Patenting se(x)nse

I was recently commissioned by a startup client engaged in biotech research to explore the possibility of patenting its new discovery.  As we were discussing it, I realized that its claim for innovation looked more incremental than generic. Though it’s not my business to argue with the subject matter experts, to highlight what occurs to me as an error apparent out of my not so short experience is indeed part of my job.

Currently, India allows patents [on derivatives] for incremental innovations in which the efficacy has significantly increased. But if one is making a tablet of a product and then develops a paediatric dosage by way of a serum, this is not innovation because any person skilled in chemistry knows how to make that. There is no invention or innovation on that and permitting this sort of patenting, would mean evergreening. Or take usage – a drug which was used for epilepsy was granted a [second] patent for obesity. Do we want such new uses to be patented?

On hearing this, the Research Head grew wild.  He started quoting recent examples of how liberal the US patent laws have been in granting patents even on minor variations.  Rather he started using this as one more tool to blame the favorite whipping boy – the Indian IP laws – the laxity of which allows widespread counterfeiting on almost everything from valuable formulations to movie CDs.

If it were, does it augur well for the Industry and Public health? Patents granted for such devices, for such “inventions”, would derail innovation and would be detrimental to the progress of science. Research labs would focus only on these low-hanging fruits, which are low risk and high reward. This is why we have section 3(d) of the Indian patent law on incremental innovation. If everyone can patent small changes, why would anyone go in for high-end research? There, the fruits are at the top, where risk is high and rewards are uncertain. If we want medical science to progress, that is what should be the bar.

We have seen the high prices of medicines, which are off-patent but still have a single source of supply. Patents will ensure that there is only a single source of supply and the pricing power remains concentrated. Not many would like to let go off that handle, don’t you agree ?

I was drawn to a facetious metaphor at this point which I thought aloud. Imagine if Vatsyayana, the author of Kama Sutra, lived during our times and had been allowed to patent his “inventions” (which are essentially techniques and creative postures that maximize pleasure in an orgy), you would be ending up paying Royalties to him each time you climax.  Worse if you don’t since you face a the prospect of having to prove it before a judge that you did `it’ differently !

I think that was the clincher. Sex not just sells, makes sense too. After some lengthy conference calls with my friend, a famous patent attorney that confirmed my observation, grudgingly they relented. While on my way back, I realized I had saved them quite a fat sum by way of attorney fees (should have dawned on them much later) when I was browsing thro the meeting docket in which there was an estimate of attorney fees. Hmmm…I’ve been foolish enough not to have factored in these tangibles while offering my quotes.  I resolved to be careful with my quotes in future !

Some good reading material on the subject here and here

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