[Ip-health] Supremes skeptical toward trivial patents- effect on Pharma?

[Michelle Childs]

 A lucid update on the current patent hearing (KSR International v.
Teleflex,) which could have a dramatic effect  especially on pharma patents=
:

<snip>

The IT sector is generally behind the idea of cutting out such patents, as
it costs considerable money to research prior patents and fight weak ones
in court. Intel Corp. and Cisco Systems are two heavy hitters from the IT
industry that favour raising the bar.
.......
But other, "Old Economy" sectors, like Big Pharma, depend on insignificant
or obvious "innovations" to maintain their exorbitant prices and
subsequent profits. One example is the antihistamine fexofenadine,
marketed by Aventis Pharmaceutical as Allegra. When the patent expired,
and generic fexofenadine began to appear on the market, Aventis introduced
Allegra-D, the same drug, merely combined with the decongestant
pseudoephedrine. You don't need a Ph.D. in pharmacology to figure that one
out. The product's only purpose is to extend the patent. And there are
scores of drugs and thousands of other products just like it.

If the Supremes decide in favour of KSR, and offer new, clear guidance on
what's too obvious to be protected by patents, Allegra-D and tens of
thousands of other patent-extending products like it will become
vulnerable to challenge, and far more difficult to defend. It's no wonder
that patent-dependent dinosaurs like Procter & Gamble, 3M, Johnson &
Johnson, DuPont, and General Electric have weighed in on behalf of
Teleflex.



http://www.theregister.co.uk/2006/11/29/supremes_make_sense_of_patents/

Supremes skeptical toward trivial patents
It's obvious that what's obvious should be made obvious
By Thomas C Greene in Dublin
Published Wednesday 29th November 2006 00:19 GMT

The US Supreme Court heard oral arguments in the case of KSR International
v. Teleflex, in which the limits of combination patents and so-called
obvious patents are being considered. According to several wire reports,
KSR argued that its design for adjustable vehicle accelerator pedals does
not violate a patent held by Teleflex for a similar gizmo, because
Teleflex did not legitimately invent anything when it combined two
existing technologies in an obvious way, and does not, therefore, deserve
the patent.

Patents are often granted for trivial improvements to existing
technologies or for combinations of technologies that are often deemed
obvious, and this unfairly suppresses competition in the marketplace, KSR
maintained.

 The Supremes seemed generally to support this notion during the
arguments. Most were skeptical of the established language, which
involves a particularly vague test for obviousness. Currently, a
plaintiff must demonstrate that there was a "teaching, suggestion, or
motivation" to combine earlier technologies in a patent under challenge
for being obvious or trivial. Justice Antonin Scalia characterised the
standard as "meaningless" and "gobbledygook".

"It's misleading to say that the whole world is embraced within these
three nouns. This is gobbledygook. It really is; it's irrational,'' he
sputtered.

Chief Justice John Roberts declared it "worse than meaningless, because it
complicates the question rather than focusing on the statute."

Justice Stephen Breyer couldn't imagine how a court might determine
whether a "motivation" existed for a new product.

But Teleflex warned that the consequences of mucking about with a
20-year-old standard - a gold mine for lawyers due to its vagueness -
could be "dramatic instability," an issue to which Justice David Souter
seemed sympathetic. "Are there going to be 100,000 cases filed tomorrow
morning?" he wondered.

But Justice Scalia asked, "does it make sense to assume that patents are
valid under a test that's been erroneous for 20 years"?

Justice Souter observed that "if the error is common enough and long
enough, the error becomes the law''.

The IT sector is generally behind the idea of cutting out such patents, as
it costs considerable money to research prior patents and fight weak ones
in court. Intel Corp. and Cisco Systems are two heavy hitters from the IT
industry that favour raising the bar. The open source community is
likewise in favour, although its political influence is negligible.
Interestingly, the Bush administration also weighed in on behalf of KSR,
in a rare moment of lucidity.

But other, "Old Economy" sectors, like Big Pharma, depend on insignificant
or obvious "innovations" to maintain their exorbitant prices and
subsequent profits. One example is the antihistamine fexofenadine,
marketed by Aventis Pharmaceutical as Allegra. When the patent expired,
and generic fexofenadine began to appear on the market, Aventis introduced
Allegra-D, the same drug, merely combined with the decongestant
pseudoephedrine. You don't need a Ph.D. in pharmacology to figure that one
out. The product's only purpose is to extend the patent. And there are
scores of drugs and thousands of other products just like it.

If the Supremes decide in favour of KSR, and offer new, clear guidance on
what's too obvious to be protected by patents, Allegra-D and tens of
thousands of other patent-extending products like it will become
vulnerable to challenge, and far more difficult to defend. It's no wonder
that patent-dependent dinosaurs like Procter & Gamble, 3M, Johnson &
Johnson, DuPont, and General Electric have weighed in on behalf of
Teleflex.

IBM, which apparently can't decide if it's a true dinosaur or part of the
historical footnote that used to be called the "New Economy," straddled
the fence, filing a brief that essentially calls both sides in the dispute
too extreme.

The decision is expected in July. =AE



--
Michelle Childs -Head of European Affairs
Consumer Project on Technology in London
24, Highbury Crescent, London, N5 1RX,UK.
Tel:+44(0)207 226 6663 ex 252.
Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607
http://www.cptech.org

Consumer Project on Technology in Washington, DC
1621 Connecticut Ave, NW, Washington, DC 20009 USA .Tel.:
+1.202.332.2670,Fax: +1.202.332.2673

Consumer Project on Technology in Geneva
1 Route des  Morillons, CP 2100, 1211 Geneva 2, Switzerland
Tel: +41 22 791 6727






--
Michelle Childs -Head of European Affairs
Consumer Project on Technology in London
24, Highbury Crescent, London, N5 1RX,UK.
Tel:+44(0)207 226 6663 ex 252.
Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607
http://www.cptech.org

Consumer Project on Technology in Washington, DC
1621 Connecticut Ave, NW, Washington, DC 20009 USA .Tel.:
+1.202.332.2670,Fax: +1.202.332.2673

Consumer Project on Technology in Geneva
1 Route des  Morillons, CP 2100, 1211 Geneva 2, Switzerland
Tel: +41 22 791 6727