The Depressing Mayo v. Prometheus Oral Argument at the US Supreme Court(groklaw.net)
groklaw.net
The Depressing Mayo v. Prometheus Oral Argument at the US Supreme Court
http://www.groklaw.net/article.php?story=20111210181900395
6 comments
Last time an article about this came up, it was argued that we should be assuming that the justices know what they're doing. They are the supreme court, after all, so they probably understand the patents they're ruling on and the results of their rulings. This article demonstrates that we can't make that assumption:
Funnily enough, I saw that argued just the other day in http://www.johndcook.com/blog/2011/12/08/selective-use-of-te...
What one hopes is that they might have clerks who can help them with these things. In general the Supreme Court justices themselves are not people I would choose to look to for gurus on technology.
While all justices have been attorneys, there is no constitutional requirement that a justice be an attorney, and not a doctor/scientist/business man.
Since justices do rely on clerks, it's not clear to me that an accomplished anything other than a judge could not be brought up to speed on the law.
It is a shame that the justices seem to avoid each other and do not appear to work in a team. Imagine a team of justices that could rely on one being an MD, one being a civil engineer, one being an entrepreneur that could lead/organize tutorial sessions for the others.
Many of the current justices don't even have courtroom experience.
Since justices do rely on clerks, it's not clear to me that an accomplished anything other than a judge could not be brought up to speed on the law.
It is a shame that the justices seem to avoid each other and do not appear to work in a team. Imagine a team of justices that could rely on one being an MD, one being a civil engineer, one being an entrepreneur that could lead/organize tutorial sessions for the others.
Many of the current justices don't even have courtroom experience.
I think it would be great if we had at least one non-lawyer on the Supreme Court. It would lead to opinions that more people could easily read. Alas, few people agree with me (and none of them in the legal profession, wonder why....)
It's because lawyers understand how very, very, very bad things can get when you put people without an intimate understanding of the functioning of the law in-charge of overseeing it. Using lawyers is just very bad.
I didn't say that even a majority should be non-lawyers. I meant there should be non-lawyers on the court. It's not unprecedented.
But in terms of overseeing the law, are you saying non-lawyers should be ineligible to run for Congress?
But in terms of overseeing the law, are you saying non-lawyers should be ineligible to run for Congress?
and there's the problem: if you have to have people that specialize in understanding the law, the law is too complex to be allowed to continue in that form. How can a 'normal' person abide by the law if they can't understand it?
> What one hopes is that they might have clerks who can help them with these things.
Those clerks would be easy prey for lobbyists. "Here is a small gift, make sure to interpret this patent for Sotomayor using this kind of language and not that kind."
Those clerks would be easy prey for lobbyists. "Here is a small gift, make sure to interpret this patent for Sotomayor using this kind of language and not that kind."
I think this was one of the most interesting parts of the article:
The other question that made sense was from Chief Justice Roberts:
CHIEF JUSTICE ROBERTS: So I have a great idea. You take wood, you put it on a grate, you light it, and you get heat. That recites a series of acts performed in the physical world that transforms the subject of the process, the wood, to achieve a useful result, which is heat. So I can get a patent for that?
Believe it or not, the answer was no, not because it's not patentable subject matter, but because it's not novel. So cavemen entrepreneurs could have patented it?
The other question that made sense was from Chief Justice Roberts:
CHIEF JUSTICE ROBERTS: So I have a great idea. You take wood, you put it on a grate, you light it, and you get heat. That recites a series of acts performed in the physical world that transforms the subject of the process, the wood, to achieve a useful result, which is heat. So I can get a patent for that?
Believe it or not, the answer was no, not because it's not patentable subject matter, but because it's not novel. So cavemen entrepreneurs could have patented it?
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Is it really so terrible? What if you found that some orphan drug could be used for something that nobody had thought of, after the patent expired? You'd need to spend a lot of money testing it, to get it approved, otherwise no-one could use it. You didn't spend a few million developing the compound, but you did spend a few hundred million testing it. Surely drug patents exist to encourage drug companies to test drugs, and bring them to market, not just to create the initial compounds.
We need Congress to act and engage in compulsatory licensing for all patents in all medical devices and drugs. This would fix the problem quickly. Otherwise we have cases like this, and patent law does nothing but increase costs for everyone by entrenching monopolies in these fields.
Compulsory licensing for bogus patents would only encourage more of them to be filed for the "free" money. We need to stop this problem at the source.
We can tighten up patent criteria as well.
