Thursday, June 28, 2007

Health Care: Reform the Patent System

It should come as no surprise to anyone who has read my blog since its inception (that means you, honey) that I have issues with the patent system. Being a software developer, I've marveled at the absurdity of patents granted to the likes of IBM, Microsoft, Amazon, and others. Whether it's the GIF image format or Amazon's one-click idiocy or even the RSA's holding web security hostage, patents do more to undermine invention and progress in the software world than support it.

The same can be said of patents with regard to health care. In a previous post, I detailed how Aventis' games with Lovenox patents had a very direct effect on my family financially. Shortly thereafter, the FDA's treatment of Mylan Laboratories over a drug patent demonstrated an anti-consumer, pro-big-pharma, pro-patent attitude within the FDA, the gatekeeper for U.S. health care.

So, how would I fix it?

  • Shorten Patent Duration: During the life of the patent system, we've gone from 14 years to 20 years while at the same time improving the technology required to create inventions. There's no reason to grant a 20 year monopoly on anything. I would argue that 7-10 years is a more appropriate duration in this day and age.

  • Prohibit Patent Abuse by Pharmaceutical Companies: As I detailed in my Lovenox post, pharmaceutical companies frequently patent a compound upon initial discovery often times without any target condition. Once they create a drug and push through FDA approval, they then patent the final form of the drug, effectively extending the original patent by 20 years. They then use both patents to prevent generic competition. No matter how good they are at smoke and mirrors games, companies should only get one patent on an invention.

  • Any Trace of Government Funding in an Invention Precludes Granting a Patent: Think about this one for a minute. Our government throws money at anything and everything through their earmark grants, especially health care. If someone develops an invention using our tax dollars, they should have no right to a patent on the invention. In fact, the work should be in the public domain. It's the only logical outcome of public funding yet it's the exact opposite of what we do.

  • No Patent Without a Prototype: I know this might hurt some small inventors, but I don't believe patents should be granted unless a physical product exists. If you want to patent a flying car, fly the damn thing to the U.S.P.T.O. and let them take a look.

  • Expire Patents Owned by Holding Companies: While the grandfather clause protects existing IP holding companies, we can change future patents to expire upon purchase by a company who is little more than a team of submarine patent lawyers. If there's no physical product, there's no reason for the patent to exist.

  • Time Limits for Patent Lawsuits: If a product is on the market for at least 24 months without any objection from a company holding a patent on the underlying technology, that company cannot sue. Too many companies are using patents for leverage after their product failed in the market. Eliminate that option, but give them enough time to discover offenders.

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