Weakening Patent Law

Glenn Hess has an article in the December 19 issue of Chemical and Engineering News entitled, "Critics Target Patent Deals".

The article discusses Senate Bill S. 1882, sponsored by Democratic Sen. Jeff Bingaman and Republican Sen. David Vitter to encourage more generic companies to challenge the validity of brand-name drug patents. The intention is to bring more generic pharmaceuticals to the marketplace.

This bill is unnecessary. Normal market and business forces should be allowed to prevail. The US patent system should not be weakened by extraneous regulations.

The purpose of patent law is to grant economic advantage to those persons and companies who have engaged in research to develop products and processes having economic marketability. Any regulatory weakening of the patent system also weakens incentives to develop new products.

As a patent is granted, the inventor is given a limited time market exclusivity on his product or process. The patent may be considered by others as strong or weak, depending upon the patent details which are publicly revealed.

A potential competitor, which in pharmaceuticals is considered a generic producer, may come to the patent holder and suggest that because of the patent weakness, the generic producer may try to in validate the basic patent in court or may produce a product, which he considers will not be applicable to control by the patent.

This matter should be left to negotiation of the two contenders. Conclusion usually will involve an exchange of money or if the patent holder considers that his position may be weak, he may agree to an early marketing of the generic producers product in exchange for eliminating further contention.

The federal government generally has no business to be involved in these negotiations, unless it feels that the public is being deprived of product or low pricing through illegal means. The details of "illegal means" are described in the Antitrust Laws, and it is the responsibility of the Justice Department to prosecute offenders.