imposed upon their ownership of those products.

Now here’s where I really part company with this idea, once and for all. I see where he gets this idea – patent rights are the incentive for discovery, so stronger patent rights are an incentive for even more discovery, right? But that first sentence is almost totally wrong; let me see if I can spell out why. No, what keeps us discovering new drugs is the fact that our patents are going to expire.

There, that wasn’t hard. But it’s true. The time limits we work under are one of the things that keeps everyone moving. We work hard before filing, because we’re afraid that someone else will scoop us. And we work hard after filing, because the clock has begun to tick. Every patent is a wasting asset, which is what seems to be driving Weissman crazy. And sometimes it drives me crazy, too, but I think his solution is even crazier.

I’m not arguing for shortening patent terms, either, just in case someone gets that idea. There’s a range where companies have the best chances to realize the return on their ideas and their labor, and I’m not sure that we’ve quite found it. But I know for sure that the patent lifespan needed is somewhere between zero and infinity. And I know that the argument for infinity does not convince. Just because a time limit is artificial doesn't mean it's wrong, or that there should be no time limit at all.

Comments (34) + TrackBacks (0) | Category: Patents and IP


COMMENTS

1. Kay on June 4, 2009 7:46 AM writes...

Our industry is rapidly becoming ‘non-investable’ because companies are forced to spend more effort and time on financing than on asset progression. That causes the wasting assets to waste even further. Regarding NMEs only, if we don’t see a policy change from remaining patent life to fixed period of exclusivity, then we are all doomed. Notice that the clever large molecule guys are angling for 12 years of exclusivity – forget the patent position.

Investors will not come back unless there is some increased certainty regarding an exclusive period of time in market.

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2. anon on June 4, 2009 7:56 AM writes...

"No, what keeps us discovering new drugs is the fact that our patents are going to expire."

Derek, I don't think this statement is inherently true. What keeps us discovering new drugs is the ability to make more money. Even with perpetual patents, if a company could make more money by having two drugs instead of one, they will. It's a business.

The real question is, which system (limited or perpetual patents) best maximizes business productivity and profit as well as the public good?

I don't necessarily share Weissman's view either. Patent rights are essentially a limited monopoly. Your learned readership certainly knows from their economics classes that it can be mathematically proven why monopolies are bad and do not maximize the public good. But in our business, where the cost of innovation is so high, without a limited monopoly there would be little to no innovation, which doesn't maximize the public good either.

The limited patent system, despite its numerous flaws, is probably in balance the right solution. We can debate the overhaul of that system ad nauseum I'm sure.

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3. Eric on June 4, 2009 9:16 AM writes...

I mean, technically, we already have a permanent intellectual property rights system: trade secrets. If you really want to own an idea in perpetuity, just don't tell anyone, or only tell people under NDAs. That's a huge pain, though, and very difficult to enforce, which is why the US created the copyright/patent system. In return for the convenience and protection offered by extra intellectual property laws (instead of just contract laws), companies get limited-term monopolies. All a company has to do is make the business decision to go with a trade secret or a public patent.

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4. HelicalZz on June 4, 2009 9:24 AM writes...

I do agree that there is inherent incentive for progress with a system that allows IP to expire. Stagnation could occur under a perpetual IP system, not likely complete, but to a degree.

But, can we do better than the existing system? Perhaps. The limited exclusivity period granted from patents and the requirements for regulatory approval are at odds. Time vs. thoroughness necessitates compromises. Studies have shown (Grabowski) that the exclusivity periods post approval have been shrinking. Add to that the clear incentive for generic companies to challenge patents and the pending death of 'pay for delay', and we have a system that becomes less worthy of investment.

I would certainly like to see expansion of the exclusivity post approval period. Ten years might do the trick. This could / would encourage thorough development with less regard (but not none) to the time pressures. It would also reduce the weighting regarding selection of what gets developed (partnered?) based so heavily on IP strength, and increase it toward scientific rational.

