Can We Get Rid Of The Disclosure Myth For Patents?
from the what's-being-disclosed dept
In discussing patents, when push comes to shove, defenders of the patent system will often trot out the fact that the real purpose of the patent system isn't necessarily about putting in place incentives for innovation (even if that's what the Constitution clearly states), but to encourage "disclosure." Sometimes when people start to focus too narrowly on the evidence that patents actually don't help increase innovation, but often slow it down, defenders try to shift the focus and claim that it really is all about disclosure. Often this is accompanied by claims stating that without the patent system many great ideas would never be understood for future generations.There's a simple response to that, which is discussed in David Levine and Michele Boldrin's Against Intellectual Monopoly book. If there's economic benefit to keeping an idea secret, and the creator of that idea knows that he or she can keep it secret for greater than the length of the patent, then there's still no incentive to disclose. They'll simply keep the idea as a secret, because the economic benefit of it being a trade secret is much greater than the value of the patent. Alternatively, however, the people who will decide to patent their ideas, are those who recognize that the secret behind their invention is likely to become public no matter what, before the patent period has expired. For those people, there is economic benefit in patenting the idea and "disclosing" it -- because doing so, actually gives them control over the idea for a longer period of time. However, that completely wipes out the argument that the patent system helps disclose ideas. After all, many won't disclose because the idea is worth more while secret, and the only ones who will disclose are those who have ideas that are going to become public knowledge anyway.
Justin Levine now points us to a different critique of the "disclosure" claims, as discussed in a new paper from law professor Stephen McJohn. The paper notes that patents have been used as historical evidence of technological progress in the past, but that the disclosure aspect of today's patents is effectively useless. The paper notes that patent attorneys and patent applicants are now taught to make patents as vague as possible. Both the way the patent law is written and the way case law has played out, it's much better for patent holders to not just be vague, but to actively avoid looking at or referencing any prior art. In listing out the various rules for writing patents these days, the report pulls from a variety of sources to put together the following list:
Do not define the terms used in your claims. Do not identify the category of invention in the preamble to the claims. Do not identify features of the invention as "important." Do not even use the word "invention" in the written description. Such claim drafting has been described as a trend toward "intentional obscurity." The case law similarly encourages limiting the disclosure in the written description. Do not explain the flaws of competing technology, or the advantages of the claimed invention. If the invention is software-related, do not submit a copy of the program code. Do not do a prior art search to see if others have invented similar technology, because you will then have to submit any relevant prior art along with your patent application. Do not even keep up on technology in the field, because if you find out that others have developed relevant technology, you will likewise have to let the USPTO know. As to describing the "background of the invention": one patent litigator regards it an "admission against interest."In other words, "disclosure" tends not to disclose very much. While the author of the paper regrets this aspect in noting that future historians will find current patents somewhat useless in understanding the technology and innovations of our time, it also serves as a fairly stark explanation for why the claims that the patent system is necessary for disclosing ideas is something of a myth.
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Disclosure is simply...
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Disclosure for a molecule (drug) is very specific, the patent application lists pretty much everything you would care to know about the drug and what it attempts to treat.
Maybe the answer is that we have different systems and laws for different products? maybe drugs should have their own system?
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patents
you've been on this patent rant for quite awhile. we get it. you don't like patents, and would rather be able to appropriate whatever you wish, to hell with whoever created it!
however, you've also stated that the US Constitution seems to deal with patents, and innovation (as opposed to discovery/disclosure).
could you point to the relevant articles within the Constitution that state this.
there have been numerous congressional actions around this, but i couldn't find the Articles that back up your claim.
thanks
peace!
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Re: patents
That is not accurate. It's not at all "to hell with whoever created it" and it has nothing to do with "appropriating." It has to do with who can continue to innovate and make products and services better.
could you point to the relevant articles within the Constitution that state this.
Article 1, Section 8: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"
Thus, if securing those exlusive rights is NOT for the purpose of promoting progress of science and useful arts, then it's no longer Constitutional.
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re: Disclosure is simply...
One of the major flaws of the patent system today as I see it is not enough examiners, with not enough skills, reviewing too many patents.
I would be genuinely surprised to learn that any significant numbers of patent examiners have either the skills necessary to recognize, or the time needed to pinpoint where in the massive government infrastructure, an invention should be "appropriated" in the name of national interest.
You are a very optimistic man Mr. Ahlquist.
