Bad Idea Is Bad: Senator Sasse Wants To Give Whoever Patents COVID-19 Treatments 10 Extra Years Of Patent Protection

from the because-we'll-still-be-fighting-it-in-2050? dept

It's amazing how two people can look at the same situation and see the exact opposite conclusions. As experts are pointing out that to fight COVID-19 we should be relaxing intellectual property laws to enable more experimentation and collaboration, some have decided what we really need is more locking up of knowledge, and apparently Senator Ben Sasse falls into that ridiculous camp. We joked a few weeks ago about a law professor who's never seen an intellectual property law he didn't want to make worse, saying that pharma companies needed longer patent terms to incentivize the creation of treatments, but we didn't think anyone in power would actually take that nonsense seriously.

Senator Sasse, however, took up the ridiculous challenge, and has introduced the Facilitating Innovation to Fight Coronavirus Act. It's a bad, bad, bill that makes no sense at all, but it's separated into two sections that have no business being together in a single bill other than as a ridiculous way to try to convince people who want one provision to support the other. Let's start with the first provision, that actually does make sense. It would take away laws that are blocking some doctors from helping, and also blocking doctors from making use of unproven but potentially valid treatments:

Notwithstanding any other provision of Federal, State, or local law, no health care provider shall be liable in any Federal, State, or local civil proceeding for—

(1) using or modifying a medical device for an unapproved use or indication;
(2) practicing without a license or outside of an area of specialty if instructed to do so by an individual with such a license or within such an area of specialty; or
(3) conducting the testing of, or the provision of treatment to, a patient outside of the premises of standard health care facilities;

where such action was carried out to test, treat, or otherwise counter the effects of the Coronavirus Disease COVID-19 during the duration of the national emergency...

Those issues have been blocking doctors from being able to help during this pandemic. And, yes, there are reasonable fears concerning snake oil treatments and nonsense spewed by cranks and non-doctors, but most doctors are not pushing snake oil and aren't cranks. If they can help out, they should be able to do so -- and as we learn more and more about what works, having to wait until something is an "approved use" has already been frustrating many.

But, those good ideas are completely drowned in the muck of the horrible idea Sasse has tied to it: extending patent terms for COVID-19 treatments. First, the bill says that the patent term won't be considered to start until after the national emergency is over and then, on top of that, it grants any COVID-19 related patent 10 extra years of protection, which would mean more than 50% more than any other patent.

EFFECTIVE DATE.—Notwithstanding any provision of title 35, United States Code, with respect to an eligible patent, the term of the patent shall not begin until the date on which the national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.) with respect to that disease terminates.

LENGTH OF TERM.—Notwithstanding any provision of title 35, United States Code, with respect to an eligible patent, the term of the patent shall extend for 10 years longer than it otherwise would under such title.

And what is an "eligible patent"? Well, basically anything that is helpful in treating COVID-19, even if it's already patented:

In this section, the term ‘‘eligible patent’’ means a patent issued for a new or existing pharmaceutical, medical device, or other process, machine, manufacture, or composition of matter, or any new and useful improvement thereof used or intended for use in the treatment of the Coronavirus Disease 2019 (COVID–19).

If this became law, you can bet tons of ancillary drugs and devices would suddenly try to claim those ten extra years of exclusivity. I'm not even sure how this law would apply to things that are already off-patent but are used. Would they suddenly go back on patent for 10 years? The bill is terribly drafted and appears to have been written by someone who doesn't understand how any of this works.

I get that there's a desire to create incentives for stopping the pandemic, and that some very ignorant people think the patent system is the only incentive lever that exists for innovation, but that's utter nonsense. You just need to look around. Tons of companies are stepping up to work on this problem, because another incentive is not watching millions of humans die. That's kind of a big one. Also, just being a good citizen of the world.

Second, it's difficult to see how any of this makes any sense anyway. If the treatment is something that's actually new and patent-eligible, then patents filed now won't be approved for quite some time, possibly over a year at which point one hopes that we're out of this pandemic. But, even so, the bill is written to suggest that we'll be fighting COVID-19 for the next 30 years. And if that's the case, we're going to have much bigger problems on our hands than how long some pharma company's patents last.

