PDC: Patent working group
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Draft Policy
This is a draft policy which may still be under development and is not approved or endorsed by the party.
Until such time as it is endorsed by the party, it does not represent the views or intentions of the party. |
This Working Group (WG) was established by the Policy Development Committee (PDC) on 6 February 2013.
Working group report
This working group has been tasked with developing policy relating to formalising existing party views on patent reform. This policy will redefine patents and their laws in order to manage issues around gene patents, software patents, and the misuse of patents in scientific and academic fields. The working group is chaired by Mark Gibbons and will develop a draft proposal including detailed policy and polly tables to be presented at the March 20 PDC meeting.
Recommendation
The patents working group recommends the following policies be adopted as a means to implement the PPAU platform.
Platform amendment
Thoughts and ideas cannot be “owned” in the same way as natural property. Patent laws do, however, grant a temporary monopoly over an idea. This trades off a reduction in freedom of use for a greater incentive towards disclosure and development.
However, as the information age has reshaped society, patents have become increasingly anachronistic and inadequate in fulfilling their intended purpose. When patent laws were first written, terms of around 20 years were granted to reflect the fact that ideas and products took years to spread, and markets were relatively small.[1] In the modern world, change happens with great speed and inventions can go to market within weeks and reach billions of people. Twenty year monopolies create a barrier to the exchange and improvement of ideas, and modeling and research favors a significantly shorter term.[2]
The practice of 'speculation' or 'hoarding’ undermines innovation by forcing inventors to navigate thousands of trivial and defensive patents or risk being shut down or sued. To curb patent trolling, we propose that legal defense of patents include a requirement for the plaintiff to demonstrate active use. Legal protections should apply to public research and academic study, and also to cases where there is independent development of the same invention. We will seek to require that patent owners accusing another party of copying are subject to the standards of proof currently applying to copyright. These measures will curb the incentive to register trivial and defensive patents, reducing the quantity of patents and improving the quality.
Software patents are in need of additional reform due to the dynamic nature of the software industries. Reforms should include significantly shorter durations and curbs on functional claiming.[3] We will also advocate a larger fee for software patents to fund additional scrutiny and a raising of the threshold for obviousness and prior art.
Human genes have been classed as “inventions” in recent years through the use of legal artifice, and patented on that basis.[4] This must be prevented: the granting of monopolies over human genes is a destructive form of corporate welfare which allows private interests to lock away fundamental information about the human body. Essential research is being hindered by the obligation to negotiate among dozens of gene patent holders, who bear no obligation to contribute to research themselves.[5] Gene patent holders are also imposing huge costs on sick and dying patients for simple tests and treatments.[6] Preventing such abuses merely requires a return of patent law to first principles, which specifically exclude "products of nature" (genes and organisms) as a patentable item.
Pharmaceutical patents fall into two categories: patents on a process for creating a drug, and patents on a drug itself. Process patents may encourage companies to seek alternative and better ways to produce a desired outcome.[7] However, drug patents have the reverse effect, shutting down free market competition which might otherwise drive improved techniques. These patents also have other harmful effects: they create a high and growing burden for Australian taxpayers (the cost of patented medicines in the F1 category of the PBS rose by more than a third between 2005–06 and 2009–10).[8] They also subject Australia to many dubious patents originating in the US and China, with no accountability or recourse.[9] In developing nations, high prices demanded by patent holders deny impoverished people access to lifesaving medicine, creating needless humanitarian problems.[10]
Most importantly, pharmaceutical drug patents provide the wrong incentive. While a cure for a condition can only be sold once, a temporary fix can be sold repeatedly. Patent holders are responding accordingly, and only around two per cent of new active ingredients and applications devised by drug companies are considered to make real medical progress.[11] Drug patents are simply too indirect and unreliable to provide an effective foundation for essential activities like medical research.
