Patent Woes Threaten Drug Firms

NYTimes has published a front page article by Duffy Wilson titled “Patent Woes Threaten Drug Firms.” The article begins with a case study of Pfizer whose Lipitor money-stream ($10 billion-per-year) will be severely reduced when its patent expires. Of Course, Pfizer is not alone, the article cites ten blockbuster drugs with patents expiring in 2011 – those ten have a combined annual revenue of over $50 billion. The problem for big-pharma is that their years of record profits have not translated into a replacement line of blockbuster drugs and the drug companies have cut more than 100,000 jobs in the past two years.

Wilson writes “consumers should see a financial benefit as lower-cost generics replace the expensive elite drugs, but may suffer in the long term if companies reduce research and do not produce new drugs that meet the public’s needs.” Already, 75% of prescriptions are to generic drugs, and patented drug prices are under severe pressure from health insurers.

Of course, Pfizer is not an overly sympathetic entity. “In 2009, Pfizer paid the largest criminal fine in the nation’s history as part of a $2.3 billion settlement over marketing drugs for unapproved uses.”

188 thoughts on “Patent Woes Threaten Drug Firms

  1. It gets worse here everyday
    Ya learn ta live like an animal
    In the jungle where we play
    If you got a hunger for what you see
    You’ll take it eventually

  2. It gets worse here everyday
    Ya learn ta live like an animal
    In the jungle where we play
    If you got a hunger for what you see
    You’ll take it eventually

  3. newpatentgirl,

    It gets worse here everyday
    Ya learn ta live like an animal
    In the jungle where we play
    If you got a hunger for what you see
    You’ll take it eventually

  4. I didnt fave the page, but didnt someone make the argument that patents were like slavery?

    Morality is a relativistic term – a nice and fluffy term. It can mean whatev you want it to mean. I am sure that for certain people, slavery was a completely moral concept.

    Just like sex with dead presidents…

  5. To an extent, you a right ping. But Lemelson too was right in that all he was doing was using the system in a way that was legal, but at the same time was an abuse.

    We dealt, to a degree, with Lemelson. But there are other forms of abuse in the land. Not all of them are coming from NPEs looking for the pot of gold. Some of them come from the VPs licensing who seek to make money from their portfolios, but who do so by charging for the size of the pile, not for use of any particular patent. This motivates increasing the pile by filing on fluff regardless of value. That is the problem. It is an abuse of the patent system.

    We can and should debate whether this is legitimate.

  6. You are driven by emotion, aren’t you. If someone were to take pills that I don’t agree with, I would still think the morality embodied in the freedom to worship and speak as you please is of great value. Please, at least try to make some sense.

  7. What’s great about circular arguments in this new thread foramt is the ease of which tapestries are woven.

    All the better to carpet bomb you with my dear.

  8. Iza be pretty sure Ned-O that the (R)ight to so litter be up to the individual to decide.

    He done pay the required fees, who be you to say that he dont get his fair shake at examination? There aint no such “You can’t file” guidance, rule or law, now is there?

    Rather dictatatorial of ya, isnt’ it?

  9. I personally think the morality embodied in the freedom to worship and speak as you please is of great value.

    … until someone starts taking pills you don’t agree with.

    Or did I miss something?

  10. the small company has to pay or else

    The small company is just as capable of suing the big company in tort as vice versa. Heck, it might even find a lawyer to do it on contingency.

    I think we’re blurring the lines between who “can” and who “will” stand up for their rights.

  11. Yes, that’s part of what they mean.

    As to “even that much morality,” I personally think the morality embodied in the freedom to worship and speak as you please is of great value.

  12. Yeah, when a small fry accuses a big company of infringement on suspicion only, he can and probably will be sued for committing a tort.

    In contrast, when the big company accuses the small company of infringement on suspicion only, the small company has to pay or else – and the VP licensing gets another bonus.

  13. Your racist rant is meaningless. And the completely unrelated remark about infant mortality rates is odd, but it’s nice to see you have some pride in your country.

  14. I was thinking more along the lines of free religion, free speech,

    Those parts mean that even though you believe something is immoral, that doesn’t entitle you to stop other people from doing it. Other people get to be free from your religion. Which, unlike patents, is an actual right guaranteed by the Constitution.

    Of course, even that much “morality” wasn’t in the Constitution until they got around to amending it.

  15. Is this a legitimate business practice?

    I don’t consider it legitimate, but I consider it equally illegitimate whether it’s one patent or a thousand.

  16. That’s one example of a moral judgment in the constitution

    Indeed it is. Also the part about women not being able to vote. All part of “providence’s” plan for the great white man.

    And we’ve come so far! That’s why today we have a white male Republican holding special hearings to highlight the dangers of dark-skinned minorities and other white male Republicans trying to prevent women from obtaining health care. Meanwhile a white terrorist (the most abundant kind here in the US) was just arrested for trying to kill hundreds of people at a Martin Luther King JR parade, and infant mortality rates in the US are among the lowest in the so-called Western world.

  17. That’s one example of a moral judgment in the constitution. However, I was thinking more along the lines of free religion, free speech, no cruel and unusual punishment; you know, things one might argue today.

  18. I do believe morality was involved in the drafting of the constitution

    Right. Especially the original bits about slavery.

  19. I, “Did I miss something?” (called DIMS by ping, called doofus by you) never said that.

    But I do believe morality was involved in the drafting of the constitution. So one could argue that certain arguments as to constitutionality are arguments ultimately based on morality.

  20. DIMS The rationale for making any law finds its basis in morality.

    Actually, the rationale for making any law finds its basis in rationality. That’s why there is a “rational basis” test and not a “moral basis” test. That’s why laws passed based only a community’s “morals” are overturned as unconstitutional when they lack a rational basis.

    Never underestimate the idiocy of a repuke.

  21. IANAE, what if the big company never shows the startup a single patent the startup is infringing. They simply “assume” that if the startup is in their field, they infringe, and then demand protection money.

    Is this a legitimate business practice?

  22. If that is what MM meant, he did not express it such that it would be generally understood as such. I came off as supporting his morals with the argument that it is legal.

    I believe that there is a life worth protecting within a woman at some time during the pregnancy (e.g., 1 minute before a full term birth), and that we therefore should restrict access to abortion.

    Imposition of one’s moral’s on another is not widely considered immoral. A parent restricts “bad” behavior all the time. I believe theft is immoral. I see a theft. I report the crime, using the law as a tool to impose my morality.

  23. No. This happens all the time with law making.

    If you’re saying that law making can never be immoral, we’re going to have a problem here.

  24. Which imposition of your own morality is itself widely considered immoral

    No. This happens all the time with law making. The rationale for making any law finds its basis in morality. Morality will be imposed. Such is the basis of civilized life and quite the opposite of being considered immoral.

  25. I think this is somewhat of an abuse. Others may disagree.

    It certainly creates a strong negotiating position for licensing purposes, but I don’t see why that implies there’s any abuse. If I invent a thousand different functional features for my product, why shouldn’t I have a thousand patents? If someone wants to enter the market after me, why shouldn’t they avoid all of my thousand patents?

    Sure, if you make a big pile of patents out of a small pile of inventions, we have a problem. But that’s why we have rules against double patenting.

    But it would be nice to get these patent applications into a low priority queue,

    Are you kidding? Drug companies love low priority queues. It means they defer their considerable prosecution expenses, and at the end they get years of PTA. Anyway, they’re only swamping their own art unit. None of the guys who examine can openers will notice any difference.

    abuse of power that is manefest by any entity that demands protection fees simply because they have a large pile of patents.

    If they have a large pile of patents that you’re in danger of infringing, that’s not really abusive. If they sue you on a large number of patents that you’re not infringing, the courts already have the power to penalize them.

  26. No. No. No. That question doesn’t make sense.

    And, I’m glad you recognize “A drug is safe if it is safe for the person taking it” was incorrect.

  27. Yeah, sport, the remedy may be elsewhere. Shunt the low priority into their own queue is probably what we can do in the PTO. The abuse of power, if any, is an FTC matter.

  28. he is using legality as his moral compass.

    No, he’s telling you that your morality doesn’t apply to anybody else but you, and he’s free to have (and act on) a different morality.

    In other words, just because you are against abortion or contraception, that doesn’t mean you can or should restrict anybody else’s access to same. Which imposition of your own morality is itself widely considered immoral.

  29. The combination of limited nesting and the ensuing haphazard placement of comments makiing finding, much less following some of the threads here rather byzantine.

  30. Agreed that we would have to agree that a practice was abusive so that we do not deny access to the governemnt for legitimate purposes. But there are companies who file thousands of patent applications for simply to add to the pile for licensing purposes. It is the size of the pile that intimidates.

    I think this is somewhat of an abuse. Others may disagree. But it would be nice to get these patent applications into a low priority queue, or to just hike the fees on system abusers in some fashion.

    It might be nice for the FTC or the justice department to look into the matter of abuse of power that is manefest by any entity that demands protection fees simply because they have a large pile of patents.

  31. Thank you. That is my point. Morality is an individual attribute. Some laws are an expression of a sort of net societal morality, not of any particular individual. So when MM counters an expression or morality with one of legality, he is using legality as his moral compass.

  32. “Also, the value of life is based on cell count?”

    No, but there are certainly distinctions to be drawn depending on the stage of development. Did you know that millions of human cells inevitably die on the way to naturally fertilizing an embryo? Does that bother you at all?

    “Do you equate a new born with amputation, children with liposuction?”

    No. Do you equate a newborn with a single diploid cell that happens to have the same DNA as the newborn?

    Bonus points: Does it make a difference if that single diploid cell is obtained via liposuction?

    “Tell me, when a pregnant woman asks her Doctor if a certain drug is safe, do you think she is thinking only of herself?”

    That depends. If she’s talking about the morning after pill, she probably means only herself. If she’s talking about any other drug, she’ll probably phrase it more like “is this drug safe for my unborn child?”, and/or the doctor will understand from the context that she doesn’t want to take any drugs that will harm her unborn child.

  33. “Unless of course, by choice, they are the same thing – wait, isn’t that the point DIMS is making?

    I don’t know, is the point he’s making that a person can choose to be a corporation?

    It sounds more like the point he’s making is that he doesn’t understand the difference.

  34. One thought: use filing fees to prevent litter. Jack up the filing fees to system abusers so they cannot abuse the system the way they have in the past.

