5 ms·

Sorta a tangent but > In a recent policy proposal, we argue that there currently is little credible evidence to support strengthening or weakening patent prote

Sorta a tangent but > In a recent policy proposal, we argue that there currently is little credible evidence to support strengthening or weakening patent protection, such as by modifying patent-eligibility standards. What is the best argument that, for example, software patents and pharmaceutical patents should continue to have the same lifetime (20 years)? On the face it seems insane. In their longer white paper, the authors acknowledge that it might make sense for the specific case of pharmaceuticals to get a special carve out: > Although it is unclear what the optimal length of patent protection is, we suggest a pharmaceutical-specific reform that begins the effective market exclusivity period for new drugs at the time of approval for sale in the United States, rather than at the time of patent filing. https://www.hamiltonproject.org/assets/files/Ouellette_Williams_LO_6.16_FINAL.pdf https://www.hamiltonproject.org/assets/files/Ouellette_Willi... But I don't understand this claim that, putting certain regulatory barriers aside, we should expect patent lifetime to be independent of field: > ...the patent system’s goal of providing uniform protection across inventions. Why would we want uniformity? The best argument I can think of is just that it reduces individual industries from lobbying for greater protection contrary to the public interest.

nickff 6y ago
I think you make a good point in saying that patents vary in annual value, and that the costs that they help recouperate also vary. That said, I think pharmaceuticals patents are bad examples, because the patent system is being used to compensate for regulatory costs; this creates all sorts of strange problems and incentives.
- MereInterest 6y ago
  The implied argument in your statement seems to be that we should lower the regulatory costs of developing new pharmaceuticals. Is that what you are implying? My outsider view is that large-scale phased testing of medication is the primary cost required by regulations, and the primary assurance of quality of a medication. Since you can't get rid of those test stages without sacrificing quality, removing regulation would have the primary effect of allowing companies to sacrifice quality.
  - nickff 6y ago
    I did not intend for that post to imply that regulations should be loosened on pharmaceuticals. That said, I am not sure whether regulatory approvals should take 5-15 years, when it seems like everyone's happy working through a coronavirus vaccine in less than 1 year. My point about pharmaceuticals was more about the problem of having the Patent and Trademark Office trying to compensate for costs imposed by the Food and Drug Administration. I think the FDA is imposing costs, and if these are causing problems, the FDA should be held responsible for finding a solution; this would also have the effect of incentivizing the agency to balance costs and benefits more carefully.
    - bsder 6y ago
      > That said, I am not sure whether regulatory approvals should take 5-15 years, when it seems like everyone's happy working through a coronavirus vaccine in less than 1 year. This has nothing to do with regulations and everything to do with how much money the companies are willing to throw at the problem. If your budget is a billion+ dollars, a 30,000 person Phase III trial is no big deal. If your budget is a million+ dollars, a 30,000 person Phase III trial is painfully expensive. The problem is that those 10K+ Phase III trials are where you first really see low probability problems.
      - nickff 6y ago
        >"This has nothing to do with regulations and everything to do with how much money the companies are willing to throw at the problem." Regulations are the cause of the costs; I am not saying that regulatory compliance is a waste of money, but it definitely is a cost which should be considered. Delays also cost money and reduce return on investment (ROI), so I am sure the pharmaceutical companies do spend a great deal of money to expedite the process. Could all drug approvals go through faster if the pharma companies were willing to run larger trials? Would the FDA allow for these larger trials, and expedite the process for approval? What about rarer diseases, are they worth curing or treating on a timely basis?
    - pkaye 6y ago
      I wonder how much of the delay is due to FDA staffing levels. If they had more staff they can evaluate more trials in parallel?
shmerl 6y ago
20 years is beyond insane, because software patents shouldn't exist in the first place.
- nickff 6y ago
  Intuitively, I agree with you that software patents are a bad idea, but patents are supposed to be available for both devices and processes (along with plants and some other more complicated things). An algorithm is a process, and while it's clear that just doing something on a computer shouldn't be patent-able; I think there's a case for granting patents to innovative and useful algorithms.
  - riskable 6y ago
    Patents actually are not supposed to be available for processes! That was something invented by the courts (in 1998: State Street Bank & Trust Co. v. Signature Financial Group). Congress has passed no legislation regarding process/business method patents and software patents are a further extension of business method patents. The core of the problem is method patents to begin with. I think everyone here pretty much agrees at this point that software patents shouldn't exist but really, why should any process/method patent exist? Most of the arguments against software patents also apply to business method patents. I say do away with both.
  - shmerl 6y ago
    It's better to err on the side of not granting them, than on the side of what we have now with sickening patent trolling and patent protection racket slowing down progress.
toast0 6y ago
>> we suggest a pharmaceutical-specific reform that begins the effective market exclusivity period for new drugs at the time of approval for sale in the United States, rather than at the time of patent filing. While this idea has common sense appeal, it would seem to be a way to return to submarine patents. If the patent was filed for a specific drug which is pending approval for many years (or many decades), use of that technique by others would be infringing and subject to licensing, should the patent ever issue. Having a expiration from filing date, combined with a filing deadline of one year from invention is simpler and sets a fixed bound on exclusivity.
eikenberry 6y ago
IMO the main issue with allowing patents to be of different lengths is that you are opening up a process to change the length of patents. You'll immediately see corps pushing that their type of patents are special and need longer coverage. There's little a corp loves more than rent seeking and so-called IP laws are all about rent seeking.
- jessriedel 6y ago
  Yea, that's the sort of explanation I'm sympethetic to and tried to gesture at in my last sentence. The thing is, you can say this about any law, yet we wouldn't want to argue that laws can never account for differences in different industries.

