Policies/Patents

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Official Party Document
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A streamlined patent system

Patents grant an individual or a business a temporary monopoly over the expression of an idea. Patents are a powerful legal instrument which grant their holder a right to stop others from using a product or an idea for up to 20 years.

Patents are meant to encourage innovation. However, as time passes they are increasingly doing the opposite, becoming a means for old, legacy businesses to prevent competition and stifle innovative rivals through endless legal action. With uncountable millions of patents now lodged, real inventors face a minefield of potential obstacles in bringing any new product to market. Serious reform is needed to being the patent system back to its core purpose.

General reforms

The original twenty-year patent duration was set down at a time when ideas and products took years to spread,[1] and most research suggests a significantly briefer term is better in a world where products can be built and marketed to millions in a space of weeks.[2] As patents are an intervention by the state in the free market, their existence can only be justified where there is a clear benefit to the public interest. Accordingly, no avenues should exist for the use patents to block publicly funded research. Additionally, since patents were introduced to support development of products, any legal defence of a patent should require proof on the part of the litigant that the patent in question is being actively used.

Pirate Party Australia also believes the patent system needs to include accommodations to allow independent development of the same invention.

Software patents

The software industry is uniquely dynamic, and patent durations on software should be shorter than those applying to other patent types. Pirate Party Australia would abolish functional claiming (which patents the end result of software) as it removes the ability of the free market to create newer and better approaches.[3][4][5][6] We also believe a larger fee should apply for software patents in order to fund additional scrutiny and a raising of the threshold for obviousness and prior art.

Genes and organisms

“Products of nature” were not patentable under the original terms of patent law. However, the scope of patent law has crept, and patents on human genes are now granted on the grounds that extraction of material from its natural environment is akin to having “invented” it.[7][8]This is a nonsensical legal artifice which, if applied in other fields, would lead to patents on coal, cotton, and wood.

It is also a particularly harmful form of corporate welfare. Gene patents are effectively a state-granted right to lock away fundamental information about our bodies. Gene patents hinder research by forcing scientists to negotiate among dozens of gene patent holders, who bear no obligation to contribute to research themselves.[9][10] Gene patents also lead to huge costs being imposed on sick and dying patients for simple tests and treatments.[11]

Patents on living and genetic material represent a net loss for society, and should no longer be recognised.

Pharmaceutical patents

Patents on drugs are justified as a necessary incentive for medical research. In practice, however, patents are an incredibly poor mechanism for this. Most of the money extracted by patent rents does not fund research at all: instead, it is directed towards marketing and corporate expenses. To the extent that patents do fund research, the incentive is to develop temporary fixes which can be sold over and over rather than real cures, which can be sold only once.[12][13] Only around two per cent of new active ingredients and applications devised by drug companies are considered to make real medical progress.[14][15]

For these dubious benefits, drug patents impose a massive cost. Monopoly power allows firms to charge huge prices for drugs whose actual production cost is minuscule. More than $10 billion is spent each year on the Pharmaceutical Benefits Scheme (PBS),[16] most of which goes into meeting patent rents so that drugs are affordable. High drug prices also deny lifesaving medicines to the world's poor.[17][18][19]

If drug patents were no longer recognised, monopolies on drugs would cease and domestic drug prices would fall to cents in the dollar. Market competition would force domestic firms to compete on quality, and future aid could include exports of critical drugs to poor countries. Our public health system would be freed from a huge cost burden, and current spending on the Pharmaceutical Benefits Scheme could be redirected to sponsor genuine drug research and bring about a renaissance for science in Australia.

Private drug research should still be encouraged, but not through a patent system. Instead, funding should be made available to trial a ‘bounty’ system, under which rewards are offered for the creation of drugs which serve an identified public good. Bounties would be paid out on cures, not temporary fixes, and drugs on which a bounty has been paid would immediately enter the public domain. Ultimately, the best path forward would be for willing countries to sign a new global biomedical treaty to enact a global bounty system, which could direct hundreds of billions of dollars a year into critical medical research.[20]

Pirate Party Australia advocates the following reforms:

Reduce patent quantity, and increase quality

  • Reduce patent duration to 10 years.
  • Require patent holders to demonstrate active use of a patent as a pre-condition for any legal enforcement of exclusivity.
  • Apply legal protection to all non-commercial use of patented material (any subsequent commercial use would remain actionable).
  • Apply legal protection to open source products.
  • Apply legal protection for infringing items which are developed independently and without knowledge of existing patents.

Reform software patents

  • Apply 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.
  • Set the length of patents for inventions primarily embodied in software to 5 years.
  • Ensure only specific implementations are protected, with functional claiming and outcomes disallowed.
  • Require software patents to contain sufficient information for someone experienced in software development to be able to implement the invention.

Abolish patents on genes and living organisms

  • Retain patents on inventions based on a gene (which neither require nor confer rights to the gene itself).

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.
  • Redirect $5 billion from current spending on Pharmaceutical Benefits Scheme:
    • $1 billion to ensure drug prices are low across the board, and no drug is made more expensive under new arrangements.
    • $2 billion each year to directly fund drug research through the CSIRO and tertiary institutions.
    • $2 billion each year to trial a "bounty system" to reward firms who create drugs which serve an identified public benefit.
      • The bounty would be paid annually, over a ten-year period of time.
      • Incentives would 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.
      • Drugs subject to a bounty will be placed in the public domain.
  • Begin negotiations on a global medical R&D treaty, open to any nation willing to commit appropriate funds to support R&D.