Just my opinion anyway. Henry Waxman would likely disagree.

Zz

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5. CMCguy on June 4, 2009 9:41 AM writes...

Excellent post to which I mostly agree: Interesting concept and although I think Drug Patents should be extended perhaps 5-10 years because of lengthy development/approval periods an indefinite grant is inappropriate. There is trade-off in the Patent system to provide info to the public domain which often spawns additional innovation. Patents are essentially a knowledge repository like much other scientific literature. I think it does encourage innovation in the ways you suggest and Drug Patent help in maintaining profits, even in only a particular window on time.

I actually think it would help drug pricing however maybe not that drastically in lowering as this is a complex "accounting game". There would be less pressure to get the an immediate ROI before Patent expires which tends to push the price up. Part of problem is US is bearing higher proportion of the burden because most other countries have price controls so skews everything. But in reality development of a marketed drug, in most cases, has already been paid for by previous income from selling drugs so the new drug is paying for today's R&D of future drugs. Since those types of costs are escalating there is "need" to charge more to keep the coffers supplied to continue pushing innovation.

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6. Robert Bruce Thompson on June 4, 2009 10:02 AM writes...

The purpose of copyrights and patents isn't to protect the incomes of authors and inventors. It is "To promote the Progress of Science and useful Arts". The original idea was that by offering a short monopoly period, authors and inventors would be encouraged to continue to write and invent. So-called "intellectual property" isn't property at all. If someone steals your car, he has the use of it and you don't. If someone "steals" your idea, you both have the use of it.

Patent terms, and particularly copyright terms, are much too long already. Thomas Jefferson fought hard against granting Congress the right to issue patents and copyrights at all. He was finally convinced, but agreed only if the "for limited Times" phrase was added. And you can bet that Jefferson wouldn't have considered a 20-year patent term "limited", let alone the life-plus-70-years copyright term.

Speaking as someone who earns his living by copyright, I'm in favor of limiting copyright to a one-year term. I think the same term would be appropriate for patents on truly original work (not derivatives).

And before anyone screams that this would wipe out Big Pharma, let me ask just how many truly useful and original drugs Big Pharma has developed over the last, say, 50 years. The vast majority of the resources devoted to research is aimed at developing sustainable revenue streams. Actually helping people with medical problems is a far-distant second, important only in the sense that it support the real priority.

I wonder, for example, what would happen if Derek stumbled across a cure for cancer. He finds that one dose of cancer-begone wipes out any and all cancers permanently. Actually, I don't wonder. I know exactly what would happen. Derek would be assassinated and his lab burned to the ground to wipe out any record of what he'd accomplished. He would have violated that prime directive of developing a sustainable revenue stream.

Note that I'm not some kind of conspiracy theorist who believes such drugs exist in hidden vaults somewhere (or that the car companies killed the 200 MPG carburetor). And I know that any of you guys would consider it a life's work well spent to come up with such a drug, and would shout it to the world if you discovered it. My point is that the current system incentivizes all the wrong things.

As to what I propose as an alternative, I've written in detail about it before. I propose to cut you geniuses loose to do whatever you want to do at taxpayer expense. Make a town or towns like Eureka. The sole entry criteria is that anyone who applies to reside there must have an IQ of 160 or over. We, the taxpayers, provide you with a nice house and a good salary. Hell, we take care of getting your lawn mowed, your house cleaned, and your laundry and grocery shopping done. We provide you with lab facilities or whatever else you need to do whatever you want to do. If you just want to sit around all day and think for a month or a year, that's fine. We don't interfere. And your residence is yours for life in Eureka--unless you want to move to one of the other genius towns--even if you never produce anything.

In return, whatever you do come up with, whether it's a better mousetrap or a new symphony or an SSTO rocket engine or cancer-begone, goes into the public domain. Some deal, huh?

