An odd title; this patent was already struck down by the Supreme Court of the USA in 2013[0]. Now it's no longer valid in Australia. The cost of tests for BRCA1/2 mutations is dropping dramatically; were the medical apparatus of the USA not so drastically broken, the cost to consumers of this test would today cost the consumer around $50 US. This is thanks largely to the ACLU and some geneticists in NYC, including Harry Ostrer.
Does anyone know how the medical test at the heart of this legal issue compares to something like the raw data from 23andme? 23andme v4 gives you 25 SNPs for BRCA1 and BRCA2.
A comprehensive test looking at the BRCAs may deeply sequence sequence the entire gene(s); spanning around 150 thousand base pairs. You'd not only want to look for SNPs, but novel SNVs, and various structural variants (SVs) and copy-number variants (CNVs). I don't know the most common class of mutations for BRCA1 and 2, so it may be the case that a smaller, cheaper panel could be nearly as effective as well.
If we could kill patents altogether that would be a much nicer step. Patents are an invention from another Era and make absolutely no sense nowadays, and we see them constantly abused to make our lives worse in the end.
I tend to agree with Cyph0n that patents can promote innovation. But "prior art" ought to be defined sanely. If something has been well known in India for thousands of years, how can some multinational patent it? How can some chemical that occurs in nature be patented? And then there's the whole universe of stuff that's different by one atom over there, and so deemed patentable.
The question should not be whether you believe that it is possible for patents to promote innovation. Rather can you prove based on evidence that they clearly and irrefutably, in fact, do so? Do patents ever harm or retard innovation? Is it economically worth the burden of the patent system for the benefit achieved, or are there better alternatives?
Moreover, how much theoretical economic payoff justifies surrendering a basic right? Should government be given sweeping power to dictate how we use our minds?
Those are excellent points. There's no doubt that multinationals have gamed the global patent, copyright and trademark systems. On the other hand, it is plausible that the possibility of limited monopoly would promote innovation. But how would one measure costs vs benefits?
It's arguable that limited monopoly promotes the first innovation. But it should be obvious, it prevents all the possible third party innovations that riff off the first.
It's easy to miss the dog that didn't bark, or the improvement that couldn't be sold.
There's also the question of inequality. Granting monopolies exacerbates inequality, so a hypothetical short term boost to productivity growth might not translate into meaningfully better quality of life for most people. Government engineered barriers to competitive use of specific ideas could undermine the bargaining power of workers, and artificially inflate or support prices of key goods.
It seems like an innovation supporting tax would be less restrictive, while still rewarding useful innovations that the market somehow fails to reward.
Indeed. What comes to mind are farmers who depend on highly tweaked crops to survive, but who are forbidden (or prevented by design) from even saving seeds. Let alone trying to improve the strain.
The key, then, would be to distinguish and reward such primary innovation. Maybe it's obvious when you see it. Or maybe do some Bates thing with panels of experts.
Possibly, patent should have some minimal effort time. After, say, 3 years you have to demonstrably prove that you will take the patent to market. For example, a software product should have some code written that uses the patent, even if incomplete. So long as you do nothing with the patent, anyone can get a royalty free license to it when they challenge you (after the grace period).
This would encourage people to take their innovations to market, instead of sitting on them and bunkrupting anyone else who tries to.
You can game “taking an innovation to market” any number of ways. Making the product unrealistically expensive. Only manufacturing a very limited number, or even a single, item. Making an item that technically uses the patent but is in a very different sort of field than any product which would be actually useful. Making the actual product practically unusable, or hideously ugly, or horribly uncomfortable.
These are all things which normally would be solved by competition in the marketplace, but you don’t have competition, since a patent is a monopoly. So you have to solve all these problems some other way.
I don't think they made any sense from the get go, not even in the steam age.
In general, the first implementation of a good idea was a bad one, of limited use, not a well refined concept. And then the patent-holder sat on the patent until it expired, and then - finally - the whatever-it-was became a vital and widely used commodity as creativity started to be applied.
Patents worked great for what they were intended for, which was for the English crown to raise funds outside of parliaments control, and later in the US when they used it to encourage the immigration of skilled workers.
The English crown had the big problem that its treasury was dictated by parliament during the 16th century, so it sold royal decrees (writ patents) granting exclusive rights. Parliament passed after an outburst of patenting by the monarch the then new Statute of Monopolies, which said that only Parliament might grant monopolies in statutory form and that only for new inventions.
The British North American settlers later recognized that their society benefited by disclosure and that disclosure supplemented the very weak technical literature of the world in which they lived. They had plentiful of free natural resources but a very small skilled workforce, so they wanted to encourage the immigration of skilled people on a deal which required the disclosure of their inventions in a publicly consult-able reference form.
Not true. Patents increase the incentive for people to do hard research and development. Whether or not that increased incentive is necessary is debatable.
They also decrease the incentive for people to do research and development (e.g: as derivative works from existing inventions).
Which effect is stronger? It is very plausible that overall, the decrease is far stronger than the increase, as the vast majority of inventions are derivative.
