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Our right to challenge junk patents is under threat

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Re: Our right to challenge junk patents is under threat

#201

Post by AlbertCory »

yebyen wrote: post #198
AlbertCory wrote: post #195

Earlier quoted context omitted.

First of all, you made a general statement and I demonstrated its falsity. Now you're changing the subject to, "Oh, but not all patented drugs become generics." I never said they did. However, there are giant companies that do almost nothing but generics, like Teva, so obviously lots of generics exist: https://www.tevapharm.com/our-company/teva-facts-figures/ As for "what doctor will prescribe "worse-pirin" when ther…

> First of all, you made a general statement and I demonstrated its falsity This is an extremely disingenuous reading of our conversation. I made a specific statement about a particular instance (which you dismissed as cherry-picking), and I asked a question at the same time. Which you reduced overall to a "general statement" while dismissing the specific example that was really important to the context of what point…

No, you said, "Is there any evidence that drug patents can actually enter the public domain productively at their end of their expiration period?"

How is it "disingenuous" to quote that? I'm not "accusing you of generalizing" -- you did it.

I don't care to engage with you about insulin or indeed drug patents in general. Just say what you actually mean.

Re: Our right to challenge junk patents is under threat

#202

Post by loup-vaillant »

TimPC wrote: post #191
loup-vaillant wrote: post #131

Earlier quoted context omitted.

> I’m not sure radicalising this debate helps anyone. Oh but it does. That’s in part how we ended slavery and gave women full human rights and citizenship. If anything radical ideas shift the Overton window into making progress actually happen. The second point is that the only correct position here is the radical one: as far as I can tell, the truth here is that (i) patents do far more harm than good, and (ii) they…

Abolishing patents is likely to substantially hinder innovation. Maybe if it is accompanied by reasonable changes to other processes. But without patent protection there is a zero reason to spend $2 billion to $3 billion to get a drug through FDA trials when a competitor can make a generic afterwards for roughly $5 million and undercut you dramatically in the market as a result. People complain about patents endlessl…

> But without patent protection there is a zero reason to spend $2 billion to $3 billion to get a drug through FDA trials when a competitor can make a generic afterwards for roughly $5 million and undercut you dramatically in the market as a result.

I see. The solution here is simple: let the private labs go bankrupt, hire their researchers in public facilities. You’ll get your innovation back. As for the costs, well, sure you need to pay those researchers, but you get most of that back in the form of much cheaper medication.

I mean, why keep capitalism in the areas where it is so obviously failing? I want effective roads, schools, energy, water, hospitals, mass transportation… along with health insurance, retirement plans, unemployment insurance… and for all of those, the best way I know of is to make them public.

And while we’re at it I’d like some democratically run media that aren’t owned by a bunch of ludicrously rich people, so I don’t get automatic propaganda about why making the above public doesn’t work. Because it does. I’m living in France, I’ve seen it work.

> People complain about patents endlessly without offering a realistic solve for this problem

I think I just did. But you have to accept that it means reducing the scope of Capitalism, if not outright ending it. If you don’t, well… explain to me how Capitalism will somehow not burn our planet to a crisp and depletes its resources. Because as far as I can tell the "only system that works" will not work for long. It cannot. Because Physics. Thus it will end, one way or another, and it’d be nice if it didn’t take the world along with it.

Re: Our right to challenge junk patents is under threat

#203

Post by strbean »

pclmulqdq wrote: post #127
strbean wrote: post #119

Earlier quoted context omitted.

> They only apply to patents that currently have ongoing litigation No they don't. The allow the USPTO to prevent initiation of proceedings by denying petitions for IPR/PGR. The proposed discretionary denial criteria do not require that there is other ongoing litigation. Contrived scenario: - My company makes spoons, but I'm toying with the idea of pivoting into making keyboards. - PatentTrollCo. is granted a patent…

That comment is wrong. The rules clearly state that there has to be ongoing litigation on the patent. Otherwise, basically nobody could IPR anything until they get sued.

> That comment is wrong.

It is a direct quote from the Federal Register notice published by the USPTO. The quote, with a bit more context:

> The changes under consideration would make clear that the Board would discretionarily deny any petition for IPR or PGR filed by an entity that: (1) is a for-profit entity; (2) has not been sued on the challenged patent or has not been threatened with infringement of the challenged patent in a manner sufficient to give rise to declaratory judgment standing; (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market; and (4) does not have a substantial relationship with an entity that falls outside the scope of elements (1)–(3).