And if you think this is all impractical, run the numbers and compare them to what the government spends every day in the Middle East, not to mention what it's spending on TARP and the car company bailouts.

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7. alig on June 4, 2009 10:15 AM writes...

So what incentive do these brillant guys have to actaully discover anything? I think they'd all just play golf.

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8. Anonymous on June 4, 2009 10:24 AM writes...

So what incentive do these brillant guys have to actaully discover anything? I think they'd all just play golf.

So that's what you'd do, huh?

I know a lot of 160+ IQ people, and I suspect not many of them would waste all their time playing golf. If you take away the burdens of dealing with daily life, most of them are going to choose to spend most of their time doing what they love to do. And what they love to do is likely to have a lot of upside potential. Besides which, I suspect a lot of truly stupendous ideas have originated on golf courses.

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9. MTK on June 4, 2009 10:25 AM writes...

Mr. Thompson,

In some ways we already have the system you advocate. It's called academia and NIH. Compare the number of drugs taken to market between academia and NIH and the private sector and get back to me. Or how about comparing the number of drugs that came out of the USSR vs. the West post WWII.

Wait even that's not close to what you advocate, since at least now academics can profit from their invention, which you take away.

Eureka should be renamed Utopia.

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10. Still Scared of Dinosuars on June 4, 2009 10:38 AM writes...

I had the experience of working in a company whose technology was based on a discovery at at state U with lots of fed gummint dollars. The discovery was patented and then mired in a single organization that was unfit to engage in drug development. This wouldn't have happened if the original discovery had gone into the public domain, and there still would have been plenty of room to patent and profit from individual applications of the core technology. In this instance public research succeeded and private industry failed.

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11. milkshake on June 4, 2009 10:43 AM writes...

There is a wonderful piece called "100 years of turbulence" in Idle Words:

http://www.idlewords.com/2003/12/100_years_of_turbulence.htm

"...all three transformative technologies of the twentieth century - aviation, the automobile, and the digital computer - started off in patent battles and required a voluntary suspension of hostilities (a collective decision to ignore patents) before the technology could truly take hold."

..."But if the patent system doesn't even work for the archetypal example - two inventors, working alone, who singlehandedly invent a major new technology - why do we keep it at all? Who really benefits, and who pays?"

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12. Brooks Moses on June 4, 2009 11:29 AM writes...

There's an interesting promise with his premise, which I'm surprised hasn't been brought up here (though it comes up in all the software-law discussions that I'm more familiar with): It is not axiomatic that patents and copyrights exist at all.

With a gemstone, the ownership of the property is materially present (he is physically holding it or the equivalent), and it is something that he is clearly deprived of if it is taken away.

With knowledge, the ownership of the knowledge is also directly present in his brain, and it cannot be taken away without damaging him. That's the parallel case -- and that's the case that's "more intrinsically part of him" that his argument there applies to -- but it is _not_ a patent or copyright.

With exclusive use or knowledge (i.e., a patent or copyright), there is nothing actually present that he posesses. It can be removed without directly taking anything other than this abstract concept away from him, and without at all limiting the scope of things that he can directly do. This is a very artificial concept, which is only indirectly related to ideas of "ownership", and any argument that it should be perpetual because ownership is perpetual, or that it's somehow more artificial for this artificial pseudo-property to last a finite time.

A more accurate analogy is a license. He's got exclusive permission, from the government, to decide who gets to use this idea. And the government will help him enforce that license. It's like renting property, and the natural thing is for rental agreements to be time-limited. Even "perpetual" ones typically last for 99 years.

In any case, he can own the patent forever. All that goes away after two decades is its effectiveness -- the government's willingness to support his exclusive right to the ideas embodied in it. But that doesn't mean he's stopped owning it.

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13. qetzal on June 4, 2009 11:35 AM writes...

I second Eric's point.

