Friday, November 18, 2005

Biotech Patent Absurdity

IP-maximalists often cite the pharmaceutical industry as their solid example of why strong patent monopolies should be granted by governments. Because new drugs and treatments require huge investments to discover, so the argument goes, there would be no incentive to do this work unless the investors were guaranteed monopoly status. And if the work isn't done, we all get sick and die.

There are a large number of problems with this argument, which we will continue to address in future posts. For today, however, we want to point you to this gem of a patent dispute over a method "to use recombinant DNA to synthesize large batches of antibodies."

The two parties in the case, Genentech and Celltech, both invented the method in 1983 and both filed for patents. Now, ignore for a moment that the independent invention defense would be very useful in this case, and that the presence of two simultaneous inventors of the same technology should have made the patent office realize that the 'invention' was obvious, and thus shouldn't have been granted. Nevertheless, the two sides battled in court for a few years before reaching a settlement that awarded Genentech the patent but gave Celltech royalties. Then, in 2001, the patent office issued Genentech a new patent, covering the same technology as the first patent. The second patent doesn't expire until 2018, and now Celltech, as well as the rest of the industry, is up against an extended monopoly.

How is it that the patent office has given a dubious invention from 1983 monopoly protection until 2018? How is it that two distinct entities could have come up with this invention at the same time, and yet the invention was non-obvious? Some comments from the article:
"It does sound a little bit fishy to go through all your litigation and settle on the patent right before case is heard. The reason they got away with it was a quirk." -- William Heinze, patent attorney

"Essentially Genentech⁄Cabilly was awarded two very broad patents that the Patent and Trademark Office now considers may be obvious over each other. It is also unusual given the broad claims of the patent that on their face cover antibody manufacture in different host cells." -- Robin L. Teskin, IT attorney

"I think everyone that makes antibodies is concerned with the royalty stack and hence look forward to when enabling patents expire." -- Michael Richman, COO of Rockville’s MacroGenics Inc
So, are patents really so vital to the production of new drugs and treatments after all? It seems that a case like this is every bit as damaging to that argument as the many cases against software and business method patents. Just another case of patents hindering science and progress.

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