Adam
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It's Magic
But Mike's point is, would disclosure of the details have happened anyway by analysis, independant recreation or by reverse engineering? i.e. was the patent necessary for disclosure. Would the secret sauce have died with the inventor if the patent hadn't have been granted?
There's examples with Magician Harry Houdini, he was also an inventor and invented a diving suit in 1921 and patented it, but naturally he didn't patent his magic tricks, they were trade secrets because that works better for magic tricks.
Yet we can still do all his tricks, it didn't seem to stop the knowledge being propagated.
But then the 'patents needed for disclosure argument doesn't work anymore.'
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Patents have validity
But pharmaceutical patents as the second commenter mentioned are still quite necessary. It costs millions of dollars to develop and test a new drug.
How could you get the money to develop a new drug and test it only to have it stolen and sold for 2 cents a pill by other manufacturers, those who have manufacturing ability but aren't troubled by the cost of the research and testing?
Someone has to put up the money for the development, and we as a society are way ahead with the new drugs being developed than if there were no money to do so. Without patents, there would be little money for this type of development.
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Re: Patents have validity
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Re: Re: Patents have validity
The problem with that would then be should you or I as taxpayers need the results of that publicly funded stem cell research how much would it be fair to charge us?
I am just afraid we would end up with them trying to charge us $100,000 for the stem cell treatments.
If that's how it ends up and I think it will, why the hell should taxpayers have to fund such research if it's not in any way in the public domain when completed?
And you know it won't be. The trouble with government involvement.
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Re: Re: Re: Patents have validity
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Re: Re: Re: Re: Patents have validity
Legally, under the present system, they do _not_ have that right.
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Re: Patents have validity
Well, yes and no. Much of that testing is gov't mandated testing. Also pharmaceutical companies routinely spend more on advertising and promotions than they do on R&D, so the "pain" of R&D is a bit exaggerated.
Furthermore, so is the idea that pharmaceutical companies need patents. We've pointed out numerous examples in the past why this is so. There have been countries that did not have pharma patents, but still had thriving pharma industries, creating new products, so that seems to disprove the idea that you need patent protection for pharmaceuticals.
Also, even when pharmaceuticals go off patent, the original is still able to charge a significant premium based on brand name recognition -- suggesting the fear that someone comes along and takes away the market by making a generic is overblown.
Furthermore, if you look at what patents have done in the pharmaceutical space, rather than encourage the creation of important new drugs, they've mostly been focused on the creation of new *patents* -- meaning slightly adjusting old drugs for new uses, rather than breakthrough discoveries. Many of the bigger breakthrough discoveries were actually the result of public funding, not private -- and patents were clearly not the incentive there.
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Re: Re: Patents have validity
Much of the testing is govt. mandated, that is the environment of the industry. Not sure what advertising and promo has to do with patents and R&D, but as advertising and marketing provides positive ROI, that isn’t really an issue.
I know you have pointed out examples, so lets look at some examples. Eli Lilly had a blockbuster drug called Prozac. It went off patent and within 6 months, it lost 90% market share. Pharma is different from other industries because the generic has to be exactly equivalent to the original and the FDA makes sure this is true. Anyone who knows the industry knows that the branded drug is toast when it goes off patent. In the past that may have been the way, but it isn't anymore. In fact, the payor (HMO/Insurance Company) usually won’t even pay for the branded drug when there is a generic. For 180 days, the price of that generic drug usually only drops around 20%, because the generic manufacturer that received 1st FDA approval has exclusivity. After that, its open season, and the price of the GENERIC then usually drop much more. Eventually a generic drug sells for just a bit more than its manufacturing cost (which is pennies per pill.) You are telling me that market share loss for the branded drug is overblown?
What country with a thriving pharmaceutical industry doesn’t recognize patents? What drugs did they ever discover? Copying drugs (generics) are needed, but if that is all you do, sooner or later you run out of drugs to copy. Call it what you like, but don’t call it innovation or drug discovery.
As for encouraging new drugs vs. slightly adjusting old drugs for new uses, what does that have to do with anything? Private funding, public funding, Pharma brings drugs to market. Pharma pays for clinical trials. How many drugs has the NIH brought to market? How many drugs has Harvard brought to market? Doing research in a lab investigating a treatment for Alzheimer’s isn’t easy, but it is far from bring a successful Alzheimer’s drug to market.
