• Tag Archives patents

  • Fix Patents, Not Prices, to Solve America’s Prescription Problem

    Posted on by Azrael Comment


    Sen. Kamala Harris (D-CA), a frontrunner in the Democratic nominating contest for president, recently announced her plan, titled “People over Profit,” to solve the nation’s ongoing crisis regarding the ever-rising prices of pharmaceutical drugs.

    The provision courting the most national attention and controversy is its proposed hard cap on prescription drug prices. This cap would be set by the Department of Health and Human Services (HHS), and prescription drug companies that raise prices faster than inflation or higher than prices in comparable nations, such as Japan and Germany, would find themselves capped.

    Rather than directly and clearly addressing the causes of these high prices, such as high levels of patent abuse and a lack of generic alternatives, this plan disregards the structural and policy causes of high pharmaceutical costs for a quick and simple fix.

    Patent abuse and a regulatory environment hostile to innovative alternatives, such as biosimilars, have led to a pharmaceutical drug pricing scheme in the United States that protects the interests of a handful of high-profit drug producers at the expense of both consumers and competitors.

    The classic case one must consider to see the negative effects of the current patent scheme is the problem of insulin in the United States. A study released in January by the Health Care Cost Institute found that from 2012-2016, US insulin costs per patient nearly doubled from roughly $2,864 in 2012 to $5,705 in 2016.

    Seeing that insulin itself is unpatented and that there are three largescale competitors producing it, this steep and near lockstep rise in price between competitors is perplexing. This problem of “parallel pricing,” as its commonly called, ought to be unsustainable in a free market. However, the patent protection afforded to these pharmaceutical giants protects their monopoly power and their cartelization of insulin production.

    A report released in 2018 by the Initiative for Medicines Access and Knowledge found that the companies producing the 12 highest-grossing drugs in the US had applied for a combined total of 1,498 patents in 2017, looking to guarantee themselves each an average of 38 additional years of competition-blocking patent protection.

    This government-granted shield leads to the establishment and protection of a small, high-profit group of corporations that can raise pharmaceutical prices in a tit-for-tat type of game that the normal American will always find himself losing.

    Japan and many European nations, the very examples Harris’s plan points to, have successfully prevented the quagmire of continuously rising prices by succeeding where the United States’ health care and pharmaceutical system has failed.

    In 2017, the European Commission released a report on the impact of biosimilar drugs within European Economic Area (EEA) countries that found the introduction of these competitors decreased prices and increased market access for those who needed them.

    Biosimilars are pharmaceutical alternatives that are effectively an identical copy of existing drugs. According to the FDA, biosimilars only contain “differences…in clinically inactive components” of the reference drug.

    While biosimilars face lower production costs thanks to their ability to skip costly clinical trials, the FDA had only approved 17 biosimilars as of January 2019.

    A lack of actual competition and government protection of its most guilty parties has led the pharmaceutical market in the United States to be over-patented and over-priced. Capping the price of drugs without tearing out the root of the problem will only lead to fewer Americans having access to the lifesaving drugs they need.

    These regulatory barriers to increased competition within the pharmaceutical market remain major drivers of the problem of affordable drugs in the United States. If Sen. Harris and others are serious about looking to Japan and Europe as examples for the United States’s approach to solving this issue, adopting a skeptical eye toward the current patent scheme and the corporate welfare it provides is the first step.


    Marcus Maldonado

    Marcus Maldonado is currently pursuing his Bachelors in Political Economy and Philosophy at Tulane University. He’s currently one of three Recruitment Directors for the state of Louisiana for Young Americans for Liberty, as well as the president of Tulane’s chapter of YAL. He hopes to devote my life to the ideas of liberty, both through activism and non-profit research in his career.

    This article was originally published on FEE.org. Read the original article.


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  • Stupid Patent of the Month: HP Patents Reminder Messages

    Posted on by Azrael 1 Comment

    On July 25, 2017, the Patent Office issued a patent to HP on reminder messages. Someone needs to remind the Patent Office to look at the real world before issuing patents.

    United States Patent No. 9,715,680 (the ’680 patent) is titled “Reminder messages.” While the patent application does suggest some minor tweaks to standard automated reminders, none of these supposed additions deserve patent protection.

    Claim 1 of the patent states (comments in brackets):

    A non-transitory computer-readable storage medium containing instructions, the instructions when executed by a processor causing the processor to [use a computer to]:

    receive at a first computer system, via a network, event data descriptive of an event to occur at an event time [get event and time information];

    receive via the network, reminder data descriptive of a reminder time to occur on or before the event time [get the reminder time];

    at a time after receipt of the event data, receive via the network article data descriptive of an article to be associated with the event, the article data created during an electronic scanning operation [receive some additional information (created by scanning) relating to the event]; and

    at the reminder time send via the network a reminder message describing the event and the article to a second computer system, for presentation at the second computer system [at the reminder time, send the reminder message].

    Although this claim uses some obscure language (like “non-transitory computer-readable storage medium” and “article data”), it describes a quite mundane process. The “article data” is simply additional information associated with an event. For example, ‘buy a cake’ might be included with a birthday reminder. The patent also requires that this extra information be input via a “scanning operation” (e.g. scanning a QR code).

