back to article Judge: Patent litigants behave like animals

The outspoken judge who threw out Apple's patent suit against Motorola Mobility has called into question the entire US patent system, comparing patent litigants to violent beasts. Judge Richard Posner at Harvard University in 2009 Posner: "All their teeth and claws" "It's a constant struggle for survival," Judge Richard …

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Can I be the first to congratulate him?

No, Probably not, but he is none the less right on the money.

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Wow

This man is truly enlightened.

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Re: Wow

"This man is truly enlightened."

So that's the end of him sitting in anymore copyright cases then.

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Re: Wow

Sounds perfectly okay with him since his interest is in patents, which are covered by another bureau altogether. As for keeping him out of patent suits, that may be tricky if at least one of the parties involved wants him to preside. They'd just have to find a way to file the suit in his district.

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Anonymous Coward

Re: Wow

Copyright - it's patents no copyright.

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Anonymous Coward

I understand that he is in the process of having his mental state analysed to see if he has had a mental breakdown!

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Re: Can I be the first to congratulate him?

Halleluljah! Enlightenment, scales dropped from eyes and all that.

Software patents are bad, and software people have always known this, it's the bloody lawyers who wanted them in the first place and caused the whole mess

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Pint

Wisconsin analysed

I suppose his mental state would be Wisconsin then.

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Re: Can I be the first to congratulate him?

I would add the patent office to the list.

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Stop

mental state analysed ?

<<mental state analysed ?>>

That would be slander unless you can present corroborating evidence.

Would you care to file under your name instead of AC.

Oh wait, El reg can pull your IP/registration from the logs anyway.

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Typical, you wait ages for a sensible american judge and then 2 come along at almost the same time.

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Unfortunate

The real tragedy is that it isn't be the other way around and given the court packing mantra instilled in every President by FDR it isn't likely to change any time soon.

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At last...

...a Judge who gets it!

This patent nonsense (pun intended!) is doing more to restrict development than anything else and the only people benefitting from it are the lawyers.

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Anonymous Coward

Nice one judge

Defending the mega-billion big pharma industry patent monopoly that actually kills people around the world by not giving people access to life saving medicine.

Pharma harder to develop than software? Both take years, both get a lot outsourced (e.g. clinical trials in India)

Actually most drug discovery is done in software these days.

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Re: Nice one judge

im going to have to call bollocks on that

developing interferon against developing a fart app. not really the same thing at all.

not that im defending pharma, but the comparison is bogus most

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Anonymous Coward

Re: Nice one judge

and your fart app comparison is not bogus at all...

let's try again, are you saying a drug is harder to develop than e.g. the linux kernel?

not that I'm suggesting patenting Linux, it's just a reference since we all know how much time and development effort went into it.

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Anonymous Coward

Re: Nice one judge

Your first paragraph had a glimmer of hope, but after that I think bollocks was a good call.

Regarding your first comment, it is very sad that many do indeed die due to highly overpriced medicine being unaffordable, and it is deplorable when medicine is blatantly overpriced to bloat profits – only made possible by there being no alternative.

However, it is a necessity of pharmaceutical companies to use patents to protect their work – or rather revenue from it - because of the large amount of upfront investment (time and money) required to research a drug, often with no results. If they didn’t have patents, then new drugs could then be reproduced at next to no cost (*cough* India *cough*) and the company would be unable to recover its costs/investment. If that happened, then eventually nobody would be able to afford the upfront investment to research new medicine in the first place, and that would lead to many more deaths. So in that sense, and in this context, they are the lesser evil.

Life is unfair sometimes, but often unfair for a greater reason.

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Anonymous Coward

Re: Nice one judge

<<<

Your first paragraph had a glimmer of hope, but after that I think bollocks was a good call.

