#44: 📝 To Patent Or Not To Patent
Are Patents Helping or Hindering Innovation Progress?
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📝To Patent or Not To Patent
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To Patent Or Not To Patent
Alright, picture this: you're an inventor, tinkering away in the lab.
You've been slaving away on your newest brainchild, a revolutionary device that's going to change the way we communicate forever.
But then comes the question: should you patent your invention?
Patenting is the process of legally protecting an invention, an idea, or a process that provides a new way of doing something or offers a new technical solution to a problem.
Sounds great, doesn’t it?
So, why wouldn’t you just rush to the patent office, paperwork in hand, ready to secure your invention?
Well, patenting can have advantages and disadvantages.
Most of us know the upsides of patenting - exclusivity, big potential for profits, direct recognition and a way to build security and valuation in the inventor and the company that owns the patent.
However, oftentime the downsides are overlooked.
First off, the patent process takes a lot of time. Approval can take years. This delays bringing your product to market. Patenting is expensive and you have to disclose all the details of your invention to the public.
The most expensive part is maintaining the patent and enforcing your rights. If someone does infringe on your patent, you have to take legal action which can be both costly and time consuming.
Patenting in Healthcare
In drug discovery, the patent process is important to pharmaceutical companies.
Due to the 12 year timeline and $1+ billion dollar cost of bringing a new drug to market, pharmaceutical companies seek patents to protect their initial investment in developing a drug.
This allows them protection against competition and guaranteed profits for the remainder of the patent term which can help them recover the development costs and grow as a company.
Not all health interventions go through the patent process.
The most famous example is the Polio Vaccine, invented by Dr. Jonas Salk. The vaccine was not patented. When asked why he did not patent the vaccine he famously said "Could you patent the sun?" His belief was that the vaccine should be freely available to all who needed it.
Due to this decision, the vaccine has saved millions of lives and led to the near-eradication of polio worldwide. It also set a precedent for medical discoveries to be shared freely for the benefit of all humankind.
Psychedelic pharmaceuticals are complicated when it comes to patents because laws restrict the patenting of naturally occurring substances.
It’s impossible to patent a plant, or even to patent your DNA.
Several psychedelics are naturally occurring plants and therefore cannot be patented, such as psychedelic mushrooms, the peyote cactus, and ayahuasca which is a mixture of various plants.
But this has not stopped psychedelics companies from seeking patents. Like drug discovery and pharmaceuticals, psychedelics have been following a path of drug development and clinical trials which is expensive and time consuming. Thus, patent’s are pursued.
If companies cannot patent the substance directly, psychedelics companies will attempt to patent the delivery system or formulation of the psychedelic drug. For example, a transdermal patch or a topical formulation of the substance.
A key motivation here is to protect from competition, recover the costs of bringing the psychedelic drug to market and to generate profits. For example, Spravato, a patented version of ketamine (US20130236573A1) is estimated to generate $1 billion in revenue in 2023.
For several years the patent battle over the revolutionary gene-editing technology, CRISPR-Cas9, has made headlines.
Jennifer Doudna at the University of California, Berkeley and Emmanuelle Charpentier, then at the University of Vienna, first published a paper on the CRISPR-Cas9 technology in 2012. However, Feng Zhang at the Broad Institute of MIT and Harvard also filed a patent for the technology in 2014 and paid for expedited review, receiving the patent.
This sparked a high-profile dispute over the rights to the CRISPR-Cas9 system. Each side claiming that the other’s patents interfere with their own. The controversy resulted in a prolonged legal battle, causing uncertainty around the technology's usage and commercialization, which is still on-going today.
Researchers and companies were unsure about whether or not they can use the technology without facing legal ramifications.
However, despite this risk, the CRISPR patent landscape is vast. One estimate suggests there are already more than 11,000 families of patents on CRISPR-related technology.
The patent war also highlighted an essential question about how the patent system, which is meant to promote innovation, might sometimes impede it.
Is patenting the right path forward?
Many inventions that changed the world we live in today are the result of forward-thinking and generosity. These inventors saw that their discovery was only the beginning of something transformative.
The World Wide Web was invented by Sir Tim Berners-Lee. Sir Berners-Lee, along with his employer, CERN, decided not to patent the World Wide Web. They believed that making the web freely available to everyone was the best way to ensure its universal adoption.
This decision greatly facilitated the web's rapid growth and adoption worldwide. Since it was freely available, countless innovators were able to build upon it, leading to the proliferation of web-based businesses, services, and platforms.
The invention of the transistor, invented by John Bardeen, Walter Brattain, and William Shockley of Bell Labs, is another example. The transistor was patented in 1948 (U.S. Patent 2,524,035). However, Bell Labs decided to license the transistor technology openly and quite cheaply, which was unusual at the time.
The open licensing model made the transistor widely accessible, accelerating the advent of the Information Age. The transistor is considered one of the most important inventions of the 20th century and forms the building blocks of all modern digital devices.
Synthetic Insulin, invented by Genentech scientists, primarily Roberto Crea and Keiichi Itakura was patented, but Genentech licensed the methods for creating synthetic insulin at a reasonable cost to Eli Lilly and Company, which created the first commercially available biosynthetic human insulin.
This move facilitated the mass production of synthetic human insulin, helping millions of diabetics worldwide manage their disease more effectively. This also marked the beginning of the biotech industry.
Ultimately, the decision to patent or to adopt an open-source approach depends on the inventor's objectives, the nature of the innovation, and the market conditions.
If the goal is to monetize the invention, obtaining a patent could be a smart move. In industries where competition is fierce, a patent can provide a crucial competitive advantage. Additionally, in industries where the R&D costs are high (such as the pharmaceutical industry) patents can help companies recoup their investment by providing a period of market exclusivity.
Alternatively, not patenting and then providing an invention open source doesn't mean that you can't profit. It simply represents a different business model that often emphasizes services and user community.
When choosing to open source, inventors can offer a dual-license, where the software is available under both an open-source license and commercial license. The open source license can restrict commercial use, therefore businesses that want to use the software without that restriction can opt for a commercial license.
A common open-source business model many of us are familiar with is the Freemium / Premium model where the base product is free and open-source, but the premium features are add-ons or sold separately.
If you are a new inventor and wondering whether or not to patent, first consider your long-term objectives, take the time to understand the process of patenting including the costs, timelines and requirements.
Make sure you seek legal advice so you can understand the patent landscape of your competitors in order to understand how you may have to navigate any potential legal issues that might arise.
Be prepared to enforce your patent and understand the costs and time that might require. Lastly, don’t forget to consider the impact your invention can have on society.
📚 Book of the Week
The Story of the Human Body, Evolution, Health and Disease by Daniel E. Liberman
3 / 5 Stars
A dense read that sometimes bordered on too much detail for me about the history of human evolution. It theorized about how our brains grew to their size today, why childhood lasts so long, and the advocation of evolutionary medicine.
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The ChatBot will see you now…
Med-PaLM 2, Google’s AI medical chatbot that is being tested at hospitals including the Mayo Clinic.
This ChatBot can provide high quality, authoritative answers to medical questions. It has been trained on medical licensing exams and medical expert demonstrations. It can summarize documents and organize data.
In a comparison between answers from Med-PaLM2 and answers produced by physicians, medical professionals themselves preferred the answers generated by Med-PaLM2.