Patent Battles Make It That Much More Difficult To Keep People Healthy

from the what-a-shame dept

The problem with the view that patents should be given out for every little improvement (most of which would have come about naturally thanks to market demand) is that you end up with "patent thickets" where a ton of different companies all claim patents on some small part of a larger offering. This isn't just an argument about "ownership" or "rights" in some cases. It can also have direct impact on keeping people alive.

For example, just witness the patent battle going on in the medical device market concerning Boston Scientific, Johnson & Johnson, Medtronic and... famed patent hoarder Acacia. Boston Scientific, Johnson & Johnson and Medtronic have all been suing each other concerning various patents used in stent and catheter technology. Acacia has now jumped into the fray by acquiring patents from Datascope and setting up yet another shell company called Cardio Access.

In all of these cases, everyone is claiming ownership over some piece of the technology used in stents and catheters, basically suggesting that others can't use that part of the technology without paying them. The end result is that we're all put at greater risk. Either stents and catheters won't be able to be as useful as they should be because they can't use the best possible technology -- or if they do use that technology, they get priced much higher to pay for all of these licenses from everyone else. And, of course, with all of these patent lawsuits (and rewards -- since Boston Scientific has already had to pay out the two largest patent fines this year, totaling $750 million), money that could have been spent on making a better product is instead going into lawsuits.


Reader Comments (rss)

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  1.  
    identicon
    some old guy, Jun 27th, 2008 @ 2:57pm

    How is this even patentable?

    (Let's hope this is the right topic this time....)

    How you can you patent a stent? They have been in use for hundreds of years to keep caves and tunnels from collapsing. What... so adding "in the body" makes something "new and innovative" now? Is that like how adding "over the internet" or "on a computer" suddenly makes an ancient idea patentable?

     

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  2.  
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    Anonymous Coward, Jun 27th, 2008 @ 3:06pm

    Re: How is this even patentable?

    Well, there might be tricks to making stents that are not rejected by the body, that dont attract blood clots, that dont degrade, etc. etc. Maybe thats what is patented.

     

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  3.  
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    dkp, Jun 27th, 2008 @ 5:27pm

    novel idea

    I have a novel Idea Make all of these patents invalid and put the technology that is involved unpatantable then all of the companies lose and the patioents win also revoke the ten year garuntee for these companies. oh wait that is not a novel idea at least not to the people i Know.

     

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  4.  
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    Anonymous Coward, Jun 27th, 2008 @ 5:56pm

    Yep

    So that is why health care costs are skyrocketing. I was wondering about that.
    Bunch of greedy hands in everyone elses pockets.

     

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  5.  
    identicon
    Anonymous Coward, Jun 28th, 2008 @ 9:02am

    Being an economist, I thought you would have been quite a bit more rigorous is breaking down the $750M number to support the point you made.

     

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  6.  
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    Ulle, Jun 28th, 2008 @ 10:04am

    I know there are many people that argue that medical patents are needed, but I wonder how many will feel that way when the price affects them ; for example, I have cancer, the drug that the doctors say will have the best chance of helping me (maybe even curing me) is called Avastin which costs $8,800 a month. Now my insurance only pays 20% of prescriptions and with the tight patent nobody makes a generic version so my only option is to suffer and hope some day that someone is able to provide a cheaper drug or die, all thanks to our great patent system.

     

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  7.  
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    Anonymous Coward, Jun 28th, 2008 @ 12:42pm

    Most drug companies offer payment assistance for those who meet certain eligibilty criteria. Contact your doctor for more information. Genetech is one such company.

     

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  8.  
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    John Wilson, Jun 28th, 2008 @ 1:01pm

    The problem with medical patents

    The problem isn't so much the patents themselves as it is the "culture" they live in.

    Those who develop drugs and devices point out, complain, really, about the cost of development and all the tests required to bring a drug or device to market.

    There is, then, the urge to monetize this to the greatest extent possible and damn the consequences. I got my money so, I'm alright, Jack!

    This has been accomplished with the help of compliant legislators the world over who caved when warned that medical reseaerch would flee their country if they didn't play along.

    So we now have the spectre of a drug company making a minor change to an inert part of the coating of a drug and getting a patent extention for the drug as a whole when what they did adds nothing at all of medical value to what they patented in the first place. Essentially packaging.

    This has the effect of blocking generic makers from entering the market for that drug and keeping drug prices obscenely high.

    The situation isn't a whole lot better for devices. It strikes me, somehow, that simply pooling all the competing or complimenting patents would enable them to market their devices more efficently and allow each of them to earn more money than they will spending it all on lawyers in East Texas.

    It might even lead to improvements in the devices in which they all share, again, lowering cost to both the makers and the consumers of the products.

    And, not too coincidentally, fund more research as well.

