Promote the Progress
Article I. Section 8. The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Apparently, the "promote the progress of science" part of the clause is limited to Congress and not a requirement of the Inventors as well.
Stephen Nipper, points out in this post, that a Princeton neuropsychiatrist (who obtained a patent covering the use of a drug Meridia manufactured by Abbott Pharmaceuticals for the threatment of post-traumatic stress disorder, fibromyalgia and Tourettes syndrome) is frustrated with Abbott's lack of interest in scientifically investigating his (patented) claims and selling the drug for treating those conditions. [Drug makers now confront unlikely foe in labs: science (Sunday, 2/13/2005, Star-Ledger)]
I was hoping that Stephen would tell us that patent law requires Abbott to conduct some R&D (i.e. promote the progress of science) in order to maintain their patent to Meridia, but alas, not to his knowledge.
Not that I want overlawyered coming after me, but I think it would be interesting if another company could do the research on behalf of the neuropsychiatrist and then argue pre-emptively that Abbott should be estopped from asserting any claims to the new uses to the drugs based on the fact that they failed to perform research.
Disclaimer: I am a trademark and copyright lawyer and do not claim to know anything about patent law.
Apparently, the "promote the progress of science" part of the clause is limited to Congress and not a requirement of the Inventors as well.
Stephen Nipper, points out in this post, that a Princeton neuropsychiatrist (who obtained a patent covering the use of a drug Meridia manufactured by Abbott Pharmaceuticals for the threatment of post-traumatic stress disorder, fibromyalgia and Tourettes syndrome) is frustrated with Abbott's lack of interest in scientifically investigating his (patented) claims and selling the drug for treating those conditions. [Drug makers now confront unlikely foe in labs: science (Sunday, 2/13/2005, Star-Ledger)]
I was hoping that Stephen would tell us that patent law requires Abbott to conduct some R&D (i.e. promote the progress of science) in order to maintain their patent to Meridia, but alas, not to his knowledge.
Not that I want overlawyered coming after me, but I think it would be interesting if another company could do the research on behalf of the neuropsychiatrist and then argue pre-emptively that Abbott should be estopped from asserting any claims to the new uses to the drugs based on the fact that they failed to perform research.
Disclaimer: I am a trademark and copyright lawyer and do not claim to know anything about patent law.
1 Comments:
A couple of things here:
First, it's copyrights that promote the progress of science. Patents promote the progress of the useful arts. This is evident from the structure of the clause, from the meanings of those words back in 1789 (consult your OED -- vestiges remain, such as 'state of the art' in reference to technology), from the fact that utility may be anathema to copyrights (utility doctrine for PGS works) but is absolutely required for utility patents, etc.
Second, this is a fairly ordinary example of blocking patents. A patent is basically an exclusive right to use, i.e. a negative right to exclude others. Like copyrights, it is not a right to actually do something.
So inventor A has a patent on a drug itself. This excludes anyone else from using that drug. But inventor B gets a patent on the method of using that drug for a particular purpose. If this satisifes the basic requirements for a patent (useful, novel, nonobvious, etc.) then it's fine too, and he can prevent anyone -- including A -- from using the drug in that fashion.
Ideally, A and B will come to some sort of licensing agreement.
But there's no need for that. Patents promote the useful arts chiefly by disclosure, not use. Utility merely means that they have some function, not that it's practical (especially as practical value may not be readily apparent during prosecution).
So long as the world is aware of the invention, and can, once it's in the public domain, practice it, or prior to that, can invent workalikes based on the disclosure, that's sufficient.
Otherwise what you propose is basically a regime of compulsory licensing that would pretty likely supplant one's own efforts. While we have this in a couple narrow parts of copyright, it's generally felt to be a bad idea since it places all inventions at an equal monetary value, thereby reducing incentives to invent. I mean, why bother making the microchip if you could never get more than a government-fixed amount per? Even musicians at least don't have to license out their recordings, forcing the other guy to cover songs.
No, I think that what's happened is the right way to go. It's not as ideal as it might, be, but overall I think it's superior.
I also am a copyright and trademark attorney, by the way.
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