Patents Kill

Patents Kill


On the third of September 2005, I was diagnosed with cancer—testicular cancer. The pain started during a party (Dave Guard, our Senior Editor, was there as well). In just one night, I went through a sudden and unexpected change: from being a young healthy person, full of life, and enjoying hanging out with his friends, to the ER of Fremantle Hospital being told that I may have cancer and I needed to be operated on immediately.

I am fine now. I’ve just been told that the tumour seems to have gone. On the 14 of November I will have the final answer which will determine whether I will need to go through the ill-famed chemotherapy. In any case, my prognosis is encouraging; I promise you won’t get rid of your favourite Editor In Chief that easily!

People say that cancer is a life changing disease, regardless of what its outcome is. I can confirm it, without a shadow of a doubt. Cancer changes you deeply, it makes you realise that we are here, in this world, only for a short ride—a ride that might stop any moment and without warning.

For people with cancer, CT scans are a life-saver. They tell you if your lymph nodes are too big or if they are changing, and make accurate diagnosis possible. The same applies to the PET scanning technique, which promises to be the new generation of full body scanning.

At the moment, there is only one PET scanner in Western Australia (a rather rich state). The cost of such a machine is insane (I have no other word for it); at the hospital, they are already thinking about upgrading it because only three years after the purchase, it’s already obsolete.

Apart from injecting radioactive material in my body, a PET scan would confirm for sure whether the lymph node near my kidney (the big suspect in my case) has been attacked by the tumour, or if it’s just simply large.

The problem is that there are 20 people every day who need a PET scan, while the hospital can only complete 13 scans a day. The government is saying that they cannot afford another PET scanner, and I am not considered a high-risk patient. For the diagnosis, I will have to trust the good old tumour markers and CT scans.

Why?

Because software and medical patents make PET scanners ridiculously expensive (and also because Philip Davies, from the Department of Health and Ageing in Australia, has decided that Australia needs to take its time before adopting PET scans. Fortunately though, there have been some interesting responses to his decision, which might speed up this process).

First of all, I have to admit that my research wasn’t very thorough. In fact, I stopped researching half way through, because I started to feel sick from what I was finding out (and because right now, for me, avoiding stress is an absolute priority). Also, please beware that I am biased: I am very wary of medical patents, and I consider software patents to be a ridiculous idea. So, I find software patents applied to medical equipment particularly disturbing.

Searching for “PET AND SCAN AND ALGORYTHM” from the patents office in the US returns 869 (yes, eight hundred and sixty-nine) patents released. A skilled body imaging technician I interviewed confirmed that when a new imaging technique comes out, a new gold rush starts—where gold is represented by patents. He also confirmed that these new machines become affordable only after a few years (normally, around seven), when the patents related to those machines start expiring. Apparently, the same thing happened with the MRI. In ten years, when the PET gold rush is over, PET scans will be as common as CT scans are today.

To me, it’s absurd that governments allow pharmaceutical patents that last more than 7 years—especially if the same governments find themselves, because of those patents, in the position of not being able to afford the medical equipment used to keep their citizens healthy.

It’s absurd that a scanning technique turns into a gold rush, rather than an attempt to help people with illnesses to improve their health.

It’s absurd that one third of patents around PET are on software-techniques which improve the representation of the information collected by the scanner.

If the world made sense, the world’s governments wouldn’t allow medical patents which last more than two years, and would only allow pharmaceutical companies to charge very reasonable rates to other companies willing to use patented methods. They wouldn’t allow the enforcement of patents against third world countries (which is, incidentally, exactly what the United States government is allowing right now with their “Free” Trade Agreements, which are a nice way to rip off all those third world countries. They wouldn’t allow software patents, which often look like bad jokes (one click shopping, anyone?).

Why not?

Because patents—especially patents related to medical research—can kill. They turn legitimate life-saving research into another way to make a quick buck; they make this world—the only one we have—less liveable, especially for those people who aren’t lucky enough to be rich and healthy. Ironically, patents were invented for the opposite goal: to guarantee that everybody could make use of everybody else’s inventions, paying a little share to the original inventor. Because software patents turn from financially expensive jokes into a life threatening stranglehold, when they relate to medical equipment.

If I sound too radical, imagine yourself (or a person you love) not having access to a vital technology because a pharmaceutical company director’s wife “needs” to go shopping in a more expensive four wheel drive, or “needs” to go on holiday in a bigger boat. It’s a disturbing thought, unfortunately it’s reality.

We must say “no” to software patents, and (even more importantly) set definite limits to current patent systems; this is especially true for medical research, because in some cases patents can kill, and we, the smartest species on the planet, ought to know better.

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From: Terry Hancock
Url:
Date: 2005-11-10
Subject: Some patent details

First of all, I'm glad to hear your prognosis is so good.

A couple of interesting things I gleaned from what you wrote compared to my own information. In the US, the standard term for patents is now 20 years. I believe this applies to all forms of patents.