    Patent thickets and walls don't accomplish much of anything except, it seems, to enrich lawyers.

    They don't seem to do anything for research or consumers and, ultimately, for the patent holders themselves.

    ttfn

    John

     

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  9.  
    identicon
    Anonymous Coward, Jun 28th, 2008 @ 2:21pm

    Re: The problem with medical patents

    "So we now have the spectre of a drug company making a minor change to an inert part of the coating of a drug and getting a patent extention for the drug as a whole when what they did adds nothing at all of medical value to what they patented in the first place. Essentially packaging."

    Presumably you have some notable examples....

    "This has the effect of blocking generic makers from entering the market for that drug and keeping drug prices obscenely high."

    Again, any notable examples?

     

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  10.  
    identicon
    Anonymous Coward, Jun 29th, 2008 @ 3:57pm

    Pay up or die suka

    In this case, definition of greed:
    When monetary gain trumps morals and ethics

     

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  11.  
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    Steve R. (profile), Jun 29th, 2008 @ 4:21pm

    Worse than Portrayed

    In Laboratory Corp. of America v. Metabolite Laboratories, et al. it appears that our court system unfortunately went along with the concept that a basic scientific relationship can be patented.

    Medill Journalism wrote:
    "Researchers at University Patents Inc. (UPI) in the early 1980s discovered a relationship between elevated levels of the amino acid homocysteine and the deficiency of two B vitamins, folate and cobalamin.

    These vitamins help form homocysteine, and the researchers noted that unusually high homocysteine levels often signaled dangerously low levels of the important vitamins. Elevated homocysteine levels have been connected with a variety of health problems, including lupus, renal disease, arthritis and Alzheimer's disease."


    Lori Andrews, a Chicago-Kent College of Law professor who submitted a friend-of-the-court brief supporting LabCorp stated:"It seems ridiculous to think someone can own a scientific fact and make it a patent, ... Imagine if you are in the ER, do you want the doctor running off to do a patent search to see if he can treat you?"(emphasis added).

     

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  12.  
    identicon
    Michael F. Martin, Jun 29th, 2008 @ 4:45pm

    Yeah, Mike. You're right. It isn't diseases that new drugs prevent or cure that kill people. It's patents that kill people. Why didn't it seem clear sooner?

     

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  13.  
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    Anonymous Coward, Jun 29th, 2008 @ 6:24pm

    Re:

    "Yeah, Mike. You're right. It isn't diseases that new drugs prevent or cure that kill people. It's patents that kill people. Why didn't it seem clear sooner?"

    Sometimes it is the new drug that kills ...... got a patent on that ?

     

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  14.  
    identicon
    oregonnerd, Jun 29th, 2008 @ 8:29pm

    patents and copyrights

    I've duly notified people that I'm in the process of acquiring a copyright on the word "the". An Orvis in the 15th century thought of it, and I'm just finally taking up the slack.
    --Glenn

     

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  15.  
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    Mike (profile), Jun 29th, 2008 @ 10:33pm

    Re:

    Yeah, Mike. You're right. It isn't diseases that new drugs prevent or cure that kill people. It's patents that kill people. Why didn't it seem clear sooner?

    There's plenty of research into the fact that the patent system has slowed down medical innovation and made it much harder to treat and save lives. Are you suggesting this isn't the case?

     

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  16.  
    identicon
    Anonymous Coward, Jun 29th, 2008 @ 10:50pm

    Re: Re:

    "Are you suggesting this isn't the case?"

    I cannot speak for M. Martin, but I have as yet to see any slowdown in the rate at which new stent and catheter configurations are introduced into the medical market for such devices. I presume you are speaking of research speaking directly to these products, and if so can you cite that research?

     

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  17.  
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    Anonymous Coward, Jun 29th, 2008 @ 11:09pm

    Re: Re:

    BTW, I have taken the time to read the various articles you rely upon. I do have to wonder however what to make of such articles when I have as yet to read one that presents specific situations they believe illustrate "problems" where they accurately articulate the underlying facts.

     

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  18.  
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    Mike (profile), Jun 30th, 2008 @ 1:05am

    Re: Re: Re:

    I cannot speak for M. Martin, but I have as yet to see any slowdown in the rate at which new stent and catheter configurations are introduced into the medical market for such devices.

    Two points:

    (1) I wasn't just talking about the market for stents and catheters

    (2) Even so, what does that show at ALL? You have no idea where the market would be if there weren't patents, and these firms weren't spending all this money suing each other and paying settlements. Imagine if they could just compete on providing the better product?

    The slowdown in the market is everything that hasn't happened.

     

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  19.  
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    Mike (profile), Jun 30th, 2008 @ 1:07am

    Re: Re: Re:

    BTW, I have taken the time to read the various articles you rely upon. I do have to wonder however what to make of such articles when I have as yet to read one that presents specific situations they believe illustrate "problems" where they accurately articulate the underlying facts.