<<< good one, almost gave me an hard on, or maybe it's the chinese viagra

now seriously hear that? that's the tiniest of violins playing the saddest song in the world to big pharma.

do you even know what you're talking about? most clinical research if paid for by research councils, they are the ones bearing the risk. pharma then picks the best ideas and takes off with them. you should see their reps crawling through conferences like cockroaches.

then they get patents.. and block anyone from doing them. FRAND? that's for the sparkies, we don't do friends. people dying? that's ok we killed plenty during the trials too, guess who got the placebos...

have you seen the price of cancer medicine? it's criminal, they should all be arrested. not have this judge defending their patents.

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Re: Nice one judge

Let's not forget the FDA who makes the generic manufacturers jump through the same qualifying hoops to get their drug copies approved even though the process, ingredients and formula have long been known, haven't changed for ages, only long expired patents and are identical to the other half dozen manufacturers. Yet the bar remains high so the original company can keep their margins up. Meanwhile the big companies go on to develop a new drug that only treats a soon to be found incurable chronic condition because let's face it find a cure and sell a dose for a day or find a chronic condition and milk the customer for a lifetime.

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Re: "Nice one judge." That I am afraid is utter nonsense.

As a synthetic organic chemist working in drug design and discovery in a small R & D company it is my professional observation that getting one drug to market (through the basic research, synthesis, mass testing of analogues in vitro, testing in animal models, pre-clinical trials, two to three stages of clinical trials and finally the various regulatory hurdles) takes ten to twenty years and upwards of two billion dollars. I have no time for the behaviour we have sometimes seen from Big Pharma but to say that drug development does not need some form of patent protection is ridiculous.

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Anonymous Coward

Re: "Nice one judge." That I am afraid is utter nonsense.

OP lives in wonderland and doesn't have the slightest clue as to how much it costs to get a successful drug/treatment to market (let alone the hundreds upon hundreds of failures)

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Anonymous Coward

Re: "Nice one judge." That I am afraid is utter nonsense.

2 Billion? you don't say mr Fox... and you do sound qualified

but look, wikipedia again tells us a different story:

"Studies published by diMasi et al. in 2003, report an average pre-tax, capitalized cost of approximately $800 million to bring one of the drugs from the study to market. Also, this $800 million dollar figure includes opportunity costs of $400 million.[2] A study published in 2006 estimates that costs vary from around $500 million to $2 billion depending on the therapy or the developing firm.[3] A study published in 2010 in the journal Health Economics, including an author from the US Federal Trade Commission, was critical of the methods used by diMasi et al. but came up with a higher estimate of ~$1.2B.[4] Marcia Angell, M.D., a former editor of the New England Journal of Medicine, has called that number grossly inflated, and estimates that the total is closer to $100 million.[5] A 2011 study also critical of the diMasi methods, puts average costs at $55 million.[6][7]"

https://en.wikipedia.org/wiki/Drug_development#Cost it has proper references and everything!

so it looks like in reality it can be anywhere from $55 million to a MAXIMUM possible of 2 billion.

which puts it.. oh my... in the same ballpark as a medium to large-sized software development project.

you have a good day at your drug company mr fox, enjoy your synthetic patents while they last. sounds like you're getting well paid.

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Anonymous Coward

Re: "Nice one judge." That I am afraid is utter nonsense.

and what failures AC number 2... do you know anything about the industry?

big pharma don't want failures. they leave those to small biotech startups and government funding... google failed clinical trial, see the names and do the math

it's really a shame other dealings aren't reported in exhaustive detail like the ramblings of the computing industry.

maybe people would open their eyes more to the world and not partake so much in silly and ultimately pointless shiny toy wars.

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Coffee/keyboard

Re: "Nice one judge." That I am afraid is utter nonsense.

@AC 00:21

I'd be tempted to put more weight to your ability to quote wikipedia if I had any confidence you didn't just edit the article you're quoting. Even if [4] is true I don't see what relevant knowledge an editor of NEJM would have about the cost of doing something she doesn't do and is clearly a skeptic of anything she hasn't been indoctrinated into and had she been around would have banned Hippocrates himself of using tree bark tea for treating pain and fevers. Yes, her bio is on the in-tar-webs.