    The ’680 patent comes from an application filed in July 2012. It is supposed to represent a non-obvious advance on technology that existed before that date. Of course, reminder messages were standard many years before the application was filed. And just a few minutes of research reveals that QR codes were already used to encode information for reminder messages. For example, QRickit suggested using QR codes for calendar events and reminders (with the option of adding additional information beyond the event descriptor). This 2011 article suggests using QR codes to embed information such as “assignments for the week.” The only even arguable difference from the prior art is that the patent’s claims require the “article data” to be received after the event data. In our view, that is not a distinction that warrants the government-granted monopoly power inherent in a patent.

    The Patent Office reviewed HP’s application for years without ever considering any real-world products. Indeed, the examiner considered only patents and patent applications. We have complained before that the Patent Office seems to operate in an alternative universe where only patents provide evidence of the state of the art in software. The fact that the Patent Office doesn’t take developments in real software into account in its assessment of prior art speaks poorly for its ability to determine whether patent applications actually reflect new inventions.

    In addition to failing to consider real products, the Patent Office gives little weight to common sense and takes an extremely rigid approach to evaluating whether or not a patent application is obvious. This leads to patents on things like taking photos against a white background, filming a yoga class, voting for a favorite photo, and out-of-office email. Much of the responsibility for this mess rests with the Federal Circuit, which has failed to apply a Supreme Court case called KSR v. Teleflex that calls for a flexible, common sense approach to obviousness. Together with Public Knowledge, EFF recently filed an amicus brief [PDF] asking the Supreme Court to consider the obviousness standard in patent law and to reaffirm that examiners can reject common sense combinations of known elements.

    Even leaving obviousness aside, HP’s patent application still should have been rejected under Alice v. CLS Bank. In Alice, the Supreme Court ruled that an abstract idea does not become eligible for a patent simply by being implemented on a generic computer. As with many software patents, the patent goes out of its way to explain that its method can be implemented on a generic computer, or, as the patent puts it “generally any computer.” Despite this, the prosecution history [PDF] reveals that the examiner never even mentioned Alice, even in office actions written well after the Supreme Court’s decision came down. We have written many times (e.g. 1, 2, 3, and 4) to protest that the Patent Office is not doing enough to diligently apply the Alice decision. The ’680 patent provides yet another example of abstract software patents being issued despite the Supreme Court’s ruling.

    In case you want to set a reminder, the ’680 patent will expire on December 16, 2035.

    Source: Stupid Patent of the Month: HP Patents Reminder Messages | Electronic Frontier Foundation


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  • EFF Asks Court to Strike Down Unconstitutional Restraint on Our Speech

    Posted on by Azrael 1 Comment

    EFF has asked a federal court to rule in its favor in a lawsuit we filed against an Australian company that sought to use foreign law to censor us from expressing our opinion about its patent. While the company, Global Equity Management (SA) Pty Ltd (GEMSA,) knows its way around U.S. courts—having filed dozens of lawsuits against big tech companies claiming patent infringement—it has failed to respond to ours. Today we asked for a default judgment, which if granted means we win the case.

    It all started when GEMSA’s patent litigation was featured in our June 2016 blog series “Stupid Patent of the Month.” The company wrote to EFF accusing us of “false and malicious slander.” It subsequently filed a lawsuit and obtained an injunction from a South Australia court ordering EFF to take down the blog post and blocking us from ever talking about any of its intellectual property.

    We have not removed the post. The South Australian injunction can’t be enforced in the U.S. under a 2010 federal law that took aim against “libel tourism,” a practice by which plaintiffs—often billionaires, celebrities, or oligarchs—sued U.S. writers and academics in countries like England where it was easier to win a defamation case.

    The Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act) says foreign orders aren’t enforceable in the United States unless they are consistent with the free speech protections provided by the U.S. and state constitutions, as well as state law. Our lawsuit, filed in U.S. District Court, Northern District of California, maintains that GEMSA’s injunction, which seeks to silence expression of an opinion, would never survive scrutiny under the First Amendment in the United States and should therefore be declared unenforceable. We stood ready to defend our right to express constitutionally protected speech.

    GEMSA, which has three pending patent lawsuits in in the Northern District of California, had until May 23 to respond to our case. That day came and went without a word. We can’t speculate as to why GEMSA hasn’t responded. To get a default judgment, we need to show that not only has GEMSA failed to answer our claims but also, regarding our claim that the South Australia injunction is unenforceable in the U.S., the law is on our side.

    We believe that we should prevail. The law does not allow companies or individuals to make an end run around the First Amendment by finding a judge in another country to sign an injunction that censors speech in the U.S. The law the Australian court applied to grant the injunction didn’t provide as much protection for EFF’s speech as American law, which means it’s unenforceable under the SPEECH Act. Additionally, the injunction is unconstitutional under American law as it prohibits all future speech by EFF about any of GEMSA’s patents. Such prohibitions are also known as prior restraints, and are allowed only in the rarest of circumstances, none of which apply here.

    Our laws also don’t allow plaintiffs to be left under a cloud of uncertainty as to their ability to speak publicly about something as important as patent litigation and reform. The Australian injunction states that failure to comply could result in the seizure of EFF’s assets and prison time for its officers. GEMSA attorneys have threatened to take the Australian injunction to American search engine companies to deindex the blog post, making the post harder to find online.

    The court should set the record straight and grant our request for a default judgment. Our laws call for no less.

    Source: EFF Asks Court to Strike Down Unconstitutional Restraint on Our Speech | Electronic Frontier Foundation


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