What you say may be true in some cases but I personally think twice or three times about doing any hard research and development because the chances are either some megacorp or patent troll will eventually come eat my lunch with bogus claims of infringement and the associated high cost of litigation.
Problem is that patents are not used the way they were intended to. A patent was supposed to be licensable so that other companies could still use the said technology if they so wished. But in practice what patents do is lock the market and prevent the exploitation of said technologies until they expire, which in turn slow down innovation significantly.
And don't even get me started on all the "obvious" patents out there, or the one that clearly are no invention because prior art actually exists - but then they take years to be invalidated, if ever. It is just an enormous debt on Society as a whole.
That may be true, but the current setup in the US at least cost us 500 billion over a decade in litigation alone. Something in our system has to be reworked to minimize the social cost of innovation.
You are completely ignoring the fact that large Pharma companies would be unable to have any return on investment, would not be able to pay their employees and thus many people would be unemployed and there would thus be no incentive to even develop new drugs.
> Of course there would. We had drug development before we had patents.
And moreover, there are other ways to protect your invention without using patents - such as trade secrets, manufacturing expertise, exclusive supplier agreements, and of course, ONGOING innovation (instead of inventing one thing and getting a rent out of it for 20 years).
> This isn't an argument at all. It's better for people to be unemployed than to be employed in an enterprise that makes everyone else worse off.
Are you hinting at a specific company? I don't think the people that got cured from metastatic cancer would agree that they would be better of without Merck and their PD-L1 antibodies.
To be clear I'm responding to ekianjo's
> If we could kill patents altogether that would be a much nicer step.
I'm also not in favor of patenting natural products, gene sequences and traditional cures.
I am in favor of establishing a system where a companies would have a solid return on investment while still having the drug available to everybody without damaging the incentive to invest billions to come up with only a handful of drugs.
The problem is, the drug market is not a free market, an individual has no reasonable way of saying "I don't agree to your price and I will thus not use your product." ... as consumers have with normal products.
>Of course there would. We had drug development before we had patents.
Perhaps I should say: There would be no efficient, lean very driven companies looking for drugs. Off course there may have been people who found drugs out of hobby of while being paid for by the state.
> I don't think the people that got cured from metastatic cancer would agree that they would be better of without Merck and their PD-L1 antibodies.
Of course they wouldn't; its the relatives of all those who could not afford the drug and died who would be all-in for this!
And you seem to believe that the Free Hand of Market does magically fix every problem. Not so. It is just a Hand after all, with no eyes and no brain.
Big companies have their own share of inefficiencies. Maybe is not as bad as in the public sector, but they are far from working at full capacity. And whatever advantage private sector has you have to offset against the potential for corporate malfeasance. With corrupt public officials at least you know they limit themselves to trying to get rich and providing good paying jobs for their friends. In the private sector you give executives the chance to do the same thing legally, and then they go on to weaponize the patent system and actively block any progress (in house AND from external competitors) that is perceived to threaten a revenue stream.
Ultimately the people that count, the intellectual powerhouses that carry the weight of everybody else, are the same ones that you've dismissed as hobbyist. They are the only ones that care about the drugs themselves, and they care enough to do it even if nobody pays them, as long as they are not busy trying not to starve to dead. They usually don't care where their paycheck comes from (grants, profits, venture capital, etc), and as long as all their needs and reasonable wants are provided for they continue to perform their magic.
>Of course they wouldn't; its the relatives of all those who could not afford the drug and died who would be all-in for this!
We don't have that problem in the Netherlands so maybe that is what requires fixing. Here, if a drug is too expensive, nobody has access to it (only the ultra rich perhaps) and that creates an incentive to keep drugs affordable to certain extent.
Again I'm not saying the current system is optimal but cancelling the right to monetize your inventions at least until your investment has been earned back seems nothing but reasonable to me.
Of course there would. We had drug development before we had patents.
Really? Can you provide an example?
From what I understand patents started in the US shortly after formation of the country. The first drugs discovered didn't happen until the late 1800's.
In fact, the names of many of these drugs were "Dr. Smith's patented flu medication".
> Later in his life [before 200 BC], Qin Shi Huang feared death and desperately sought the fabled elixir of life, which would supposedly allow him to live forever. He was obsessed with acquiring immortality and fell prey to many who offered him supposed elixirs.
> The ostensible goals of alchemy are often given as the transmutation of common metals into gold (known as chrysopoeia), the creation of a panacea, and the discovery of a universal solvent.
(emphasis mine)
> Plant extracts, including willow bark and spiraea, of which salicylic acid was the active ingredient, had been known to help alleviate headaches, pains, and fevers since antiquity. The father of modern medicine, Hippocrates (circa 460 – 377 BC), left historical records describing the use of powder made from the bark and leaves of the willow tree to help these symptoms.
All of that is drug development. In the case of willow bark extract, it was successful drug development. But I'm not going to blame the people of 200 BC for being technically less adept than the people of today. If they'd had the knowledge and tools we have, they would have done their development from that base.
Snake oil was named "Dr. Smith's Patented Flu Medication" to give the impression that the government officially vouched for its effectiveness, not in gratitude to the patent system.
