More on Maskus paper on patent reform

Further to discussion of the paper by Keith A. Maskus entitled Reforming U.S. Patent Policy Getting the Incentives Right (Council of Foreign Relations), one notes that in addition to the high self-citation frequency, one has citations to many "working papers" and sometimes "no citation." One example pertains to the discussion of Chiron's patents in the hepatitis-C area:

Page 19 of Council of Foreign Relations paper-->

Since that time Chiron has aggressively enforced its patent...

[no citation at all]

Relevant information might have included:

Victoria Slind-Flor, Chiron challenged on hepatitis-C patent.
Science. 1995 Jan 6;267(5194):23.

In April of 1989, the discovery of the virus, re-named hepatitis C virus (HCV), was published in two articles in the journal Science

Houghton, M., Q.-L. Choo, and G. Kuo. NANBV Diagnostics and Vaccines. European Patent No. EP-0-3 18-216-A1. European Patent Office (filed 18 November 1988, published 31 May 1989).

Choo Q, Kuo G, Weiner A, Overby L, Bradley D, Houghton M (1989). "Isolation of a cDNA clone derived from a blood-borne non-A, non-B viral hepatitis genome.". Science 244 (4902): 359-62.

Kuo G, Choo Q, Alter H, Gitnick G, Redeker A, Purcell R, Miyamura T, Dienstag J, Alter M, Stevens C (1989). "An assay for circulating antibodies to a major etiologic virus of human non-A, non-B hepatitis.". Science 244 (4902): 362-4

In January 1998, Chiron initiated an action against F. Hoffmann-LaRoche, Ltd., several of its affiliated companies (collectively, "Roche") and Daniel Bradley in the United States District Court for the Northern District of California. The Company asserts that Roche's manufacture and sale of Amplicor(R) HCV Test and Amplicor(R) HCV Monitor Test constitutes infringement of Chiron's U.S. Patent Nos. 5,712,088 (the "'088 patent") and 5,714,596 (the "'596 patent").

Also, from the journal Science -->

Chiron Corp., discoverer of the hepatitis C virus, has aggressively defended its HCV-related patents, filing suit against Murex, Organon Teknika, and Hoffmann-La Roche, charging the companies with selling HCV blood tests without paying licensing fees. Last July, it went after four companies involved in HCV drug research. Some researchers say the lawsuits are having a chilling effect on the field.

Science 2 July 1999:
Vol. 285. no. 5424, p. 28


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The Maskus paper is a pale remake of Jaffe and Lerner's Innovation and its Discontents. The error about preliminary injunctions is really disturbing, but even in areas where some impact might be made, the scholarship is sadly lacking, as with the Chiron "incidents."