    Bad Idea. Bad bad idea. You will not solve your prupose, but rather you have guaranteed the success of those (wiht money and dominant position) have been aiming to do.

    Sport of Kings.

  35. First correction: A company’s only purpose is to make money for its shareholders. Big difference.

    Second correction: You paint with too broad a stroke. The concept of corporation was created to limit liability. Separation on its own is not a viable reason.

    Also, the value of life is based on cell count? You equate embryo with teeth (a ridiculous belief). Do you equate a new born with amputation, children with liposuction?

    “A drug is safe if it is safe for the person taking it.” You are free to use such a definition, but it is not the common one. Tell me, when a pregnant woman asks her Doctor if a certain drug is safe, do you think she is thinking only of herself?

    Abundance precludes the need for efficiency.

  36. Because your money and its money are not the same thing.

    Unless of course, by choice, they are the same thing – wait, isn’t that the point DIMS is making?

  37. For one, the patent office is clogged with patent applications that the owner knows are of low importance and that he does not intend to ever enforce.

    I wouldn’t say the owner knows they’re of low importance, any more than you might know a particular lottery ticket won’t win. They all initially have a low but nonzero probability of being important. They are only filed in such large numbers because you can’t always tell at an early stage which one will be a winner. A savvy applicant would also abandon a particular application once it becomes apparent that it will amount to nothing, because they cost money.

    But yes, it does clog up the system something fierce. Which might not be that big a deal actually, since drug companies share their own art unit at the PTO and the backlog is actually beneficial to them for a variety of reasons. Besides, the PTO can theoretically hire more people to examine those applications, fully paid for by the applicants’ fees (i.e., at no cost to the public), which creates more jobs that it makes good business sense for Big Pharma to subsidize in this way. Everybody wins.

    Jack up the filing fees to system abusers so they cannot abuse the system the way they have in the past.

    You’d have to define “abuse” pretty carefully. There’s nothing abusive about filing a large number of applications that are all directed to distinct inventions you’ve actually made, and there’s nothing abusive about changing your mind and dropping the application when the invention doesn’t pan out (a behavior that maintenance fees are designed to encourage, incidentally). You’d essentially be penalizing the most prolific inventors, and then we’d have to start talking about socialism again.

  38. IANAE, okay. Assume that 999 out of a thousand patents are worthless, and that the reason they are filed is because they are useful only to add to a pile of useless patents for licensing purposes or because of the potential reward is so great. Is this a good thing or bad thing?

    For one, the patent office is clogged with patent applications that the owner knows are of low importance and that he does not intend to ever enforce. These patents are filed by big companies like – well you know who – who like to add to their pile of patents for licensing purposes, and to have influence in the halls of Congress and the Supreme Court, and to pretend, even if it’s not true, that their company is a technology leader. Not only are these patents worthless and clog the patent office, they typically add nothing to the progress of science and technology.

    If we need reform, we should do something about this.

    One thought: use filing fees to prevent litter. Jack up the filing fees to system abusers so they cannot abuse the system the way they have in the past.

  39. When you counter an expression of morality with one of legality, you are equating the two.

    You’re entitled to your own morals. The issue of legality arises because you want to prevent other people from doing things that you consider immoral but they don’t.

  40. If most patents were worthless, few would be filed.

    That’s obviously not true. It’s axiomatically false for patents because most of them are worthless, and it’s not generally characteristic of how people act.

    Most lottery tickets are worthless, but many are purchased. Most start-up businesses end up being worthless, but many are created. A big reason for that is that the potential reward is enormous on the non-worthless ones, coupled with limited liability on the losers. The huge potential reward overshadows even the rational economics of the situation, with which we are all familiar.

    With drug patents, you have the added motivator that the expectation value of a patent is greater than the cost. Even if most are worthless, doing a lot of research and getting patents on large numbers of drugs will yield an overall profit. That’s what Pfizer is doing. They don’t care if only one in a thousand patents is profitable, so long as it’s profitable enough to pay for the 999 others and a little more besides.

  41. My point was that if you are a Republican, and you believe life begins at conception, you would not consider the morning after pill a “safe” drug. Do you deny that point?

    I can’t deny any point of the type “some people believe”, no matter how ridiculous the belief. If you say you believe it, I can’t deny that somebody believes it.

    A drug is safe if it is safe for the person taking it. If you define the safety of a drug in terms of its effect on what it’s designed to kill, you wind up with a completely meaningless word.

    Even a safety pin is only safe(r) for the person using it. It’s just as likely to pierce the thing you’re sticking the pin through.

    And don’t you know Soylent Green is people?

    And don’t you know how inefficient carnivores are at feed conversion?

  42. “I understand now. You believe a company is a life form that must be protected as one would protect any citizen.”

    Of course I don’t, but a corporation is a separate entity with its own property. It’s as much a separate entity from you as I am, even if you happen to hold all the shares. The whole concept of the corporation was created precisely for the purpose of being a separate entity. Mostly so that if it loses all its money you don’t lose all yours. Because your money and its money are not the same thing.

    “You see it as hurting the poor company.”

    Is it the anthropomorphism that’s confusing you? I see it as harming the company because it is taking money away from the company. That’s clear enough, isn’t it? Even the market sees it as harming the company, because the market cap of the company decreases when it happens.

    A company’s only purpose is to make money. What could possibly be more antithetical to that purpose than giving away lots of money on a quarterly basis to people who give the company nothing in return?

    “Which is really strange since when it comes to human life in the form of an embryo, you demonstrate no hesitation in killing it.”

    Well, I’ve never killed one. But I’ve done lots of other things that also resulted in the deaths of small quantities of diploid human cells. I’ve been cut, I’ve bled, I’ve had wisdom teeth removed, I’ve probably lost a few hair follicles along the way. I guess I could have been more careful. Yet, even with the utmost care I’d still lose untold numbers of skin cells all the time.

    I assure you, bringing your hamburger to the table has a much more meaningful impact on the cow than having an abortion does on an embryo. Not to mention the horrible fate that befalls the lettuce.

  43. In fact, women in this country have a fundamental right to terminate the “life” of their own embryos

    fundamental right? – um, no.

  44. If that’s socialism, my dictionary is seriously out of date

    It aint outa date, cause ya morph it to fit your argument de jur.

    Crocodile tears and big teeth – dont hide the fact that ya be a crocodile.

  45. I agree, even if I did believe life begins at conception, there would be justifiable abortion. A true life-of-the-mother situation would be one example. As to health of the mother, I believe the bar should be set pretty high. Certainly not the current level where even damage to mental health can qualify. Also, I believe abortion should be permitted in cases of rape, diminished mental capacity, or any other situation where pregnancy was a result of a non-voluntary act.

  46. Oh man, just like the big debate back in grade school. I was winning until Sharon Getty busted out the eye roll. How could I counter that? How could anyone? You got me today Malcolm, but I’ll be back. And I’ll be ready for your awesome physical gestures in response to argument. I’ll eye roll back at you with a dismissive chuckle! Oh yeah, I’ll do it! We’ll see who wins then.

  47. MM: And you forgot birth control pills, generally, which Republicans are working very hard to prevent women from obtaining.

    But that isn’t true, so I took it as an expression that Republicans are trying to prevent minors from obtaining birth control drugs. But this is not related to only new birth control drugs, it is related to all birth control drugs. Hence “those aren’t new drugs” is accurate, so I’ll take that bet.

    When you counter an expression of morality with one of legality, you are equating the two. You are claiming the law as morality. I stand by my statement as to the source of your morals.

  48. doofus : you forgot birth control pills, generally, which Republicans are working very hard to prevent women from obtaining.

    My response now is: Those aren’t new drugs.

    You want to bet on that?

    I think it’s quaint that you get your morals from the Supreme Court.

    My “morals” aren’t “gotten from” anyone or any thing. That’s one of the privileges of being an adult human being. Oops, I just realized: they probably didn’t tell you about that.

  49. Making money isn’t useful. Creating wealth is.

    [eye roll]

    You’re going to try to get me to buy your book, aren’t you? And let me guess: if I buy it now, I get a free bonus CD of your wildly popular seminar.

  50. Making money isn’t useful. Creating wealth is. Whether it is the most useful art depends on what else you consider an art. Whay don’t you compile a list of the arts, then I’ll answer your question.

    Oh, and keep saying teabaggers, it damages you far more than it damages anyone else.

  51. DIMS, even if you believe that life begins at conception, it does not follow that abortion is immoral. After all, killing in self defense is not immoral. Just wars are not immoral.

    I hope you would agree with this much, if the it is the life of the mother is in danger, killing the fetus is entirely justified.

    If we move from that towards health of the mother, the issues become less clear cut. Ditto, in the grey areas, the less justified the rights of the mother the more justified are the right to life of the fetus. It is a balancing of relative rights. There are no absolutes, nor should there be.

    Malcolm, I don’t know where you come out on these issues. But you seem to be an intelligent guy. I hope you are not an absolutist.

  52. ping, pang, pong — how’s Turandot today.

    The reason inventors seek patents is for exclusive rights. They want to become rich. But the size of the pile of gold depends on the value of the invention as determined by the market. That’s the structure.

    From the public point of view, the public is willing to pay monopoly profits to the patent holder for a time, but only for a time, in exchange for full disclosure of the invention.

    Why this system and not a system such as exists in Wilton’s commie-land where inventors are given the order of Lenin and perhaps an inventor award? Because, in truth, patents justify, at times, great expenditures on R&D because the potential reward is enormous. This is mostly true of drug patents.

    If most patents were worthless, few would be filed. But, it seems, the executives who invest in them do not see it that way.

  53. MM, earlier you said: And you forgot birth control pills, generally, which Republicans are working very hard to prevent women from obtaining.

    My response now is: Those aren’t new drugs. Please try to keep up. I know it’s hard when we venture off your script.

    Ok, so you don’t deny it. Good.

    I think it’s quaint that you get your morals from the Supreme Court. That’s so much better from getting it from one of those other, sky-daddy-worshiping religions.

  54. DIMS My point was that if you are a Republican, and you believe life begins at conception, you would not consider the morning after pill a “safe” drug. Do you deny that point?

    I deny that the imaginary laws handed down by one’s personal sky daddy are relevant grounds to deny a third party access to the drug. Last time I checked, abortion was legal. In fact, women in this country have a fundamental right to terminate the “life” of their own embryos, which have no “rights” to speak of except in the minds of wacky fundies. As everyone knows, embryos are necessarily killed all the time during in vitro fertilization procedures, which doesn’t seem to bother the hypocrites at all.