Not true at all. Look at Bio drugs for example. Even when they are to be generiqued, there is almost no company jumping in to make them because it's damn hard to make in the first place and there is very little incentive to do so, so the major players stay in place. A good example: all injectable diabetes drugs, but there are others out there as well.
Absurd, the price of albuterol has gone up 10 fold since patents have been reinforced on it. When companies have patents on life saving drugs they can charge whatever they want. If they have no patent, they are forced to keep the price low enough so no one wants to compete.
The new albuterol inhalers are inferior to the old. The "innovation" was the removal of CFCs (asthma inhalers were an exception to the CFC ban, until recently). This required new, patentable, formulations (though the 'active' ingredient remained the same), which gave us the sucktastic, easy-clogging, overpriced sulfate-based inhalers we have today. The pharma companies were all too willing to go along with the EPA on this one. The FDA and EPA would have you believe this transition went smoothly for asthmatics. They are lying.
Some people are allergic to the new inhalers (sulfates can irritate the airways), which led to the creation of a black market for the old ones, but that supply is bound to run out eventually.
With insurance, I pay about $40 for one of the new inhalers (If you're poor and don't have insurance, you get to die, I guess). Generally they make my breathing more constricted for a minute or two until the albuterol kicks in, so I try to avoid taking a hit from my inhaler unless I'm really having trouble. Nice. Fortunately, since I moved to a beach town on the coast of Florida last year, I haven't needed my inhaler very often. Unfortunately, I'm no longer willing to relocate for work (dirty, city air is the worst), now that I've found a place where the air isn't trying to kill me. :)
You do understand that the profits go partly back into making new drugs? And also partly into paying people with families?
Again: I understand the need for keeping medicines cheap but the removal of patents seems like an overkill with adverse effects.
> If they have no patent, they are forced to keep the price low enough so no one wants to compete.
... And no one feels like inventing a new drug that will immediately be copied and sold at a price near that of the raw materials (the only overhead is the factory) making it impossible to pay all the scientists who are working on the next drug.
No patents anywhere means companies with more money and a thumb on the pulse will unabashedly ape smaller do-ers work.
We should encourage independent inventors and small / mid-size businesses to risk capital on R&D, and reward them with a bit of protection so they can do some marketing while bringing a new thing to market, without having to worry about a big company duplicating their work and selling over them.
The internet doesn't fix the economies of scale afforded by a big cash pile, for either marketing or distribution.
Big cash piles are easy to turn into a big patent pile which can be used to fence out independent inventors and small / mid-size businesses. What proportion of patents are filed by SMEs anyway?
In one study by the US Small Business Administration, they looked at 2007-2009 (to understand economic activity during the height of the Great Recession) and noted 42% of companies that file 15 or more patents over the two-year period had 500 employees or less (which is, to them, a small to medium business).
People's incentive to create is the same as it always was: creative people just want to.
What patents were set up to prevent, IIRC, was trade secrets - they were a way to bribe creators to publish their ideas rather than sit on them.
IMO, they were a sledgehammer to swat a fly. Trade secrets would be reinvented. Locking an idea out of the commons for a whole patent term (and longer if they can attach new patents off the side) is a worse outcome.
> What patents were set up to prevent, IIRC, was trade secrets - they were a way to bribe creators to publish their ideas rather than sit on them.
This is what I learned too. I can't for the life of me understand why the US has trade secret laws in addition to the patent laws. From some light reading on wikipedia, the answer seems to be "why do we need a reason?"
For that matter, software or algorithms can be under copyright (may not publish), patent (must publish as part of the patent), and trade secret (may publish only if already public knowledge) at the same time.
But on the other hand reproducing the result without reading the patent, should be able to invalidate said patent. If I don't care how you achieved the one click purchase button, I should be able to have my implementation on my page.
Invalidating patents may not be so hard in the abstract, but the trouble is you have to fight a long and legally technical court case to do it. With no certainty of winning even if you are right.
It definitely depends on the invention in question.
Consider the case of nuclear weapons. The first big leap is that the energy of fission can be made to be explosively released. Once you know that this is the case, most people in the field might be able to come up with something along the lines of a gun-type warhead.
On the other hand, implosion devices, even if you know they are possible, still require a huge amount of work and design studies to make work reliably. Knowing that they are possible isn't the hard part--making it work is.
Actually, people have lived thousands of years with refrigeration. Insulated structures using evaporative cooling systems (capable of acting as air conditioners, or of maintaining near-freezing temperatures suitable for refrigeration) are known to date back to the 14th century BC.
and yet somehow we have more technical innovation now than we ever did outside of a patent system.
there is a lot of emotional and assertive speculation around this issue but all of the hard facts that are available very strongly suggest patents work despite occasional (if highly publicized) conflict. how does your theory accommodate that fact?
Counterexample: how did the Internet and WWW ever evolve without a significant reliance on patents? How did the software industry in general ever flourish? The best we can say from empirical observation is that patents don't lead to guaranteed failure. We certainly can't say they're necessary.
If everything that could have been patented was patented, we'd all be poorer for it. Except the lawyers, of course.
The issue that might arise is that techniques that are invented might never be openly published (since there wouldn't be protection for it).