Finally, this is completely brain-dead public policy. The entire point of patents is to create a monopoly so that the creators can charge monopoly rents. We already have some general issues with how that makes any sense in a free market economy, but, in the midst of a worldwide pandemic, this makes less than no sense at all. It's a law that is literally designed to jack up the cost of treating COVID-19. Because that's what patents do. They create a monopoly so the sole supplier can increase prices. Right now we need widespread solutions that can quickly be deployed globally. Jacking up the price of it makes that impossible.

There is no sensible model in which this approach makes any sense at all.

Filed Under: ben sasse, covid-19, exclusivity, patents, rent seeking


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  • icon
    Stephen T. Stone (profile), 7 Apr 2020 @ 12:15pm

    the bill is written to suggest that we'll be fighting COVID-19 for the next 30 years. And if that's the case, we're going to have much bigger problems on our hands than how long some pharma company's patents last.

    "Problems like ‘figuring out how I make a profit from this’.” — Senator Sasse, probably

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2020 @ 12:18pm

    It appears to me that there is a very good incentives to work on defeating Covid-19, and they are a heathy family, a heathy workforce, and a healthy economy.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 7 Apr 2020 @ 12:24pm

      “Yeah, but what’s in it for me?” — pharma CEOs, probably

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Apr 2020 @ 12:31pm

        Re:

        An economy that allows them to make a profit, rather than a societal collapse when they find out that food does not grow in shops.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 7 Apr 2020 @ 12:39pm

          “But will I be able to make more money than I would have without the patents?”

          (Trust me, CEOs don’t give a fuck about “the greater good” unless it can turn a profit for them.)

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 9 Apr 2020 @ 10:45am

            Stone, Make Up Your Mind

            Stone, I swore I read endless, repetitive paragraphs and paragraphs of your comments the other day saying it's not a bad thing - in fact, it's quite a good thing - that corporations are permitted to control our speech. (Twitter and anti-vaxxers).

            In that case, CEOs are the good guys protecting people from having to encounter things considered in 2020 to be offensive; suppression of free speech for the 'greater good'.

            Now, here you're saying CEOs are the bad guys who don't care about the 'greater good'.

            Which is it? Are heads of corporations good guys or bad guys?

            reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 9 Apr 2020 @ 11:12am

              Re: Stone, Make Up Your Mind

              "Stone, I swore I read endless, repetitive paragraphs and paragraphs of your comments the other day saying it's not a bad thing - in fact, it's quite a good thing - that corporations are permitted to control our speech. (Twitter and anti-vaxxers)."

              Yeah, that's just you being too dumb to understand the argument. Twitter does not have the right to control your speech. However, if you decide to use their property to broadcast the speech, they have a right to determine how their property is used. If you disagree with that, they have many competitors you can use instead, or you can use your own property. You don't have the right to force someone to use their property in a way they do not approve of.

              "Which is it? Are heads of corporations good guys or bad guys?"

              It varies depending on context, something that you remain utterly ignorant of.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 21 May 2020 @ 7:05am

                Are Stone & Paul The Same People

                Did you forget to switch profiles when you answered this question?

                You two are so in lockstep, I legitimately wonder if one of you is the sockpuppet for the other.

                reply to this | link to this | view in chronology ]

                • icon
                  PaulT (profile), 21 May 2020 @ 9:33am

                  Re: Are Stone & Paul The Same People

                  I'm not even sure we live on the same continent, but if that's the fiction you choose to believe in to avoid how wrong you were so be it.

                  reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Apr 2020 @ 3:25pm

          Re: Re:

          Cures do not generate nearly the same profit motive that treatments do. Why cure a disease when you can profit from it indefinitely?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Apr 2020 @ 7:33pm

          Re: Re:

          And how do you think the economy that lets them overprice their drugs will suddenly make food grow in shops?

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 7 Apr 2020 @ 8:52pm

            Re: Re: Re:

            "And how do you think the economy that lets them overprice their drugs will suddenly make food grow in shops?"

            At the current trajectory, food will be fine long-term, but people will still need their drugs to live.

            Remember we're talking about an industry that essentially turned a bunch of their customers into heroin addicts, causing them to lose homes, families, jobs and even die, to get that sweet short-term profit.

            reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 7 Apr 2020 @ 8:50pm

          Re: Re:

          "An economy that allows them to make a profit"

          The American healthcare system is set up so that people will destroy the finances of themselves and their families in order to access live-saving medicine that's available virtually for free elsewhere in the world, while the electorate have been informed that voting for a change to this is tantamount to installing Soviet Russia.