Finding new drugs to treat disease is difficult. Sure, Pharma targets areas that will create a profit. They go after big markets. How many companies are looking to get into markets that are not profitable? Does the industry have lots of warts? Of course it does. Would getting rid of patents reduce drug costs? Of course it would. Would it reduce R&D? Of course it would. In the future, do we want drugs to treat things that now go untreated? I know I do. There is a famous example, Dr. Jonas Salk, who came up with the Polio vaccine and refused to patent it. What is keeping someone like him to do so today? Nothing, but mostly investors who are willing to spend money on R&D are not willing to give up patents. Give up patents and you will hurt research.
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Re: Re: Re: Patents have validity
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Re: Re: Re: Patents have validity
Was just noting it because people make it sound like so much money goes towards R&D, when more goes towards advertising -- so the "costs" of developing drugs aren't as big as some would have you believe.
Also, the fact that advertising is such a big part of (at least) the US pharma market again shows that brand name is important -- even when you have an identical copy.
Eli Lilly had a blockbuster drug called Prozac. It went off patent and within 6 months, it lost 90% market share
This proves what? That Eli Lilly wasn't prepared to compete? I'm not sure that supports anything other than Eli Lilly didn't do a very good job after Prozac went off patent. (and to some extent, it feels like they gave up, rather than trying to deal with a competitive market).
Anyone who knows the industry knows that the branded drug is toast when it goes off patent. In the past that may have been the way, but it isn't anymore. In fact, the payor (HMO/Insurance Company) usually won’t even pay for the branded drug when there is a generic.
We just pointed to a WSJ piece that showed the original, branded drug often sells for much more -- so I'm not sure about branded drugs being dead after generics come out. If HMOs aren't paying for the branded one, then that suggests the drug companies aren't doing a very good job promoting the drug.
What country with a thriving pharmaceutical industry doesn’t recognize patents?
We've discussed a few times the situation with the Italian pharma industry -- which wasn't protected by patents, but had plenty of new drug discovery going on (and certainly some generic copying), but the competitive market made it a thriving industry, rather than patent protection. In fact, after patent protection was put in place, the industry didn't do as well (though, there may have been other factors there). However, studies have shown that there was NO significant increase in pharma discovery in Italy after patent protection was put in place. If the whole purpose is to create incentives for new drugs, then it failed.
As for encouraging new drugs vs. slightly adjusting old drugs for new uses, what does that have to do with anything?
It shows how the patent system isn't encouraging efficient use of research dollars, but is encouraging companies to waste it.
Private funding, public funding, Pharma brings drugs to market. Pharma pays for clinical trials. How many drugs has the NIH brought to market? How many drugs has Harvard brought to market? Doing research in a lab investigating a treatment for Alzheimer’s isn’t easy, but it is far from bring a successful Alzheimer’s drug to market.
But, again, it shows that the core important research is being done elsewhere -- not because of patents.
Would it reduce R&D? Of course it would.
That's not necessarily so. Again, the Italian situation would suggest otherwise.
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results of 20 second search
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
This is all that is said (which I think is proper, the framers having recognized that the exact methods used to ensure these goals have no place in the constitution and that it should be defined in laws enacted by Congress over time).
This means that the exact implementation, currently "patents", is just one of many possible ways to "secure exclusive Rights". I'm sure there are others, and now is the time history where this being explored.
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Re: results of 20 second search
Article 1, Section 8, Clause 8 of enumerated "Powers of Congress":
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
Andy B did not stop and step back to smell the flowery language.
Dis-cover: it means to Un-Cover as in to Dis-close or to take out of the closet and reveal it to the world. Part of making a dis-covery is the act of dis-closing that which you uncovered privately[ link to this | view in chronology ]
Re: Re: results of 20 second search
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Puddings and proof
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Mike's patent problem
Everybody is sick of your incessant patent rants
With your degree in Public Relations and an MBA you have no say in technology matters...
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Re: Mike's patent problem
"Everybody" is sick of you claiming to speak for them.
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Re: Mike's patent problem
I'm not, so :-P
*scratches head* Let me get this straight. Mike has a degree in Public Relations, and an MBA. He therefore has no say about technology.
Your logic, sir, baffles me.
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Re: Mike's patent problem
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You've got it a little backwards...
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Re: You've got it a little backwards...
Patents were never supposed to protect the patent holder!
They are there to protect society by making inventors disclose their new art in exchange for patent protection.
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Re: Re: You've got it a little backwards...
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Re: Re: Re: You've got it a little backwards...
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Re: Re: Re: Re: You've got it a little backwards..
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Re: Re: Re: You've got it a little backwards...
If competitors could figure out your method, you would want a patent for a temporary monopoly.
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Re: You've got it a little backwards...