For stuff that is obvious, it wouldn't matter because it is obvious. The non-obvious stuff--the stuff that actually does deserve a patent--might be lost on occasion.
I'm not a big fan of patents in general though given my experience with them (and certainly not patents on genes, etc).
Firstly there is a difference between natural product and traditional cures / medicine. See the below link for the recent Nobel prize, or just imagine the difference between chemical isolation of aspirin and understanding it's pathways and "chew some bark of that tree"
I think it is fair and valid for scientific inquiry to be considered seperate and more than traditional correlation.
However i also think that patents on scientific outcomes are a bad thing and in general should be avoided.
So, yes patent is bad. No don't give "traditional cures" any special protection, and don't give "natural products" any distinction from other areas of scientific inquiry.
Yes, there are distinctions to be made. But the status quo is clearly absurd.
Also, contrasting "scientific inquiry" vs "traditional correlation" in the context of patents is misleading. There's no requirement to demonstrate mechanistic understanding to get a patent. So it's arguably all just correlation.
Looking at some of the for and against arguments regarding patents, let's play a mental game: would new, valuable things still be created if the patent system didn't exist?
I think yes. The creator wouldn't necessarily benefit directly, but in a way we all indirectly benefit from new technology and ideas. Much the same as it would be better for the poor to have free or affordable essential health care, our society would have more able-bodied and able-minded people to work or even conduct themselves in a way that didn't transmit their illness, whether physically or through dependance.
By leaving the weak weakened, we indirectly transmit that ailment to others by physical and economic forces. You're only as strong as your weakest point.
The question is: what kind of valuable things would still be produced? You'll still get iPhones, but will you get ARM cores or Snapdragon chipsets or LTE or MPEG4 or pills that cure Hep-C?
The bigger picture is that almost all hard R&D takes place under the umbrella of some sort of protection from copying. Intel spends billions a year on semiconductor R&D, and protects it with trade secrets. Pharma companies spend billions on drug R&D and protect them with patents. Even internet companies like Google and Facebook depend on being able to hide a lot of their "secret sauce" (either algorithms or compilations of user information) on the server-side where it can't be easily copied.
Hard R&D that isn't protected from copying is usually subsidized. The core internet protocols were subsidized by the Government. Advances in core browser protocols are subsidized by Internet companies that rely heavily on ad revenue. Going back further in history, Bell Labs was subsidized by AT&T's telephone monopoly and PARC was subsidized by Xerox's copier monopoly. That model can work too, but has its own problems.
You make some compelling points but I'm still not convinced that this form of protectionism is the only avenue to innovation. The strength of a company is often in its organization, processes, location, and systems which are difficult to copy in a cohesive way without being gifted with similar circumstances. Why can't a company's strength and success in the marketplace be defined by these characteristics as opposed to legislative shields? Winner-takes-all systems often shape organizational behavior to be more defensive than creative.
Let's not reduce this argument to innovation for companies. Individuals innovate and patent as well.
There is a tendency to focus purely on the negative effects of a system that seems to be failing it's purpose. It's important to understand the system as a whole, and it's history. Has the patent system ever functioned for the purpose it was designed for? If it isn't functioning correctly now, is that in part or in whole? Is it not functioning because it has been changed, because the world has changed, or both.
Finally, is there a way to alter the system, whether that be to curtail it, expand it, or just change how it operates, that might yield a better functioning system?
Personally, I'm not for abolishing patents. They had a very clearly defined purpose (innovation encouragement) when they were first created. I think they've been mostly perverted into another purpose (wealth protection), more-so in some industries than others. They've been expanded from court rulings to cover things which were not originally thought patentable. What we need here is a well reasoned legislative overhaul. What we'll get if we're extremely lucky is a hole-ridden clusterfuck of revisions, but if we're lucky, it will somewhat address the current problems. The new problems will be something we discover and address tomorrow.
Individual patents are a corner case that's hardly worth sneezing about. They typically come up in these sorts of conversations in the same way that, say, Monsanto will cry about protecting small farmers while proposing rule changes that let it get away with whole new classes of abuse...
I don't think you can disentangle those two purposes. Innovation is encouraged precisely because you can profit from your invention.
I believe the cost and delay of patent litigation is the real problem. It's important to identify the critical issue before effective change can happen.
My point was when wealth protection is a tool to bolster innovation, then the incentives are aligned correctly. When people, or more importantly legislators, forget that and think the purpose of patents is to reward for innovation, we get some perverse incentives. In a perfect world, protection would be inversely proportional to the amount of innovation the sector is experiencing, and would also be scaled to the amount the innovation helps. But those are both hard to measure realistically.
> I'm still not convinced that this form of protectionism is the only avenue to innovation.
Protections of inventions (as loose as the term "invention" might be) isn't the only avenue to innovation, but it is an avenue.
There is always going to be a pull between free/open and paid/private. It's a good thing that multiple avenues exist, because some public-good innovations may happen under one regime but not the other.
Also, I take issue with the terms of the "it should be free" conversation here. The patent isn't for the gene: the company does not hold the rights to your DNA. The patent is for the discovery of it's link to cancer.
