by Richard G. Lanzara

Created on: May 28, 2008

Pharmaceutical patents need not hinder the development of a vaccine against pandemic flu. There should be a public health law that is essentially equivalent to the right of eminent domain for the building of public works. Even if there isn't such a law the patent holders should agree to this in principle. Certainly they wouldn't want to obstruct the development of such important work.

This law should basically limit a patentee's rights so that they should not unreasonably prevent necessary measures to protect the public health. Some reasonable compensation should be included so that the patent holder receives something for their inventive efforts, but being a patent holder myself, I believe that this should probably apply generally to all patents.

Often times using a patented technology will strengthen it rather than weaken it. This serves to test a technology and by showing where and how it is useful the technology may often gain a competitive advantage over another technology. This is too often under appreciated in the patents that impinge upon the health care and pharmaceutical sectors. There are several other reasons why patented technology is often hidden, but some of them involve very complex methods that companies chose to control their intellectual property (IP). In addition, many companies also hide their technology because of its defects and because they don't want it to be tested by their competitors.

These may be valid reasons to protect a company's IP, but there are circumstances that should require a company or individual patent holder to accept some compensation so that their patented technology can be developed for treating global disasters. Patents are public knowledge once they become registered so it isn't like they are not available. Anyone can look up a patent at the various databases for the U.S. and the world. So companies often need something more than a patent to give them a competitive edge. These extra protections may involve things such as market share, brand recognition and trade secrets.

In general, patent holders are protected if others use their patented technology for commercial gain, since the patent holder can sue them for several times their profits. Of course for the smaller patent holder this may not be feasible if it is going to involve them in a million dollar lawsuit, but for the large corporations this should not be an issue. Big business exercises many restrictive holds over their patented technology for competitive purposes, but this should not restrict the rights of academicians and the scientists in the national health care sectors from being able to do their best to prevent national or international health disasters.

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