This seems pretty clear.

> The rules clearly state that there has to be ongoing litigation on the patent.

Can you direct me to the part of the new rules that state there has to be ongoing litigation? There are entire sections regarding parallel petitions and parallel litigation, but they are clearly presented as sufficient cause for discretionary denial on their own, and not as requirements for discretionary denial based on the other criteria referenced.

Unless you're saying this rule will only apply to petitions where there are both parallel petitions AND parallel litigation (they are listed and discussed separately) AND the other mentioned criteria are referenced.

> Otherwise, basically nobody could IPR anything until they get sued.

Or demonstrate that the petitioner does not satisfy point 3) above:

> (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market

This is why the EFF is worried.

Re: Our right to challenge junk patents is under threat

#204

Post by jsmith45 »

JamesBarney wrote: post #161
cycomanic wrote: post #118

Earlier quoted context omitted.

It is funny that pharma is always brought up as an example for industries where patents "obviously" make sense. Pharma is in fact a pretty good example why patents don't make sense and hinder innovation. Historically, before the homogenization of IP law, pharmaceuticals had different patent protection in different countries, ranging from very strong (the US), to weak (most of Europe) to excluded (Switzerland). The mo…

The cost of FDA approval was at least an order of magnitude lower back then. Why would anyone spend a billion dollars getting a drug FDA approved if after they do anyone else can manufacturer it?

You still need FDA approval to develop a generic. The FDA will not approvea generic unless both the patents and other legal exclusivities (I think the FDA sometimes grants exclusivity beyonbd the end of the patent).

If patents were abolished, the FDA could instead be authorized to blanket grant such exclusivity to genuinely new drugs, with pretty much the same effect as patents.

Re: Our right to challenge junk patents is under threat

#205

Post by pclmulqdq »

tsimionescu wrote: post #173
pclmulqdq wrote: post #109

Earlier quoted context omitted.

> But here's the value proposition: It's just not wrong to challenge a government subsidy or monopoly. Period. Especially on computer software and hardware, because they're often wrongly granted. I see where you're coming from, but I would suggest that this is pretty much an extremist point of view on intellectual property protections. It's easy to say that the online shopping cart is a dumb patent (because it is, an…

Your arguments contradict each other. If the patent system actually protects innovation, why did VLSI's IP get successfully copied?

Well, Intel eventually paid for it (a $2.1 billion judgment settled for an undisclosed sum). Without a patent system, they would have just gotten away with ripping these guys off for free.

Re: Our right to challenge junk patents is under threat

#206

Post by yebyen »

AlbertCory wrote: post #201
yebyen wrote: post #198

Earlier quoted context omitted.

> First of all, you made a general statement and I demonstrated its falsity This is an extremely disingenuous reading of our conversation. I made a specific statement about a particular instance (which you dismissed as cherry-picking), and I asked a question at the same time. Which you reduced overall to a "general statement" while dismissing the specific example that was really important to the context of what point…

No, you said, "Is there any evidence that drug patents can actually enter the public domain productively at their end of their expiration period?" How is it "disingenuous" to quote that? I'm not "accusing you of generalizing" -- you did it. I don't care to engage with you about insulin or indeed drug patents in general. Just say what you actually mean.

If you want to go ahead and remove again the specific context of my question/assertion after I re-added them back together, to emphasize how important that context was, go ahead and do it. I said what I said, in the order that I said it, on purpose.

I put the context back there together literally in the comment right above this one (and it was there in my top comment, too) because that was the context that I felt was most important, but now you've cut it right back out again. Are you sure?

Humalog as we know it today was first released in the 90's and it's still patented (or, at least Eli Lilly is the only company that can produce it, the specific "it" that we mean when we say Humalog and not "biosimilar to Humalog".) What are the actual enhancements that have been released in 2018-2019 to warrant the granting of a new patent for Eli Lilly's Humalog? Or is it out of patent? What's a biosimilar?

(Why can't anyone make Humalog other than companies that own patents on insulin, if Humalog has been out of patent since the mid 2010's?)

Re: Our right to challenge junk patents is under threat

#207

Post by AlbertCory »

yebyen wrote: post #206
AlbertCory wrote: post #201

Earlier quoted context omitted.

No, you said, "Is there any evidence that drug patents can actually enter the public domain productively at their end of their expiration period?" How is it "disingenuous" to quote that? I'm not "accusing you of generalizing" -- you did it. I don't care to engage with you about insulin or indeed drug patents in general. Just say what you actually mean.