In this exact circumstance, I question how long it would take for this gene to be identified as a causal-link to breast cancer if there was not the bait of a financial windfall. Is there a smoking gun that shows this company beat out a public institution to this discovery?
We could ask, though, which R&D gets protected by patents but not by copyright or trade secrets? Which R&D would not produce a return on investment if patents didn't exist?
Drug research, perhaps, though we might be able to find other solutions there, or produce a much more limited form of patent for that industry alone. What else currently depends fundamentally on patents for its business model?
Looking at the many groups working on FOSS media codecs past and present (VP8, VP9, AoM, Opus, Vorbis), I'd say the media situation would actually get better in the absence of patents.
media requires algorithm which isn't supposed to be patentable but because software is sOoOo complex it got shoehorned into patentability. I think we just need to loosen up the ties a little
I want to point out that SpaceX doesn't patent any of their tech, as their competitors are sovereign states that would have no problem copying the technology.
SpaceX is a great example of the Google/Facebook situation. When you sell a service, and not a product people can take apart and reverse-engineer, you've got built-in protection from copying.
Pervasive Internet and the move to putting logic on the server definitely outmodes many uses for patents, though. Take Siri. SRI invented the technology, spun off a company with the IP, which was purchased by Apple. I don't think that transaction would've happened without patent protection. But today you have an alternative model. Instead of licensing voice recognition technology for integration into products, you can provide the algorithm as a service. Now, the source code stays safely on the server side where nobody can decompile it to figure out how it works.
This is very true. At the same time though, through the commidification of computing resources, as well as tooling continuing to advance, open source alternatives are reaching parity.
Humor me. When Gmail first came out, it was revolutionary. Now, you could host your own clone for $10-20/month using containerized Elastic Search indexing all of your email, with a small virtual machine ingesting your email from the internet, and providing it to you over JSON to your local mail client or through a web interface.
Voice recognition could follow the same trajectory. Computing power will increase, storage costs will continue to plummet (I've mentioned this multiple times on HN, but Samsung is predicting 128TB SSD drives in 3 years).
You don't need patents anymore, as you mentioned, because you can provide the service, not the underlying source code. But you still need to monetize quickly (if that's your goal), because the rising tide of technology can quickly supplant your lead with other competitors or open source options.
Maybe or maybe not. Open source still lags far behind when it comes to "hard" algorithms that require domain expertise to design: OCR, handwriting recognition, voice recognition, etc.
Oh come now. Boeing and the ULA are not SpaceX competitors. They're a last gasp attempt to keep the existing pork/gravy train of cost plus contracting and congressional district graft in place.
> Boeing and the ULA are not SpaceX competitors. They're a last gasp attempt to keep the existing pork/gravy train of cost plus contracting and congressional district graft in place.
No, Boeing and the other ULA members (both as ULA and separately) are SpaceX competitors for (particularly) government contract work, what you call "congressional district graft" is part of the game they play to maximize the value and duration of those contracts (to make them politically hard to curtail), but aren't what they exist to support -- you've got what is being served and what is serving reversed.
We'll agree to disagree (I don't mean any offense). SpaceX exists to drive the cost of launch services down. Boeing and the ULA exist to profit. My opinion, of course.
SpaceX isn't a charity. It exists to profit, even if it is funded by investors who are willing to accept not profiting in the short term to build the business to the point where it can operate profitably.
Now, in order to profit, it has to differentiate itself from incumbents somehow, and the opportunity it is built around to do that is regarding efficiencies that allow it to offer launch services at lower costs. But, it is competing directly with ULA for business, as a simple matter of concrete fact.
"The bigger picture is that almost all hard R&D takes place under the umbrella of some sort of protection from copying."
There is a huge difference between protection from copying, and protection from building similar things that achieve the same goal. Patents are not simply "protection from copying".
Drug patents often cover things like "using the same body mechanism to achieve a desired result".
(Now, you can argue this is necessary to protect them, but let's be clear - it's not straight copying if i make a pill with a completely different chemical composition that ends up triggering the same mechanisms. However, it likely runs afoul of their carefully drafted patents.
I'm also aware there are chemical compound patents that would not cover me doing this, but usually, when the drug companies can, they get both)
"Intel spends billions a year on semiconductor R&D, and protects it with trade secrets"
"Hard R&D that isn't protected from copying is usually subsidized. "
Pharma, one of your examples, is both heavily protected and heavily subsidized. Heck, Intel gets huge R&D tax breaks too.
In truth, most of the heavily protected stuff is subsidized by tax payers in various forms anyway.
The idea that these companies are out there, doing it on their own, without essentially getting most of the R&D cost subsidized through tax breaks/etc, is a huge myth.
We don't have the model you propose. We have a model where it is both heavily protected and heavily subsidized.
I'm not saying that protections or subsidies are two exclusive options. I'm saying that one or the other is a necessary condition for many kinds of hard R&D. I agree that in practice we have a mix of both.
They could exist without protection from the legal system, but to the extent that they are protected by courts, they are a legal construct. In the US, there is more to them than 'things you aren't telling anyone' and you are not necessarily without legal remedy if someone finds out your trade secret.