Weissman is entirely free to keep all his new ideas to himself. If he thinks he can make money with an idea without letting anyone else know how it works, he's completely entitled to do so. Of course, if someone else comes up with the same idea independently, or merely figures out what Weissman is doing, they can do the same thing.

I see no reason that society should grant Weissman exclusive rights for an idea in perpetuity, much less that society (i.e. the government) should expend resources to protect such rights.

Also, Robert Bruce Thompson wrote:

Note that I'm not some kind of conspiracy theorist who believes such drugs exist in hidden vaults somewhere (or that the car companies killed the 200 MPG carburetor).

So, you're not the kind of conspiracy theorist who thinks such drugs already exist, you're just the kind that thinks people would be killed and their labs burned IF they discovered such a drug? Yes, that's much more rational that those other conspiracy theorists.

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14. SRC on June 4, 2009 12:32 PM writes...

I propose to cut you geniuses loose to do whatever you want to do at taxpayer expense. Make a town or towns like Eureka. The sole entry criteria is that anyone who applies to reside there must have an IQ of 160 or over. We, the taxpayers, provide you with a nice house and a good salary. Hell, we take care of getting your lawn mowed, your house cleaned, and your laundry and grocery shopping done. We provide you with lab facilities or whatever else you need to do whatever you want to do. If you just want to sit around all day and think for a month or a year, that's fine. We don't interfere. And your residence is yours for life in Eureka--unless you want to move to one of the other genius towns--even if you never produce anything.

Ah, dorm room philosophizing. Takes me back. Good times, good times.

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15. Incha on June 4, 2009 1:38 PM writes...

There is certainly an arguement for extending patent lifetimes on pharmaceuticals, although I think perpetual patents is unlikely to ever happen, and completely unfounded.

Firstly a drug that would benefit 1000, 100K or 1 million people all cost the same to develop. There is therefore no incentive to develop a treatment or cure for rarer disease, as there is typically little time to recoup ones spending and make a profit. With a longer patent life, there is an extended period of time to make back the outlay and make some profit. This argument also holds for conditions that require lengthy clinical trials - by the time you get to market there would be no patent life left, so companies are naturally going to steer clear of these conditions.

I also think it would help bring drug prices down. Yes pharma companies need to make money, but if you need to recoup a billion that you have outlayed plus make a profit and you have 5 years to do it you are going to price it to make that back. If you have 25 years recouping that spending isnt going to seem like such a big issue.

Also should we not be asking the question why we let generic companies into the market? They aren't going to be the ones to discover the cure to cancer. In fact by reducing turnover of pharma companies they directly reduce spending on R&D. So why do they seem to be portrayed as the good guys?

Finally - not sure I would want to live in one of these Eureka towns. How long before they become more like forced labour camps with the general public baying for blood if the discoveries dont roll out fast enough?

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16. TFox on June 4, 2009 1:41 PM writes...

I'd like to add an economic argument against long terms. Proponents will claim that increasing the term will increase the incentive to innovate: create new drugs, draw new cartoon mice, whatever. However, the added benefit of the term extension lies in the future, but the costs of innovation lie in the present. The value of the term extension needs to be discounted back to its present value in order to compute the added incentive to innovate. For any reasonable discount rate, once the term is long enough (~20 years say), increases of the term (even to infinity!) add very little to the present value of the innovation. As a result, term extension is a poor way of increasing the incentive to innovate. It does however impose a high cost on future society, on our children who will not be able to remix mice cartoons or make new discoveries without working around 70 year old patents. So, beyond some reasonable limit, term extension is both a burden to future society and ineffective in increasing the present incentive to innovate. I'd guess that examining discount rates is a plausible way to help nail down what those reasonable limits are.

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17. Cellbio on June 4, 2009 1:41 PM writes...

"I wonder, for example, what would happen if Derek stumbled across a cure for cancer. He finds that one dose of cancer-begone wipes out any and all cancers permanently."

