Everyone's Got A Pet Project: Patent Maximalist Says We Need Longer Patents To Incentivize Coronavirus Vaccines

from the oh-shut-the-fuck-up dept

Adam Mossoff is one of the most vocal IP maximalist law professors around. He’s never seemed to have met a form of artificial monopoly that he didn’t want to expand. His latest is that he’s claiming, laughably, that we should be extending patent terms in order to incentivize the creation of coronavirus vaccines. His argument is based on a misleading complaint that has been raised by plenty of pharmaceutical companies: they need to file their patent applications at the point of discovery, but they can’t market a drug until it receives FDA approval, and that can take years, which cuts into the years over which they hold a monopoly and can extract insane monopoly rents.

Mossoff says that now is the time to revisit that and to roll back the law that made it so the clock started so early, and to enable patent extensions to incentivize drug makers to create a coronavirus vaccine.

Congress can easily fix this mistake in innovation policy. It can enact legislation that reverses the changes made in 1993 and increases the patent term extensions. Instead of attacking patents, Congress should pass legislation providing more protections. It is an easy fix that will save countless more lives from cancer, diabetes, and viruses like the coronavirus.

This is utter nonsense on so many different levels. It assumes — incorrectly, though a core to all of Mossoff’s thinking — that the ridiculous monopoly profits are the only thing that incentivize creation. Given that tons of companies are already researching coronavirus cures, knowing full well that the reason to do so is to save millions of lives and that governments will easily pay handsomely for such a vaccine, it’s difficult to say with a straight face that these companies need more monopoly rents to work on these kinds of solutions.

Even more to the point, there’s an obvious fundamental flaw in Mossoff’s reasoning. A patent only goes to those who get there first. Every one else trying to create the same drug still has the same capital expenditure upfront to try to develop the drugs or technologies — but can get blocked by whoever gets to the PTO first. If we take Mossoff’s simplistic model that only if a company is guaranteed monopoly rents will they invest in the first place, his own model breaks down, because so many players will invest heavily and get nothing in return, because they were a day or week late.

It seems that a much better model is the way most of the economy works: if you build a good product people and companies and governments pay you for the product, and you don’t need the government to step in and say no one can compete with you for two decades (or more, if Mossoff got his way).

Especially at a time when we see patent-related price gauging around COVID-19, all the evidence suggests we should be moving in the other direction — opening up the ability for more companies to innovate and compete in a free market. Indeed, if Mossoff actually wanted real incentives that also compensates drug developers, you’d think he’d be much more supportive of the innovation prize approach, that basically gives a ton of cash over to those who develop breakthrough drugs in a prize format, but then still allow the drugs to be offered to those who need them at a reasonable price. Then you actually have people who can afford the drugs to stay healthy, rather than just acting as a siphon to drain people’s bank accounts to pay off pharma companies who bought most of the research off of smaller labs who did the actual work with government funding in the first place.

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Comments on “Everyone's Got A Pet Project: Patent Maximalist Says We Need Longer Patents To Incentivize Coronavirus Vaccines”

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49 Comments
Anonymous Anonymous Coward (profile) says:

Vaccine vs cure markets

To some degree it may depend upon what the research labs are looking into. If it is a cure, the market life of the drug is probably shorter than the 20 year life of a patent. That is, a lot of ‘cures’ may be executed to take care of those that are currently infected or get infected before the spread trends down. After that there won’t be much demand for the drug, unless a new outbreak takes place.

On the other hand, if it is a vaccine and we decide that it is something that should be a part of standard vaccination processes (like measles for example) forever, it would certainly have a longer market life than the patent, and eligible for generic production in the future.

Then there is the problem of migration. This is one disease and it appears to have possibly mutated from related diseases. If that is the case, we can certainly expect it to mutate again, and therefore need both new cures and new vaccines. Research done on this strain may or may not be applicable to research on new strains, but if information gathered now helps out in the future, then that information might give someone a leg up on the next problem, and offer that group the advantage when a new patent is appropriate.

Thing is, it is the particular molecules that deserve the patents, and those molecules might be very close in structure, but not delivery or manufacturing systems. While many will argue that delivery or manufacturing systems may be worthy of patent protection, they also create issues for getting to the next cure or vaccine, where delivery or manufacturing systems won’t help anyone, but a new molecule will. As Mike points out, there a lots of labs doing research, but only one will win the patent race, and additional roadblocks would not benefit those infected, or those susceptible. Society needs to assert that the medical benefit is the priority, rather than profit.

I would also like to point out a fallacy in Massoff’s thinking. There has been discussion of fast tracking anything beneficial through the FDA’s approval process. Now, exactly what that means may have significant differences between rhetoric and execution, but it certainly sounds like a reduction in time between a patent filing and approval. I guess, that isn’t enough incentive for Massoff.

Cdaragorn (profile) says:

Re: Vaccine vs cure markets

You’re using those words wrong.

There is no such thing as a "cure" for a disease that does what you’re implying (makes it impossible for the person to ever get that disease again).

The only thing that has ever "cured" any disease in a way that we now consider it ALMOST impossible for anyone to ever get it IS vaccines. So your attempt to separate those two ideas is a complete failure.

Now to what you called a "fallacy". Ya that’s not what that word means either. You’re pointing out a fact he didn’t address in his reasoning. That’s not a fallacy. That’s just another point that might be worth considering.

Reducing the time required to get the vaccine approved isn’t relevant when you’re talking about an argument to remove all possible patent related concerns regarding the time required to get that approval in the first place. He’s already addressed anything that needs to be relating to that additional point.

