Patent Attorney On Why We Need To Rethink Intellectual Property

Techdirt called our attention to an interesting video of patent attorney Stephan Kinsella's presentation on 'Rethinking Intellectual Property Completely.' It's a long presentation, but well worth the time to watch. There is also an ongoing series of posts discussing intellectual property rights on Techdirt for additional reading.

Re:A better way of saying this...

[blackraven14250]

..somehow get congress to stop their continuous feeding at the trough of corporate lobbyists...

Congress doesn't want to stop feeding on the trough. It's in their best interest, in the form of donations, to continue getting their money. They are, after all, only their for their reelection, and not really there for the people.

Re:Old concept in a new world

[CSMatt]

Is the money you gain from prohibiting others from using the same idea in a generic drug worth the lives lost by those who are unable to afford your prices?

Re:Old concept in a new world

[QuantumRiff]

Drug companies love to talk about the cost of developing their drugs, but they easily spend more money Marketing their drugs than they do developing them. If there drugs are so good and wonderfull, shouldn't they sell themselves?

This [familiesusa.org] gives much more information.

Re:Old concept in a new world

[WaltBusterkeys]

The millions and billions are collective research, not just solely put on one product. It's throwing money at the wall, waiting for some to stick,

Yes, because it's impossible to know in advance which concept will work. There is no way to know that Molecule #1512 will be the one that will become a successful therapy, and that #1-#1511 will be failures. Investigating the first 1511 is an absolute prerequisite to finding out that #1512 is the one that will work. You call it "throwing money at the wall," but that's the only practical way to do drug research these days. You start with a bunch of compounds that look like possible candidates, then slowly weed out the ones that don't work or cause unacceptable side-effects or otherwise aren't promising.

If there were a way to know in advance which drugs would work then nobody would waste time looking at the unsuccessful ones.

Re:Intellectual Property Tax

[Lumpy]

you Sir are a freaking Genius.

Tax ALL intellectual property based on it's value. All OSS and FSF IP has zero tax as it is given away freely.

Holy crap you hit the nail on the head in such an elegant way none of them will see it coming.

You found a solution to All if the Intellectual Property messes by giving the politicians something to tax. Holy crap I'm going to start talking about this to the right people to see if I can get it rolling in my state.

This is in fact the answer. As soon as governments start taking tax on IP these idiots at the RIAA, MPAA and BSA will stand back and go... wooooah. Wait a minute.

Base the TAX they get on how much they sued for infringement. That would make it that record companies need to ante up billions in taxes.

BRILLIANT!

Re:Old concept in a new world

[dvice_null]

Solution: Global government co-operation and government funded drug research. This way you don't have to use that much money for the adverticing either.

Re:Intellectual Property Tax

[bsDaemon]

I'm not sure if that was sarcasm or not. However, it might sort of backfire on F/OSS, creating a sort of extreme "you get what you pay for" condition.

If Free or Open Source software is not taxable, that is because it has no value. Why do I want something that has no value?

F/OSS DOES have value. It just usually has no cost associated with it. This is hard enough to explain as it is.

Companies such as Red Hat, then, would not have to pay tax on Free software. This is good. But they're selling it. This means that they'll probably get rounded up in the IP tax scheme anyway, which is bad.

I suppose if it were based on how much a company claims it lost due to "infringement," then it wouldn't be an issue for RH, but still... you know its just going to get assessed.

Even if I give away real estate, the person who gets it is going to have to pay tax on it. If I give away software, are they going to be liable for the tax?

Anyway... enough rambling. I only took a a real estate law class one time. I am not a lawyer. Don't mind me.

Re:IP will never go away.

[rs79]

" Gasoline engines are going to forever power cars. The oil industry will see to it that no alternative fuels will ever gain mainstream support, or at least no alternative fuels that do not rely on oil in some way"

Now that Canola oil is cheaper than diesel I use half andf half if nothing else to reduced demand on diesel.

It's nice to see that a 25 yr old jalopy Merdeces oilburner has gone from on average $500 to $5000 in 6 months.

Hope it holds up as well for the next half million miles.