I think that's a misleading question. I don't think anyone is arguing that all innovation would go away if the patent system was removed. However, it seems possible that innovations that require high initial investment and low ongoing costs (medications, gene patents, etc.) would be produced at a lower rate if the incentives the current system provides were removed.
it seems possible that innovations that require high initial investment and low ongoing costs (medications, gene patents, etc.) would be produced at a lower rate
Good point, I don't necessarily disagree. But is a lot of the R&D to get around existing patents, rather than build a new thing entirely? In the software world I think we can safely say yes. Regarding medical research I'm not qualified to say. I'd love to hear from anyone with some insight.
"A way to work around a patent" means "a different way to do something". Much of the time, that's no gain, but sometimes they find a better way to do something. So figuring out ways to work around patents is not just a complete waste.
Tell that to ebola victims of last few decades. All this time all these wonderful incentives being in place and no progress on the cure. Americans get one good scare and presto, ebola vaccine in a less than a year. I wasn't that hard was it? Maybe those wonderful incentives are heavily misaligned with what desirable for humanity. Unless you thing that over-medicating Americans with vaguely effective but well advertised psycho drugs is preferable to preventing people from dying from ebola...
I'm actually wondering how much of the R&D effort stems from actual reverse engineering of the medicine and how much is simply done by reading the patent.
Chemistry is quite complicated if you break down the pill into it's basic components it won't tell you much. Even if you manage to isolate the active molecule you still will have to figure out the chemical process to make it and in a safe manner.
Chemical patents tend to be quite long because it's quite a complicated manner, and all of them have a full description of how the compound was identified, how it's made, and how it's delivered.
Now many drugs are also not as complicated as some people might think, the majority of the work that drug companies do it pretty much see what works for what, however for the complicated stuff that they actually R&D from the ground up the patents might be an actual liability when it comes to reverse engineering when they cannot use the law to enforce it.
As for the money, as long as rich people get sick drug companies will continue to do research, allot of the money for the research also comes from government grants and not from investments drug companies would rather produce drugs for illnesses that affect as many people as possible and drugs that combat the symptoms and not the cause where ever possible if we want to be completely cynical about it because that's what would yield them the most amount of money.
If government and private grants weren't available all we'll get in a cynical world would be common cold and cold sore medicine that doesn't really combat either viruses just prevents us from coughing and treats the sores.
And that is almost the world we are living in because drug companies and investors won't be dumping resources into some obscure syndrome that affects 800 people in the US, for that we have the sick billionaires son and the sick nephew of a senator's best friend to thank for.
Big investments (today it's things like the Internet, Space Exploration; long ago it was the Roman naval assault bridge, the Library of Alexandria) always require state-led investment for sustainability. Copying protection have almost nothing to do with them.
This is a bad question and a horrible attempt to answer (I'm being so abrasive because at this moment this is the highest voted comment). It's a bad question because it invites wishful thinking. Prediction generally has a very bad track record, and right now you're trying to predict a mixture of economy, free market incentives and technology. Hard to find something more unpredictable.
What you can do is look at the past and find correlation and causation. It's reasonably straightforward. Take a number of drugs and treatments, best if done randomly. See the process that got them on the market, and try to figure where patents fit in the picture.
I tried it just for fun, and found something interesting: up to half a century ago, you had a person's name associated with a drug. More recently, and you have a company. This is not an answer, but a hint that maybe things move towards being more expensive. Which of course brings us to the regulatory process: once a drug identified, what is the cost of having the papers stamped and who is motivated to pay for it?
That's nice, but if I'm Turing Pharmaceuticals or Microsoft, I probably don't care about all of that, and I only care about my immediate gain and exploitation of the patent system.
A couple of centuries ago there was a movement to abolish patents. What stopped it was cheap imports threatening jobs - patents acted as a kind of import duty. Curiously, that was their origin.
You can always waive IP rights in a system that reverse is not true (i.e. conditionally opt-in to IP rights in a system that categorically rejects them).
Likewise, you can give away all the physical stuff you want, but it's great that the rights exist in the first place.
Wasn't the completion of the genome in the first place a public effort that actually beat the private sector's attempts to finish it first and keep it away from scientific research? So not sure what we'd lose from keeping it open.
Did Myriad really claim to own the gene itself as their invention? If so, there are a lot of people who'd probably like to sue them for infecting them with that invention.
It seems to me that all Myriad could possibly patent, is a unique detection method for that gene. But that wouldn't stop anyone from using a different detection method.
But what interests me more about this case is that the article expects an Australian court decision to be taken as global jurisprudence. What's the logic behind that? And is that really where we're headed?
However, "artificial" sequences can be. I'm not aware of any test cases that establish boundaries on the difference though. It would be logical to assume you'd have to alter the nucleotide sequence to the extent that the resulting peptide or protein is not naturally occurring (e.g. changing a TTT codon to TTC wouldn't suffice, since both will ultimately be translated into phenylalanine).
Contrary to this reasoning, complementary DNA is patentable in the US on the grounds that it's "not naturally occurring". So, if you take the mRNA corresponding to an un-patentable DNA sequence and mix it with a few enzymes and nucleotides that react in a deterministic fashion, you can then patent the sequence of the final product:
In a gross oversimplification, it's almost as if the court said: "you can't patent natural English words, but you can patent the ROT13 versions of them".