          This might change, but some people would literally go without food before giving up their expensive meds, and the insurance system is built upon ensuring those most at risk die anyway.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 8 Apr 2020 @ 12:43am

            Re: Re: Re:

            "This might change, but some people would literally go without food before giving up their expensive meds, and the insurance system is built upon ensuring those most at risk die anyway."

            Is this a good time to bring up the proportion of US families which experience, at some point over the year, food insecurity?

            It's a bit laughable that a nation where roughly 11% of the families have trouble feeding themselves still prides itself on it's economy and culture. With the currently blooming unemployment numbers, expect that percentage to spike.

            reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 8 Apr 2020 @ 1:30am

              Re: Re: Re: Re:

              "Is this a good time to bring up the proportion of US families which experience, at some point over the year, food insecurity?"

              Oh, absolutely. The richest economy in the first world (still, for the most part), and the US has areas referred to as "food deserts" that actually make most healthy staples more expensive to the poorest folk. That's not great at the best of times.

              But, you're more likely to get food through some other means if you're truly desperate. Certainly more than you are likely to be able to get someone else who can't feed themselves properly to help you out with the drug you need to live, that the next Martin Shkreli decided would make a nice profit bonus. Communities can pitch in to help out with food for everybody, as can charities and other movements, not so much with a $2,000/dose drug that only one person needs to stay alive.

              "With the currently blooming unemployment numbers, expect that percentage to spike."

              The silver lining with both issues is that it should reveal once and for all how badly off a lot of the population are, and ensure that something is done about it.

              reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 7 Apr 2020 @ 8:47pm

      Re:

      Those are incentives for people who care about a society greater than themselves, not people who only care for personal enrichment. Guess which type is usually in charge of big pharma budgets?

      reply to this | link to this | view in chronology ]

  • icon
    Darkness Of Course (profile), 7 Apr 2020 @ 12:55pm

    Why don’t we have nice things

    On the long term, COVID-19 will be managed in three years. So, if there is a patent, there will not be important anymore. What exactly do they expect to benefit from the 17y of no longer important solution?

    GOP cannot do simple math. Well, beyond give me more money.

    reply to this | link to this | view in chronology ]

    • icon
      sumgai (profile), 7 Apr 2020 @ 1:33pm

      Re: Why don’t we have nice things

      ... beyond give me more money

      Shouldn't that be "All your money are belong to us"?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2020 @ 2:55pm

      Re: Why don’t we have nice things

      On the long term, COVID-19 will be managed in three years.

      Is there evidence to support this view? About a week ago people were saying it could become seasonal, like the flu. Last I heard, we still don't know how much immunity people get after having it, or how much it could mutate.

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 7 Apr 2020 @ 3:09pm

        Re: Re: Why don’t we have nice things

        This isn't about Coronavirus, it's about extending EXISTING patents on general treatments (that just happen to be somewhat affective on Coronavirus) for another 10 years. Look back at the article - it give EXISTING medicine/devices/treatments an extension as long as it does anything at all to treat Coronvirus - an extension that will last long after Coronavirus has a vaccine.

        reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 7 Apr 2020 @ 8:57pm

      Re: Why don’t we have nice things

      "On the long term, COVID-19 will be managed in three years."

      Managaed, not cured or eradicated, plus COVID-19 is not the only purpose of these treatments.

      "GOP cannot do simple math. Well, beyond give me more money."

      I guarantee that the losses in your personal economy due to their preventable catastrophes plus the losses in services and raises in taxes that will be justified in repaying them will far outweigh that small cheque you got.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2020 @ 1:03pm

    Jeez! Is there a single Senator that has brains and common sense? It doesn't seem so! All seem to have the sense of rocking horses! How the hell can we entrust our nation to these people? I wouldn't trust a single one of them to change a light bulb!

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 7 Apr 2020 @ 1:34pm

      Re:

      They have sufficient brains and common sense to follow the directions of their owners (aka big contributors), which doesn't bode well for the trust of constituents department.

      reply to this | link to this | view in chronology ]

    • icon
      Samuel Abram (profile), 8 Apr 2020 @ 3:08pm

      Re:

      Jeez! Is there a single Senator that has brains and common sense? It doesn't seem so!