I gather from what you say that patents may be as short as 7 years in some places. That, at least, would be some relief. There aren't a lot of technologies that legitimately need 20 years of patent protection, just as there aren't many copyrighted works that really need life + 80 year copyright protection.

It's funny to think that when the US Constitution was written, both copyrights and patents were to be limited to 7 years of protection. Jefferson wanted to put a specific number like that in the text, but there was debate over what the exact number should be, and we wound up with "limited terms" which can mean anything. Jefferson was afraid, in fact, of exactly what has happened, which is that Congress and lawyers have pushed the meaning of "limited" to a ridiculous extreme. Now, the terms of "limited" copyrights are being compared to the practical legal definitions of "unlimited" real estate property laws!

Anyway, seeing as we now have a genuine "storyline" patent application in the US (yes, I'm not talking about Stallman's satirical arguments, but a real application for a patent on a plot for a book), perhaps the absurdity of the system will finally break it.

I fear, though, that we will not see a thorough dismantling of this decrepit system, but rather a patch job. For example, when the US regulations against exporting high-technology and "arms" were interpreted to inlude cryptographic software, the problem was not fixed by eliminating the underlying stupidity of the law, but by writing a new special exemption for "exported software for which no fee is charged". In other words, they took the absolute smallest step they could get away with.

I think that's the wrong attitude entirely. The more I look at this problem, the more it seems clear to me that we'd be better off to abolish ALL patents (hard and soft). The bureaucracy required to manage them is no longer worth the benefit received, and industry moves so much faster today that there just isn't need for legal protection -- ordinary market effects favor the originator of an idea anyway. And since patent applications are so expensive, they only protect the big established companies who are least in need of protection. The little guy gets battered, and patents are just another weapon to do it with. Despite conventional wisdom to the contrary, patents are a disaster for inventors and start up companies.

From: Marco
Url:
Date: 2005-11-10
Subject: I wish you all the luck, Tony

and I'm sure you will help in the battle against sw patents in the forecoming future with all your health and strengh, as I'm sure you have won the battle against cancer.

Forza Tony! ;)

From: Bob Goldstein
Url:
Date: 2005-11-10
Subject: Baby in the Bath Water

I have a real problem with patents, particularly software patents, when they are abused. But do remember, patents can kill in several ways. Not just in the sense you mean, where you can't get treatment because a patent makes it too expensive. But what about patents that DIDN'T happen yet, because the patented invention hasn't been invented yet, because the guy with the idea figured he'd get ripped off by a deep-pockets company because patent protection is poor.

Lack of innovation can kill, too, but it's kinda hard to give specific examples :-)

All I'm saying is, find the right balance. Do you really think that 2 years is long enough to exploit an invention and reap a fair return for a risky investment? If so, fine; if not, then reconsider.

I'm personally much more opposed to patents of fairly obvious things used for the purpose of inhibiting innovation, than I am of people with truly novel life-saving inventions getting wildly rich.

From: Cees de Groot
Url: http://www.cdegroot.com
Date: 2005-11-10
Subject: A world without pharma patents? Not so sure...

I worked a stint (3.5 years) at a pharmaceutical company. At the time, they were somewhere in the top 10 world-wide. My job was building software for the technical R&D department, where new active ingredients go from hardcore R&D ("hey, this might just work") to a product ("here's your subscription").

The product we mainly worked on was some ingredient originally extracted from some fungus and which helped suppress immune reactions after transplantations. When I entered the project, the product was just released, at a cost of roughly half a billion euros to get it from "hey this might just work" to something that the FDA and other authorities were happy to release ot the market.

The *only* reason that this company plunged half a billion into that product was because they held a patent, and the patent would *just* cover a long enough period so they could get a decent return-on-investment. After that, the generics makers would certainly jump on the market and eat off any excess profit.

I live in the Netherlands, and I guess there's a good chance that your PET scanner comes from one of the few high-tech companies over here, Philips Medical Systems. Sure, they make a profit, but the amount of money they have to pour into R&D before they can make that profit is insane. Medical systems aren't easily released to the market (for very good reasons), so apart from all the regular run-off-the-mill high-tech R&D they also have to make sure they comply with a gazillion regulations, *proof* (rather than just assert) that the devices are safe and won't give false readings, etcetera.

Yes, it has a backlash. Cutting-edge medical equipment tends to be very expensive. But without a system that would give these companies a save haven to get back their investment plus some return on investment, I fear that this sort of corporate R&D would halt. And I'm not sure that without companies doing the whole productizing (something you'll never see done by a university department, and rightly so), affordable PET scanners would arrive any sooner.

Disclaimer: I am very much against most software patents or indeed any of the ridiculous patents that are granted these days - but I have yet to come up, for some valid applications, with a better alternative. And, yes, I hate it that pharma companies don't adjust their prices in the third world and they're rightly chastised for it.

From: Arthur Marsh
Url: http://www.users.on.net/~arthur.marsh/
Date: 2005-11-11
Subject: ...and the scanner used on me was made by...

