They issued an editorial lambasting the prevalence of junk patents in the United States.
This is not a particularly unusual opinion, but it is a surprise coming from that bastion of the establishment that is the New York Times editorial board:
The injector pen is not, by any stretch, a new invention. Drugmakers of every ilk have been using it for decades to deliver all sorts of crucial medications into the bloodstream. By adding this old technology to its insulin drug, Glargine, however, the pharmaceutical giant Sanofi was nonetheless able to secure additional patents for a lucrative product. The drug’s existing patents were expiring, and new ones enabled the company to maintain its monopoly — and the bounty that goes with it — much longer. But for the patients who depend on this life-sustaining drug? Too many are still struggling to afford it.
Sanofi is not alone, of course. Other drugmakers have patented scores of uninspiring tweaks to their existing products: making a tablet instead of a pill, changing the dose, adding a flavor. When it comes to protecting a drug monopoly, it seems no modification is too small.
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And for all the hand-wringing over how to lower prescription drug costs in recent years, little has been said about the patent system or its many failings. Put simply: The United States Patent and Trademark Office is in dire need of reform.
The agency was created more than two centuries ago for the express purpose of protecting and promoting innovation. For most of the ensuing decades, it has stood as a beacon of American ingenuity. But critics say that by the time the office issued its 11 millionth patent last year, it had long since devolved into a backwater office that large corporations game, politicians ignore and average citizens are wholly excluded from. As a result, not only is legal trickery rewarded and the public’s interest overlooked, but also innovation — the very thing that patents were meant to foster — is undermined.
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Given that import, it’s concerning that the agency spent the past year without a permanent director. With that post now filled — the Senate confirmed Kathi Vidal, a Silicon Valley patent attorney, this month — there’s a fresh opportunity to modernize and fortify the patent system. Ms. Vidal and Congress should seize that opportunity quickly. Here’s how they can start.
Enforce existing standards. The best way to ensure that patents spur innovation instead of thwarting it is to set a high standard for what deserves patent protection in the first place and then to honor it.
In the United States, that standard already exists: To secure a patent, an invention must be truly novel and nonobvious, it must be described in enough detail for a reasonably qualified person to build and use it, and it must actually work. The problem is these rules are poorly enforced.
The pharmaceutical industry is a good example. Nearly 80 percent of the drugs associated with new patents between 2005 and 2015 were not new. But the issue is not confined to drugmakers. The Theranos debacle, to take just one other example, was touched off by officials who granted scores of patents for a device that had never been built and that turned out not to work. The company was able to secure those patents without disclosing almost any technical information about its product.
I want to note something here: Patents and trade secrets are mutually exclusive. Patent law requires the public disclosure of the information necessary to duplicate an invention in order to secure an exclusive license for a limited amount of time.
IP law, is public interest law, as is explicitly stated in Article 1, Section 8 of the Constitution, it exists, "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
It's time for patents to be limited to actual inventions, and not trivial changes that are neither novel nor significant.
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