Medicine starts to see down side of patents

Medicine starts to see down side of patents

Summary: The folks at Zynx may be saints, anxious only to protect their own software algorithms, but what if the company should fail?

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Medicine has always had a bone to pick with computing on the subject of patent law.

(MouseTrap. It's more than a Christmas gift. By Hasbro.)

Patents make good sense in medicine. Drugs and devices take money to develop. Patents offer good protection without hampering innovation.

Patents don't make good sense in software. They wind up covering the idea of something, not just a specific expression of it.

I call this the "mousetrap test." You should be able to patent a mousetrap but not the idea of killing mice. Too often software fails the mousetrap test.

Well, this down side of patents are now moving into medicine as software patents are awarded on medical software.

Here's one. Zynx Health, a unit of Hearst, has just won a patent for its software "to establish and maintain an evidence-based best practice approach to providing patient care." If you're scoring at home it's number 7,822,626.

If this just covered the way Zynx Health works there might be no problem. But that's not the way software patent law seems to work.

Bringing best practices, based on clinical evidence, to the patient's bedside is very important. A computer network can hold much more data than any doctor or nurse's memory, and as practices change it can adapt quickly, without even a weekend of coursework.

Every large health IT company is now working on collecting the evidence, on algorithms to analyze it, on ways to deliver it, and on its presentation. Can Zynx now take them all to court?

I hope not, but even the threat of such a move has a chilling effect. It can dissuade start-ups, it can turn capital away from good ideas, and it only makes lawyers rich if we're arguing about a company's rights to do something that's necessary.

Also, while the folks at Zynx may be saints, anxious only to protect their own software algorithms, what if the company should fail? This asset might be picked up, years from now, by a company that's little more than a glorified law firm, a "patent troll" anxious to tax an idea after it is proven in the market.

That's the way it is in software. That's the way it may get to be in medicine, unless the two industries get together and find a way to make the "mousetrap test" law.

Topics: IT Employment, CXO, Legal, Software

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  • Not to mention the absurdity ...

    ... of not being able to patent the use a natural substance for a specific, heretofore unknown application.

    This is what leads big pharma to sit on discoveries that would benefit us all until they can synthesize and patent them.
    Gaius_Maximus
    • RE: Medicine starts to see down side of patents

      @Gaius_Maximus Should something be subject to patent before it can be synthesized and proven of value?
      DanaBlankenhorn
      • Not how it's done

        @DanaBlankenhorn
        They apply for the patent in a general way, but deliberately do not complete the application in some important way. It establishes precedence should someone file a patent later. They sit on it. In one case I know of, for 40 years.
        It was called AZT, first developed to treat herpes (not successful I'm afraid).
        There it sat. Until AIDS came long. Suddenly, they finish the patent in 1 year and go public, make a mint of money.
        Of course, they DID do the research, they DID have the rights, they DID spare hundreds of thousands of lives.
        But how many more might have been saved in the third world if the patent had already been long granted...and expired?
        mykmlr@...
  • RE: Medicine starts to see down side of patents

    "to establish and maintain an evidence-based best practice approach to providing patient care." Apart from the "mousetrap test" this patent should fail on the basis of trying to patent an already well established practice. In UK we already have the National Institute for Clinical Excellence (NICE) whose purpose is to assess both medicines and medical practice to bring the best of both into common use in our National Health Service.
    misceng
    • RE: Medicine starts to see down side of patents

      @misceng Yes, but they ran to the patent office with software. There are many business processes that didn't become subject to patent until they were expressed in software, and some have held up in court.
      DanaBlankenhorn
  • Need to take Zynx and the Patent Office to court.

    The use of computers for decision support of best practices has been going on for years. Zynx has A method for doing it; but they were neither the first, nor the only way of doing it. The Patent Office basically f'ed up granting them a patent on this. And in seeking and obtaining a patent on the concept, Zynx is clearly the bad guys in this movie.
    Dr_Zinj
    • RE: Medicine starts to see down side of patents

      @Dr_Zinj Maybe we're assuming facts not in evidence. I linked to the patent, but didn't read it in its entirety before writing this. The precise wording of the claims are important.

      But this will happen. Someone, maybe not Zinj but someone, is going to become a patent troll regarding health IT, because the law is flawed.

      My hope is that this will result in some action either at the USPTO, in the Justice Department, or in the Congress.
      DanaBlankenhorn
  • What's absurd?

    The notion that drug companies expend resources to discover drugs makes their discoveries more patentable than innovations in software is absurd. Software companies spend millions of dollars to develop the latest software. Some may be marginal improvements, but others are giant leaps. Both concepts may be patentable if no one previously did anything like it.

    To make a device, I can use vacuum tubes, transistors, logic chips, or a microprocessor and software. They all will do the exact same thing. Why should one (hardware) be any more patentable than software?

    The article laments that patents "wind up covering the idea of something, not just a specific expression of it." That's precisely what patents are supposed to do. If one wants to protect a particular expression, then the avenue to use is copyrights.

    Yes, software can be invented (and often is) in garages and basements, but so can medicines.

    Instead of asking to rule out all software innovations, we should be focused on getting the patent office (and patent applicants) to do a better job analyzing patent claims against previously existing software and research.
    rpsip
    • Patents are NOT intended to protect ideas.

      @rpsip Rather, they are intended to protect working implementations or products.
      PCcritic
  • RE: Medicine starts to see down side of patents

    We in the medical field have been practicing evidence-based best practices for years. Since it has been patented, does this mean that we have to pay royalty every time we do?
    docchari@...