But regarding methods, the majority opinion clearly said they're fair game (just as you can't patent gold, but you could patent a novel approach to mining or extracting it) and there are several valid examples in the US today:
> But what interests me more about this case is that the article expects an Australian court decision to be taken as global jurisprudence. What's the logic behind that?
I wondered that, too. But in a parallel comment, ihodes pointed out that this was already ruled unpatentable by the US court system. Courts do keep an eye on decisions from other nations; if they find the logic convincing, they're likely to adopt it. So if the US and Australia are following the same logic, it's likely to be adopted pretty much universally.
The article mentions that the US Supreme Court already denied them a patent. The fact another well-developed country has denied them solidifies the ruling.
It's good to see a rational decision with regards to science coming out of Australia. Aussies have been getting too much bad rap due to the Abbot government.
He wasn't tossed, his party threw him out. We still have to wear the shame of collectively permitting those bastards to be voted in to federal government. They're still there.
I would think that Monsanto's patents are quite different. They use plant breeding to create new varieties. These patents of Myriad Genetics are just using DNA sequencing to find existing genes.
I agree with your view that Monsanto is unlikely affected, but the article is quite misleadingly named. With "gene patent" I immediately think of Monsanto. But this ruling seems to only affect those who claim exclusive right to discovering properties of existing genes - not those who create organisms with unique genetic properties, like Monsanto.
Monsanto patents are more complicated than that though, as you can see by searching the USPTO. The enzyme is patented, the genes that produce it are patented, the introduction of those genes into a specific cultivar are patented, and crossings between their varieties and any other variety are patented. So, even if one of the patents was invalidated, the rest would still make it pretty difficult to commercialize anything.
Say you get the DNA sequence that will provide enzymes to protect from glyphosphate, and the patent is invalidated. You still have to introduce that sequence to a bacteria, introduce it into a plant in a way that expresses the gene, and then do enough crossings to make sure it doesn't interfere with the rest of the plant's functions.
So, even from the Monsanto patent, it's probably 8 years of work before you can sell anything. And by then, the market has moved forward.
Yes but at this time the institut who is specialized in cancer had done lots of research and was very against the privatization of the public research and that the researcher couldn't research further because of this patent.
The Curie institut reacted to the patent as a research institution, here we have the impact on a practical health issue.
Patents are a trade: you get an 18 year monopoly for public disclosure of how your innovation works.
In societies that lack patent protection, much innovation becomes a trade secret guarded against public use for generations, think China and the silk trade.
By removing patents, you remove the incentive to make public how your medicine works. That, actually sounds scarier to me than temporary price mark ups.
Although we might be clear on what we perceive to be the right ruling, it is not always so simple. For example, what if we claimed in software that any software program, given that it is merely a series of bits, is therefore merely a number, and thus a "product of mathematics" not produced by man?
Yeah, that's exactly what I was drawing on. I'm suggesting it as an arguably similar situation where we appeal to "nature" to deny patents. I brought it up because I think that HN might be more likely to consider software as "ownable" but DNA as not, which could seem like an arbitrary distinction (until we really get to a better reason than "nature").
The overwhelming majority of programmers are strongly opposed to any patents on software. The opponents of gene patents have nothing on the fury programmers vent when they see what lucrative software patents actually look like.
Copyright is far and away the best IP category for software - I strongly argue it is a form of literacy anyway.
And I am not convinced there is any mathematics outside the mind of humans - it's an odd one, but is not maths a model of the world rather than the world itself?
Though the logics are similar, the human effort is more in the developing of the tools to sequence DNA, the DNA itself has always existed. With software, the problem might always have existed but a solution needs to be developed independently.
It also said that it can develop naturally, without human intervention. I think it's a stretch to say that the software we create can develop naturally.
I would say yes - programs are discovered, not invented. We are just incrementally exploring a possibility space. In fact I would say that is true of any creative endeavor.
I think the fears that this will stifle innovation are greatly exaggerated. In fact, this patent was stifling innovation. Because of the expense, we have tested far fewer patients than we could have for BRCA1/2 mutations, and there thus remain many mutations of unknown significance that can only be resolved with more detailed clinical annotation from testing many more people. It's a classic case of a patent hampering the usefulness of an invention, so that someone can make money.
Myriad really were relentless opportunists with very well fed lawyers. The idea of a patent on a gene is completely nonsensical to anybody working in genomics these days. I can pay $1000 and sequence all 3 billion base pairs of my DNA. Using open source software and publicly available databases funded by governments and charities I can analyse my own DNA. What role does a gene patent have in any of this? What if I discover that I have an unreported variant in the patented gene? Can I now patent my own version of the gene, and charge my offspring a license fee for reproducing this gene each time one of their cells divide? Do they pay extra if they are homozygous?