RS
83 300SD

Re:Old concept in a new world

[Anonymous Coward]

Unfortunately making drugs that work are not like making free software and open hardware that works. It may happen in the future but for now it takes not one person but an entire pyramid of people. Crass as it may money grubbing scientists and businessmen make the best drugs right now.
The FDA has tried to shorten the process for some drugs and it made a mess. It takes 10+ years to get a drug to market so they have to make up that expense somewhere.

Right now they make up that expense by sticking it the richest country on earth....for now.

 

The death of IP

[Anonymous Coward]

Generally speaking,
I'm not a software pirate. I use FOSS.
I'm not a media pirate. I listen to CC stuff.
I'm not an encyclopedia pirate. I use wikipedia.

When all is open, patents are basically unenforceable. You can own an implementation via copyright, but you can't own an idea.

I won't drive anyone out of business pirating their stuff. I'll drive them out of business by obsoleting it.
~ethana2 (too lazy to login)

Re:Old concept in a new world

[99BottlesOfBeerInMyF]

But if there is not a perceived investment opportunity, many drugs sold for high prices today (and lower prices tomorrow) would never have been developed.

This is true, but maybe if we allocated our tax dollars better we would have better drugs yet. The way things are now, a lot of the research is already funded by tax dollars, even though private companies end up with the patents. They also pass up avenues for research that might result in cures, which are much less profitable than treatments.

The drug industry and health industry in general is a situation where the government interferes with the free market by enforcing patents and subsidizing some research and restricting other research. The problem is not necessarily government interference, but the fact that the government interference is directed by lobbyists making campaign contributions instead of by representatives acting in the best interests of the people.

Patent reform idea

[Thought1]

My idea for reforming patent law is simple: Make the maximum damage in a patent suit be 1% of the gross revenue of the product per patent found to be infringed, with a maximum of 10% of gross for all patents infringed. The change handles open source issues, limits insane business-killing damages, and will thus also limit licensing fees in practice, while still giving the creator compensation for their work. It should also cause a huge reduction in patent suits, due to the reduced damages limit. Another side effect will be that most companies will start licensing their products readily for the damage amount, rather than withholding licenses, as the only effect withholding a license will cause is additional money spent on attorneys and plenty of time in court to get their license fees. This should also lead to "clearing houses" for patent licensing, with easy searching and convenient reporting accounts for companies either looking for ideas to incorporate into their products, or to license any patents their invented product may infringe. It's also small enough and reasonable enough of a change that it's likely to gain support by a lot of people and businesses, and that it won't put lots of people out of work.

Who's with me? (:

Re:Old concept in a new world

[WaltBusterkeys]

Real chemists know that there are actual patterns in chemistry and doctors know that there are receptors that need to be targeted.

No kidding. Drug developers don't randomly dump household chemicals into petri dishes trying to get a reaction. If you know that a given enzyme is relevant to a disease, it gives a general idea as to what kinds of drugs might work. The problem is that the human body is incredibly complex. Just look at one protein in the process of folding [cnx.org]. Tell me how easy it is to identify one molecule that will correct an error in that process without messing up other systems.

Drug designers use a pen and paper to narrow it down to a range of possibilities, then they have to run tests against hundreds (if not thousands) of possible targets to figure out which one has the exact desired effect without causing other harm.

Re:Old concept in a new world

[Znork]

It's a high risk game

Well, maybe it's time to quit playing games and instead start taking the issue seriously. Improving the system isn't rocket science; it just means dumping the whole idea of patents and starting paying just for the actual R&D and letting the marketing and production be handled by the free market. In competition.

A functional system would get us five times the R&D for the same money we're paying the pharmaceuticals today.

I don't like high drug costs as much as the next guy

I don't mind the high drug costs, I mind the fact that of the large amounts of money I pay, more is wasted on marketing than is spent on R&D.

Re:Old concept in a new world

[reebmmm]

No offense, but what reality are you operating in?

It's important to first note that most companies DON'T do the original research. The discovery often arises out of research very far removed from commercial products. Where it goes from there is a very difficult problem to solve since the barriers to the first entity are very HIGH.