You wonder? Let me offer a possibility. Derek would feel professionaly and personally fulfilled. He and his colleagues would tell friends and colleagues about their great contribution to society. The Wonderdrug Company would prepare for the most rapid launch possible, driven by the desire to save lives. Then the money part... the payoff would actually be quite significant. The pharmacoeconimics of a universal cancer cure would justify a cost that would be quite profitable, and save the system tons of money currently spent in end of life care for cancer patients. If you have doubts about that, look at the cost of modestly effective treatments like Herceptin and Avastin. So all around, a great thing!

Oh, and then the truth is that if Derek can do it, so could many others. So if you chose not to develop the wonderdrug, others would and they would then steal your market for ineffective drugs designed to be profitable through repeated administrations.

Yes reminds me of the dorm room insight too, but not just baseline philosophy, that rare depth of thought shared with friends around a bong.

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18. Anne on June 4, 2009 1:47 PM writes...

There's an analogous situation in astronomy: X-ray data is proprietary for one year, then the raw data go public. This often causes a lot of stress - have to get that data published before the competitors get a hold of it! - but it also avoids the problem of important papers moldering in a desk drawer for years. And overall I think it works better than perpetual "ownership" of the data would.

Permalink to Comment

19. Malfitano on June 4, 2009 1:48 PM writes...

@3 Eric

Since nobody else appears to be going to point this out, can I just say that the patent system was NOT created by the US. The concept goes back to the ancient Greeks, and patents in the modern sense originated in Venice in the late 15th century.

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20. CMCguy on June 4, 2009 2:03 PM writes...

If Derek did "stumble across a cure for Cancer" I wonder whom he would have select in the subsequent "Nobel Prize Prediction" (would it have to be for Medicine or Chemistry?)

A couple comments have advocated use of "Trade Secrets" which I have seen occasionally used in processes instead of application of patenting. Problem is such "knowledge" usually leaks out with little recourse. In these days of Outsourcing and Downsizing I dare say very little know-how does not get disseminated.

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21. Chrispy on June 4, 2009 2:06 PM writes...

We have already experimented with super long-life patents. Until recently, the legal system allowed for a string of continuations which pushed the "start" date of a patent forward for years. Ariad did this with their absurd NfkB patenting.

This has been largely overhauled of late because the patents were extending for years and years beyond any sensible time period.

And it seems likely that whatever the time period granted by a patent that companies would charge what the market would bear, just as they do now.

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22. CM on June 4, 2009 6:47 PM writes...

To expand further on Cellbio's line of thought, even if you eradicate everyone's cancer, new people will still develop cancer providing a steady revenue through the patent life of the drug. In fact, given lung cancer is a big reason people quit smoking, you'll likely see an increase in smoking leading to more cancer cases thus further improving your revenue stream. Even so, by the time everyone's cancer is completely eradicated the patent life of the drug will probably near an end meaning you won't get anymore money out of it anyway.

I would argue a cure is much more profitable that a treatment since its hard to significantly improve on an actual cure (so fewer "me-too" drugs diluting your market) and by the time everyone is cured, the patent is up so you wouldn't be making any money on the drug anyway. People who think a Pharma Co. would sit on any product/miracle cure are idiots.

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23. Dale B. Halling on June 4, 2009 7:19 PM writes...

The Myth that Patents are a Monopoly

A patent gives the holder the right to exclude others from making, using or selling their invention. 35 USC 154. It does not give the holder the right to make, use or sell their invention. A monopoly is an exclusive right to a market, such as an electric utility company. An electric utility company has the exclusive right to sell electricity in a certain territory. Since a patent does not even given the holder the right to sell their invention, let alone an exclusive right to a market, it is clearly not a monopoly.

When a person describes a patent as a monopoly to be consistent they should also state that they have a monopoly over their car or over their house. In fact, they have more rights in their car and house than a patent gives the inventor over their invention, since you have a right to use and sell your car or house. A patent does not give these rights to an inventor over his invention. All invention are built upon existing elements (conservation of matter) and if the elements that the invention uses are patented, then the inventor will not have the right to sell their invention without a license.

