Should the US patent system be saved?

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The New York Times recently published an editorial with the title “Save America’s Patent System”.

But why the Time do you think the patent system should be “saved”?

The Editorial Board initially focuses on the use (and arguably abuse) of patent rights in the prescription drug field:

The injection pen is by no means a new invention. Drugmakers of all stripes have used it for decades to deliver all kinds of crucial drugs into the bloodstream. By adding this old technology to its insulin drug, Glargine, pharmaceutical giant Sanofi was nevertheless able to secure additional patents for a lucrative product. The drug’s existing patents were expiring, and new ones allowed the company to retain its monopoly — and the bounty that comes with it — much longer.

The council points out that other drugmakers can extend their patent monopolies by making small changes to patented products – by delivering drugs in the form of a tablet instead of a pill, for example.

Many drugs (as well as other products) are protected by a “patent thicket” – not just a single patent, but an interlocking set of patents designed to exclude competitors and thus keep prices high.

According to Yale Insights, a “patent thicket” is

a dense web of overlapping intellectual property rights through which a company must navigate to bring new technology to market.

According to Time,

Drugmakers have argued for decades that patents are essential to American innovation. Despite all this lip service to medical advancement, however, a recent House Oversight Committee survey concluded that market share is more likely the point. Twelve of the drugs on which Medicare spends the most are protected by more than 600 patents in total, according to the committee. Many of these patents contain little that is really new. But the thickets they create have the potential to expand product monopolies for decades. In doing so, they promise to add billions to the country’s rising health care costs – and pharmaceutical coffers.

The Times editorial board concludes that the United States Patent and Trademark Office (USPTO) is in “urgent need of reform”.

It is, according to the Time,

a lost office that big business plays on, politicians ignore, and average citizens are totally excluded from.

The Times proposes the following reforms:

  • Set higher standards for what deserves patent protection.
  • Limit the number of times an inventor can resubmit a rejected application, to reduce administrative burden and backlog.
  • Improve the process for challenging “bad” patents.
  • Eliminate the “revolving door” between the USPTO and law firms that practice patent law.
  • Change the USPTO fee structure so that it has no incentive to grant (potentially bad) patents. Make most of the fees charged when a patent application is filed, rather than when a patent is granted.
  • Increase collaboration between federal agencies interested in patented technologies.
  • Appoint more public representatives to the public advisory committee of the patent office.
  • Establish a public advocacy service similar to that which exists at the Internal Revenue Service
  • Pass America Invents Restoration Act.
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