The Pirate Party seeks to abolish pharmaceutical drug patents in Australia. Funds currently used to place monopoly drugs on the PBS will instead be allocated to support public research. This will increase overall research spending significantly and improve the targeting of priority areas. Publicly funded drugs will be placed in the public domain, allowing for generic manufacture and a greater role for the free market. Non-patented drugs may also be provided as aid for developing nations. Secondary approaches to drug creation may include a 'bounty' system which offers rewards to firms for creating drugs which meet an identified public need. We believe a domestic trial of this system should commence, and negotiations should begin for the creation of a global bounty system to replace drug patents worldwide.[12]
Policy text
Reduce patent duration to 10 years.
- The length of "innovation patents" (which have a lower threshold of inventiveness) will be reduced to 5 years.
Prevent misuse of patents.
- Patent holders will be required to demonstrate active use of a patent as a pre-condition for suing for infringement.
- Legal protection will no longer apply to patents used as a speculation commodity.
- Legal protection will apply to non-commercial use of patented material.
- In the event that non-commercially developed products are subsequently used commercially, liability will apply to commercial users.
- Legal protection will apply in the event that a party accused of copying can present reasonable proof that the infringing item was developed independently and without knowledge of the patent in question.
- Explicit protection will apply for open source projects which would be rendered ineffective by extended legal battles.
Reform software patents.
- Software patents will incur a higher patent continuity fee.
- Fees will fund impartial, professional reviewers and consultants (experienced in the relevant areas) to review software patents, with the goal of blocking patents that are obvious to someone experienced in area, not novel or having prior-art.
- The length of patents for inventions primarily embodied in software will be 5 years.
- Functional claiming will be disallowed.
- Applicants will not be able to claim patent rights on the outcome of the software, just on the specific implementation.
- Software patents must contain sufficient information for someone experienced in software development to be able to implement the invention.
Abolish patents on genes and living organisms.
- Patents on inventions based on a gene (which neither require nor confer rights to the gene itself) will be retained.
Abolish patents on pharmaceutical drugs.
- Techniques for creating pharmaceutical drugs will remain patentable.
- All patents on chemicals will be placed in the public domain, and manufacturers will be encouraged to produce generics.
- Savings made through the substitution of brand name drugs with generics on the Pharmaceutical Benefits Scheme (PBS) will be used to fund medical research:
- Funding will be allocated to the CSIRO and tertiary institutions to sponsor research in areas considered as priorities for the public good.
- Publicly funded drugs will be placed in the public domain, and may be exported through aid programs to developing nations affected by drug shortages.
- Funding will be allocated to trial a "bounty system" to reward firms who create drugs which serve an identified public benefit.
- The bounty will be determined in advance will be paid annually, over a ten-year period of time.
- Incentives will be offered to both first- and second-movers: where a new invention is based upon an earlier invention, rewards would be split even if the initial drug is superseded.
- The amount of the reward for a particular drug would be determined by an expert panel and based on public health outcomes such as number of beneficiaries, level of therapeutic benefit, and capacity to address priority healthcare needs.
- A ten-year distribution monopoly (subject to price controls) may be granted for drugs which are tested and marketable.
- Funding will be allocated to the CSIRO and tertiary institutions to sponsor research in areas considered as priorities for the public good.
- Negotiations will begin on a global medical R&D treaty which may be signed by any nation willing to commit appropriate funds to support R&D.
- Funding will support a global reward system following the principles of the domestic trial.
- Rewards will be linked to metrics determined by signatory nations.
- Drugs subject to a bounty will be placed in the public domain, to keep prices down.
Citations
[1] Boldrin & Levine, Against Intellectual Monopoly, Page 1-5, http://www.dklevine.com/papers/imbookfinalall.pdf (Accessed March 10 2013)
[2] Boldrin and Levine, Market Size and Intellectual Property Protection, International Economic Review, Vol. 50, Issue 3, pp. 855-881, August 2009.
[3] Jeff Bezos, Bezos and O'Reilly Spearhead Call for Patent Reform, 3 September 2000. http://oreilly.com/news/amazon_patents.html (accessed 12 March 2013)
Mark A. Lelmley. Let’s Go Back to Patenting the ‘Solution,’ Not the ‘Problem’, October, 2012, http://www.wired.com/opinion/2012/10/mark-lemley-functional-claiming/ (accessed 12 March, 2013)
Lemley, Mark A., Software Patents and the Return of Functional Claiming, (July 25, 2012). Stanford Public Law Working Paper No. 2117302. Available at SSRN: http://ssrn.com/abstract=2117302 orhttp://dx.doi.org/10.2139/ssrn.2117302
Craig A. James. Patents - An Alternative View, 11 October, 2004, http://www.groklaw.net/articlebasic.php?story=2004101107275739 (accessed 12 March, 2013).