    [Democrats] are denying the new local microbrew to 16 year olds. They are also denying you your marijuana.

    Those aren’t new drugs. Please try to keep up. I know it’s hard when we venture off your script.

  55. I understand now. You believe a company is a life form that must be protected as one would protect any citizen.

    I see a dividend as a zero sum move where wealth owned by shareholders is transformed from stock value to cash.

    You see it as hurting the poor company.

    Which is really strange since when it comes to human life in the form of an embryo, you demonstrate no hesitation in killing it.

    You have a strange moral code.

  56. Very good MM. That is an excellent example of a poor generalization. Because you say women, but the facts on the ground are that those that do work to restrict access are trying to restrict access by minors without parental consent, not all women as you implied.

    Of course, if denial to those underage counts, the Democrats work to deny new safe drugs also. They are denying the new local microbrew to 16 year olds. They are also denying you your marijuana.

    But at least you are arguing for wealth creation in the form of new drugs.

  57. Obvioiusly, we agree on a lot more things than I had previously appreciated. We also seem to line up on the same side against the more radical of the left, at least in principle.

    BTW, I have been thinking on the issue of claiming beyond what one has invented — I think this might be the real issue in i4i, although I have not studied it in detail. i4i, IIRC, invented a way of storing xml tags in a separate file for independent editing. Microsoft didn’t do it the way i4i described it, but they did provide independent editing. The jury verdict was sustained because of a broad claim construction. It was further sustained under the DOE.

    So when the likes of MS complain the PO is issuing large numbers of invalid patents, I think they really mean, at least in part, that the PO is issuing patents with broad claims on narrow disclosures that literally encompass subject matter not invented by the applicant.

    This, I agree, is a problem.

  58. You are right, Cipro isn’t safe for bacteria. And almost nobody minds not because of why they take it, but because of what it kills. But can you not even fathom that some people may wish to consider life to begin at a different point in the process than you? My point was that if you are a Republican, and you believe life begins at conception, you would not consider the morning after pill a “safe” drug. Do you deny that point?

    And don’t you know Soylent Green is people?

  59. Duh, it’s their company, they own it.

    You just wait till companies decide that free speech isn’t enough, and they want rights under the Thirteenth Amendment.

    Still, whether they own the company is beside the point. The company is a separate entity. That separate entity is poorer for having given away a large sum of money, and that is in no way mitigated by the fact that someone else received the same sum of money.

    Don’t believe me? Try getting that public company you own to declare a large special dividend on its common shares while there’s a huge lawsuit pending against the company. It’s all your money, after all.

  60. Well, that doesn’t seem too safe to the embryo.

    Uh … that’s the point of the morning after pill, doofus. So we both agree on that one.

    And you forgot birth control pills, generally, which Republicans are working very hard to prevent women from obtaining.

  61. “…for their own personal wealth” Duh, it’s their company, they own it.

    Next quarter’s shareholders buy the stock at the post dividend lower price. They are not ripped off.

    Since the shareholders own the company, I read your last statement as:

    If I give me a gift, no wealth has been created or destroyed, but I am better off and I am worse off. If I (now a corporation) give me a dividend, it’s pretty much the same thing. It makes me poorer, but by making me richer I hope to make myself seem more valuable to me.

    That doesn’t make any sense – but it is funny

  62. Do you mean the morning after pill? Well, that doesn’t seem too safe to the embryo.

    Cipro isn’t safe to the bacteria who are partying it up inside you. But most people don’t mind, because that’s the very reason they take it.

    Hamburgers aren’t safe to the cow either, but again, that’s more or less by design. The consumer doesn’t usually complain about that. If he would complain, he generally plans ahead to not be a consumer.

  63. “Yes, Company A is worth less, but no wealth was created or destroyed. The dip in share price is not a bad thing, it just reflects current value, there was no money lost.”

    There was no money lost in the system as a whole, but there was a very noticeable loss in money and value to the company, ostensibly a for-profit legal entity. If you were the company, you would have absolutely no business reason to pay out cash to a person distinct from the company. The only reason it ever happens is because the people who approve the dividends are also shareholders and option holders, and they do it for their own personal wealth.

    “Tell me again how bad news for the company is not bad news for the shareholders.”

    Because the shareholders now have money that used to belong to the company, and next quarter’s shareholders are implicitly promised the same benefit.

    If I give you a gift, no wealth has been created or destroyed, but you are better off and I am worse off. If I (now a corporation) give you a dividend, it’s pretty much the same thing. It makes me poorer, but by making you richer I hope to make myself seem more valuable to you.

  64. “Unfairness” or its corollary “fair” is the most common word used by the socialist. It is a codeword,

    It’s not a code word. It’s a perfectly valid word, and it’s used by everyone (not just socialists) to mean all kinds of different things.

    We all have a personal concept of fairness. It’s nothing more than the way we think society ought to work. The socialist meaning of the term is a pretty perverse one, I think you’ll agree, since it’s not based on merit and it doesn’t allow people to earn a better lot in life.

    When you and others here complain about the size of the drug company profits and whether they should be satisfied says it all.

    What I said is that they’re currently very, very profitable (which is exactly how patents are intended to motivate innovation), but they want to be more profitable without doing more to earn it, simply by getting the legal right to charge sick people high prices for medication over a longer period of time. You don’t have to be a socialist to consider that unfair.

    Obviously the world needed the likes of the American and French revolutions to break these monopolies on privilege.

    It sounds like we agree that the real unfairness is when common people can’t aspire to wealth and privilege, whether it’s because of an entrenched aristocracy or an excessive redistribution that keeps everybody at a common low standard of living.

    I want incentives set up so that regular people can and will try to get rich, same as you. I don’t like holding up patent applications for years in exam or re-exam, I don’t like that infringement litigation is so expensive, and I like the doctrine of equivalents.

    On the other hand, incentives being what they are, I don’t think patentees should get more than they’ve earned. That means they shouldn’t get claims to what they haven’t invented at the time of filing, they shouldn’t get or keep claims that are invalid over the art, and they shouldn’t get injunctions when money will do.

    If that’s socialism, my dictionary is seriously out of date.

  65. Fascinating. Please tell me about the safe new drugs Republicans have worked to deny access to?

    Do you mean the morning after pill? Well, that doesn’t seem too safe to the embryo. So it becomes a discussion of what value you place on the embryo itself. However, I am sure you would agree that if you work from the assumption that life begins at conception, the morning after pill does not qualify as “safe.”

    You wrote drugs (plural). Are there any safe new drugs Republicans have worked to deny access to that do not have to do with abortion?

  66. DIMS, you missed the “catch-all” argument of the patent teabaggers which is that making money is the most useful art of all!

    Isn’t that a great argument?

  67. Thank you for attempting to correct my confusion.

    Here we go.

    On Monday, company A has a market cap of $1 million and is holding $100,000 in cash. It has 1 million shareholders who each have one share. Each share is worth $1.

    On Tuesday the company pays a $.1 per share dividend. They have paid out their $100,000 cash. The share price drops to $.90 to reflect their diminished value, they now have a market cap of $900,000.

    On Monday the shareholders each had one share worth $1. On Tuesday they each had one share worth $.90 and one dime. Yes, Company A is worth less, but no wealth was created or destroyed. The dip in share price is not a bad thing, it just reflects current value, there was no money lost.

    When you deposit money into a bank, you are providing capital to the bank so that it can lend money to others and in some cases earn a profit In return they pay interest. The stock market is also a capital market. Stocks are how companies raise capital, and in return you get part ownership and possibly dividends. That ownership is freely transferable on the stock market. Whether it is savings or stocks, you are participating in the market for capital.

    Your $8 million example is flawed. Before I pay myself the $8 million, I own the $8 million through my ownership of the company. After I pay the $8 million, I own the money directly. That is not wonderful, it’s just different.

    When the rent comes due, the company can borrow money from another party, get an extension of credit from the landlord, issue more stock, or claim bankruptcy. If it claims bankruptcy, the value of my ownership (my stock) in the company may suffer, also the creditors will want to take a look at that $8 million bonus I just got paid. Tell me again how bad news for the company is not bad news for the shareholders. Shareholders own the company. Shareholders are the company with the one exception that their investment in it can’t go negative (hence the limited liability).

  68. Providing roads and a military is now socialism essentially because we all share the expense and all receive the same benefits.

    It’s not socialism, but it’s the same kind of thing, in that it’s provided for everybody’s benefit and forcibly paid for by the people who can afford to pay.

    What I’m trying to make you realize is that you can’t simply say that less government reallocation of resources automatically results in less profits and less freedom. Patents themselves are a government reallocation of resources. The difference is that it’s done in moderation, and with the intention of giving people opportunities to become rich rather than with the intention of making the distribution of wealth completely flat.

    Your 100% poverty point is actually not even on the socialism side. If your scale is indeed between 100% even redistribution (socialism) and 100% laissez-faire (freedom), you’d see no poverty on the socialism side (because poverty is a relative measure and requires that someone else be rich). You’d have a very low standard of living on the socialism, of course, but everyone would get some stuff, and there’d be nothing you could describe as poverty. You’d see 100% poverty way at the other end, where everyone has complete freedom and the government doesn’t spend your money on things like police forces and courts. At least under socialism you can expect your fair share of what little there is.

    The maximum wealth point is somewhere in the middle, where the government reallocates just the right amount of resources from the wealthy to the collective (army, law enforcement, basic infrastructure, health care maybe) so that regular people can accomplish things, but still allows the wealthy to have a good enough lifestyle that it’s worth aspiring to. If it’s done right, the rich will get richer along with everybody else, and we’ll have all this fancy technology that wouldn’t have been invented otherwise.

    We’re both looking for that maximum wealth sweet spot, so quit framing this as an ideological debate.

  69. “Unfairness” or its corollary “fair” is the most common word used by the socialist. It is a codeword, and it has its subtext. For example, I have heard the likes of Albert Gore say that disparities of wealth was “unfair,” that such disparities violated the “social contract.”

    Whether such terms were used here exactly is not the point. When you and others here complain about the size of the drug company profits and whether they should be satisfied says it all. You do not need to used the codewords. We understand you.

    As to Europe centuries ago, the whole point of government then was to maintain the privileged classes. There was only limited freedom. Obviously the world needed the likes of the American and French revolutions to break these monopolies on privilege. As I said before, I probably would have been on the side of the French revolution circa 1789, but would have opposed, probably at the cost of my head, the socialists and communists that ended up in control circa 1792. Napoleon was a necessary remedy for THAT sickness.

