From: J. Andrew Rogers (andrew@ceruleansystems.com)
Date: Sat Mar 05 2005 - 11:22:08 MST
On Mar 4, 2005, at 8:29 PM, Phil Goetz wrote:
> BTW, the period for patents is apparently now 20
> years.  I think it's 12 for pharmaceuticals?
It used to be a maximum of 17 years from the date a patent was granted. 
  However, this led to the "submarine patent" problem where a patent 
could be kept in-process for decades using procedural tricks without 
starting the clock but still having claim from the original filing 
date.
This was fixed a few years ago by making the patent only valid for 20 
years from the filing date, not the grant date, thereby rendering the 
submarining of patents largely pointless.
Pharmaceutical companies have a different set of problems.  After 
filing for a patent on a new medicine and then getting FDA approval, 
they typically only have five years on the patent left in which to 
recover several hundred million dollars before the generics swoop in.  
However, many people are not aware that there is a kind of evil 
relationship here.  By law, any medical technology that is not FDA 
approved must be sold at cost until the approval date, but this does 
not preclude the widespread usage of the product on a provisional basis 
while the FDA is reviewing it.
The Federal government is a very large medical purchaser, and many 
times will universally adopt a patented medical technology prior to 
official FDA approval.  In cases like this, the FDA has a bad habit of 
not approving some medical technology until the last possible date 
before they are legally required to make a decision.  By using their 
leverage in the FDA to delay approval of some hot new medical 
technology that the government and everyone else has been using for 
years, the Federal government buys themselves a few years of at cost 
usage of the technology before the company that created it is legally 
allowed to make a profit on it.  Unfortunately, this also substantially 
reduces the window in which the company can recover their sunk cost 
because the clock is running out on the patents.  Having the Federal 
government being both a major medical purchaser and running the FDA 
creates a clear conflict of interest that is exploited to its 
advantage.
Intellectual property is largely irrelevant with respect to FAI as it 
is a commercial issue, and therefore mostly irrelevant to SL4.
j. andrew rogers
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