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April 21, 2019


The introduction of this bill by a gastroenterologist supports my contention that the vast majority of physicians are overpaid plumbers.

I see that Robin Feldman has been making the rounds lately (URL below), arguing for changes in how patents work in the pharma industry. It is worth noting, however, that the patent laws apply exactly the same to pharma as they do to (e.g.) electronics, or aseptically packaged food, or household insulation, etc. Nevertheless, pharma prices keep rising faster than inflation, while the prices in those other industries do not.

To my mind, this implies that patents are not the cause of the cost growth. Trying to tackle pharma price growth, therefore, by fiddling with patent law seems to me like trying to steer the car away from an obstacle by sharply turning the volume knob on the radio.

*If* this really is a problem that needs fixing, then the experts would do better to look for solutions in FDA law. Patent law is not the problem.


Nice analogy, Mr. DeLassus.

Versions of that can be made to apply almost universally to the entire post-grant mechanisms of the AIA, as such have been entirely NOT aligned with any actual measure of EXAMINATION QUALITY on the front end of the patent grant.

Creating a case that is even worse then "just a band-aid," the AIA (along with Court actions) have basically gutted the value of MOST ALL patents in order to wipe out a common cold symptom.

Who said that post-grant mechanisms such of those of the AIA are meant to "align" (whatever that means) with pre-grant examination?

The PTO has more work than it can handle, it is impossible for the PTO to do as good a job of examining against that which is already known in comparison to the job that will be done by an interested party whose commercial operations are threatened by a patent. There are different ways one can conceive of allowing third parties to be involved in the examination of patents (pre- or post-grant), but that involvement per se is not necessarily a bad thing.

I think the AIA post-grant mechanisms are lacking, particularly following the supreme court's flatulence known as alice/mayo/myriad, but to continue to expect the that PTO examining corps by itself is capable, let alone will, do a good job of examining all the applications before it is to be as blinded to reality as those robed rogues who issued the aforementioned trilogy.

Greg, excellent point.

"[T]he patent laws apply exactly the same to pharma as they do to (e.g.) electronics, or aseptically packaged food, or household "insulation, etc. Nevertheless, pharma prices keep rising faster than inflation, while the prices in those other industries do not."

Similarly, pharmaceuticals without patent protection (such as the celebrated example of Daraprim) show at least as much faster-than-inflation price growth as patented pharmaceuticals. Once again, this evidence suggests that whatever is causing this price growth, it is not the patent law.

Hunting around for patent law solutions is not going to be productive if patent law is not the problem. Better to look to FDA law for the solution to this problem.

Atari Man,

There is more than just a little problem with pretending that an actual patent grant is MEANINGLESS in order to obtain "real examination by interested parties that the Patent Office fails to do (for whatever reason)."

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