  70. A worthless generalizaion (assigning the desire to deny access to safe new drugs to all Republicans)

    Can you recall a safe new drug that Democratic politicians have worked to deny access to? I can’t.

  71. ping, I agree that IANAE defends socialism by redefining it in an unexpected way. Providing roads and a military is now socialism essentially because we all share the expense and all receive the same benefits. Perhaps he is right, though, as in the Roman Republic, a proconsul could raise his own army and could keep the booty. Socializing the military expenses and rewards was, in some sense, an improvement as it was less risky to the overthrow of the state by ambitious generals.

  72. You are one seriously confused individual.

    “my stock dips in value to reflect the now diminished value of the company due to it having less cash.”

    I know very well what happens when a stock goes ex-dividend. That dip is your first clue that paying out the dividend is bad for the company, and that Pfizer’s interests might not exactly align with your own interests as a shareholder of Pfizer.

    “I take it form your statement that your bank doesn’t pay interest, or if it does, you refuse to accept it.”

    Why wouldn’t I accept interest? It’s all part of the terms of my loan to the bank. As interest accrues, that becomes my money too. It’s income that I’ve personally generated by wisely (?) lending my own personal money to the bank.

    A corporation is a completely separate entity from its owners. Even a “small business” corporation with a single guy running it is separate from its owner. A public company is even more so. As a shareholder you don’t work for the company, manage it, or contribute to it in any way. Even the money you paid for the shares almost certainly never finds its way to the company. You’re free to sell your shares on the open market at any time, after which point you really couldn’t care less what becomes of that company. So naturally, you’d rather have cash in your hand today than the prospect of a more successful company ten years down the road. But you can’t deny that giving away money is a bad business move.

    Suppose you own all the shares of your very own corporation with $8 million in the bank. You decide one day to pay yourself an $8 million bonus. That’s wonderful for you personally, but it’s bad news for the corporation when next month’s rent comes due. Because the company is not the shareholder.

  73. I’ll try again.

    If I own a share of a company, it represents a percentage of the value of that company. The value of that company includes it cash holdings. When the company pays me a dividend, I get cash, but my stock dips in value to reflect the now diminished value of the company due to it having less cash. It’s a zero sum game (until the tax man comes). Look at a stock chart, you can see the effects of the ex-dividend dates.

    I take it form your statement that your bank doesn’t pay interest, or if it does, you refuse to accept it. after all:

    “Your interest isn’t the money you deposited, or anything you contributed to the bank in any way. It’s money the bank has accumulated through its business ventures, that the bank is giving away to a separate entity (you) without receiving anything tangible in return.”

    I’m assuming you would also refuse to accept any growth in the value of a share of stock you own or sell your house for more than you paid.

    Pfizer IS the shareholders.

  74. That money was mine all along, and the bank always owed me it whenever I asked for it back.

    As long as we don’t get back in time to when Mikey invented the great depression and the run on the banks wherein everyone went to get their money that belonged to them all along and not did not make the banks a whole heck of a lot more unattractive.

  75. “Paying a dividend makes shares less attractive.”

    No it doesn’t. You just said an hour and a half ago that as a shareholder you want the company to pay you dividends. And I agree, by the way.

    “Like when then bank ‘gives away’ your savings to you when you make a withdrawal?”

    No, not like that at all. The bank gives me back the money I put in. That money was mine all along, and the bank always owed me it whenever I asked for it back. Your dividend isn’t the money you spent on the shares, or anything you contributed to the business in any way. It’s money the company has accumulated through its business ventures, that the company is giving away to a separate entity (the shareholder) without receiving anything tangible in return.

    It’s a great deal for the shareholders, but it’s a bad deal for Pfizer – unless Pfizer decides to use its inflated share price for something like acquisitions or additional public offerings.

  76. That is truly funny. A worthless generalizaion (assigning the desire to deny access to safe new drugs to all Republicans) followed by an accustaion of worthless generalizations.

    By the way, so you know, what I said is not a generalization. It is not an extension from a specific example to a larger concept. It is a declaration that if people are willing to trade wealth for a new drug, by definition, that new drug has value.

    As for the masses, at least you admitted your superiority to them.

  77. the masses are sheep that need to be led by someone of your intellect

    Incorrect. The masses are sheep that are begging to be led by anyone. I mean, look what happened to you.

  78. That is a choice made by individuals. If individuals see the new drug as desirable, who are you to deny them access?

    I’m not denying anyone access to safe new drugs. I’m not a Republican.

    The fact that a new drug sells, is proof that is valuable.

    You are overflowing with worthless generalizations today. Try again tomorrow.

  79. Amazing. The market takes in information, evaluates it, and sets prices. Announcement of a promising filing that was previously not public information would (does) affect share price.

    Paying a dividend makes shares less attractive. It represents a transfer of assets from the company to the shareholder. After the dividend, the company has less cash and is worth less.

    giving it away to shareholders Like when then bank “gives away” your savings to you when you make a withdrawal? Shareholders are owners, it’s their money. They get to determien how it will be used (remember they can sell their shares that represent a share in Pfizer’s cash holdings).

  80. If you take so much that the rich become poor, that’s socialism and it’s bad for everyone in the long run

    Wait, you are redefining socialism again? Man, I needs a scorecard to keep track.

    A nice fluffy scorecard.

  81. If Pfizer filed and announced a promising new patent application tomorrow for a blockbuster drug, do think their stock price would drop, stay the same, or go up? And why?

    They wouldn’t, because when they file patent applications they have no idea what will be a “blockbuster drug”. And neither does the market. Unlike a biotech startup that has only the one patent, Pfizer’s speculation as to the eventual value of a particular patent in ten years pales in comparison to actual quarter-to-quarter earnings.

    You don’t seem to understand, if research is not expected to yield a profit, they won’t do it. Period.

    You don’t seem to understand, it is expected to yield a(n eventual) profit, but they’re still not doing it. They have motivations other than long-term profit, and the patent system has never been well equipped to deal with that sort of thing.

    If I’m a shareholder and Pfizer has cash on hand. I would much rather see it sent to me as a dividend then be flitetred away on research that won’t make me a profit.

    Sure, as a shareholder who benefits directly from receiving cash but only indirectly from the success of the company. But as a responsible business owner, you would realize that the company is better off spending that cash on even highly speculative research than giving it away to shareholders who contribute nothing of value back to the company.

    The only benefit to a company of paying a cash dividend is to make the shares more attractive to investors, and the only benefit of that (assuming the company isn’t looking to issue more treasury shares) is to make the directors and officers rich because they have more shares and options than you.

  82. “The “whole point” was to encourage “inventive” activity and “scientific” investigation–not necessarily for any commercial reason (although that may well have been one piece of the puzzle), but for their own sake, for what they had to say about the individual and society.”

    Then why did they want to promote only the “useful” arts?

  83. Do you deny that filing fees serve that end?

    Yes. Do you know the limitations on what the USPTO can charge for fees? If so, then why ask the silly question that you asked? Do you know that policy reasons exist for chargin less than cost now (and shifting some of that to maintenance fee amounts)? Do you know what that policy is? Hint: it’s aligned with the reason the Office exists inthe first place.

    I did not get that memo. Do you have a copy? Who wrote it? You?

    Do ya always stop reading inthe middle of a post? I done tol you who wrote it and where to get it. BTW – Judge Rich wrote it and was one of the principle architects of the current law. So Iza have no problem giving his answers to your silly points of view.

    if you want less of something, put a tax on it” – much easier than a (C)onstitutional amendment to remove the word “promote”, aint it? Howz them taxes working on the sin goods (alcohol and such)? think wez have less? ANd just an observation: Kappos wants fee-setting authority so he can buy the neat toys he thinks he needs iin ordder to handle more applications.

    The Less is Better crowd needs ta get with the program. The Less is Better crowd be why the apocryphal saying attributed to Charles H. Duell keep on popping up. Talk about lack of common sense.

  84. Disappointing. I was hoping for a better response.

    You are not the arbiter of value. That is a choice made by individuals. If individuals see the new drug as desirable, who are you to deny them access?

    The fact that a new drug sells, is proof that is valuable.

    Now you may respond about how the evil drug companies use massive ad campaigns to sell drugs that people don’t want or need, inferring that the masses are sheep that need to be led by someone of your intellect (which is why you would also tell other which salad dressings are necessary).

  85. DIMS,

    Oh my main man understands – this is his way of sticking his fingers in his ears and chanting “nanananananana – I can’t here you – nanananananana

  86. A new drug is wealth creation. It provides another treatment option that was previously non-existent.

    Also true of new salad dressings, almost of which are completely redundant, unnecessary or, in fact, unhealthy.

    Just like nearly all new drugs.

  87. The patent system does make drugs invented this quarter profitable. If Pfizer filed and announced a promising new patent application tomorrow for a blockbuster drug, do think their stock price would drop, stay the same, or go up? And why?

    I’ll answer. It would go up because they would have something of great value that will produce a future income stream. It will produce a future income stream because they will have a monopoly due to the patent system. Take away the patent system and you have an instant commodity whose price will be based on manufacturing costs, not value created. Take away the patent system and there will be no way to recoup investment, and therefore no new investment.

    You don’t seem to understand, if research is not expected to yield a profit, they won’t do it. Period. Your comment doesn’t make sense. If I’m a shareholder and Pfizer has cash on hand. I would much rather see it sent to me as a dividend then be flitetred away on research that won’t make me a profit. To do otherwise is a simple transfer of my wealth to the researchers without anything to show for it.

  88. give the inventor a reward that can vary according to the value of his invention as determined by the market, not by some bureaucrat.

    Aren’t the aforementioned “woes” pretty much that the market hasn’t come up with a large enough number to suit them?

    Why, then, are we asking bureaucrats to determine that they should get a greater reward?

    For bonus marks, how does the market feel about the FDA testing drugs before releasing them into the wild?

  89. Your defining equates it with government itself.

    I was working from your own implication that one should never take anything from the rich and give it to the masses, as well as the rather broad scope of what people call “socialism” when they oppose it for whatever reason.

    Thus, it is said, that it is “unfair” that one person have more and another less.

    I don’t think anything that’s ever been said in this forum goes that far. It’s very important that one person have more and another less, because we depend so strongly on the people with less striving to get more. The important freedom (or “fairness”) in this respect is the ability of the people with less to become people with more if they work hard enough. Compare non-communist countries like England a few centuries ago, where the rich stayed rich and the poor stayed poor.