Also it would seem likely that a smaller company would incur higher costs initially in part because larger firms are likely to have certain capital equipment on hand that a smaller company would not invest in until it was needed such as a centrifuge or mass spectrometer. As an analog, a small manufacturer might only start with a single milling machine when they are developing a product but a larger company may have many mills, turning centers, injection molding machines, etc. waiting for work which would substantially lower the cost of doing an additional project.

"so it looks like in reality it can be anywhere from $55 million to a MAXIMUM possible of 2 billion."

I must admit I have no idea what to make of this. To say anything has "a MAXIMUM possible" can only stem from a naivete that is so grand and judgmental I can only ask; what do we mere mortals look like from so far upon high? LOL, "a MAXIMUM possible", you've never heard of government, have you little one.

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let's try again, are you saying a drug is harder to develop than e.g. the linux kernel?

hell yes.

though to be fair the standards for medicine are a tad higher, to the best of my knowledge paracetamol has never, ever, not even once in all the billions and billions of executions of its code suffered a BSOD.

pharma occasionally fucks up, and it's big news & big costs (and years of the most unprincipled kinds of legal arguments) when it does

software fucks up all the time everywhere - cos the job is done universally badly (unless you are suggesting the construction and processes of a typical computer are more complex than those of the human body) and the reason for that is the rush to market, pharma, thank <insert name of deity of your choice> cant do that, and therefore deserves a little protection.

and compared to understanding the causes and developing therapies to treat, say, Alzheimers i say yes! the linux kernel sounds like a piece of piss. because as a frame of reference, nobody has managed to do that yet, and that is in spite of considerably more effort being expended by considerably more people for considerably longer than on said kernel.

like i said a fart app

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Re: Nice one judge

"Actually most drug discovery is done in software these days"

Total and utter bullshit !

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Re: Nice one judge

"Defending the mega-billion big pharma industry patent monopoly that actually kills people around the world by not giving people access to life saving medicine."

Note: Not giving away medicine does not equate to murder. I don't care for the high-pricing policies of big Pharma either, but let's not get ridiculous.

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Boffin

Re: Nice one judge

@Chemist

Damn right, it is total bullshit.

I'm in the toxicity prediction software business and I know for a fact that software is hardly used at all. Some of that is down to old-school (out of date) thinking on the part of synthetic and medicinal chemists, and even worse the actual decision makers. Most of it is down to the software just not being that good at modelling actual biological pathways.

@OP

Big pharma is failing because their business model sucks, but take away their patent protection and as soon a company develops a compound someone else will start producing it at a fraction of the cost. The companies that actually have R&D departments will die in no time. Remember that a patent submission contains the exact chemical structure of the drug. So once it's published anyone with a fairly rudimentary lab would be able to synthesis it.

Incidentally, there are such things as orphan drugs. They're cheaper to take to market because they're aimed at diseases that big pharma wouldn't normally touch (the sufferers are too poor), but they get more patent protection, not less. Otherwise not even small well-meaning companies could afford to tackle the disease.

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Re: "Nice one judge." That I am afraid is utter nonsense.

"but look, wikipedia..."

And we all know what a bastion of truth and honesty Wikipedia is. Where everyone is working so very hard for the common good and no one would dream of deliberately spreading misinformation.

[/sarcasm]

BTW: How are Appleboy and Slim Virgin these days? I've not heard from them for a while :)

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Stop

Apples and pears

You're not comparing the same things, at all.

1 cancer treatment drug == 1 patent

1 'medium to large-sized software development project' == 10-1000 patents, who can tell? Microsoft says, precisely but without specification, that Linux infringes 233 of its patents (that number is remembered, but I know the company is very precise).

In the recent Oracle v Google case, it was placed in evidence that Sun software engineers had competitions to see who could get the most blatantly stupid software patents past the USPTO. There's no doubt that in the USA the whole software patents scene is in horrible dysfunctional disarray.

