Intellectual Property
Thanks again for all the comments. Got some very good ideas, and plan to continue discussing outsourcing of high-tech jobs tomorrow in New Hampshire
Several people wanted to hear more about intellectual property, so I thought I would focus on that today. The first priority of intellectual property law is to foster innovation and progress for our society. To achieve that goal, the law must protect the rights of inventors. And there must be a fair balance between the scope of those rights and the public interest.
I’m very concerned that some forms of IP law have lost that balance. The example on which I have worked most is drug patent law. When drug companies create a drug that reduces pain or cures disease, they of course deserve a fair return. But drug patents should not last forever, and they should not be extended through legal manipulation. Unfortunately, many drug manufacturers routinely try to block legitimate competition from generic drugs by making meritless patent claims just as their real patent protection is expiring. After hearing about these problems firsthand in the Senate Health Committee, I helped write legislation to prevent these abuses and to make sure that lower-cost generic drugs reach the market without improper delays. A version of that bill is one of the few good parts of the prescription drug benefit now being negotiated.
Concern about excessive patent protection goes beyond prescription drugs. The Federal Trade Commission just issued a provocative study recommending substantial changes in the way our patent system works. [It's here: http://www.ftc.gov/opa/2003/10/cpreport.htm.] This is another important issue on which I would welcome views from readers here. And I'll have more to say about IP tomorrow.
| Permalink | technorati
Comments (23)
Senator, I appreciate your concerns about maintaining a fair balance in IP. You speak about the term of patents. But, in fact, it's only 20 years (and has remained relatively constant increasing last from 17 years).
What Professor Lessig worked so hard for was challenging the continual extensions of copyright terms in Congress. This is where the balance is all out of whack. Now we're up to the life of the author plus 70 years for natural authors, and 95 years for works made for hire. (1) Would you be willing to support the Public Domain Enhancement Act that Professor Lessig initiated in the House? (2) Would you as President be willing to veto another effort of the movie industry to keep on extending copyright terms?
Sir,
I must respectfully disagree that prescription drugs are a case of IP law abuse. Many IP laws need reform, but prescription drugs are one of the few cases where the laws are spurring innovation at a fantastic rate.
It is fundamentally true that prescription drugs are very expensive in the United States. However, it is also true that drugs are incredibly expensive to develop, produce, and distribute. For each drug that makes it to the market there are hundreds that never make it to clinical trials and countless more that are abandoned after disappointing results in Phase II and III trials. Add the insurance required against lawsuits and you might start to understand why the high cost of prescription drugs makes sense.
The United States has the most dynamic pharmaceutical industry in the world and the best drugs available anywhere. Our presciption drugs are the most advanced and the safest in the world.
Patents have given the pharmaceutical industry a strong incentive to innovate, creating new therapies for conditions that were once untreatable.
The sudden surge in biotechnology is based on this incentive. Biotechnology is one of the industries that is quickly creating high-paying high-skill jobs right here in the United States. These jobs are creating new wealth and producing other jobs for Americans all over the country, from New Jersey to Massachussetts to Virginia to Connecticut to California.
While I strongly agree that there are many IP laws that need reform, prescription drugs are not one such place. The biotechnology industry is creating jobs for Americans, creating wealth for America, and helping treat diseases that were once considered untreatable.
Best of luck,
David Thomas
Also, in regards to laws regarding importing drugs from Canada (and other places overseas), beware of the law of unintended consequences. It would be a simple matter for pharmaceutical companies to ration the amount of drugs sent to the Canadian market. Of course, Canada's response would be to ban exports so that their domestic needs could be fulfilled.
If international agreements prevent that ban then the only net result will be an increase in drug prices worldwide and a decrease in availablility of new drugs.
Again, best of luck,
David Thomas
Senator,
What's your opinion on electronic voting systems?
Does it concern you that our votes are being counted by companies with significant conflicts of interest? Examining FEC filings shows the twelve directors of Diebold giving over $220,000 to the Republicans, and Election Systems & Software was founded by Senator Chuck Hagel and funded by a Christian reconstructionist who gave a lot of money to anti-evolution causes.
Security examinations of Diebold's systems by Johns Hopkins University and the state of Maryland have shown a gigantic number of security flaws in their software. And recently leaked Diebold memos have quotes such as "Elections are not rocket science. Why is it so hard to get things right! I have never been at any other company that has been so miss [sic] managed." Al Gore temporarily received -16,022 votes in a Florida county before the "technical problem" was corrected.