    In this view, socialists take from the rich and give to the poor.

    The important distinction here, as I was trying to explain in my previous post, is how much is taken from the rich to give to the poor. If you take so much that the rich become poor, that’s socialism and it’s bad for everyone in the long run. However, if you take just enough from the rich (because they’re inherently the ones who can afford to pay) that you can give the poor opportunities to become rich themselves, you’ve hit the sweet spot where everybody has the ambition to do something really great. So give everybody free roads and affordable cars (both products of considerable innovation), a generally safe and orderly society, clean water and general good health, the building blocks of anything a person might care to do, and watch them succeed.

    the goose that lays the golden eggs, the so-called rich.

    The goose that lays the golden eggs is not rich people. It’s regular people who do clever things so they can try to become rich people, creating jobs and ideas along the way. Those are the people for whom the patent system was created. The rich people don’t really need more money or more incentives, and don’t respond that well to them, because they’ve already succeeded.

  90. Wilton, if disclosure is the objective, and the free use of the invention is a further objectived, we should, I submit, simply pay people to file patent applications and let the government publish them.

    But we do not. We give them patents and patents have a purpose. The provide wealth through enhancing profits through exclusivity, either to the patentee or to his licensee.

    So a fundamental reason we use the a patent system to promote disclosure is to give the inventor a reward that can vary according to the value of his invention as determined by the market, not by some bureaucrat.

  91. IANAE, obviously, we do not agree on what socialism is. Your defining equates it with government itself. I have a more limited definition — along the lines of its origins in Rousseau’s The Social Contract. The traditional concept of Socialism views wealth as a pile of cash or land. If one person has more of it, another person has less. Thus, it is said, that it is “unfair” that one person have more and another less. Socialism seeks to rig the system to equalize economic outcomes.

    In this view, socialists take from the rich and give to the poor. They absorb into government the private economy and provide its products and services to all either without charge or with subsidizes, while paying for the by soaking the so called rich.

    To the poor and the downtrodden, this all sounds just juicy. But, in reality, everywhere socialism has been tried it, it tends to also reduce the goose that lays the golden eggs, the so-called rich. They tend to disappear. In the end, the goodies provided are meager and far less than the realive wealth provided by free economies.

  92. If it is so profitable, why are they cutting back?

    You’d have to ask them, but if I had to guess I’d say that cutting a hundred thousand employees this quarter does more for this quarter’s earnings than paying them this quarter to develop a drug that will be huge in 40 quarters. Now they have “patent woes” in that they’re starting to have to answer for those short-term business decisions and the resulting lack of new products.

    The patent system can’t help with that. It’s never going to make the drug Pfizer invents this quarter profitable this quarter. Though I’m sure Pfizer also has something to say about how long the FDA takes to approve its glorious products.

    We are sitting on $X billion in cash and assets. Since all we know how to do is research, we are going to spend it all on non-profitable research

    I assure you, their research (indeed, any research) has a much higher expected return than paying management bonuses or shareholder dividends, neither of which management has any problem with.

    They’re sitting on cash and laying off researchers for the benefit of their share price, and if that’s a bad business decision their business fully deserves to pay for it.

  93. IMHO, to begin to identify the “whole point” of the patent system, you must return to the time at which it was enabled and created.

    The “whole point” was to encourage “inventive” activity and “scientific” investigation–not necessarily for any commercial reason (although that may well have been one piece of the puzzle), but for their own sake, for what they had to say about the individual and society.

    We’re talking about the era of the dawn of science and technique, of the dawning of a liberal individualism, of the great man theory of history, of manifest destiny. Invention and discovery were seen as ends to themselves, as an essential component of an individual’s, and by proxy society’s, inevitable mastery of the physical world.

    The grant of an exclusivity period could rightly be seen as a reward, as a prize, at its root as an acknowledgement, of the fulfilment of the natural desire for greatness, both on the individual level and by extension on the social level.

    Remember, there was/is no duty to practice the invention, and injunction was/is a remedy. As much as anything, the grant of a patent was like a grant of land, a way of staking out territory, a way of granting dominion.

    IMHO, these are the types of values that gave rise to our patent system, and that still resonate therein.

    However, things have changed since the origins of the system, as individuals, society, and the relation between the two have changed–particular manifestations include the erosion of the injunctive remedy and soon possibly FTF or FITF. These evidence a shift in focus from the individual to the corporate, and from an abstract value-driven system to a pragmatic commerce-driven system.

    Now, the whole point is–you guessed it–money. Any “invention” represents the potential for money to be made–the only remaining question is by whom. That is why injunctions are weakened–because letting something go unrealized in the marketplace is anathema to the idea of making money, and cannot be allowed.

    That is the point of disclosure–once the invention is out there, somebody will practice it and put it into the stream of commerce–the only remaining question is how the profits will be divvied-up. Patent + successful infringement action = patentee or negotiated sharing. Patent + unsuccessful infringement action = third party(ies). No patent = any commercially successful entity.

    Bottom line is, in all scenarios, money is made. The ultimate goal, economically speaking, is continued growth–a goal that can only be fulfilled by disclosure and subsequent practice of the invention.

    I use the concept of “money” rather than “wealth”, because “wealth” has that abstract value-related quality: an individual can be wealthy in many ways, for instance by having exclusivity and the pride and recognition that go along with it–but money is more concrete, and represents a social realization of wealth, like the collapse of the wave function of wealth.

    It’s a reflection of the devolution of the intrinsic worth of the individual as an individual, rather than the relative worth of the individual as a practical contributor to the society, as measured by the larger society itself, and not by other individuals.

    The changes in the patent system reflect this shift in thinking. We live in a period of transition, where the current patent system is a hybrid of old and new ways of thinking–although the pace of change has recently increased.

    I therefore don’t think it meaningful to talk about any particular isolated “whole point of the patent system”–it currently has many “points” that manifest to different extents in different situations.

  94. If it is so profitable, why are they cutting back?

    “That’s all they do” I can see the stockholder meeting:

    “We are sitting on $X billion in cash and assets. Since all we know how to do is research, we are going to spend it all on non-profitable research even though the net effect will be to reduce your wealth. Any objections?”
    “Liquidate? What’s that?

  95. If they don’t believe they will make a profit, they won’t pursue the product.

    If they don’t believe that in the face of their $8 billion in profits last year, there’s not much more the patent system can do to help them. All we can hope for is that one of their competitors can develop the strong medication their internal decision-makers sorely need.

    Sure, they’ll make decisions to research this instead of that based on which one is likely to be the most profitable. But they do that already. That’s why we have so many life-saving treatments for erectile dysfunction. But they’re not going to stop doing research altogether, because (1) that’s all they do, and (2) it actually is very profitable.

  96. Ping, there’s no such thing as “same inventions they were going to make anyway.” When investing billions of dollars for product, you don’t do it independent of expected return.

    IANAE, not doing it is an option. If they don’t believe they will make a profit, they won’t pursue the product. Also, if they ask for changes to make their current portfolio lucrative, and those changes also make future drugs potentially more lucrative, they are also shifting the ROI calculation in favor of producing more drugs.

  97. Once again, I needs ta know if ya be missinthe point on purpose IANAE,

    Only it’s not a problem at all, because Pfizer has a lot of wealth, every last penny of it thanks to the patent system

    Or are ya subtely pointing out that since Pfizer is not “our country” that the wealth it gets aint got nothin ta do with the premise bein advanced by DIMS?

    deciding not to do it isn’t really an option for them.

    Ya never been in business before have ya, IANAE? Plenty of options other than the nucklear “close shop” – albeit the level of layoffs closed many secondry shops I can assure you.

    that they’re not up to the task of doing what the patent system asks of them

    Ya lost me here – what exactly was the patent system asking of them? Can ya (re)define that for me just a little bit more clearly?

  98. “Willton – likewise show me any place where this “deterrent” rationale is listed (other than your made up world). ”

    I didn’t realize that I needed a quote for such a common-sense rationale. Do you deny that filing fees serve that end?

    “Perhaps ya didn’t get the memo, but having more is better, even if that more is not “technically better”.”

    I did not get that memo. Do you have a copy? Who wrote it? You?

    “It aint hte Office job to discourage filings. No way. No how.”

    No? Then why does Kappos want fee-setting authority? Why does the USPTO want to increase the fees associated with obtaining a patent? Is it because the USPTO is greedy?

    As they say, if you want less of something, put a tax on it.

  99. No evidence? Before investing billions, companies attempt to estimate the return they would get if their research is fruitful. A factor in the calculation is whether ot not they will enjoy a monopoly and for how long. If you change the system so their estimated probability of getting a patent decreases, or if you change the term of the patent, this will factor into their calculation and affect future drug availability.

    A new drug contributing to “soaring” health care costs is not a bad thing. A new drug is wealth creation. It provides another treatment option that was previously non-existent. Every time a new drug is introduced, and people freely purchase it, they are making a determination that the effects of the drug are worth more to them than the monetary costs. They are better off, even though they spent more.

  100. Since the patent system is arguably a tool to incerase wealth for our country, the patent system’s “problem” is our problem.

    Only it’s not a problem at all, because Pfizer has a lot of wealth, every last penny of it thanks to the patent system.

    These are factors that go into the decision as to what research to pursue, if any.

    Yes, to a point. Except that Pfizer only does the one thing, and deciding not to do it isn’t really an option for them. And doing it is clearly profitable even as the system stands. The patent system as economic motivator is doing exactly what it’s supposed to do – giving them a pretty steady profit.

    The real decision Pfizer has made, and they’re not alone in this, to ask the government to legislate them more money because they’d rather have more money. Which is exactly what we’d expect from a profit-driven entity, but that doesn’t mean we have to give it to them. Then again, if it’s acceptable in an almost-free-market capitalist society for the rich to ask the government for more money simply because there’s money to be had, we shouldn’t get so upset when the poor do the same thing.

    Does anybody actually believe that Pfizer will close up shop because making only a few billion a year isn’t worth it? Maybe they’ll close up shop because they couldn’t invent anything else as profitable as treating erectile dysfunction, but that’s not a failure of the patent system. It’s a business failure, and a clear demonstration that they’re not up to the task of doing what the patent system asks of them.

  101. DIMS,

    (Havta lol at the acronym) – ya missed my man’s subtle point:

    on the strength of the same inventions they were going to make anyway

    So, given that they was goin to do this anyway, there is no effect on estimated ROI that matters, right?