To get to market a drug has to be "discovered," make it through clinical trials, and be marketable at a cost that's "profitable." This whole process for the first company is prohibitively expensive and risky. A follower would have neither the risk nor the cost associated.

This assumes that you can even GET the product from the research. There's a huge death valley of products whose cost just to get started down the commercialization process makes it all but impossible.

That's why, for example, you don't see many non-profit or research institutions trying to capitalize on their own research. Rather, they get the protection and sell those rights (or license them) for a FRACTION of the actual market value.

Absent protection, few people would have ANY incentive to take the risk when the next person can do it for nothing.

Re:Old concept in a new world

[monxrtr]

It doesn't matter WHO does the research. It only matters that the research COSTS $X. Same for the clinical trials which COSTS $Y. Same for every other single different line item expense.

Absent protection, few people would have ANY incentive to take the risk when the next person can do it for nothing.

That's just completely 100% FALSE. The incentive lies 100% ultimately with the sick patients who want medical relief from an ailment. If the patients pay up front in advance for all the costs it takes to develop a drug that is by definition cheaper than paying for all the costs it takes to develop the drug PLUS the corporation middleman profit. And those profit margins are obscenely gouging when the patent grants 100% monopoly distribution. The drug company incentives are merely to make a profit off the desperation of sick people. The incentives of sick people are to find a cure for as cheap as possible. And patents are always prohibiting the cheapest cure from being found, and always inhibiting the length of time it takes for a cure to be found because of compelled ignorance (itself an enormous cost when you have to pretend giant jigsaw pieces of technology haven't already been pieced together).

Who's volunteering for these clinical trials? Sick people. The total amount spent on drugs, by definition the total revenues of the drug companies, is the amount that patients are by definition willing to spend for a cure. Patients are more than willing to risk their lives and risk their savings in pursuit of cures. And those cures are cheaper without drug company monopoly patent profit margins. And really rich sick people will be more than willing to pay their "fair share" of R&D financing for the chance of extending and bettering their lives, subsidizing those who are poorer, and resulting in more resources devoted to R&D than occur with obfuscation and watering down of incentives which occurs because of the patent system.

Re:Old concept in a new world

[monxrtr]

There are certain classes of products for which the development of the product itself is prohibitively expensive

That's 100% completely FALSE. If that were true, then even drug companies would not undertake the R&D risk as they would be definition be expecting to LOSE money on the venture.

but for which the production cost once developed is marginally little.

That's how it SHOULD be. That's accurate pricing based on economic REALITY.

For that class of products, the developer is penalized, because they now don't have their initial investment, and all the other competitors can thereby profit better than they can.

No, the developers are sick people who completely supply the incentive for the project undertaking in the first place. The only thing sick people care about is getting the drug developed and distributed for as cheap as possible. That by definition maximizes profit for sick people. They could care less if others can benefit from their efforts, and likely would feel even further psychic profit in the form of pride and gratitude.

Re:Mod Down!

[joocemann]

The FDA is a pseudo-control mechanism for the government to appear to be protecting its citizens. The FDA, in reality, is a political tool used to provide citizens with a false sense of security and trust for drug companies that pay money hand over fist to get their drugs approved. The FDA reads, analyzes, and makes determinations largely based on research done by the company that produced the drug. Why is that a problem? When research is done by those that profit, and deciding members of the FDA also stand to profit, then it will be $$$ at the fore with safety at the aft. Long story short. The FDA is a joke. Whats worse, is that your doctor quite likely will not be able to advise you well due to their own dependence on the system for answers. From this, doctors will regurgitate the findings of the drug company.

Re:Old concept in a new world

[eggnoglatte]

...starting paying just for the actual R&D and letting the marketing and production be handled by the free market.

See, this is just the kind of bullshit that comes up in all IP related discussions on /.: you want "freedom" and "competition", but raise a stink is somebody wants to use their freedom to do things you don't approve of, like advertising. In that case, of course we need to have the government step in (of course if they actually DID step in, then they'd be EVIL for manipulating the free market).

Either you have freedom or you don't. If you want freedom, then you'll have to live with other people making use of THEIR freedom in ways that you don't approve of. Deal with it.