Some economists argue that a patent is designed to give the holder monopoly power. Those economists who are consistent also state that all property rights give some monopoly power. The property rights are monopolies thesis shows how confused economic thought is on this subject. The only logically consistent definition of a monopoly is an exclusive right to a market.

People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.

For more information on patents and innovation see www.hallingblog.com.


Permalink to Comment

24. Anonymous on June 4, 2009 7:26 PM writes...

Re: Robert Bruce Thompson's Eureka towns.

I don't know my own or anyone else's IQ, but I would imagine that most of us involved in drug discovery and development are not geniuses. These efforts involve hundreds (thousands?) of people, with, obviously, a strong intellectual component, but there is more than that--there is a lot of hard work and highly specialized and advanced education and training. Admittance to these towns based on intellect alone is probably the first major problem with this idea.

The complete lack of incentive is another, probably more significant problem. If you are giving them everything they could want for their whole life, with no stipulations about productivity and objectives, yes, you will probably get some people who would work hard, but you get a lot of people who wouldn't. Some people, no matter how much they enjoy their work and how much they are good at it, are doing it solely to get money to finance other things that they enjoy more. While these people might get some work done in this sort of town, they would probably not work nearly as hard as they would under the current system. Plus, you would get lots of lazy people gaming the admissions tests so they could move in and mooch off the tax-payers.

Sounds like a good idea, would be great if it worked, but it won't work, because it involves people. And people act, well, the same way people have always acted.

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25. Fungus on June 5, 2009 1:55 AM writes...

[24] Continuing on this thread, how much progress do you think that someone with a 160 IQ, working alone, could make toward developing an important new drug? My opinion is not much. Going from a top-10 department to a much smaller outfit, I've noticed what a huge impact all the competent, high-integrity (but non-genius) support staff like NMR techs, glassblowers, secretaries and even shipping/receiving have in keeping productivity levels high. It goes against our romantic notions, but a lone genius is going to have minimal impact in something as labor intensive and empirical as drug discovery.

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26. petros on June 5, 2009 2:29 AM writes...

A better example than Ariad of the impact of the old US system of successive cips and patent terms from issue date is Amgen's epo patents. One of the comments on the original blod highlights this.

But a series of patents has enabled Amgen to prevent any epo product being launched until 2015, some 25 years after Epo hit the market. And this has seen a series of high level court cases to try and let other companies introduce modiifed epo products, eg Roche's Mircera.

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27. James on June 5, 2009 8:03 AM writes...

I actually agree with Weissman to a limited extent. Unlimited patent lifespan would be pointless, but to extend it to the lifespan of its inventor, plus seventy years, would be sensible. This would allow two things; firstly, an invention could produce far more revenue over its patented lifespan, even if the cost per unit was decreased significantly, and secondly, for a basic or broad patent properly designed, it would allow the company or inventor that held it the time to develop further materials upon the basis of that patent without pressure to have it done before the competition was allowed to use it.

To reference the post above me, the court cases mentioned should not have taken place, but equally, Amgen should have looked to improve upon their own product more.

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28. Tok on June 5, 2009 8:38 AM writes...

I find it amusing that people think a company will lower its prices if they have a patent for longer because it doesn't have to recoup its money as quickly. It will charge the maximum the market will bear regardless if the patent is 1 year or 100 years.

Excessively long patents are bad because other people can't expand on the technology for a long time. Excessively short patents are bad because, other than the very very rare breed of person who invents just to invent, there's little incentive to create something new. Just like everything in life, it's a balancing act.

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29. CMCguy on June 5, 2009 9:49 AM writes...