  102. “It’s not the patent system’s problem that Pfizer’s R&D efforts have proven fruitless of late.”

    Since the patent system is arguably a tool to incerase wealth for our country, the patent system’s “problem” is our problem.

    And, are you sure there’s no correlation? If the uncertainty of patentability increases, the estimated ROI decreases. If the patent’s term decreases the estimated ROI decreases. These are factors that go into the decision as to what research to pursue, if any.

  103. please go sell crazy somewhere else.

    Translation: you are on my street corner and I want to sell crazy here. Willton, ya remind me of that guy at the Eskimo site who wants to eliminate the inventor from teh equation. And Ned – cite me inthe Law, Rules, or MPEP wher “making a profit” is located, where “creating jobs” is located.

    Willton – likewise show me any place where this “deterrent” rationale is listed (other than your made up world). Perhaps ya didn’t get the memo, but having more is better, even if that more is not “technically better”. See the Rich paper (mis)quoted by Stevens in Bilski. It aint hte Office job to discourage filings. No way. No how.

  104. Everything the government does is socialism

    Itza a wonder what one can do when one goes about redefining whatever one wants to redefine.

    I hereby redefine all terms of socialism as “fluffy”.

    Now we can all be fluffy together and any sharp edges will be fluffy too. The world will be a better place with everything fluffy.

    That is, until the Nazguls come swooping by…

  105. Draw an axis with more socialism to the left and more freedom to the right.

    Your axis has “more freedom” on the right? I don’t want to drop the H-bomb on an internet forum, but you should realize that “more freedom” is not the right-wing polar opposite of socialism.

    Socialism is a form of legalized theft. It steals from the one and gives to the other.

    Socialism is enforced cooperation. Sure, it can be taken too far, but a certain amount of it is essential for a free and wealthy society.

    Building roads and hospitals with public funds is socialism. Maintaining a standing army with public funds is socialism. Imprisoning criminals for public safety is as much socialism as paying for their meals while in prison. Regulation of capital markets is socialism. Everything the government does is socialism, and will always be so until the IRS is replaced with a donation box.

    But that’s okay, because a little bit of “socialism” is the infrastructure that makes our entire society work. The police and the army save us having to worry about our house still being there when we get home from work, for example. As long as we still leave people enough freedom to think what they want and earn a living the way they want, and as long as it’s worth it for people to strive to be one of the successful ones instead of living off the “socialist” government handouts, everybody’s happy.

    What people don’t like is the central fiction of trickle-down economics that rich people would love to do wonderful things for poor people, if only they had the money. They do have the money, and it’s sitting idle. Piling more money on top of the money they already have isn’t going to encourage them to spend it. All it will do is boost the earnings per share that they report next quarter.

  106. “OK, if profit has nothing to do with patents, and all we want is disclosure, why don’t we stop asking for filing fees and the like and pay people to file invention disclosures and screw the patent itself?”

    Where did I say that profit has nothing to do with patents? All I said was that your “strong link” between them was hooey. Profit only has a strong link with good business models, which may or may not use patents as assets. I also said that the patent system is not concerned with making inventors money; it’s concerned with “[promoting] the Progress of science and useful Arts.”

    Why do we ask for filing fees? Because there is a cost borne by the public in issuing exclusive property rights to private entities. Thus, filing fees and the other fees associated with obtaining a patent serve two functions: (1) they serve as a way to recoup costs for examining and issuing patents; and (2) they serve as a deterrent to those who would otherwise file frivolous applications.

    As for your socialism rant, please go sell crazy somewhere else.

  107. Do you or do you not favor a patent system? If you do, why?

    Do you understand the concept of profit?

    I understand the concepts very well, and favor both. Pfizer is (was) a great example of both. They earned over $8 billion last year, all of which (let’s be honest here) is a direct result of pharmaceutical patents. The patent system is working just fine for them. They’re making money hand over fist, and in return they invent a bunch of drugs that we want, but that are expensive to develop. That’s exactly what the system is supposed to do.

    Now, why isn’t Pfizer inventing profitable drugs anymore? It’s not because drug patents aren’t profitable enough, because they’re clearly making mountains of money doing only that. It’s not because they’d rather focus on more profitable business activities, because they only do the one thing. It’s not because they’ve run out of money for R&D, because their revenues exceeded not only R&D expenditure but their total full-year expenses by billions of dollars.

    Nobody is talking about “eliminating profit”. People are generally happy for Pfizer to have the profits it has, in exchange for whatever exciting new products they develop. However, and this is the important point, if they don’t develop anything new they’re not entitled to continue making profit.

    It’s not the patent system’s problem that Pfizer’s R&D efforts have proven fruitless of late. The patent system clearly creates a profitable environment in which Pfizer has become a business failure. Let them fail, and let the better researchers come get the money they’re leaving on the table.

    If you agree, even reluctantly, that there is a correlation between jobs and profits,

    There is some correlation, but it’s not a linear correlation all the way up. A company that happens to have very large profits isn’t going to start hiring more people just so they can find a place to spend their money. Large companies retain only as many people as they need to do what they do, and try to squeeze the most profit out of each one. Their goal is more profit and fewer employees, because employees are an expense. If you give them ten billion dollars, they’re not going on a hiring spree. They’ll pay more dividends or executive bonuses or hold the cash somewhere safe till they need it.

    Here’s the thing. Pfizer is already earning $8 billion a year. How many $50k salaries could they pay out of that if they wanted? But they don’t want to. They just want to turn their $8 billion into $20 billion on the strength of the same inventions they were going to make anyway. If they want more money, let them do it in a way that correlates with jobs – let them reinvest their profits in hiring more researchers instead of laying them off, invent more drugs that help more people, get more patents, and make more money selling their products.

    It’s not like they’re losing money on those drugs, after all.

  108. Wilton, you guys make me laugh.

    OK, if profit has nothing to do with patents, and all we want is disclosure, why don’t we stop asking for filing fees and the like and pay people to file invention disclosures and screw the patent itself?

    There is a strong correlation between theft and poverty. The more theft, the more poverty. the more law and order and the protection of property, the more wealth and less poverty.

    There is a further strong correlation between socialisim and poverty. Draw an axis with more socialism to the left and more freedom to the right. Draw an intersecting line with the intersection being 100% poverty. Now, if the line were to rise from zero, which way would it rise? Towards more freedom or more socialism.

    We all know the answer.

    Socialism is a form of legalized theft. It steals from the one and gives to the other. Theft leads to poverty, so does socialism.

  109. If all of us in the US get rid of profit, shall we be going to possess job?

    Great question. Another great question is what would happen if the sun turned purple and the sky turned green. Would we start wearing plastic bananas for hats?

  110. “Actually, ping, the whole point of the patent system is provide profits to the inventor; to increase his profits through exclusivity. The link between patents and profits is strong, as is the link between profits and jobs. Ergo, there is a strong link between patents and jobs.”

    No, the whole point of the patent system is to encourage disclosure of new and useful inventions. Exclusivity is merely used as an incentive to further that endeavor. The patent system could give a rat’s arse whether an inventor using the patent system makes a profit or not.

    In addition, if I had the time and inclination, I could probably list at least a hundred patents that have not produced a single job. You’re “strong link” of patents to jobs is merely your confirmation bias talking.

    “Without patents to protect the R&D, generics would reap where they do not sow. That is theft; but it is also the way of life of both pirates and socialists.”

    Theft? Do you understand what “theft” means?

    Tell me: once the generics produce their generic versions of the drug companies’ products, what have the drug companies lost? Do the drug companies still have the recipes and formulations for their products? Do they still have the ability to produce their products? Do they still have the ability to sell their products? What exactly is being taken from the drug companies by the generics, aside from the ability to unilaterally set the price of such products?

    Theft. You keep using that word. I do not think it means what you think it means.

  111. Actually, ping, the whole point of the patent system is provide profits to the inventor; to increase his profits through exclusivity. The link between patents and profits is strong, as is the link between profits and jobs. Ergo, there is a strong link between patents and jobs.

    The drug companies need patents to protect investment in R&D, which, without the patents would be unprofitable. Without patents to protect the R&D, generics would reap where they do not sow. That is theft; but it is also the way of life of both pirates and socialists.

  112. If all of us in the US get rid of profit, shall we be going to possess job? In the event that we decrease profits, will we get more work or less jobs. Can there be any romantic relationship between revenue and work?

  113. Patents should not be involved in any discussion of jobs and making money. Patents are only a negative right – a keep out – a don’t touch my stuff.

    Separately, and outside the realm of patents per se, the patent right to exclude is a property right freely transferable (without strings). The ability of people to contract likewise is also outside the patent realm, and if you want something bad enough you will either – pay the asking price or invent around it.

    Patent law should not be a bit concerned with either of these things. Let the free market rule.

  114. Claim 1. A music transmission system, comprising: a computer memory storing a database comprising a plurality of pieces of music; a computer system, attached to the computer memory, for defining a predetermined sequence of music to be transmitted by the music transmission system over a communications link; means for retrieving said predetermined sequence of music from said database; and a communications network between said computer system and a remote music source for access to music not stored in the database.”

    —-
    Technically, databases store music data, not music. Also, you replace “music” in claim 1 with “data” and you got a very generic claim. Modernly, the courts may just say it is obvious to use music data, word document data, video data, etc. to do what claim 1 seeks.

  115. “If you agree, even reluctantly, that there is a correlation between jobs and profits, wouldn’t you agree in principle that the way to provide more jobs is to provide more profits?”

    I agree with that. What I don’t understand is why patent law should be any bit concerned with that. If a company wants higher profits, then perhaps instead of asking Congress for more favors, the company should try providing more competitive products in the marketplace.

  116. That’s right, ping, you need to fluff the DC elite and the teabaggers, too. An entire news media dedicated to the task isn’t enough. They need your help with the fluffin’ because, well, you’re the best at it and it’s so entertaining to watch (or at least you think so).

  117. Could we break it down just a bit more, IANAE.

    Do you or do you not favor a patent system? If you do, why?

    Do you understand the concept of profit? Do businesses exist to provide jobs or to produce products and services at a profit? If the former, please explain how anyone can hire another person to do anything at a loss. And if businesses are not profitable, where are we to get jobs?

    If we in the US eliminate profit, are we going to have job? If we reduce profits, do we get more jobs or fewer jobs. Is there any relationship between profit and jobs?