Soul-destroying patent disputes have become a feature of the life sciences, it drives me mad. The story is always the same. A scientist performing research in a seemingly unimpressive field discovers something interesting. They generously publish their rough results because that's how science works. Then someone else comes along and refines it a bit before slapping a patent on it, because nobody else has yet. 20 years of legal battles ensue. Companies are still fighting over the PCR patents for example, even AFTER the patents have expired [1]. Now it looks like the same crap is going to transpire with CRISPR. The funny thing about these cases is that most of the research and innovation happens at the beginning, before the patents are even in operation, again questioning the notion that patents foster innovation.
As has been pointed out many times before, it is rare for a biotech/life sciences company to generate the kind of profit that permits them to do blue sky research. Most of that happens from government funded work. Big pharma doesn't really count, it costs them too much to develop each drug. They certainly don't have anything akin to Bell Labs, Xerox PARC or Google X.
Anyway, Myriad actually doesn't have any products any more. All the extremely simple tests they do can be run by anyone. They offer a whole lot of 'services' like genetic counselling and patient education, but that's all to create a veneer of legitimacy and hide the fact they are patent trolls. I feel sorry for their scientists trying to do research in this environment.
"The first evidence for the existence of such a gene was provided by Mary-Claire King's laboratory at UC Berkeley in 1990. Four years later, after an international race to find it, the gene was cloned in 1994 by scientists at University of Utah, National Institute of Environmental Health Sciences (NIEHS) and Myriad Genetics."
Myriad Genetics are the sole licensee of the patent. They weren't solely responsible for it's discovery, or successful cloning.
>BRCA1 co-discoverers
National Institute of Environmental Health Sciences (NIEHS)
University of Utah Research Foundation
Université Laval/Endo Research – Quebec
The Hospital for Sick Children – University of Toronto
University of Tokyo
Myriad Genetics, Inc.
>BRCA2 co-discoverers
University of Utah Research Foundation
The Hospital for Sick Children – University of Toronto
University of Pennsylvania
Myriad Genetics, Inc.
The research was done by many organisations, not just "companies", and was done with no guarantee of profit. There are some researchers who are actually altruistic, and believe in medical progress to save lives.
More likely they'll come up with a rhetorical workaround that makes perfect sense to judges, patent attorneys, and poorly-informed juries from the Australian equivalent of East Texas.
With software patents, for instance, there may be no way to claim ownership of Algorithm X in a given jurisdiction's patent system, but there's probably no obstacle to claiming "A machine that executes Algorithm X." The problem then becomes tractable: just write the claims in such a manner that they cover all practical implementations of such a machine, present or future.
It will now be the job of the company's patent counsel to come up with a similar artifice to claim ownership of any conceivable test or diagnostic process that involves specific BRCA genes. I'm sure they'll pull it off, somehow.
Failing that, the company's lobbyists will simply ensure that the next regional or global trade agreement mandates that each ratifying nation implement gene patents.
For example C60 [1] is a curious molecule that can't be patented anymore. In a rat study it showed to prolong the rats' lives by over 90% [2] by protecting the rats from cancer.
Sadly there won't be any human study anytime soon (if at all) because it's just not financially viable without the possibility of patenting the stuff and extracting fantasy prices for it.
You should read the comment section of the second link. The badly done research was done by someone whose business is selling snake oil with c60 in it.
Ref.: Baati T, et al., The prolongation of the lifespan of rats by repeated oral administration of [60]fullerene, Biomaterials (2012), doi:10.1016/j.biomaterials.2012.03.036
You'd be surprised. It's hard to get people to fund SENS anti-ageing through which they could literally live forever. In general, humans don't have a survival instinct, only a "don't die right now" instinct.
Does that mean that National Institutes of Health can also shut down its research, saving some $30 billion in taxes to go elsewhere? Here we have tax money that funds universities and researchers, and apparently 20 years patents are required to find uses from all that work.
Lets also forget that passing drug test also grants additional state granted monopolies as a way to encourage just the very scenario stated above.
Yes, but no university can afford to take the research results, make a cure from it and bring it to market. The regulatory overhead literally devours billions of dollars to get a new medicine approved.
And if a company can not expect to have some exclusive rights on that for at least a few years no one is going to spend that money. Competitors could just take your medicine, copy it and sell for lower because they had no upfront costs of getting it approved.
The economics behind pharmaceuticals are perverted - but at least they work.
Odds are the "make a cure from it" part would be a human invention and therefore patentable.
And even if all "cures" are no longer patentable - society wants cures to diseases. So if the system isn't delivering cures society will change the approval system[1]. It's not like the current approval process was handed down from god on stone tablets.
1) Or change patent law to cover discoveries from nature.
Odds are the "make a cure from it" part would be a human invention and therefore patentable.
That's a use patent and it's inferior to a composition patent.
Look at what's happening to Pfizer in the UK. They had a use patent on Lyrica, but no composition patent on it. That means anyone is free to make the drug. You can't really stop a doctor from using a drug for a certain disease if it's freely available.
Here we're not talking about medicines with ruinously expensive approval processes, though; we're talking about gene-based diagnostic tests. Non-invasive diagnostic tests don't have anything like the same kinds of regulatory hassles, because there isn't a question of side-effects - it's purely a question of how accurate they are.
[0]: https://en.wikipedia.org/wiki/Myriad_Genetics#Association_fo...