If you want to go ahead and remove again the specific context of my question/assertion after I re-added them back together, to emphasize how important that context was, go ahead and do it. I said what I said, in the order that I said it, on purpose. I put the context back there together literally in the comment right above this one (and it was there in my top comment, too) because that was the context that I felt was…

all you had to say originally was:

"...because it's an argument in bad faith? I too don't see why drug patents are "obvious" or clear case that it is helpful enough to be in the public interest to maintain drug patents. Is there any evidence that ALL drug patents actually enter the public domain productively at their end of their expiration period?" [note the ALL]

Since you refuse to just admit you were wrong, we are done here. Go ahead and have the last word if that's important to you. I won't be replying any more.

Re: Our right to challenge junk patents is under threat

#208

Post by yebyen »

AlbertCory wrote: post #207
yebyen wrote: post #206

Earlier quoted context omitted.

If you want to go ahead and remove again the specific context of my question/assertion after I re-added them back together, to emphasize how important that context was, go ahead and do it. I said what I said, in the order that I said it, on purpose. I put the context back there together literally in the comment right above this one (and it was there in my top comment, too) because that was the context that I felt was…

all you had to say originally was: "...because it's an argument in bad faith? I too don't see why drug patents are "obvious" or clear case that it is helpful enough to be in the public interest to maintain drug patents. Is there any evidence that ALL drug patents actually enter the public domain productively at their end of their expiration period?" [note the ALL] Since you refuse to just admit you were wrong, we are…

LOL you're right, we could have had a civil conversation and productive dialog if I had just included that one word in my first post! My bad.

Re: Our right to challenge junk patents is under threat

#209

Post by mr_toad »

joemullin wrote: post #81
pclmulqdq wrote: post #64

Earlier quoted context omitted.

IPRs are pretty useful for challenging bad patents and should be very broad. However, I found myself in favor of this change, and honestly questioning the EFF's motives given how strong and personal (speaking specifically to the EFF's ability to challenge patents, not a generic third party) your expressed opinions were in this piece. I am very sympathetic to the argument that Unified Patents and other folks who offer…

I'm aware that there are allegedly "bad" IPRs including the OpenSky case. The alleged "extortion" here is that VLSI, a non-practicing entity, I believe backed by a hedge fund, would lose their 20-year government monopoly and no longer be able to seek billions of dollars in court. I have no idea who or what OpenSky is, and I don't weigh in on huge corporate cases like VLSI v. Intel where everyone has plenty of money f…

> But it's really wild to me that this alleged "abuse" (that could lead to the loss of... a patent) immediately got the attention of officials, who are taking rapid action. Yet there are thousands of victims of patent troll extortion every year. These extortions are real, and documented, and hurt businesses that are much much smaller than VLSI. (and operate actual businesses, which AFAIK VLSI does not).

Of the lawyers, by the lawyers, for the lawyers.

Re: Our right to challenge junk patents is under threat

#210

Post by rocqua »

xahrepap wrote: post #52
rocqua wrote: post #25

Earlier quoted context omitted.

I could imagine patents limited to physical designs, with a lifespan of say 5 years to actually be beneficial to innovation. Perhaps also a requirement to license patents at a 'reasonable rate'. I'm thinking of the 'sawstop' and 'festool domino' woodworking tools here. Which are important innovations that were probably motivated by patents, but whose patents have run long.

I actually think that Sawstop (in general. Might be some details that are bogus) is a great example of the patent system working as intended. The inventor reached out to several saw makers to license his new invention. None of them took it seriously. So he went and started a company with his new patent and became successful. Then other companies (Bosch specifically) tried to rip his tech off after they saw how effect…

From what I have heard, the sawstop 'inventor' is a patent attorney first, and an engineer second. Whilst he has offered to license the technology to other brands, reportedly the terms he offered were ridiculous.

The bosch system was significantly different. Notably having the advantage of not destroying the blade when triggered. The sawstop patent removed this major innovation from the market. A clear example of stifled innovation.

Moreover, sawstop doesn't sell in Europe, nor license. Which leaves me with no option to make use of this great innovation. Not quite stiffling innovation, but still making the world worse.

With a 5 year patent, sawstop would still have been profitable I believe. But we would have safer tablesaws around the world, we would have systems that don't ruin blades when triggered, and probably have many other innovations on top of that.

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