    If you agree, even reluctantly, that there is a correlation between jobs and profits, wouldn’t you agree in principle that the way to provide more jobs is to provide more profits?

    Why are people poor?

  118. “But politicians only get excoriated when sick patients complain they can’t afford a drug that’s already on the market, not for a lack of new drugs, right?”

    As it should be. For starters, there is no evidence suggesting that changes to the patent system would increase the rate of production of disease-preventing drugs that work better than those we already have.

    Second, new drugs almost invariably cost more than the old drugs, thus the issue of soaring health care costs remains unaddressed by drug discovery.

    Best solution to all these problems is for the government to spend more money on R&D. But the pinhead Villagers and teabaggers want everyone to worry about the deficit instead.

  119. when there is so much uncertainty about whether or not they’ll ever be able to make a profit.

    Soo much uncertainty. It’s almost as if they’re running a business, rather than a printing press at the mint.

    They handled the “uncertainty” rather well when they were pulling in $50 billion a year. It sounds more like their “uncertainty” is because they couldn’t manage to invent anything in the past 17 years that’s any good, a risk they’ve been aware of since the company was founded. In which case, they’re not really helping sick people with innovation anyway, so why should we bother throwing more money at them?

    Bitter jealousy driven ideology is an ugly thing.

    Isn’t it, though? I always find it so ugly when people go on about how the rich aren’t quite rich enough that they can deign to do something that helps people while also earning them more money, unless we put a lower bound on the “more money” at the expense of the people they’re helping.

    It’s so hard on rich people, to constantly live with the pain that there’s still some money they don’t have. Maybe we can find a group of teachers with cancer who can go in together to buy them a present.

  120. Correction: Sorry, ailing members of the general public. It seems the public (these are public companies, indeed I’m sure teacher’s pension funds are invested in them) no longer wants to invest billions of dollars in drug companies to develop new drugs when there is so much uncertainty about whether or not they’ll ever be able to make a profit.

    Bitter jealousy driven ideology is an ugly thing.

  121. I didn’t realize until I read this article just how poor Pfizer was.

    I realize poverty is a relative thing. For example, $50k a year is obscene wealth for a schoolteacher, but $250k a year is borderline poverty for small business owners faced with a 3% tax hike. I guess $8 billion a year just isn’t enough for Pfizer to put food on the table.

    Sorry, ailing members of the general public. No new drugs until Pfizer can be assured of making $20 billion a year. Making a large profit that incidentally helps you isn’t doing it for them anymore.

  122. “But politicians only get excoriated when sick patients complain they can’t afford a drug that’s already on the market, not for a lack of new drugs, right?”

    Well said Daniel. The whole issue boiled down to one simple sentence.

  123. Yes, it’s the usual “the poor may suffer if the rich only make a few billion a year, because it’s simply not worth it for them to get out of bed at those prices”.

  124. we cant have you disbelieving ping we got to concvince you try this for instant diversity I am pretty sure that I invented lipator at walgreens del prodo blvd about five miles from my house in 2004 in the form of coral calcium along with some other nutritional things. It looks like some backdaters from india stole it or improved it. of course I invented walgreens core startup group inventions in 1967or8 at coral ridge mall along with other types of business chains in the area. Of course I invented the first large scale mall the eastland in east detroit around 1959 or 60 at about 6years old.

  125. Getting more patent examination work than you can easily do only during regular business hours, but not working any overtime unless you get paid for it?

    Wait till you join the real world.

  126. At first I simply found You annoying. However, I have come to the conclusion you are brilliant. I believe inserting the typos detracts from the overall effect, so I would remove those.

  127. Was that a cause Classic post hoc ergo propter hoc argument, or a correlation Classic post hoc ergo propter hoc argument?

  128. 6,

    Nah,

    The problem for examiners is that their years of record quality

    The problem be Kappos came in and redefined your record “quality” with one statement: “Quality does not equal rejection“. So sorry about your largest pile of crrp. Better luck with actual examination than with key words search and cut-N-paste actions.

  129. In this thread:

    Patent Woes Threaten Examiner.

    Nobody has published a front page article by anyone titled “Patent Woes Threaten Examiner.” The article would begin with a case study of 6 whose application count-stream (~5-per-bi-week) will be severely reduced when his energy expires. Of Course, 6 is not alone, the article would cite other examiners with applications pending in 2011 – those others have combined annual counts of over 9000. The problem for examiners is that their years of record quality have not translated into a reciprocating quality from applicants and the examiners have cut more than 10,000 overtime hours in the past two years.

    Nobody has writen “applicants should see a financial benefit as higher-cost accelerated examination replace the unexpensive current examination, but may suffer in the long term if examiners reduce quality and do not produce new actions that meet the public’s needs.” Already, 75% of applications are initially directed to unpatentable subject matter, and patent examination prices are under severe pressure from large companies.

    Of course, 6 is not an overly sympathetic entity. “In 2009, 6 rejected the largest pile in the nation’s history as part of a 2.0 count operation over 35 U.S.C 101.”

    That is, until now, when I just wrote it lol.

  130. “It’s not the function of the patent system to make sure the patentee has product on the shelf during the entirety of the patent term.”

    I know right? I try to tell them, just wait until your sht is approved to file for a patent. But apparently they think that someone might beat them to it. I just told them to go btch to the FDA about how long stuff takes then.

  131. Only patents based on application filed before June 8, 1995 and not re-filed later will have a patent term of 17 years from issue rather than a patent term ending on 20 years from the earliest U.S. filing date.
    But, yes, if related patents claiming the same grandparent priority have a longer term than each other due to getting a longer patent term adjustment [PTA], due to more PTO delays, then there may still be obviousness type double patenting issues still worth fighting over in some cases.
    If the patent reform bill S.23 passes, as now seems likely, the pharmecutical industry will benefit from the elimination of “best mode” defenses, have a pre-litigation full scope reexam white-wash system against inequitable conduct defenses, etc. So they will be getting some patent enforcement help.
    The reall wierd obviousness type double patenting case I was referring to is Eli Lilly & Co. v. Sun Pharmaceutical Industries, Ltd., now Supreme Court No. 10-972, where petitioner challenges a double patenting invalidity ruling which is based upon prior unclaimed disclosure. The case is now in the petition briefing stage

  132. what we really needed was a fix that guaranteed 17yrs of exclusivity for all;

    That’s exactly what we have.

    It’s not the function of the patent system to make sure the patentee has product on the shelf during the entirety of the patent term.

    If you have exclusivity but can’t sell your product for any reason, you simply have one of the millions of patents that never amounted to anything, and that’s all there is to it.

    I see you did not comment on intervening rights, which is, of course, the right answer if we delay patent issuance at the behest of the patent owner.

    Intervening rights is very much not the answer. There aren’t always intervening rights in cases where the patent extension is unjust, as we learned in that recent laches case. Is it even possible to have intervening rights in a drug that isn’t FDA-approved?

    The real harm in extending patents comes at the expense of the public, who don’t have standing to sue and probably wouldn’t anyway. It’s a limited-time right for a reason. But I know you don’t care about the rights of those poor, sick “pirates”.

    I also see you did not comment on oppositions and reexaminations.

    We don’t have oppositions, but I don’t see them as a problem for pharma because they’d be finished long before the product gets FDA-approved. Actually, they probably wouldn’t get opposed at all because the generics will want the patentee to have an economic incentive to get FDA approval in the first place.

    I agree that reexam takes too long, and that’s bad for patentees. I’m also against polio, before you ask me to take a side on any other similarly controversial issues.

  133. IANAE, when we went with 20yr patent term, I participated in the fix that granted patent term restoration up to 10 years for patent office delays and FDA approvals. I recall thinking at the time that what we really needed was a fix that guaranteed 17yrs of exclusivity for all; but somehow excluded the likes of Lemelson.

    I failed then to get the job done, obviously, and I now regret it. I think we need to do more and that we can do more to get everyone 17 years of exclusivity.

    I see you did not comment on intervening rights, which is, of course, the right answer if we delay patent issuance at the behest of the patent owner.

    I also see you did not comment on oppositions and reexaminations.

  134. Actually, the PTO once did have a procedure for a inventor to keep his patent pending in the PTO.

    Indeed, and we all saw how well that turned out when inventors could get arbitrarily long patent terms in exchange for not disclosing their idea to the public for arbitrarily long, simply because they saw additional profit in it.

    It promotes innovation rather well, but most of that innovation comes in the form of playing procedural games with the PTO and delaying the marketing of your product until you can squeeze the maximum amount of money out of it. Don’t expect to see a cure for any condition until the number of people who have it plateaus.

    Incidentally, Pfizer reported over $8 billion in earnings last year. I think they’ll continue to limp along even without specific legislation designed purely to make them money.

    Besides, it’s hardly the government’s fault that Pfizer hasn’t been able to invent anything noteworthy in the past decade and a half. They’re a for-profit corporation. If developing new drugs is profitable (and it very much is), they’ll do it. If they can’t manage to do it, let them fail.

  135. Actually, the PTO once did have a procedure for a inventor to keep his patent pending in the PTO. IIRC, he could do this if he didn’t yet have his product ready for market, or couldn’t get financing or whatever.

    Now, we could provide today that an applicant could keep his application secret upon (annual) affirmation that he does not have a product ready for market, but he is still working on it, and that there are no “infringers.” (I would provide “intervening rights” automatically that would provide an ongoing license for such delayed patents.) I think we could and should ask for patent term restoration to allow such an applicant 17 years of exclusivity dating from the date the patent does eventually issue.

    Such a “procedure” would fit nicely with FDA approval. While the drug was still in the FDA approval cycle, the inventors could keep the patent from issuing at all, and be guaranteed 17 years from issuance once it did.

  136. I keep telling obama and the world there has never been a job created except through invention yet the worlds top conciever sits without any customers wile everyone cant figure out why there is no new jobs da?

  137. Ping that theftery of my ideas problem is directly related to the fact that we have so many disbelievers such as your self perhaps.I started paharmcuticles inventing with my invention of the pharmacist and prescription writing at bannows rexal formation about 6 blocks from my aunts house.

  138. I wholeheartedly agree that we need an IRONCLAD guarantee of 17 years of exclusivity.

    Even though there is also no other industry where you can charge $17 for a product that costs pennies to make, and sell them by the dozen? Let’s not be so hasty in limiting the exclusivity to 17 years. Let’s ask the drug companies how many years they’d like their $10 billion a year at virtually 100% gross margin to last, and use that as a baseline.

