>Dan Minette <[EMAIL PROTECTED]> wrote: > > Behalf Of Deborah Harrell
> > Dan asked me a ways back about who held the most > > patents on new drugs: here is why I do not believe > > that drug companies are the primary source of > > innovation. > > > > There is an article in the WSJ today about a > lawsuit > > between Eli Lilly vs 2 former NIH researchers; I > do > > not have it on-line, and the site below has to do > with > > an earlier lawsuit involving the same drug. > I read through your examples, and I see a rather > different pattern than you > do. I think we have different understandings of the > nature of purpose of > patents and the way they have been used as a means > to foster private innovation. <snip most> > For an invention to be patented, it has to include a > novelty. Those researchers didn't think of patenting; they were working on an interesting (to them) problem. You can certainly accuse them of naivety (sp?), but without their input, the drug would not have been developed by the company. > This is true even if it is dependant on work that > has been patented. The > rules are that all known prior art must be given in > the patent application. That is one issue. > The second company cannot > manufacture panels without dealing with the first > company. A further elaboration of the issue for these scientists; that didn't happen (they claim; recall that one only got PO'd when Lilly asked him to testify against another researcher). > There are certain limits that are already set on > what can be claimed as > intellectual property. For example, the techniques > I developed and patented > while I worked at my previous company are owned by > them....that's part of a > standard employment agreement. I cannot use those > techniques at a new > company without some agreement in place between my > new company and my former company. So are you saying that if government researchers make a discovery, drug companies should pay the gov't something to use that technique (in this case, something to do with human gene splicing)? > However, what I learned during the time I worked for > the previous company is > my own. My previous company cannot own the > knowledge of physics, > engineering, technique, etc. that I have in my head. > Even if I was taught > that by an expert in the field, the knowledge I have > is owned by me. If I > come up with a new technique that is clearly based > on the knowledge I had > acquired earlier, if that technique is considered > novel, when compared to > the literature, then I can still patent it. So if gov't researchers _on their own time_ come up with something novel, they should be 'owners' of that? > If this were not true, then both productivity and > employability would > suffer. A company could ensure that no employee > could take a job offer > elsewhere. Even if they fired the employee, they > could ensure that she'd > have to switch fields in order to work > again....because they owned what was > in her head. They can, however, own specific > techniques, even if they have > not patented them. These are referred to as "trade > secrets." > > The dividing line is not a clear bright line, and is > very much open to > interpretation. Since there can be _a lot_ of money > on the line, it can be > quite contentious with lotsa lawyers on each side. > Unfortunately, the > people who decide usually do not possess "ordinary > skill in the art", so > mistakes are often made in this process. > > So, having said all that, let's go back to your > examples. I see them as > fights over just how broadly one must interpret > prior art. The first > example is a fight over whether the patented > technique was dependant on > specific techniques developed 10 years earlier or if > it was only dependant > on knowledge obtained then. Another discussed what > happens when virtually > equivalent patents are filed and accepted, based on > separate work and different techniques. > > I want to spend a bit of time on the article on a > patent dispute from your > San Diego source. Let me quote a couple of bits: > > <quote> > The question the Supreme Court is wrestling with is > when it is permissible > for drug researchers to use a breakthrough that has > been patented by someone else. > > If the court recognizes a fairly broad right to do > so under federal law, > patents developed by biotech companies could lose > value and significantly > crimp the $26 billion research industry, legal > experts said. A ruling > strictly protecting the patents could discourage > research into new drugs or > halt it in some cases, pharmaceutical companies > argue. > > "The fallout is going to be highly dependent on > exactly what the court > does," said John Van Amsterdam, an attorney in > Boston who specializes in > biotechnology and pharmaceutical patents and is not > involved in the case. > <end quote> > > To me, this illustrates just how much can be riding > on the breadth of > existing patents. If the court goes hard one way or > the other, it will > either lower the value of present and future > patents, discouraging research; > or it will make it much harder to come up with > novelty (limiting research). > > There is an out suggested at the bottom of the > article: > > <quote> > "In terms of a life or death thing, it's definitely > bigger for the small > biotechs," he said. "Some of them may find some > significant difficulties if > the case goes the wrong way. Whereas for big > (pharmaceutical companies), > they'd have to pay a little more for using a > particular patented discovery. > > "If you compare the amount of money that it would > cost them to fair and > square pay for the use of certain things, it's > probably a very, very small > amount compared to the rest of the drug development > process." > <end quote> > > Some form of license for using earlier broad > techniques seems fairly > reasonable here. It would reward research into > broad new fields, without > prohibiting people from coming up with innovations > that are not so broad... That would be reasonable. > One final point: In my example, both Company A and > Company B were engaged > in drug discovery as well as drug development. The > fact that a new > innovation is based on knowledge of an older one > does not stop it from being an innovation. Lilly *requested help from those specific NIH researchers, (who were innovative in human gene splicing/isolation, as opposed to the company's researchers who were competent with mouse DNA but not human - IIRC)* who gave it, and got neither recognition nor recompense. I have no beef with companies making decent profits from their work; I have massive problems with companies 'stealing' knowledge from others, be they gov't, university or other company researchers, and making a killing off that. With regard to medical breakthroughs, that latter can be literal. Debbi who nevertheless wants to smack various folk "upside o' th' haid" for wanting to allow their own health to be delivered and protected by others, instead of taking responsibility for what they voluntarily put into their bodies and don't do (like exercise properly) :P __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! 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