But the point is.... if any medical device could license any patent (doesn't matter what patent it is) for no more than 5% of manufacturer->distributor sales price, there would still be reason to fight bogus patents, but prices would drop because you'd only get 5% of manufacturing royalties for 20 years, not 20 years of monopoly rights.
But the point is.... if any medical device could license any patent (doesn't matter what patent it is) for no more than 5% of manufacturer->distributor sales price, there would still be reason to fight bogus patents, but prices would drop because you'd only get 5% of manufacturing royalties for 20 years, not 20 years of monopoly rights.
Ok. Is that 5% allocated to all patents? 5% per patent? If the latter, 20 patents would be enough to own the entire revenues for a device. Manufacturers would have incentive to remove as much functionality as possible from each device (to minimize patent coverage), requiring doctors to purchase more separate equipment to get all the features they need. In the case of an abstract diagnostic method patent, patent owners would split diagnostics into as many patents as possible to get as many 5% chunks as they can.
Most drugs have to license 1-2 patents at most.
If you get rid of software patents, this problem becomes quite manageable in the medical world.
If you get rid of software patents, this problem becomes quite manageable in the medical world.
> Otherwise we have cases like this, and patent law does nothing but increase costs for everyone by entrenching monopolies in these fields.
This is precisely what patents are designed to do: create monopolies.
But as usual with politics, it is easier to create more laws to try to patch up some of the consequences of a bad policy than to fix the actual policy. (All the laws intended to deal with the fallout from the failed Drug Prohibition are another good example.)
All this reminds me of how amusing it was when Microsoft was being persecuted for antitrust violations when their whole business model was based on copyright, which again is based on government granted monopolies.
But of course when the lives and health of people are involved the farce turns to tragedy.
This is precisely what patents are designed to do: create monopolies.
But as usual with politics, it is easier to create more laws to try to patch up some of the consequences of a bad policy than to fix the actual policy. (All the laws intended to deal with the fallout from the failed Drug Prohibition are another good example.)
All this reminds me of how amusing it was when Microsoft was being persecuted for antitrust violations when their whole business model was based on copyright, which again is based on government granted monopolies.
But of course when the lives and health of people are involved the farce turns to tragedy.
"This is precisely what patents are designed to do: create monopolies."
That's half of what monopolies are supposed to do, in my layman's observation of the field (i.e. everything I know I learned on HN). The other half is to encourage the dissemination of innovation to the benefit of society.
What we have now is the first half, the monopoly. The second half is disappearing, replaced by patent holders preventing innovation from moving through society, and removing the use of what was once obvious from society.
That's half of what monopolies are supposed to do, in my layman's observation of the field (i.e. everything I know I learned on HN). The other half is to encourage the dissemination of innovation to the benefit of society.
What we have now is the first half, the monopoly. The second half is disappearing, replaced by patent holders preventing innovation from moving through society, and removing the use of what was once obvious from society.
Better to just fix the damn patent system rather than trying to add another patch on top of it, I think. If you're going to have compulsory licensing how do you figure out what the fee should be? Having the government set the prices of a good or service is always tempting, but it's usually tended to work out badly historically[1]. Better to fix the injustice at the source.
[1] For example, through medicare reimbursement rates the government strongly influences the pay rates of different types of doctors, and mandates that the gap in wages between a GP and a specialist be about twice what it is in other countries, which results in the US having lots of specialists but a huge lack of GPs compared to other countries, which means we do a very poor job of catching problems early, etc. EDIT: http://en.wikipedia.org/wiki/Resource-based_relative_value_s...
[1] For example, through medicare reimbursement rates the government strongly influences the pay rates of different types of doctors, and mandates that the gap in wages between a GP and a specialist be about twice what it is in other countries, which results in the US having lots of specialists but a huge lack of GPs compared to other countries, which means we do a very poor job of catching problems early, etc. EDIT: http://en.wikipedia.org/wiki/Resource-based_relative_value_s...
My preferred solution would be to require all patentholders to offer reasonable and non-discriminatory licensing policies with their patent applications going forward, but with the caveat that medical devices and drugs would have license fee ceilings set by Congress (needed for cost control).
This is not a patch on the patent system. This is a fundamental change in moving from a monopoly grant to a grant of rent for research. This is a huge change. I'd be willing to trade moderate extension of patent terms (say to 25 years) to accomplish this.
This is not a patch on the patent system. This is a fundamental change in moving from a monopoly grant to a grant of rent for research. This is a huge change. I'd be willing to trade moderate extension of patent terms (say to 25 years) to accomplish this.