Medical companies celebrate death of patent reform

Medical companies celebrate death of patent reform

Summary: If technology wants industry-specific protection, it should stand for that and not try again to roll the medical industry. So says the industry


PHRMA logoMedical device makers and drug companies are celebrating the apparent death of the 2008 Patent Reform Act.

(For the other side of this debate, visit my open source blog.)

Why were AdvaMed, PHRMA, and the rest of the industry so dead-against an end to forum shopping and a closer examination of patent claims?

It has to do with the nature of the industries.

Every device maker or drug maker has to win two government approvals to reach market. The key moment is FDA approval. Patent approval is a defensive measure, in which you're seeking a monopoly on the approved drug or device.

Drugs are generally protected by a single patent. You patent your particular compound, for whatever it's good for, then seek FDA approval for using the drug to treat people.

Devices may have multiple patents, but in any case the patents don't cover what the devices do, just how they do it. You can patent a mousetrap, but someone else can patent a better one.

Thus patent trolls are not an enormous problem. They exist, but they're usually more interested in finding a market than exploiting one.

This isn't the way things work in technology, where both software and business method patents, created by courts, may cover not just what's contained in the package but the very idea of what it does.

In years past we've had people try to gain patent protection for basic concepts like multimedia or the concept of reverse auctions, expressed in software, tieing up the entire industry in litigation.

Compromising those contradictory business models proved impossible. If technology wants industry-specific protection, it should stand for that and not try again to roll the medical industry.

So says the industry, and Congress reluctantly has agreed.

Topic: Legal

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  • Our health insurance dollars at work

    In this case, patents allow medical equipment companies to charge premium prices to medical offices and hospitals, who pass the costs on to insurers, who pass the costs on to employers and taxpayers. Eventually, it's the patients who pay for it at greatly inflated prices.

    In that light, Washington lobbyists to keep the status quo in place would seem like a very good investment.
    John L. Ries
    • Those monopolies serve a public purpose

      Jefferson inveighed against such "monopolies" but finally accepted them as the price for invention. Without such incentives people don't invent.
      • Matter of degree

        Jefferson also believed in and enforced exacting standards for what constituted a patentable invention. It was also the case in the old days that you had to provide enough detail about your invention that a patent office employee could build it. I think these would be useful rules today.

        I'm in favor of keeping the patent system, but I'm also in favor of reigning it in so that it actually serves the public interest by rewarding creativity. The current system, IMHO, encourages litigation at the expense of creativity.
        John L. Ries
      • Jefferson

        Jefferson has been dead a long time. We don't know what he would have thought about the current environment. Nor should we care.
        The thoughts of the founders are only relevant when interpreting the constitution. That's not really an issue here.
  • RE: Medical companies celebrate death of patent reform

    It is not purely a matter of giant tech firms trying to roll pharma. You are looking at the wrong picture. Rather, they are trying to roll small entities who frequently beat the giants to the punch in producing new innovations. Giants hate having to pay for what they can steal.

    What is a patent troll?

    According to some a patent troll is a firm who licenses patents they do not themselves commercialize. Yet many of the large firms who are most critical of the practice do it themselves. Out licensing is now an important profit center of most every firm. Often, as a result they end up licensing out patents covering technologies they themselves do not use as they are not consistent with their corporate plan. Rather hypocritical isnt it?

    The sad truth is that entities some call ???trolls??? are often small companies or independent inventors who cant get the money to commercialize their inventions and end up on the curb watching others benefit from their creations. It???s enough to drive one mad. It???s certainly enough to kill the goose that lays the golden egg.
  • RE: Medical companies celebrate death of patent reform

    see for an opposing view on patent reform