    What about other industries where the poor patentee can’t get his product to market the very day his patent issues? Shouldn’t they also get 17 years from their first sale? Maybe they need a different sort of government approval, or maybe they still can’t score any financing, or maybe they haven’t picked the ideal location for their factory. Maybe they infringe someone else’s patent and can’t get a license.

    Or are we starting to realize that patents are not, and were never supposed to be, a guarantee of commercial success or profit? You get your 17-20 years, you make of it what you can, and then your invention belongs to the public.

  139. “I am curious what the group thinks of this patent law suit filed in district court.

    link to rbr.com

    What is there to think about? That person is giving people leads on potential prior art that they can go dig up. Additionally, as a general matter, not in comment to this particular suit, there could be laches issues in cases where the infringement suit is being brought late. An inquiry of course must be made into the situation generally though. Consult your legal advisor for advice pertinent to your set of circumstances.

  140. Dan, I wholeheartedly agree that we need an IRONCLAD guarantee of 17 years of exclusivity.

    For drugs, this would mean 17 years from FDA approval. But drugs are symptomatic of a broader issue. For example, reexaminations all but render a patent unenforceable. Ditto any new opposition period.

    We need a fix. We need both an extension on patent term and an automatic stay on damages for any period a patent is being reexamined or opposed at the request of anyone other than the patent owner.

  141. This is a vicious massive well organized mob of thieves ping ive been trying for inventor security but really I need the marines and air force there 10000 strong one for each top patent with usually 15 to 500 times that when you include investors employees and inherators. One cluster at a time is my theory this one is pharmacuticles. all I need is 200 attorneys you want to sign on as the first.Trust me ping 207 years of family inventing experiance. That would solve the layoff problem ping and there is a legal justification for it due to first to invent.

  142. “”100,000 lost jobs in the past two years”
    Proof once again that patents really do = jobs.”

    Classic post hoc ergo propter hoc argument.

  143. Forgive me for not feeling sorry for companies that can patent their inventions but not double-patent them.

    Obviously, they do not have the right counsel.

  144. The OTDP issue in Sun v. Lilly is an example of that.

    OTDP issues are about having one patent instead of two.

    I can understand that having zero patents instead of one might be a big deal for these companies, but even one is worth $10 billion a year for however long it lasts.

    Forgive me for not feeling sorry for companies that can patent their inventions but not double-patent them.

  145. They could put the patents back on by granting them to me this would solve the layoffs problem.

    Yeah Mikey, like we can trust you – you haven’t even solved the problem yet of theftery of your ideas. Now weza supposed tobelieve that you gonna solve layoffs? One invention (that works) at a time for you, otherwise we gonna disbelieves you.

  146. No, the big problem is that apparently innocuous decisions made during prosecution (following the law at the time) can result in invalidation later because of unpredictable changes in the law. The OTDP issue in Sun v. Lilly is an example of that.

  147. The thing that most people dont know is that there is not going to be any more new drugs or jobs because the drug companies dident pay the conciever for the last ones.Wile the exact chemical compound gets the patent the conciever of the dirivative and usages gets nothing . They could put the patents back on by granting them to me this would solve the layoffs problem.

  148. “if you force innovator drug companies to give up profits – for example, by categorizing all so-called “reverse payment” deals as anti-trust violations – you’re going to further erode investment in new drugs?”

    Why would you characterize it as “forcing companies to give up profits” to subject their patents to the validity challenges provided by law? They’ll have a little more litigation expense, which they’ll simply budget for, and the only “profits” they’ll lose will be on invalid patents they were never supposed to have in the first place.

    I guess we should also feel sorry for them that their $50 billion a year doesn’t last a few years longer because it’s harder to manipulate PTO procedures to get more patent term than the statute provides. It really is a tough life, being them.

    Woe to the poor large corporation, forced to subsist on no more than what the law entitles it to have.

  149. Gee what a surprise – when innovator drug companies’ revenue streams dry up, they invest less in trying to develop new drugs. Was this really an epiphany for the NYT? And if so, how much longer before puts two and two together and realizes that if you force innovator drug companies to give up profits – for example, by categorizing all so-called “reverse payment” deals as anti-trust violations – you’re going to further erode investment in new drugs? And how much longer after that until the NYT starts attacking the short-sighted politicians who support such moves, instead of singing those politicians’ praises?

    There is no other industry in which the time lag between when a company has to apply for patent protection and when it can actually bring its product to market (i.e. when it receives FDA approval) is so great, but in which copying the product is so easy. At least under 17-years from grant a company could hope to delay the grant until around the time of FDA approval. Now it can’t even do that, it’s stuck with 20 years from the earliest US filing date and maybe a few years of patent term extension to compensate for the FDA approval process, but more often than not that’s still nowhere near 17 years. And that’s assuming the patent isn’t shot down along the way under a subjective 103 analysis under KSR, or a screwy OTDP analysis by a misguided court, or failure under 112.

    As long as market exclusivity for drugs continues to be pegged to patents rather than to the date of FDA approval, there’s going to be less and less investment in new small molecule drugs. But politicians only get excoriated when sick patients complain they can’t afford a drug that’s already on the market, not for a lack of new drugs, right?

  150. if a lot of existing patents are still vulnerable to questionable OTDP objections, then those revenue streams are threatened, which makes investing a lot of money in new drug discovery a bigger gamble.

    Hang on, this is the big problem? They’re worried about investing money in R&D because they might only get one patent per invention?

    Yeesh. “Pfizer is not an overly sympathetic entity” just became a huge understatement.

  151. “100,000 lost jobs in the past two years”

    Proof once again that patents really do = jobs.

  152. Wilson writes “consumers should see a financial benefit as lower-cost generics replace the expensive elite drugs, but may suffer in the long term if companies reduce research and do not produce new drugs that meet the public’s needs.”

    Or they can just continue producing drugs that people don’t need and advertise the sxhxt out of them.

  153. In anticipation of Weary Lexicographer’s appearance, I pre-emptively note that, grammatically, it is the “patents” that have “woes” rather than the “drug firms”.

  154. Ned-O,

    But then reality pokes its ugly head in and says – gimme the less-risky off-shoot of known research rather than anything even remotely groundbreaking in research.

    Hence, business driveres drive towards a collision with the KSR mantra:

    When a work is available in one field, design incentives and other market forces canprompt variations of it, either in the same field or in another. If a person of ordinary skill in the art can implement a predictable variation, and would see the benefit of doing so, §103 likely bars its patentability.

    and

    it will often be necessary to look to interrelated teachings of multiple patents; to the effects of demands known to the design community or present in the marketplace; and to the background knowledge possessed by a person having ordinary skill in the art.

    Business like da predictible, but also like da patent. Ordinary skill in the “grown-up” arts just is so high, that all business decisions on what to pursue are most likely de facto obvious.

  155. Dear Mr. Morgan,

    I did not perchance save the particuar Patently-O discussion thread that featured an otherwise expired patent and the problem ensuing with examination that violates the Patent Term Adjustment promises.

    Iza just be too lazy ta find the thread, but PTA on items that should never never receive PTA due expressly to examiner laziness will still play a role in term extensions (And we aint seen nothin yet in this arena). The particular thread I be rememberin was one wherein the second patent was fully searched, but the new examiner picking up the application (some two or so years later) just had to do his own search and examination (bye the bye against Office policy).

    But in general, PTA is tomorrow’s submarine.

  156. At the recent AIPLA annual meeting, a patent attorney working with researchers at a drug company described his job as identifying which among the projects the researchers were investigating would result in patentable subject matter. Apparently, if what the researchers were working on was not clearly patentable over the prior art, the research was abandoned.

    I wonder how much recent developments in the law regarding obviousness have harmed or helped drug research? It strikes me that if research is focused on truly nonobvious subject matter, it would be more likely to result in new drugs that clearly had no competition.

  157. I should clarify my first sentence: if a lot of existing patents are still vulnerable to questionable OTDP objections, then those revenue streams are threatened, which makes investing a lot of money in new drug discovery a bigger gamble. Additionally, although the OTDP issue may eventually be resolved favorably for patentees, the pharma companies may be thinking “it’s OTDP right now but it’ll be something else in the future.”

  158. I suppose that depends on how many existing valuable drug patents are still vulnerable to that kind of attack.

    Holman gave a presentation on this at the University of Missouri symposium on the Federal Circuit that Dennis mentioned on the site a few times. He had other example cases that slip my mind at the moment as well as some quotes from people in the pharmaceutical industry indicating that uncertainty in the patent system was an issue for them. Industry opinion is to be taken with a grain of salt in this case (it would be a shock if the pharma industry ever wanted weaker or less certain patents), but it’s something to consider.

  159. The article you cite relates to what it calls “The creeping expansion of obviousness type double patenting.” [More accurately, I would suggest, it is the confused mess made of prior obviousness type double patenting law by certain CAFC panel decisions in certain pharmecutical patent cases.]
    But looking behind the “Wizard of Oz curtain”, so to speak, what seemed to be troubling the judges in those cases was patents issuing from industry patent practices before we got patent terms running 20 years from original filing dates. I.e., there were de facto extensions of patent coverage by later filings of numerous related applications, claiming priority dates the ancestral filings, and issued much later to run 17 years from their issue dates. So, [with the exeption of one really weird CAFC panel decision holding that unclaimed mere prior specification disclosure was "double patenting"] I would think that most of the pharma industry problems with CAFC confusion of “obviousness type double patenting” law will not be as big a problem in the future?

  160. The issuance of that kind of business method patent in those days by a USPTO examiner is not that unusual, nor is the plaintiff’s choice of targets for suits. But the suggested reexamination [a good idea, if fast enough] cannot be done with the alleged prior art products themselves. It needs prior patents or publications, such a dated sales literature and/or service manuals for the prior art products which describe what the subject patent claims. Nor can 112 defects in such patents be attacked in a reexam for original claims.

  161. Chris Holman at UMKC has argued that uncertainty in the patent system has discouraged new drug discovery efforts. He uses Sun Pharmaceuticals v. Eli Lilly as one example of a case where the patent owning company basically had the rug pulled out from under it by a change in the law.

    link to holmansbiotechipblog.blogspot.com

    I don’t think that kind of thing fully explains the decrease in inventive activity, but it may be a contributing factor.

  162. I love the misleading tag line, suggesting that their purported “woes” are somehow the result of the patent system.

Comments are closed.