Let's say this product could have saved 100,000 lives. Now it won't, because no one can work on it, and we're not planning on developing it. This is contrary to journal publishing. We can steal, build-upon, and refocus from one another, but ultimately, nothing useful happens with the data...just like with some of these patents (by the way, my legal department says this isn't patent trolling, even though I think it is). So which is worse?
I'd say patents for a few reasons. First, in publications, nothing's happening with it (the time spent on my medical device patents will save more lives in a year than all my publications combined for the rest of the timespan of humankind), but at least you're letting anyone use it, including a company if they want to. A patent is locking up the idea. Second, patents don't contribute anything. They only take away. Patents are often written as broad as possible and very little engineering and science go into them. So no one can learn too much from them. This is on contrast to most manuscripts, where they are filled with all sorts of intellectual awesomeness that other researchers can build on. In addition, most of the claims are substantiated by data. So someone else could potentially take the broad idea to market and save lives, but they can't without paying crazy license fees for a patent the issued company isn't using. Patents have data, but it's not as scrutinized as most academic papers. The change that the USPTO has made where you don't have to prove due-diligence and the patent is awarded to first-to-file is only going to make things worse (I can explain more on the patent cycle and medical device IP if any of you want to read a post on it).
Ultimately, I despise locking up an idea that could save lives if we don't intend on utilizing it. It's a defensive move that only helps shareholders. We could use these defensive patents as offensive weapons against the competition and the diseases. But ultimately, they sit back with their pitch and arrows just preventing anyone else from reaching good.
Don't forget that patents and patent-litigation also prevent therapies from reaching patients. Look at the Medtronic-Edwards situation with the percutaneous heart valve. Patients need these, and some docs want to use Medtronic's. These patients are sitting still. And considering that severe stenosis has mortality occurring in less than a year these patent problems are literally killing people.
ReplyDeleteThis is so true. However, companies also need to be aware of prior art. They're only killing themselves if they copy someone else's design. EL had their valve in the public domain for a while and Medtronic should have changed up their approach to ensure there wouldn't be overlap. Or just license the technology outright. Companies should be held more than financially responsible if they do something like Medtronic does. The Gore v Impra and Cordis v Boston Scientific are other examples where things got ugly because companies thought they could get away with stealing.
DeleteThe problem with what you say is that another company might be able to provide a better solution than the patented one, and now patients will have an inferior solution because of patents. I don't know how to fix the problem, but if someone has a better solution or more due diligence they should be able to sell their products.
DeleteYou're correct. The move from due diligence to first-to-file could spell problems. Imagine if EL filed but didn't make a valve and now they'd be suing Medtronic for actually making something that can save lives. It's a jacked up system.
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