I recently visited the Emergency Department at Flinders Medical Centre (in Adelaide's southern suburbs) and had a CT scan which diagnosed a Meckel's Diverticulum which was threatening to burst, risking Peritonitis (http://www.nlm.nih.gov/medlineplus/ency/article/000234.htm).

The CT scanner was made by Toshiba. I would like to think that Toshiba don't use the sale of such equipment so much as a cash cow but rather a public relations advertisement for their consumer goods.

Perhaps governments could guarantee a particular volume of sales at a particular price of such equipment in exchange for the patents being opened up quickly in the interest of further widespread development and lower costs?

From: Richard
Url:
Date: 2005-11-11
Subject: Best of luck with the cancer

Sorry to hear about your cancer, but don't worry too much! Testicular has a huge cure rate, and recent developments have improved it even further. When I went through it 3 or 4 years ago about 50% were cured by the initial surgery, 90% of the remainder by the chemotherapy/radiotherapy, and after a clinical trail I was part of we got the survival rate for the remaining 5% of patients to 60%. More has been discovered since.

For most patients the disease can be tracked by detecting hormones in the blood. hopefuly they took as sample before surgery to see if this is the case for you. This beats the scans, and what's better the blood tests are easy to take and the results come back quickly, so unlike most other cancers testicular cancer patients get frequent up to date reports on their progress. The hormones will decay exponentially during treatment, so plot on a logarithmic graph against linear time if you're feeling technical.

Hopefuly all that will be needed after the surgery is routine checkups for a few years. Even then, the chemotherapy isn't bad. You have the advantage of being relatively young which really helps (compare with your typical cancer patient in their later life). First week may seem odd, but after that you get used to it. Recovery tends to be quick and very complete.

Best of luck with the prognosis and any further treatment, if you need it.

From: Tim Pratt
Url:
Date: 2005-11-14
Subject: Medical Patents Kill

I read your comment with interest: certainly the headline got me to click through. Before we get into my observations, you should know that I am at once an RN with multiple advanced degrees, a business man in the business of providing clincial research support software (not patented BTW), and an erstwhile clincial researcher myself with a few publications to my name. Oh yeah, I'm also on about 8 patent apps for research software from another company I used to work for (that I won't realise a cent for). The bottom line is I bring a curious mix of knowledge from the professional fields covered by your piece.

Here's my observation: your closing arugment is simplistic and in very large part unrealistic. Question: why do medical patents expire after only 7 years, vs many many more for other fields and decades for copyright? Answer: so people can get ahold of them sooner and make their own devices utilising the technology. So, why do companies charge a lot during the patent protected period? Answer: because they have a very limited amount of time to recoup their R&D investment before it goes off patent. NOT as you allege, so executive's wives can go shopping! The developers of the patented technology are in almost every case answerable to shareholders who demand a return on thier investments. Who are the shareholders? That'd be you and me with our various retirement plans, stock portfolios etc. If these companies do not perform, execs get fired and the company goes out of business - not much technology development there. If the development of the technology is not profitable, guess what - new technology will not be developed!

Here's what I'd propose - a longer patent protection period! Full patent protection for 3 years, followed by graduated forced licensing that steps down over a subsequent 12 years and where said licensing cost on a per unit basis is tied directly to a % value of the initial cost to develop. Everyone gets happy - investors recoup costs and profit, technology becomes broadly distributed, developers get a guaranteed income stream, patients get access to cutting edge diagnosis and treatment faster.

From: Andre Caldas
Url:
Date: 2005-12-02
Subject: Assumptions vs Facts

Dear friend!

You make some assumptions that maybe you should reconsider:

* Patents is the only fair way to make money on the pharmaceutical industry.

* Medication and treatment are expensive because of lack of 'protection'.

* Every body gets happy!

Then you say that the author's closing argument is simplistic!? What makes your elaborated?

And you say that the author's closing argument is unrealistic!? What makes yours realistic?

Also, you should consider that:

* The pharmaceutical industry is one of the most profitable

* The 'gold rush' happens just after some new technique comes out. (literally: bloodsuckers)

Andre Caldas.

From: Eduardo Cruz
Url:
Date: 2005-12-22
Subject: Patent Kills

I do hope that you stay in remission forever and continue with a full, hopeful life.

But I have to disagree about patents. I might be inclined to allow for a shorter period for the holding of patents. But short of a dictatorship, either left or right, you cannot create anything without for profit reasearch and development. And without good R&D, people with cancer or any other illness, would be worse off!

Yes, I like to dream too. But we have to be realistic.

From: Tony Mobily (SUBSCRIBER!)
Url: http://www.mobily.com
Date: 2005-12-23
Subject: Re: patents kill

Hello,

This comment wins two prizes:

* The most unsympathetic

* The least informed.

Congratulations.

Merc.

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Biography

Tony is the founder and the Editor In Chief of Free Software Magazine