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stories filed under: "peer review"
Scams

Scams

by Mike Masnick


Filed Under:
closed source, journals, peer review, pharmaceuticals, proprietary, scams

Companies:
elsevier, merck, reed elsevier



Merck And Elsevier Exposed For Creating Fake Peer Review Journal

from the wow dept

I know I've mentioned for a while that I've been spending a lot of time looking into the healthcare industry -- particularly pharmaceutical companies, but haven't written that much about them yet because I haven't had the time to put everything together. However, the one thing that seems pretty consistent is how incredibly untrustworthy some of these companies are. The claims that it costs $800 million to make a pill are totally unsubstantiated. The idea that patents are necessary to create drugs is also entirely unsubstantiated. The more you look at it, the more you realize that patents have actually allowed the pharma industry to slow down many potential life-saving innovations in favor of a drug-based solution that isn't always the best. That isn't to say that there aren't some valuable pharmaceuticals, but the industry has a long history of deception and convincing the public and politicians that they need a lot more protection and money than they really do -- and that their drugs are more effective than they really are.

Even so, I was still somewhat stunned to read (via Clay Shirky) that Merck supposedly created a fake peer-reviewed journal to publish data that made its drugs look good. It also got Elsevier to publish the journal to make it look legit (Elsevier being one of the bigger publishers of -- of course -- proprietary medical journals). Two companies with a history of locking up information and data teaming up to mislead doctors and the public? What a shock...

Of course, this is exactly the sort of thing that you can do when everything is locked up and proprietary, rather than open. There's almost no way to confirm or check the data or information to make sure it's legit, so people tend to assume it is. In that regard, perhaps it's no surprise that the two companies eventually went down this road, but it does highlight one of the problems with the way the system works today. As Shirky later points out this is hardly unique for a firm like Elsevier, which has faced some serious ethical questions regarding its publications in the past as well.

270 Comments | Leave a Comment..

 
Overhype

Overhype

by Mike Masnick


Filed Under:
patents, peer review, peer to patent



Is Peer Review Really Enough To Help The Patent System?

from the not-really dept

For a few years now, there's been a push to open up the patent process to peer review using a system called Peer-To-Patent. It launched a couple years ago, and the Associated Press is running an article suggesting that it can help fix many of the patent system's problems. While I'm not against the idea of Peer-to-Patent, it appears that supporters of the system are overplaying it, while downplaying the many weaknesses of the program.

First of all, the AP report makes the same mistake many people do in suggesting that prior art is the equivalent of obviousness. The two are separate conditions related to patent approval. You can have obviousness without prior art, so repeating the myth that prior art is what's needed to show obviousness doesn't help matters.

But the bigger problem, only mentioned briefly at the very end of the article, is that most of the time the problem with patent lawsuits is that no one who looked at the patent would have thought it actually applied to the technology that it's being used against. People are filing incredibly broad patents, waiting for others to create successful technologies that might, sorta-if-you-squint infringe -- and then suing. Those types of patents aren't caught by the peer review process. In fact, a big part of the problem is actually getting the right people to look at those patents while they're in the peer review stage. Most people don't have the time to sort through the Peer-to-Patent list and see if they spot anything that's relevant to them. So, the folks who are skilled in the art probably aren't looking, and the patent gets through -- and only becomes an issue later. If peer review is going to be useful, at the very least, examiners should go looking for those actually skilled in the art to get their reviews of the patent, rather than waiting for "the crowd" to come to them.

16 Comments | Leave a Comment..

 
Legal Issues

Legal Issues

by Mike Masnick


Filed Under:
non-obvious, patents, peer review



Why Shouldn't Competitors Be Able To Weigh In On Patent Applications?

from the questions,-questions,-questions dept

The patent system is only supposed to grant patents on inventions that are new and non-obvious to those skilled in the art. As we've pointed out in the past, the "non-obvious" part of the requirement has long been (effectively) ignored by the patent office. Instead, it mostly focused on whether the invention was new -- and did so by looking at published examples of prior art. There was very little effort made to examine whether or not the concept was non-obvious, and even less to see if it was non-obvious to skilled practitioners in the field. Luckily, the Supreme Court's decision in the Teleflex v. KSR case brought some attention back to the obviousness question, but only in one particular area (concerning combining two known concepts). However, it did little to actually establish a real test of whether or not a concept is obvious. For example, there's still no thought given to the fact that if multiple people invent the same thing at around the same time, it seems fairly obvious that the concept was, in fact, obvious to those who were skilled in the art, since multiple people all came to the same "next step" conclusion. A recognition that independent invention shows the obviousness of an invention would be a huge step forward.

Another way to test obviousness to those skilled in the art would be to actually let the patent examiner get opinions from others skilled in the space as to the obviousness of the idea. Unfortunately, current law actually forbids letting those skilled in the art from providing their opinions on patent applications -- which is why some are now calling for the law to be changed to allow those who work in the space to provide their opinions (or even to protest) new patent applications before they are granted. Given the purpose of the patent system, and the requirement that patents be non-obvious to those who actually know the area in question, this seems only reasonable.

Of course, the immediate response from those opposed to such a system is that this will merely allow competitors who are jealous of an inventor to file protests against the inventor, claiming that a true breakthrough was "obvious." That should be easy to overcome, however, as merely filing something saying a concept is obvious shouldn't be enough to sway an examiner. Instead, the fact that a claim of obviousness comes from a competitor should make the examiner more skeptical of the claim, and focus on the exact reasoning of why the proposed claims in the patent are obvious. In other words, the examiner would still be the final reviewer of all the evidence, and can note the specific biases of those submitting reasons why a patent shouldn't be granted -- but at the very least, the examiner will now have a lot more relevant info on the actual state of the art, and what's considered obvious than previously.

40 Comments | Leave a Comment..

 
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