Furthermore, there have been reports of unapproved software changes to these electronic systems in the 2002 Georgia elections in which Republicans for Governor and Senate did 13 points better than polls done immediately before the election.
Coming into the 2004 election it seriously concerns me that partisans are in control of our voting machinary. I am surprised and appalled that not much has been made of this in the government and in the media.
Most computer scientists are extremely cautious about electronic voting systems and many believe that such systems need to be "open source" and have independent security audits done so that people can be sure that the software is secure.
There also should be paper trails so that there can be hand recounts if suspicious activities emerge.
How do you feel about all of this? As a college student studying computer science, it worries me that so much faith is being put into imperfect technology that can easily be exploited for political gains by unsavory individuals.
Our democracy is at risk.
Also, in case my wording was a bit misleading, Al Gore receiving -16,022 votes was a separate issue from what preceded it. And this problem was eventually corrected though the media did not scrutinize it closely. I should have stated this more clearly. But there are many examples of technical problems with electronic voting systems and most computer scientists agree on the difficulty of making a fail-proof computer systems. Just look at how many bugs and security holes Microsoft Windows has.
Senator,
I appreciate that you realize that Intellectual Property laws are unbalanced. Patent law needs some serious reform given many absurd patents that have been granted lately, and the perpetual extension of copyright law has ensured that copyrights never expire.
Well, I hate to pop up in a trollish manner, but software patents are a friction on the software industry.
Abuse is pandemic, and it's hard to overstate how ridiculous and hazardous it is allowing obvious brick-and-mortar corollaries to be patented.
I just realized that I misspoke earlier--Hagel didn't found ES&S, he was simply a CEO
"I must respectfully disagree that prescription drugs are a case of IP law abuse."
David, you must not have heard of the companies that are filing for new patents to make generics impossible, and basing the patent claim on the fact they changed packaging!
Did I mention the drugs that were developed by government researchers or academics with government grants, but the patents were awarded to private companies to market them?
If by innovation, you meant innovative marketing techniques, I guess you could argue the inflated prices drug companies are charging thanks to patent law abuses have allowed them to try some pretty innovative marketing techniques.
Bottomline, this is an issue of regulation as much as patent law. These companies are stretching the patent laws to avoid regulation, exclude competitors, and hike their prices. That's how it got so bad that we are importing drugs from Canada.
Howard Dean's response to a question about the Diebold issue:">issue:">http://www.nytimes.com/2003/11/03/business/media/03secure.html?ex=1068440400&en=6f8ee03e30d19d83&ei=5062&partner=GOOGLE">issue:
Dean does not address Diebold's DMCA takedowns suppressing evidence necessary for the public oversight of the election process.
I am glad to hear that you're beginning to look at the problem of outsourcing. We now losing service jobs at a rate comparable or faster than we lost manufacturing jobs 2 decades ago, but no candidates are addressing this issue. I've seen studies that this outflow of jobs has greatly benefited companies and consumers, but how do we replace those jobs?
Personally, I am against protectionist measures on principle--plus with advances in technology, I don't they stand a chance of working.
Dear Senator,
I appreciate your commitment to the issues tied together under the "IP" heading. In your further commentary, I would be interested in hearing your primary philosophy in supporting various pieces of IP legislation. For example, champions of extending copyright often cite protection for the holder while backers of limited copyright value innovation.
With regard to the high costs of prescription drugs, there is no denying the tremendous strain of research & development. However, ethics demand that if a helpful medication exists, every effort ought to be made to transport them to the human beings who stand to benefit.
In this arena, I see our national health care having an equally important effect as the systems of patent and research support. What do you see as an effective approach to dissolving the disconnect between medications and patients ?
Best of luck on the campaign trail.
Sean Broderick wrote:
"Well, I hate to pop up in a trollish manner, but software patents are a friction on the software industry.
Abuse is pandemic, and it’s hard to overstate how ridiculous and hazardous it is allowing obvious brick-and-mortar corollaries to be patented."
I don't consider these thoughts a troll. Software patents are an issue that needs to be addressed by the political community. If XYZ deli patented the 'technology' of keeping mint products in front of the cash register, imagine all the offensive breaths we'd have to endure :) . Same goes for several of Amazon's patents, i.e. one-click technology which is absurdly obvious and trivial and not deserving of patent protection.