#25 Fungus you are dead on as the IQ component is only part of what is needed and there is requirement for support/implementation that frustrates most "lab geniuses". #9 MTK mentioned NIH and academia where there are "great minds" but many such have failed when attempting to advance beyond the Research arena. Certainly having "a few high IQ" individuals in organizations or via collaborations is of great benefit but would largely remain unfulfilled promises if left to own devices to develop a new drug.

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30. Mycroft W on June 5, 2009 2:33 PM writes...

Wow, a story on patents and "patents are not a monopoly" comes out of the woodwork. And look, it's by a Patent Lawyer. What a surprise.

The difference between a patented idea and my car is that yes, I do have a monopoly on selling my car. The holder of the patented idea also has the right (which I do not have) to stop my friend over here from selling her "car". Or you, for that matter, unless your "car" has 5 wheels, or is a sledge.

A piece of property is a physical thing. I have control over it, and someone else's use of it deprives me of that use (for that period of time, or forever if it is a consumable). A patent is an idea - by law, one has control over it for a limited time, but someone else's use deprives no-one of their ability to use it (granted,the utility of that use may be lessened).

If there's any industry where the current interpretation of patents are more controversial than Pharma, it's the software industry (where I work) - and at least some of the patents that are being granted there are, in fact, one-door monopolies, and are being used explicitly as such. The patent has been written, and granted, in such a way that the only way to do something is the patented way. Congratulations, 20 year monopoly on an entire way of doing things - in an industry that obsoletes itself in 5 years.

Opposite problem to drug development, of course - patentable ideas in software are cheap, and monetize themselves in months (most of that, of course, being the cost to file and protect). Patentable drugs are very expensive, and if the company is lucky, monetize themselves by the time the patent ends.

But I do agree with Mr. Halling in one thing - patents (and other "intellectual property") are not equivalent to real, physical, tangible property. However, I think you can guess that the conclusions I draw from that are very different from the ones he does.

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31. srp on June 5, 2009 7:01 PM writes...

They won't be able to assassinate Derek when he discovers the universal cure for cancer because along the way he will have created a Philosopher's Stone and made himself invulnerable and immortal.

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32. Z on June 5, 2009 9:01 PM writes...

A lot of drug discovery is hard work. It is a craft. It takes hundreds of people working diligently toward a common goal. There is a lot of luck. Some smart people are necessary, but IQ is certainly not the sole or best indicator of success.

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33. SRC on June 8, 2009 12:58 PM writes...

The difference between a patented idea and my car is that yes, I do have a monopoly on selling my car. The holder of the patented idea also has the right (which I do not have) to stop my friend over here from selling her "car".

You missed the point, and by a mile. A patent on the automobile practically would only prevent others from making and selling them in competition with the patent holder; anyone who bought a car from the patent holder has an implicit (and legally recognized) license to use it, and thereafter to sell it. The patent rights are exhausted with the first sale. So the patent holder could not stop anyone from re-selling a car, even should he want to do so.

Anti-patent screeds typically rail against abuses that don’t exist (e.g., patenting things occurring in nature, such as the neem tree in India, or the genes in people’s bodies, and now preventing people from selling their cars). None of these problems actually exist. A little reading on the subject would be time well-spent.

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34. ChristianK on June 19, 2009 12:09 PM writes...

The argument that a time limit is "artificial" is just as good as the argument that a price of a drug is "artificial".
Patent are a price that society pays to the inventor.

If you would allow patents of 70 year + lifespan how many patents would be involved in a simple drug?

Imagine somebody still had a patent for lasers with by the way wasn't invented by protive motive but to show off with cool light effects.
They would have a monopoly.

Thinking that they wouldn't is just misunderstanding innovation.
Real breakthrough innovation creates it's own class of products over time.

Finding all basic synthetic chemistry patents that your product touches that maybe got filled in 1920 for ideas you simply take for granted at the moment would be a lot of burocratic work.

Most inventions build on dozens of patents in the last hundred years.
If only know that there are atoms for a bit more than houndred years.

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