References

  1. Boldrin, Michele & Levine, David K. "Introduction." Against Intellectual Monopoly. Cambridge, UK: Cambridge University Press, 2008. http://www.dklevine.com/papers/imbookfinalall.pdf (pp1–5).
  2. Boldrin, Michele & Levine, David K. "Market Size and Intellectual Property Protection." International Economic Review. Volume 50, issue 3, pp855-881 (August 2009). http://ssrn.com/abstract=1432245 (accessed 22 April, 2013).
  3. Bezos, Jeff. "Bezos and O'Reilly Spearhead Call for Patent Reform." O'Reilly Media. 3 September, 2000. http://oreilly.com/news/amazon_patents.html (accessed 12 March 2013).
  4. Lemley, Mark A. "Let’s Go Back to Patenting the ‘Solution,’ Not the ‘Problem’." Wired. 31 October, 2012. http://www.wired.com/opinion/2012/10/mark-lemley-functional-claiming/ (accessed 12 March, 2013).
  5. Lemley, Mark A. "Software Patents and the Return of Functional Claiming." Stanford Law School. July 2005. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117302 (accessed 22 April, 2013).
  6. James, Craig A. & Jones, Pamela. "Patents — An Alternative View". Groklaw.11 October, 2004. http://www.groklaw.net/articlebasic.php?story=2004101107275739 (accessed 12 March, 2013).
  7. Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65 http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2013/2013fca0065
  8. Association for Molecular Pathology v United States Patent and Trademark Office (Fed Cir, 2010-1406) 16 August, 2012. http://www.genomicslawreport.com/wp-content/uploads/2012/08/CAFC-Myriad-Rehearing-Opinion.pdf
  9. Langreth, Robert. "Myriad Stymies Cancer Answers by Impeding Data Sharing." Bloomberg. 28 December, 2012. http://www.bloomberg.com/news/2012-12-28/myriad-stymies-cancer-answers-by-impeding-data-sharing.html (Accessed March 12 2013).
  10. Vines, Tim. "You Are Not A Drug." New Matilda. 5 July, 2012. http://newmatilda.com/2012/07/05/you-are-not-drug (Accessed March 12 2013).
  11. Langreth, Robert. "Myriad Stymies Cancer Answers by Impeding Data Sharing." Bloomberg. 28 December, 2012. http://www.bloomberg.com/news/2012-12-28/myriad-stymies-cancer-answers-by-impeding-data-sharing.html (Accessed March 12 2013).
  12. Boldrin, Michele & Levine, David K. "Chapter 9: The Pharmaceutical Industry." Against Intellectual Monopoly. Cambridge, UK: Cambridge University Press, 2008. http://www.dklevine.com/papers/imbookfinalall.pdf (pp244, 251, 255, 257).
  13. Schaaber, Jörg. "Misguided research." D+C Development and Cooperation. 1 November, 2010. http://www.dandc.eu/en/article/why-patents-often-stand-way-health-care (accessed 23 April, 2013).
  14. Schaaber, Jörg. "Misguided research." D+C Development and Cooperation. 1 November, 2010. http://www.dandc.eu/en/article/why-patents-often-stand-way-health-care (Accessed 10 March 2013).
  15. Roin, Benjamin N. "Unpatentable Drugs and the Standards of Patentability." Texas Law Review. Volume 87, pp 503-570 (2009). http://ssrn.com/abstract=1127742 (accessed 23 April, 2013).
  16. Drahos, Peter. "Patents, practical ethics and scientists." Prometheus: Critical Studies in Innovation. Volume 29, issue 3, pp345-352 (December 2011). http://www.tandfonline.com/doi/full/10.1080/08109028.2011.631274 (Accessed March 19, 2013).
  17. Ferreira, Lissett. "Access to Affordable HIV/AIDS Drugs: the Human Rights Obligations of Multinational Pharmaceutical Corporations." Fordham Law Review. Volume 71, issue 3, pp 1133-1179 (2002). http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3874&context=flr&sei-redir=1& (Accessed March 19 2013).
  18. Caldera, Aida & Zarnic, Ziga. "Affordability of Pharmaceutical Drugs in Developing Countries." Advanced Studies in International Economic Policy Research, Kiel Institute for World Economics. No date. 18. http://www.econ.kuleuven.be/public/ndcalc9/Caldera_Zarnic_WP_IFW.pdf (accessed 23 April, 2013).
  19. Reid-Henry, Simon & Lofgren, Hans. "Pharmaceutical companies putting health of world's poor at risk." The Guardian. 26 July, 2012. http://www.guardian.co.uk/global-development/poverty-matters/2012/jul/26/pharmaceutical-companies-health-worlds-poor-risk (Accessed 20 March 2013).
  20. Ross, Philip E. "Patently Absurd." Forbes. 29 May, 2000. http://www.forbes.com/global/2000/0529/0311090a.html (accessed March 19, 2013).