03.12.17

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Patents That Have Life and Death at Stake

Posted in Patents at 8:10 am by Dr. Roy Schestowitz

Also see: With $2.5 Billion in Claimed (and Won) ‘Damages’ in One Single Patent Case of a Pharmaceutical Giant, Does the Patents for ‘Small Guy’ Myth Still Pass Muster?

Medical sign

Summary: Ethical issues associated with patents that limit access to life-saving medicine, as illuminated by recent high-profile patent cases

TECHRIGHTS has spent a lot of time and space writing about or alluding to Life Technologies v Promega Corporation. To name some of the articles that cover or at least mention the case:

Yet another analysis of Life Technologies v Promega Corporation, a high-profile patent case, was recently published to say that the “Court expressly declined to decide “how close to ‘all’ of the components ‘a substantial portion’ must be” but rather held “only that one component does not constitute ‘all or a substantial portion’ of a multicomponent invention under §271(f)(1).” Thus the Court left several questions open. For example, how do you determine how many components are in a claimed invention? And once you determine the number of components, how many must be supplied from the United States to constitute infringement under §271(f)(1)? Is it a percentage of the total number of components? Will courts look to the relative importance of the various components or will it be purely a numbers-based analysis? What if the invention only has two components? In that instance, are the terms “all” and “a substantial portion” synonymous? The only certainty is that these unanswered questions will give rise to future litigation disputes.”

“As regular readers are aware, we oppose primarily software patents, though we are growingly concerned about patents on life, too.”There is another interesting case right now, notably the one revolving around Amgen with biosimilar cases (patents). MIP wrote many articles on the subject lately [1, 2, 3], as did IP Kat [1, 2]. With new extraordinary statements like “Biosimilars Market worth 10.90 Billion USD by 2021″ and a lot of lobbying from patent law firms paid by pharmaceutical giants, we couldn’t help but comment on the subject.

As regular readers are aware, we oppose primarily software patents, though we are growingly concerned about patents on life, too. There are also patents which limit access to life-saving medicine — a subject often covered in our daily links under “Health/Nutrition” (IP Watch wrote about that quite a lot over the years). The EPO is implicated in such issues too, as we last noted three weeks ago.

This one particular new article about it says that the “Hong Kong government does not have an exclusive obligation towards patent holders, let alone to lower for their sake the patentability standards. They also have an obligation towards the citizens of Hong Kong. In safeguarding access to affordable medicines it should take into account innovative options to raise the patentability standards for medical use patents. Hong Kong’s Short-Term patent seems better equipped to protect these kinds of marginal and incremental improvements than the Original Grant Patent or Standard Patent.”

“We certainly hope our readers can recognise that human rights and human lives are more important than so-called “patent rights” (typically privilege of the rich).”The person who wrote it, as the tone serves to show, works for a law firm and blogs at IP Dragon. Contrast this with this other new article IP Watch — one that lays out the UN’s views on access to medicine. “An event held at the World Trade Organization,” it wrote, and “walked through key recommendations of the United Nations Secretary-General’s High-Level Panel on Access to Medicines, including strategies for moving some of them forward.”

We certainly hope our readers can recognise that human rights and human lives are more important than so-called “patent rights” (typically privilege of the rich). █

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