Sunday, July 08, 2018

Difficulties with Parthasarathy's "U.S. patent system out of step"

An article titled U.S. patent system out of step with today’s citizens appears in Finance & Commerce, but pointing to an earlier post at The Conversation , which in turn states of the article -- This is an updated version of an article originally published on July 31, 2015. --, thus, about three years old.

The Finance-Commerce post includes the text:

It is worth observing that while the U.S. system was initially conceived as a democratic improvement upon the European systems of the time, today’s pan-European patent system is far ahead of its U.S. counterpart in terms of both its public engagement and its attention to the implications that citizens care about.

If the U.S. patent system wants to maintain public trust, it has to realize that the 21st-century citizen is quite different from her 18th-century forebears. Today’s citizen cares about the ethical and socioeconomic implications of patents and the technologies they cover and is not content to assume that the system’s benefits eventually trickle down. And she seeks to have an active role in decision-making.

Taking this citizen seriously will require serious patent system reforms. Possible reforms include increasing opportunities for the public to participate in patent decision-making, allowing more legal and bureaucratic challenges on behalf of the public interest, and incorporating more emphasis on ethical and socioeconomic implications into our patent and innovation policies.

There is a lot which can be questioned about the analysis by Shobita Parthasarathy, a professor at the University of Michigan.

**As to opportunities for the "public" to challenge, and to participate, recall the patent wars over stem cells, which took place more than ten years before Parthasarathy's 2018 article. The journal Science had reported:

WARF's patents were first challenged in October 2006 by two citizens' groups, who claimed that the approach for getting primate ES cells was "obvious" and could have been successfully applied by anyone with the necessary resources. Last April, the U.S. Patent and Trademark Office (PTO) accorded the patents a preliminary rejection and agreed to reexamine them.


The consumer group was beaten so badly that it changed its name. See the 2008 post on IPBiz FTCR changes its name after stem cell defeat The group, renamed as Consumer Watchdog, did make later legal history, in defeat, as to a standing issue. Consumer Watchdog / PubPat seek Supreme Court review of standing issue in stem call case concerning WARF's US 7,029,913

Disregarding the unfavorable outcome for the consumer group, the point, apparently not recognized by Parthasarathy, is that the "public" has been participating in the patent process for a long time. [And, of course, sometimes the "public" involvement can involve a hedge fund guy; see for example Kyle Bass IPR petition against Lialda granted for review of U.S. Patent No. 6,773,720

**in a comment to The Conversation post, Parthasarathy wrote:

Especially in recent decades, there has been a slowdown in health care innovation (e.g., as defined by new drug compounds available to substantially improve health) while patent rates have increased. There's also an argument that patents actually hurt innovation in some cases, especially in the US, because they are too broad in scope and make it difficult for other innovators to "invent around" them (this is a particular concern in the area of biomedicine).

Parthasarathy apparently is unfamiliar with drug development in the area of multiple sclerosis. The first drug to modulate the effect of the disease appeared in 1993. Now there are over 15 drugs. Sufferers of MS now face an incredibly more favorable expectation of lifestyle than in 1993.

In this, one has to appreciate that the bigger cost in bringing a drug to market is testing, rather than simply identifying a drug candidate. The patent system, which can protect rights in the drug and/or method of use, allows a drug innovator to re-coup the significant expense of drug testing.

**Maybe it is Parthasarathy who is out of step?


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