      Yes. Ron Wyden (who is excellent on Tech Policy) and Bernie Sanders (who needs no introduction).

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2020 @ 3:01pm

    Extending particular patents that already exist?

    Well, I guess they can just look to the various retroactive copyright extension laws for inspiration.

    Everyone knows that (the estate of) Susan Hayward was incentivized to create new works by the Sonny Bono copyright extension act, so it must be good for patents too!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2020 @ 3:08pm

    The treatment will require the regeneration of nerve cells possibly from stem cells like Bush said. It would be patent eligible if it could be developed.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2020 @ 3:21pm

    Another bad idea: Shkreli’s plea from prison: Free me and I’ll cure COVID-19
    https://arstechnica.com/science/2020/04/shkrelis-plea-from-prison-free-me-and-ill-cure-covi d-19/

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2020 @ 3:26pm

      Re:

      Sure, make a deal with the devil. What could possibly go wrong?

      reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 7 Apr 2020 @ 3:54pm

      Re:

      From that article:

      "“I am one of the few executives experienced in ALL aspects of drug development from molecule creation and hypothesis generation, to preclinical assessments and clinical trial design/target engagement demonstration, and manufacturing/synthesis and global logistics and deployment of medicines,” he writes in a note at the end of the document."

      He's not a doctor, and not a scientist So he is telling us that his mad marketing and management skillz would be better than everyone else in pursuit of the same thing. Hmm. Sounds like he is right up Trump's ally. Expect his exoneration and some startup capital from the Feds any day now.

      /s

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2020 @ 7:32pm

      Re:

      What's the point? He's just going to overprice the cure.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 7 Apr 2020 @ 8:57pm

      Re:

      I'll keep COVID-19, thanks.

      reply to this | link to this | view in chronology ]

  • icon
    Tim R (profile), 7 Apr 2020 @ 3:30pm

    I thought this plan was ludicrous, plain unbridled capitalism trying to run amok.

    Then I saw that Martin Shkrelli wants to be released from prison to be the world's COVID-19 messiah.

    Looks like he read this article, too.

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 7 Apr 2020 @ 4:59pm

    Finally, this is completely brain-dead public policy.

    Given that this pretty much sums up most public policy, were you really expecting anything different?

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 7 Apr 2020 @ 6:41pm

    Dear Senator Sasse...

    Fuck off. Crawl back under your rock. Your great idea is ignorant.

    reply to this | link to this | view in chronology ]

  • identicon
    Crafty Coyote, 7 Apr 2020 @ 8:03pm

    This reminds me of the 30 extra years of copyright protection given to French authors who died in either of the World Wars, yet the copyright extension isn't recognized outside of France. American vaccine manufacturers and scientists might get 10 extra years of patent but will that mean anything outside of the USA

    reply to this | link to this | view in chronology ]

  • identicon
    dr evil, 7 Apr 2020 @ 8:37pm

    social distancing

    sounds like we are practicing social distancing with the wrong group. lets disband the house and senate now.

    reply to this | link to this | view in chronology ]

  • identicon
    Peter, 8 Apr 2020 @ 2:19am

    This making money from cures must be really difficult

    When your market size is THE ENTIRE WORLD and you still need an extra incentive. Just imagine how much money you would make even if your profit is only one cent per treatment.......and that is still not enough?

    Anywho, what does 10 years give you? By then the virus will have died off from having already infected the world's population.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 8 Apr 2020 @ 2:35am

      Re: This making money from cures must be really difficult

      "Just imagine how much money you would make even if your profit is only one cent per treatment.......and that is still not enough?"

      These are corporations driven by constantly increasing next quarter's profits and giving executive bonus packages. There is no amount of money enough.

      "Anywho, what does 10 years give you? By then the virus will have died off from having already infected the world's population."

      It doesn't work that way. Almost no disease is truly extinct.

      reply to this | link to this | view in chronology ]

  • identicon
    Rcurry, 8 Apr 2020 @ 3:54am

    Covid-19 and patents

    I'll agree that those patenting treatments for any pandemic disease should get an extra 10 years... somewhere.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Apr 2020 @ 7:00am

    When all you have is a hammer, every problem looks like a nail.

    reply to this | link to this | view in chronology ]


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