    Well, that's a rather broad swipe across a ton of economic evidence, including plenty by Nobel Prize winning economists. I'm sorry, but when debating against someone who won't even give their name, let alone a single actual salient point, I trust the economists.

     

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  20.  
    identicon
    stv, Jun 30th, 2008 @ 6:42am

    re: “money that could have been spent on making a better product is instead going into lawsuits”

    the fact is they didn't. That’s why they ended up having to pay the party that did.

    Call it what you will...patent hoarder, patent troll, etc. It all means one thing: “we’re using your patent and we’re not going to pay.

    When corporate America agrees to not use our inventions without consent, American inventors and small entities will agree to stop suing them.

    stop shilling!!!!

     

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  21.  
    identicon
    Mort, Jun 30th, 2008 @ 8:06am

    Re: re:

    The only one here who appears to be a shill is you. Interesting, given your complete failure to grasp the issue under discussion. This is about medical patents, not a patent for a new hula hoop.

    Call it what you will...patent hoarder, patent troll, etc. It all means one thing: “we’re using your patent and we’re not going to pay.

    No, what it really means is "We have a marginal patent for something we don't ever intend to manufacture, but we're going to make sure everyone pays anyway. Repeatedly, if possible."

     

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  22.  
    identicon
    Anonymous Coward, Jun 30th, 2008 @ 8:12am

    Re: Re: Re: Re:

    "You have no idea where the market would be if there weren't patents"

    Of course not...but then again neither do you.

    "...and these firms weren't spending all this money suing each other and paying settlements. Imagine if they could just compete on providing the better product?"

    Who says this is not precisely what they are doing? BTW, see post #5 above.

     

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  23.  
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    Mike (profile), Jun 30th, 2008 @ 10:18am

    Re: Re: Re: Re: Re:

    Of course not...but then again neither do you.

    I know what the historical evidence says about markets not locked up by monopolies compared to those that do.

    Who says this is not precisely what they are doing?

    Um, all the money that's going into patent litigation? Plus, the fact that these firms now have to be careful NOT to build the best possible products they can for fear of patent infringement.

     

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  24.  
    identicon
    Anonymous Coward, Jun 30th, 2008 @ 11:07am

    Re: Re: Re: Re: Re: Re:

    Would you consider Petra Moser's work within the broad term "historical evidence".

    The reason I referred to #5 is its suggestion that the awards to the prevailing party effectively removes that money from being available for further research. Litigation costs themselves are a relatively minor part of the overall number. I will, however, be the first to admit that litigation costs are much too high, but attribute this in large measure to the inability of litigants from crafting budgets and enforcing them with vigor. All too often litigation turns into a blank check for litigation counsel and his/her law firm. E.g., a simple deposition attended by two partners and four associates who are riding the "blank check gravy train" for billable hours.

    In one instance I handled as in-house counsel a litigation matter concerning IP that was virtually identical to another IP matter being handled at the same time by another on the in-house legal staff (who knew diddly about IP). My total expenses for a successful outcome were in the neighborhood of about $100K. The total expenses for the unsuccsessful outcome of the other were about $1.7M. Want to reign in litigation expenses? Get someone to manage the process who knows what the heck they are doing.

     

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  25.  
    identicon
    angry dude, Jun 30th, 2008 @ 12:32pm

    Re: Pay up or die suka

    mudak

    There is LAW of the land, patent law in this case
    You mean that if you play by the LAW you are immoral or somehow unethical ?
    Gosh, what if you break the law?

    WTF is your problem with patent law ?
    It does originate in the original US Constitution written by the Founding Fathers, so changing it or abolishing it would be EXTREMELY problematic.

    Just learn to respect the RULE OF LAW, punk

     

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  26.  
    identicon
    Anonymous Coward, Jun 30th, 2008 @ 6:22pm

    Re: Re: Pay up or die suka

    mudak: A Russian word, that means quite a stupid arrogant and dumbass person. Or, even worse.
    http://www.urbandictionary.com/define.php?term=mudak

    Thanks AD. I didn't know you cared.

    The simple truth is, for many, health care is too costly. I shouldn't have expected you to understand that, my apologies.

    I suppose you pretend that that patent litigation has nothing to do with the cost of the end product or service.

     

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  27.  
    identicon
    Willton, Jun 30th, 2008 @ 7:35pm

    Re: Re: Re: Pay up or die suka

    The simple truth is, for many, health care is too costly. I shouldn't have expected you to understand that, my apologies.

    I suppose you pretend that that patent litigation has nothing to do with the cost of the end product or service.


    Well, which is worse? Medicine that's expensive, or less advanced medicine?