Anonymous Anonymous Coward (profile) says:

Re: Re: Vaccine vs cure markets

"Definition of vaccine
: a preparation of killed microorganisms, living attenuated organisms, or living fully virulent organisms that is administered to produce or artificially increase immunity to a particular disease

Definition of cure
2a: recovery or relief from a disease
Her cure was complete.
b: something (such as a drug or treatment) that cures a disease
Quinine is a cure for malaria.

Definition of fallacy
1a: a false or mistaken idea

Definitions found at Miriam Webster

I was using these definitions. Given them, I was not wrong in my usage, though we might quibble about whether ignoring facts is a false or mistaken idea rather than a point missed. We might consider that as a law professor and cheerleader for extended monopolies his income might depend upon his position.

This comment has been deemed insightful by the community.
Scary Devil Monastery (profile) says:

Re: Re:

"Imagine if the medical professionals who developed the polio vaccine had been greedy assholes like this guy."

No need to guess that hard.
Estimates say that today 17 million people are walking who would otherwise have been paralyzed due to Polio.
Smallpox killed more than half a million people each year before it was eradicated. Do the math.

The actual utility of patents has always been dubious and it’s main use appears to always have been as an anticompetitive measure to be applied in lieu of actually having to innovate and cater to customers. Medical patents, in comparison, are beyond the pale, with a cost applied in lives.

Scary Devil Monastery (profile) says:

Re: Re:

"…and so a patent can and will delay the development of derivative technologies…"

Which, when it comes to medical patents, can mean some greed asshole puts a stopper on life-saving research. As when some US asshole company put a stop to all research into the BrC1 gene and it’s link to breast cancer for years by tossing out patent claims.

This comment has been deemed insightful by the community.
GHB (profile) says:

Just no.

Look at copyright law, it is extended beyond necessity, and the people behind this are maximalists that not only are greedy, they also abused it and even in some cases used it in illegal purposes like fraudulent takedowns on youtube (there are penalties for submitting false takedowns under section 512 of the DMCA). At the same time, many works remain in copyright when their authors are no longer supporting or even enforcing them in the future (abandonware video games, for example), which makes this pointless for them to be in-copyright.

Already there are patent trolls (example: https://www.eff.org/deeplinks/2019/12/how-patent-sorting-photos-got-used-sue-free-software-group ).

How can we trust that these IP law changes are used in good faith?

Bloof (profile) says:

Because the eternal patents some companies seem to have found ways to obtain over products like insulin has really driven research into diabetes. Big Pharma are pumping trillions into finding a cure and not just spending as little as they can working on getting a slightly different, only marginally better version of their current product they can patent and churn out once the patent on the current version expires, while piggybacking on publicly funded research when it comes to actual innovation… Oh wait.

This comment has been deemed insightful by the community.
Samuel Abram (profile) says:

What patents shouldn't cover

IMHO, there are four things patents shouldn’t cover

  1. Medicine and medical equipment – because lives and health are at stake
  2. Software – because the rate of innovation means that software usually outlives their usefulness pretty quickly
  3. food, i.e. the DNA for seeds and life itself. We depend on food for our survival, so this is too important to be locked up under monopolies. I don’t mind patenting ways of preparing them, such as chicken nuggets or rippin’ chicken, but that ends when you patent the chicken itself.

In some ways, patent maximalism is worse than copyright maximalism.

Scary Devil Monastery (profile) says:

Re: What patents shouldn't cover

Another reason software patents need to go is because, well, they’re basically math.

It’s pretty self-explanatory that it rapidly becomes impossible to optimize any given instruction set if the best possible algorithms to use are under the control of four or five different entities who have no reason at all to relinquish said control.

That One Guy (profile) says:

You expect in others what you would do yourself

Gotta love those self-damning arguments, they expose so very many terrible, horrible things about the ones making them.

If companies wouldn’t bother working on treatments for a global pandemic because they faced a chance that it wouldn’t be profitable for them then he is essentially arguing that pharma companies quite literally consider money more important than lives, and on the side making a very strong argument that healthcare should not be a for-profit industry.

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Anonymous Coward says:

Re: You expect in others what you would do yourself

Perhaps you should try reading his published works, as well as the laws to which he refers, before attempting to sound like you actually know what you are talking about. Start with investigating what happened in 1993 and it’s all too predictable impact on the pharmaceutical industry.

That One Guy (profile) says:

Re: Re: You expect in others what you would do yourself

Sure thing, I’ll get right on that after I get through a few papers written by flat earthers and anti-vaxxers, who I’m sure will likewise make much more sense if only I read more about them.

If the core concepts presented are flawed, then why would someone bother with digging deeper other than to spot equally flawed ideas/arguments?

This comment has been flagged by the community. Click here to show it.

That One Guy (profile) says:

Re: Re:

And right to the insult, you certainly are predictable.

Yes, how utterly crazy for me not to fall for the hilariously obvious ploy of ‘you’re wrong, now go and do my research to prove it’, and not caring what someone who bases their arguments on flawed premises says, flaws which were nicely pointed out in the article that I’m guessing you didn’t read, though if you did and have responses to the criticism by all means feel free to share.

This comment has been flagged by the community. Click here to show it.

Anonymous Coward says:

Re: Re: Re:

If you had the slightest clue you would immediately realize the import of mentioning 1993. You would likewise readily understand the significance of my now mentioning the changes to continuation practice and pre-issuance publication. But since you will continue in blissful ignorance by refusing to educate yourself on these and other relevant matters, it is impossible to take anything you say seriously.

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