[4] Federal Court of Australia, Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65, Part 1. http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2013/2013fca0065 US Federal Court of Appeals, The Association for Molecular Pathology, The American College of Medical Genetics, The American Society for Clinical Pathology, The College of American Pathologists, Haig Kazazian, MD., Arupa Ganguly, Pd.D., Wendy Chung, MD, Ph.D., Harry Ostrer, MD., David Ledbetter, Ph.D., Stephen Warren, Ph.D., Ellen Matloff, M.S, Elsa Reich, M.S., Breast Cancer Action, Boston Women’s Health Book Collective, Lisbeth Ceriani, Runi Limary, Genae Girard, Patrice Fortune, Vicky Thomason, and Kathleen Raker vs United States Patent and Trademark Office. Appeal Judgment, Page 21, http://amlawdaily.typepad.com/myriaddojbrief.pdf
[5] Langreth, Myriad Stymies Cancer Answers by Impeding Data Sharing, December 2012, http://www.bloomberg.com/news/2012-12-28/myriad-stymies-cancer-answers-by-impeding-data-sharing.html (Accessed March 12 2013).
Vines, You Are Not A Drug, July 2012, http://newmatilda.com/2012/07/05/you-are-not-drug (Accessed March 12 2013).
[6] Langreth, Myriad Stymies Cancer Answers by Impeding Data Sharing, December 2012, http://www.bloomberg.com/news/2012-12-28/myriad-stymies-cancer-answers-by-impeding-data-sharing.html (Accessed March 12 2013).
[7] Boldrin & Levine: Against Intellectual Monopoly, Pages 244. 251, 255, 257, http://www.dklevine.com/papers/imbookfinalall.pdf (Accessed March 10 2013)
http://www.dandc.eu/en/article/why-patents-often-stand-way-health-care
[8] Drahos, Patents, practical ethics and scientists', 2011, Prometheus: Critical Studies in Innovation,2011, http://www.tandfonline.com/doi/full/10.1080/08109028.2011.631274#tabModule (Accessed March 19, 2013).
[9] Ross, Patently Absurd, May 2000, http://www.forbes.com/global/2000/0529/0311090a.html (Accessed March 19, 2013).
[10] Ferreir, 'Access to Affordable HIV/AIDS Drugs: the Human Rights Obligations of Multinational Pharmaceutical Corporations, 2002, Page 1133, http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3874&context=flr&sei-redir=1& (Accessed March 19 2013).
Caldera and Zarnic, Affordability of Pharmaceutical Drugs in Developing Countries, Page 18, http://www.econ.kuleuven.be/public/ndcalc9/Caldera_Zarnic_WP_IFW.pdf
Reid-Henry and Lofgren, 26 July 2012, Pharmaceutical companies putting health of world's poor at risk, http://www.guardian.co.uk/global-development/poverty-matters/2012/jul/26/pharmaceutical-companies-health-worlds-poor-risk (Accessed 20 March 2013).
[11] Schaaber, Misguided research, November 2010, http://www.dandc.eu/en/article/why-patents-often-stand-way-health-care (Accessed 10 March 2013)
Roin, Benjamin N., Unpatentable Drugs and the Standards of Patentability (February 2009). Texas Law Review, Vol. 87, pp. 503-570, 2009. Available at SSRN: http://ssrn.com/abstract=1127742
[12] Love and Hubbard, The Big Idea: Prizes to Stimulate R&D For New Medicines, page 1544, November 2007, http://www.cklawreview.com/wp-content/uploads/vol82no3/Love.pdf (Accessed 12 March 2013).
Got feedback or suggestions? Send us an email at [email protected].
Meeting Schedule
This working group has concluded the drafting process and no further meetings are currently scheduled.