     

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  28.  
    identicon
    Anonymous Coward, Jun 30th, 2008 @ 8:17pm

    Re: Re: Re: Re: Pay up or die suka

    W -> "Well, which is worse? Medicine that's expensive, or less advanced medicine?"

    It is not an either / or situation is it ?
    The point is - why waste valuable resources on (arguably useless) litigation when they could be put to good use. ?

    You do not believe that such litigation reduces the cost of health care, do you ?

     

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  29.  
    identicon
    Willton, Jul 1st, 2008 @ 5:53am

    Re: Re: Re: Re: Re: Pay up or die suka

    You do not believe that such litigation reduces the cost of health care, do you ?

    No, but I do believe that such litigants have a right to assert their legal claims. Otherwise others would walk all over them.

     

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  30.  
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    Mike (profile), Jul 1st, 2008 @ 10:39am

    Re: Re: Re: Re: Re: Re: Pay up or die suka

    No, but I do believe that such litigants have a right to assert their legal claims. Otherwise others would walk all over them.

    What you claim is "walk all over them" the rest of the world defines as "competition" which drives innovation.

    You'd be amazed at what happens when you allow it to happen.

    But, according to you, there should be only one seller of pizza, because otherwise, the second pizza seller might "walk all over" the first. There should be only one automaker, since GM would be "walking all over" Ford.

    Luckily, most people realize this is ridiculous.

    Hopefully, more people will realize that it's ridiculous in the healthcare world as well.

     

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  31.  
    identicon
    Willton, Jul 1st, 2008 @ 2:51pm

    Re: Re: Re: Re: Re: Re: Re: Pay up or die suka

    What you claim is "walk all over them" the rest of the world defines as "competition" which drives innovation.

    You'd be amazed at what happens when you allow it to happen.

    But, according to you, there should be only one seller of pizza, because otherwise, the second pizza seller might "walk all over" the first. There should be only one automaker, since GM would be "walking all over" Ford.

    Luckily, most people realize this is ridiculous.

    Hopefully, more people will realize that it's ridiculous in the healthcare world as well.


    Mike, put the straw away. Neither a car nor a pizza is novel, and they certainly weren't expensive to invent or cheap to reproduce. Comparing the pharmaceutical industry to selling pizzas or cars is silly and completely misses the mark.

    It's replies like this that bolster your reputation as a blowhard.

     

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  32.  
    icon
    Mike (profile), Jul 1st, 2008 @ 3:50pm

    Re: Re: Re: Re: Re: Re: Re: Re: Pay up or die suka

    Neither a car nor a pizza is novel, and they certainly weren't expensive to invent or cheap to reproduce. Comparing the pharmaceutical industry to selling pizzas or cars is silly and completely misses the mark.

    I like how you avoid the actual point. Besides, your point is bogus. I like how you get to define what is and what is not "novel." Who put you in charge?

    A stent is hardly "novel" either, yet somehow you think it is.

    And, we were never talking about the pharmaceutical industry -- but the healthcare industry, which has been distorted by pharma.

    The only one missing the mark here is you.

    It's replies like this that bolster your reputation as a blowhard.

    If by blowhard you mean someone not brushed aside by unsubstantiated myths, then that's fine. But until you actually have something to back up your statements, don't expect me to change my stance, which, again is actually supported by evidence.

    In the meantime, those who take the time to understand what's going on don't seem to find me a "blowhard" at all. So I'm not too worried about those with blinders up throwing insults my way rather than taking the time to actually look at the facts.

     

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  33.  
    identicon
    Willton, Jul 1st, 2008 @ 5:40pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Pay up or die suka

    I like how you avoid the actual point. Besides, your point is bogus. I like how you get to define what is and what is not "novel." Who put you in charge?

    I didn't realize that I was asked to define novelty, nor did I realize that one had to be "put in charge" to make a lay observation. If you want to know what is and is not novel, look up the definition of the word and then use your common sense.

    I am all for competition in the medical field, but I am more for the competition to find the newest advances in healthcare than I am for the competition of who can make those things the cheapest to acquire. The removal of patents gives you more of the latter at the expense of the former. I'd prefer to have more of the former at the expense of the latter.

    And if I avoided your point, I did so unintentionally, so save your vitriol.

    A stent is hardly "novel" either, yet somehow you think it is.

    Maybe a generic stent is not, but one that is not rejected by the body, does not cause blood clots, and does not corrode in the bloodstream likely was when it was patented. If you can show otherwise, I'm all ears.

     

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  34.  
    identicon
    Michael F. Martin, Jul 2nd, 2008 @ 9:12am

    Re: Re:

    Okay, so according to your theory, exclusive rights to new drugs are bad because they can lead to monopolies, and monopolies are anti-competitive.

    Then you should have some research also showing how the Orphan Drug Act has led to people dying. Could you point me to the evidence for that?

     

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