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Unhappy

FDA & generic manufacturers

That's just sad (the FDA, that is).

Falsifying data/witholding adverse data as GlaxoSmithKline was fined for is also sad and IMO criminal. I'd send people to jail for this if I could...

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Re: Nice one judge

"Some of that is down to old-school (out of date) thinking on the part of synthetic and medicinal chemists"

Well I know what you mean but after 38 years of hoping that we'd be able to model reality sufficiently well to do most drug discovery in a computer I think we are still far from it.

The reasons are too many and varied for this forum but include :

1) The conformational flexibility of small molecules

2) The structural complexities of target molecules even when the structure is 'known' *

3) Even with a good structure to work with the reality is often far more complex with the target protein being actually in a different state or set of states in the physiological condition so that 'docking' of drug targets to the target is rendered useless.

4) Even if a set of algorithms could 'solve' 1 & 2 ALL the other criteria necessary for a safe, useful drug in terms of adsorption, metabolism, toxicity still need to be met - most drug leads fail here

* - the gold standard for structure determination is x-ray but this is done in the 'solid' state usually at low temperatures and that masks the kinetic and water effects seen in 'real ' situations.

I've seen vast advances in the area of computing being applies to medicinal chemistry but even in my own field of protein modeling there is still a LONG way to go.

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Maybe...

... patent protection should last for variable times, for example twice the development time from when you first document the idea to when you have it working. The item is unprotected until you have it working.

That way companies which spend 10 years and billions on making something come to life get 20 years of legal protection, where as the companies (no names mentioned) who decide to do something obvious in their latest phone UI, taking no longer than a week, only get a couple of weeks protection.

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Megaphone

Submarine patents

Ah, now you put your finger on a problem. "When you have it working". Once upon a time, in a patent protection regime far, far away, one had to submit a patent application for one's better mousetrap with a *working model*.

So many patent applications in the software field can be summarised as "it would be really cool if you programmed a computer to do <insert cool idea here>". Submitting code, or even a binary working program, is not required. Consequently, the USPTO has granted any number of patents which surface and torpedo current innovators: the submarine patent problem.

Repeat after me: "Patents do not protect ideas. Patents protect inventions".

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Re: Submarine patents

Agreed, only the method of implementation should be protected not the abstract concept.

By current logic, patenting "a thing that flies" could give control over a genetically engineered bird, an anti gravity rocket ship (!) and a football.

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Re: Maybe...

"for example twice the development time from when you first document the idea to when you have it working."

ah, cute. You're clearly one of those people who isn't very familiar with patent law and therefore assumes it works along vaguely sensible lines.

You don't have to have _anything_ working to file a software patent. They are essentially works of fiction. There is no requirement to demonstrate any functional code. All you have to do is describe something that some code could possibly do, and there's your patent. You don't actually have to go to all the trouble of actually writing the code.

So, nice idea, given the current system, utterly unworkable...

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Re: Submarine patents

The reason patents are by default overly broad is to cover as many possible permutations of the invention as possible. This is to prevent end-runs around the patent by knockoffs who just change a little thing here, a little thing there, then they can say, "This isn't the patented thing! Look, this isn't in the application! It's different!" Patent end-runs were rampant in the late 19th century IIRC.

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Pharma industry

Pharmaceutical companies have usually a 20 year patent new drugs, 25 with an SPC for a biological. 15 to 20 at least is taken with the trials, leaving the company a maximum of 10 years to recoup the average of a billion dollars it takes to develop a new drug. Compared to "swipe to unlock".

So sir, your comparison is frankly horseshit. And the judge here has correctly recognised this.

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Anonymous Coward

Re: Pharma industry

15 to 20 years of clinical trials? you must be high on some really bad spores

let's see what the wiki says: "On average, about eight years pass from the time a cancer drug enters clinical trials until it receives approval from regulatory agencies for sale to the public"

https://en.wikipedia.org/wiki/Clinical_trial

so take your horseshit somewhere else buddy... actually you sound like a pharm rep, the undisputed kings of bullshit.

