Patent Reform is a Fool's Errand
Real Clear Politics - Op-Ed
By: Sally C. Pipes
9.7.2007
Real Clear Politics, September 07, 2007
Congress has just returned from its summer recess, and lawmakers are facing a jam-packed legislative calendar. To lighten the load, they should jettison one of the most misguided pieces of legislation on the agenda -- the Patent Reform Act of 2007. Despite its self-righteous title, this bill would not actually "reform" anything. Instead, it would systematically undermine America's patent system, benefiting those who seek to infringe on patents, while harming the very inventors whom we depend upon to develop the miracles of tomorrow -- whether it's a solar-powered engine or the cure for AIDS. Under current law, those who receive a patent are granted exclusive rights to their invention -- usually for 17 years, after which everyone has access to it. By protecting unique discoveries and designs -- and imposing steep penalties on those who steal such creations -- this system encourages the investment that can turn ideas into viable products in the first place. But advocates of the reform measure would like to weaken those protections. First, the bill calls for all patent applications to be published -- i.e., posted on the Internet -- just 18 months after they're filed, regardless of whether a given case has been decided. This public revelation would be devastating to the small entrepreneurs and research facilities whose livelihoods depend on maintaining the secrecy of their inventions until they've successfully secured patent protection. It already takes an average of 31 months for the U.S. Patent Office to grant a patent. That means that if this measure succeeds, a deceitful firm could spend over a year evaluating a competitor's groundbreaking idea, and then claim it as its own. And of course, foreign criminal organizations, which have already turned intellectual property theft into a burgeoning business, would have a field day. If Congress makes it easier to steal patents, budding inventors will have a more difficult time finding investors which will make it that much harder to invent the next telephone or electric lightbulb. By weakening patent protection, the bill would also have a disproportionately negative effect on the development of new medicines, as drug companies cannot stay in business without strong patent laws. Unlike any other product, medicines must undergo an extremely rigorous approval process by the Food and Drug Administration (FDA). This requires an unusually large amount of time and capital. Today, it takes about $800 million and 10-15 years from the time a compound is discovered to the moment it's available at your local pharmacy. All these years of testing and development eat up much of a drug's time under patent protection. So once the average drug hits the shelves, it's protected from competition for only a few years. As a result, there's not much time for a pharmaceutical firm to recoup its investment. Today, only one in three approved drugs actually makes enough to recoup the cost of development. Weakening patent law would make success even more difficult, driving investors away from the medical industry and resulting in less money to create new cures. Adding insult to injury, the bill also seeks to decrease the damages available to inventors when their patents are infringed. If anything, it should be the other way around. A strong patent system is the lifeblood of a high-tech economy. Even if one were solely to consider medicine and medical technology, it's puzzling why Congress feels compelled to weaken the system that has played a major role in the creation of treatments for previously incurable ailments like heart disease, diabetes, and cancer. Today's patent system protects the massive investments in both time and money that are needed to cure the diseases that we haven't yet conquered and create tomorrow's innovations. Congress should leave it alone.
Sally C. Pipes is President and CEO of the Pacific Research Institute.
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