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« Court Report | Main | Patent Profile: BioNanomatrix Receives Nanofluidic Chip Patent »

May 31, 2010

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There are none so blind as those who choose not to see.

Kevin,

The factual inaccuracy in this popular media piece doesn't surprise me in the least in this day and age. Why bother with the facts when "Kool-Aid" drinking will suffice. Just proves my point that journalism as we once knew it is completely dead.

The problem, EG, is that NB is not the popular media. Which in some ways makes it worse.

Thanks for the comment.

"It often seems unfair that the patent system rewards only the last inventive step -- the small breakthrough that enables a concept to be realized. The research enterprise, which continually renews itself, especially in rapidly moving areas like genetics, is increasingly at odds with the commercial conservatism of patent monopolies based on gene findings that are obsolescent compared with current art. Despite both cultural and economic incentives for innovation, the difficulty in dislodging incumbent approaches is reinforced by a patent system that insists that any use, however small, of a protected method is infringement. Is it so outrageous to expect that a properly functioning IP system could provide an unobstructed path to the market both for the initial innovators and for subsequent improvers? Surely, a different balance of rights is possible that better serves the society with whom the patent bargain has been struck."

Eloquent. To the point. On point. Reflective of the views that will become more prevalent as the non-information of yesteryear gives way to the information abundance we experience today.

Fact is, all our IP systems are horribly out of date. Designed as they were for a world where information and education was scarce. There are still sectors that merit such protection but they are far fewer than we currently provide it for. But the system will change to accomodate this development eventually.

And Noise you're absolutely right. You should take off your blindfold of refusal.

Eloquent of... what exactly?

The quote offers no replacement system, just a kvetch that the writer doesn't not like the current system.

Kevin,

I stand corrected on NB. You're right, it does make it worse as NB should know better.

Excellent analysis Kevin. As I've suggested previously, I hope you also post your comments on the appropriate section of Nature Biotech's website and/or as a letter to its editors.

"The quote offers no replacement system, just a kvetch that the writer doesn't not like the current system."

Now that the topic has been brought up, go ahead and suggest one.

Personally I believe that a likely winner is more custom tailored term lengths for various arts, more compulsory licensing, or a form thereof through damages reform, etc. etc. Notably this will likely entail a change from the "exclusive right" with attached injunction of yesteryear to the "right to part of the proceeds" from commercial activity involving the invention. Indeed, Ebay was a gigantic step towards this already, more is probably on the way.

What's more is that it seems rather reasonable.

Something akin to this will likely go down in copyright by the time I'm Kev's age.

Actually, 6, the passage might apply to certain crowded electromechanical arts, where your expertise lies. Certainly other commentators have suggested as much, and if the passage were in Nature EE I might have no trouble with it.

The problem is that the editorial ran in Nature Biotechnology, and it just doesn't describe the facts and how patents and that technology co-exist (and how the technology has thrived, as has traditional pharma, under the current patent regime). (Even Besson and Maurer agree that this sector is the only one where patents seem to be worth the trouble.)

So while I think there are some inklings that enforcement of certain patents may be weakened by decisions like eBay, I haven't seen a case where a pharma or biotech company making a product was denied an injunction after prevailing in a patent infringement suit. Look at Judge Young's decision on whether or not to grant an injunction in Amgen v. Hoffman-LaRoche, where the court heard evidence that the price of a "generic" drug could actually cause a short-term increase in overall drug costs to patients before prices would fall. It isn't as simple in this art (and remember that most non-practicing entities in the space are not "trolls" but universities, who are much harder to villify by infringers trying to freeride on other's inventions).

Just some thoughts. Also, don't presume you will get to be my age - I didn't when I was your age (and at times the odds were against it).

Thanks for the comment.

"patent pools" as a means for overcoming the potential issues, stating that such mechanisms "are not going to emerge in biotech of their own accord".......disagreeing with the recommendations for such tools from the U.S. Health and Human Services SACGHS report."

While I agree that your overall argument in defense of system is markedly better than that delivered by NB editorial, I find the above passage a tad disingenuous. The SACGHS reports predicates its comments on potential usefulness of pools based on formation of an advisory committee (Rec #4 pg 93)to provide input on future policy changes or proposed recommendations in its report. However, its Rec #1 (pg 90) and Rec #2 (pg 91) are respectively 1) Create an exemption from liability for infringement for diagnostic testing, 2) Create an exemption from patent infringement liability for pursuit of research. Only gene patents supporting the development of a therapeutic would be protected. Given those pre-requisites, of course voluntary pools could be seen as viable.
I happen to favor pools too but the SACGHS recommendations woud certainly go a long ways toward stacking the deck in their favor - and given implementation of Rec 1 and Rec 2 - how much would pools be needed?

bigredbruce
http://thebigredbiotechblog.typepad.com/the-big-red-biotech-blog/

"Actually, 6, the passage might apply to certain crowded electromechanical arts, where your expertise lies."

Meh, I wouldn't say that my expertise quite lies there. I have some limited experience with that nonsense, and many of my buds were more involved with sensors etc. But while it is a promising field, it appeals to me just about as much as designing engines for lawnmowers. Maybe less because it is so much harder and more of a pain in the arse.

"Nature EE "

Lol, how about one of IEEE's monthly pubs?

"The problem is that the editorial ran in Nature Biotechnology, and it just doesn't describe the facts and how patents and that technology co-exist (and how the technology has thrived, as has traditional pharma, under the current patent regime). "

I haven't read the whole piece, but perhaps it describes the facts and how patents and that technology co-exist and how the technology would have thrived sans patent regime? Lol, jk, I know what you're saying.

The fact is Kev, this piece applies likely across the board to many fields beyond our own. And I'm fine with that.


Btw, Idk how often you keep in touch with your ex, but I really appreciated her standing up to the majority in the recent Miranda rights case. She should know that there are many out here applauding her sensible approach to the law in that case and that we believe it was a real shame for the majority to hold the way they did. Even though I can understand their reasoning as well, it seems as if a different basis for the decision would have been in order.

I stand corrected on NB. You're right, it does make it worse as NB should know better.

Eloquent of... what exactly?

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