Hello Senator -
I am familiar with the work of the S.H.C. on drug patents. Thank you (and others) for your efforts there. You're correct that drug companies, as corporations, will naturally seek any opportunity to make more money - even ahead of (but not necessarily to the exclusion of) doing what's good for people or the nation they are part of. As Professor Lessig has stated, we shouldn't assume what corporations want is necessarily good public policy.
Do your positions in regard to drug patents also apply to copyrights, which, in fact, are in a similar situation? That is - the holders of copyrights are doing everything humanly possible to extend their property rights and not allow their work to become part of the public domain - which would greatly benefit the people - whose government granted them the limited franchise to begin with? I realize that art and culture are more abstract than healing the sick and that there are many more votes to be had by freeing Lipitor and Zocor than by freeing Mickey Mouse and The Sun Also Rises.
But, at the end of the day, it is our culture, not the longevity of individual citizens, that will be our legacy. Surely it is just as important that the public domain includes not only Claritin, but also Cascablanca?
Thank you.
Ed
Senator,
I very much appreciate your attention to IP issues, and am thrilled that you have already begun to address the issue of patent abuse by drug companies. I believe, however, that the problem is much broader than you see when looking at a single industry.
We need to stop allowing the various interested industries to frame the debate in their own terns, and instead focus on the rights that should be given to the public with respect to IP. "Theft," "stealing" and "piracy" are loaded words in our society, and yet we hear them used over and over by companies and congressmen alike.
My understanding is that copyright law isn't even written in congress any more, but is rather drafted by the IP industry without the rights of the public even entering the picture. This is outrageous.
How do you intend, as President, to initiate a more balanced debate on these issues, and what are your plans to keep the discussion from degenerating into a free-for-all as the IP industry grabs for more monopoly power over material that has already reaped them vast profits?
I'm glad that a Presidential candidate has addressed copyright law, but when can we see it as part of a political platform? The Sonny Bono Act and Digital Millenium Copyright Act need to be contested by the executive branch. New progressive acts need executive sponsorship. And we need to put progressive judges in the courts.
I'm a Republican, but I'm so fed up with oppressive copyright laws (in addition to the usual Bush misgivings), it might be the last straw that pulls me to a Democratic vote next year.
Senator,
I'm an IP lawyer and I agree that the constitutional balance has been upset. The people have been losing the benefit of the contitution's bargain with (Prof. Lessig's favorite) creeping copyright terms and the claimed imbalance of a 20 year patent term in light of the pace of innovation in modern technologies. I also believe that the Congress should act to bring much more certainty to the IP issues of fair use, experimental use and the like. When experts, let alone lay people, can't figure out what IP law permits and forbids, the government should act.
This is o/t so I'm just going to note that anyone who would like to see the full context of Sen. Edwards attack on Dean re: the confederate flag, and why it merits an apology much more than Dean's comments please click my name.
Nick Douglas wrote:
I don't know if you knew this, but both the DMCA and the most recent copyright term extension were signed into law by President Clinton and both received a great deal of Republican Party and Democratic Party support. I would have linked to the Wikipedia entries on these topics but I can't seem to connect to their website right now.
Yes, sorry I didn't make it clear: I am aware that there's been bipartisan support for DMCA and copyright extensions. I meant that even a Democrat could earn my usually conservative vote by bucking the trend.
Put a little music to David Thomas's love letter to the drug industry and you can run it alongside all those other drug industry advertisments which are overwhelming broadcast TV these days (I really miss the days when the dot coms had all the advertising money).
If anybody wants to learn a little bit about how the drug industry manages to be the highest profit margin industry in the history of commerce and the health care industry the largest single segment of the American economy (and if you would like some insight into how bad that is for the economy), you might want to check out this website: http://www.healthreformprogram.org./
Furthermore, David T. probably needs to be reminded that the last disease the drug industry cured was polio, and it took the March of Dimes -- ie, government money -- to achieve that. The drug industry's profit motive dictates that paliative treatment is the only option. To find cures is to put yourself out of business.
Between patent laws, the profit motive, and the Republican Party's roll as the enabler of an unethical drug industry, our country is in deep deep trouble.
I am currently enrolled in a class that is studying Intellectual Property and the issues involved with patent laws and copyrights. I do not know a great deal about the topic yet or the laws involved but I am very interested in learning more about it, especially after reading some articles by Lawrence Lessig and this Blog on Intellectual Property. Are their any other web sites or books that anyone could suggest for more information on the subject?
very good site