nickff 6y ago

I think you make a good point in saying that patents vary in annual value, and that the costs that they help recouperate also vary. That said, I think pharmaceuticals patents are bad examples, because the patent system is being used to compensate for regulatory costs; this creates all sorts of strange problems and incentives.

MereInterest 6y ago
The implied argument in your statement seems to be that we should lower the regulatory costs of developing new pharmaceuticals. Is that what you are implying? My outsider view is that large-scale phased testing of medication is the primary cost required by regulations, and the primary assurance of quality of a medication. Since you can't get rid of those test stages without sacrificing quality, removing regulation would have the primary effect of allowing companies to sacrifice quality.
- nickff 6y ago
  I did not intend for that post to imply that regulations should be loosened on pharmaceuticals. That said, I am not sure whether regulatory approvals should take 5-15 years, when it seems like everyone's happy working through a coronavirus vaccine in less than 1 year. My point about pharmaceuticals was more about the problem of having the Patent and Trademark Office trying to compensate for costs imposed by the Food and Drug Administration. I think the FDA is imposing costs, and if these are causing problems, the FDA should be held responsible for finding a solution; this would also have the effect of incentivizing the agency to balance costs and benefits more carefully.
  - bsder 6y ago
    > That said, I am not sure whether regulatory approvals should take 5-15 years, when it seems like everyone's happy working through a coronavirus vaccine in less than 1 year. This has nothing to do with regulations and everything to do with how much money the companies are willing to throw at the problem. If your budget is a billion+ dollars, a 30,000 person Phase III trial is no big deal. If your budget is a million+ dollars, a 30,000 person Phase III trial is painfully expensive. The problem is that those 10K+ Phase III trials are where you first really see low probability problems.
    - nickff 6y ago
      >"This has nothing to do with regulations and everything to do with how much money the companies are willing to throw at the problem." Regulations are the cause of the costs; I am not saying that regulatory compliance is a waste of money, but it definitely is a cost which should be considered. Delays also cost money and reduce return on investment (ROI), so I am sure the pharmaceutical companies do spend a great deal of money to expedite the process. Could all drug approvals go through faster if the pharma companies were willing to run larger trials? Would the FDA allow for these larger trials, and expedite the process for approval? What about rarer diseases, are they worth curing or treating on a timely basis?
  - pkaye 6y ago
    I wonder how much of the delay is due to FDA staffing levels. If they had more staff they can evaluate more trials in parallel?

shmerl 6y ago

20 years is beyond insane, because software patents shouldn't exist in the first place.

nickff 6y ago
Intuitively, I agree with you that software patents are a bad idea, but patents are supposed to be available for both devices and processes (along with plants and some other more complicated things). An algorithm is a process, and while it's clear that just doing something on a computer shouldn't be patent-able; I think there's a case for granting patents to innovative and useful algorithms.
- riskable 6y ago
  Patents actually are not supposed to be available for processes! That was something invented by the courts (in 1998: State Street Bank & Trust Co. v. Signature Financial Group). Congress has passed no legislation regarding process/business method patents and software patents are a further extension of business method patents. The core of the problem is method patents to begin with. I think everyone here pretty much agrees at this point that software patents shouldn't exist but really, why should any process/method patent exist? Most of the arguments against software patents also apply to business method patents. I say do away with both.
- shmerl 6y ago
  It's better to err on the side of not granting them, than on the side of what we have now with sickening patent trolling and patent protection racket slowing down progress.

toast0 6y ago

>> we suggest a pharmaceutical-specific reform that begins the effective market exclusivity period for new drugs at the time of approval for sale in the United States, rather than at the time of patent filing. While this idea has common sense appeal, it would seem to be a way to return to submarine patents. If the patent was filed for a specific drug which is pending approval for many years (or many decades), use of that technique by others would be infringing and subject to licensing, should the patent ever issue. Having a expiration from filing date, combined with a filing deadline of one year from invention is simpler and sets a fixed bound on exclusivity.

eikenberry 6y ago

IMO the main issue with allowing patents to be of different lengths is that you are opening up a process to change the length of patents. You'll immediately see corps pushing that their type of patents are special and need longer coverage. There's little a corp loves more than rent seeking and so-called IP laws are all about rent seeking.

jessriedel 6y ago
Yea, that's the sort of explanation I'm sympethetic to and tried to gesture at in my last sentence. The thing is, you can say this about any law, yet we wouldn't want to argue that laws can never account for differences in different industries.