But that's the point: it doesn't encourage disclosure. There is no "tradeoff."
If the inventor is better off keeping it a secret, they will. If the idea would become public knowledge anyway -- THEN they have the incentive for disclosure. So the only time there's a "tradeoff" is when the inventor recognizes the idea is likely to become public prior to a patent running out anyway... and in that case, all he's done is granted himself extra (and unnecessary) protection.
So, you have two cases:
1. The inventor knows that he can keep the idea secret for more than 20 years: best course of action, don't patent, keep it secret, profit for longer.
2. The inventor knows it's likely that the concept will become public knowledge in less than 20 years. Best course of action: get the patent and protect the idea for 20 years.
So, the "tradeoff" is that the inventor actually gets to protect the idea for longer than he would otherwise. That's not a tradeoff, and it's certainly not for the benefit of competitors and consumers -- because it sets up the opposite result. It only benefits the inventor.
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Only fools...
The good patent practicioners follow essentially the opposite of that list and, as a result, tend to produce steel-clad legal documents that have no worry of being invalidated during an infringement suit.
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Re: Only fools...
Most importantly, what is left off the list, is that patent applications are written so that those in the relevant industry can understand the technology and apply it. Some of those rules have been adopted so that courts don't unnecessarily restrict the scope of the patent.
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Just joking of course, and the government does fund and do (through the NIH) quite a bit of drug research. The research is only part of bringing a drug to market though. The time consuming and costly part of R&D is in the clinical trials to test the drug for efficacy and safety. The government generally doesn't do that. That's where the drug industry comes into play.
Most drugs are never brought to market because there are problems found with efficacy or safety. Course, sometimes they fail the trials after 10 years or so.
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Patents and Disclosure
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Re: Patents and Disclosure
The goal is to "promote the progress of ... useful Arts" through disclosure. And since disclosure would occur anyway the patent system fails in that goal and simply tries to claim credit for something that would happen anyway. It kind of reminds me of some ancient civilizations that had high priests that conducted ceremonies every night to make the sun rise in the morning. The priests claimed credit for the sun's rising, but it would have happened anyway. So in a way, belief in the patent system is kind of like a religious belief and there are plenty of high priests and followers that want to see it continue. Rational arguments mean little to true believers. It just makes them angry.
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But did they make money?
According to an Eli Lilly spokesman it was 1 year and their earnings in the previous year were 2.2 billion from Prozac.
http://www.biopsychiatry.com/bigpharma/lilly.html
Even that I think is an exaggeration.
Perhaps they should reduce the patent to the drug approval time, (e.g. 6-10 years) then everyone is held back the same amount and the innovator gets only the advantage they can create for themselves.
I'm interested to explore ways to fix pharma, since it isn't delivering medicines for new diseases, instead targeting existing profitable markets (prozac in the anti-depressant market).
It's the area patents are claimed to be essential, but a lot of the lead time is drug approval time rather than the innovation time itself, so the patent is correcting for the delay in approval. Which is a special case, not applicable in most other markets.
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Delivering new drugs? All of the drug companies are working on cancer drugs, all are working on Alzheimer’s drugs. Do you think taking away patents would encourage companies to do more research? Why would they? It just doesn't make sense.
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For the first mover advantage
For the 1 year 2.2 billion sales lead, the lead they make for themselves by being first.
It's how it works in other markets, e.g. software. The problem with pharma is the testing time is so long to neutralize that first mover advantage.
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Your article was interesting though. I have to wonder why that 19 year old was in the Cymbalta trials if she wasn't depressed? People need to know that drugs can be deadly, can it be worth the little money you get for participating in clinical trials?
Course, getting people enrolled in trials is one of the major costs of bringing a drug to market.
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For some reason, there is no public disclosure of how much a drug company agrees to pay. I believe that information should be disclosed.
This is about the same for universities and the research they do.
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Joe
If you really think that people like Bob Kearns impose
"costs on society" then fuck you, my little disoriented friend..
As for me... I am a perfectly normall and honest human being, in everyday life.
It's just when some big crooks try to rob me of my achievements and some little retards like you and Mike say that this is in fact OK, then I get really really pissed off...
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Re: Joe
Exhibit 1.
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Disclosure. as req'd
Even is anyone buys into the theory that patents are written purposefully vague, then if the patent office accepts and grants those, then bureaucrats not patents are the culprit. So too, if the courts use specificity against patent applicants who provide complete details, then again, then therein lies the fault and the point where improvement is needed.
The system is far from perfect, but the goal should be improvement, not elimination.
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