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Re: Pharma industry

OK, my poor wording. From the point a patent is applied for (from molecule discovery) to when it is marketed and revenue rolls in, which can be way after approval, can easily be 15 years for biopharm. The clinical trials are only part of this process and clock is ticking from very early on. Bear in mind the Wikipedia value is an average, development times have extended greatly over the last decade due to enhanced regulatory scrutiny.

My point being this is a single patent on a huge amount of investment. Not lots of tiny patents on obvious design stuff that are used to block market entry to competition, and the judge was right to draw this distinction.

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Anonymous Coward

Re: Pharma industry

a single patent?

is that why a drug like oxycotin is protected by 6 patents (5,508,042, 6,488,963, 7,129,248, 7,674,799, 7,674,800 and 7,683,072)?

you don't know much about pharma do you? but congrats you sound like one.

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Anonymous Coward

Re: Pharma industry

oh no big pharma holding out on letting you have a pain killer BAWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWW

and yes a number of drugs will get a number of different patents as there are a lot of different steps and many of those steps can be patented as they really are innovative

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Megaphone

Re: Pharma industry

El Reg, please consider introducing policy of removing all posts which are nothing more but a citation of Wikipedia and a comment (perhaps extending it to any other non-authoritative source anyone can edit). Especially when such a post is made anonymously.

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Anonymous Coward

Re: Pharma industry

At least providing some citation / reference is better than just spouting off based on opinion or incorrect / ill-remembered facts.

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Anonymous Coward

Re: Pharma industry

I'm pretty sure that referecing Wiki-f**king-pedia carries about the same amount of factual integrity as "just spouting off based on opinion or incorrect / ill-remembered facts."

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Re: Pharma industry

Given that a lot of Wikipedia articles themselves have references, many of them to reputable sources, Wikipedia is far from hearsay.

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Anonymous Coward

Some exceptions

Quote: "Patents might be okay for pharmaceuticals, he said, because producing a single new drug might take many years"

Some software development projects take years too - I've been involved in some. These are highly specialised targets, so not applicable to all cases, but I think they deserved some kind of protection none-the-less. The problem seems to be that patents are approved for something as trivial as a half-baked fantasy scribbled on the back of a paper napkin by someone who has no ability or intention to implement it.

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Re: Some exceptions

The software development is not the patent. Are you saying that the development project you did over the course of years was entirely patentable, all of it - even under today's standards?

Look at all the software patents that have recently arisen - they are for a tiny little bit of the software that would take no longer than a few hours to a few days to complete. Bear in mind that a patent isn't awarded for artistic design or ideas just the functionality.

Look at the iPhone for instance - it might have taken them a couple of years or so to produce but they only patented a few little things (slide to unlock) and some old patents from a different era (hyper linking from recognised patterns). There was no major innovation that they toiled over and patented or the iPhone itself was not patented.

In, for instance medicine, the end product is the wholly patented part - most often. The chemical construction to the testing, trials and administration is for that - not for the bit of packaging it comes in. The development work was all to create the patented result in most cases (Whatever you think about whether the drug should be patentable in the first place)

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Anonymous Coward

Re: Some exceptions

@Daf L: "Are you saying that the development project you did over the course of years was entirely patentable, all of it - even under today's standards?"

Definitely not - most of it would be covered by ordinary copyright. But there are many design/analysis/manufacturing processes that are breaking new ground, and you can iterate through the design/coding/testing process hundreds of times before your idea really flies. But someone observing the finished product could learn the process you painstakingly designed and brought to fruition and copy it in a fraction of the time. They don't need to repeat all the failures that were discarded on the path to a working model. I think it's hard for people who don't do this kind of work to realise how difficult it is to bring new ideas to fruition, where there is no working model or process for the thing you are trying to do.

A patent will hopefully give you time to put the new development to work and earn enough to both recover your costs and start the whole cycle all over again. It's a risky enough businesses as things stand.

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