Alternatives to Patents

Keeping research results secret for a long time is hardly a realistic option for academic scientists. However, if it is intended to patent research work, it is essential to make this decision early and to keep an invention secret until its full potential has been explored. Publications of new results in short intervals and a later ad-hoc decision to file a patent application on the same subject will, at best, result in weak patents. In the worst case, premature publications by the inventor can render patent claims or the entire patent invalid. 

When patents for registered medicinal products expire, others may apply for a registration of an essentially similar product by referring to the pharmacological, toxicological and clinical data of the first applicant and without providing own data on these parts. For certain products second registrations of imitations are excluded for a limited period of time. 

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An alternative to patent protection for advances, developments, ideas, and appHcations is to treat such information as a trade secret. The protection of trade secrets reHes on the development of ideas, appHcations, and advances which are not found ia the pubHc domaia. Trade secrets, by defiaitioa, are kept ia coafideace by their owaer, dissemiaated only to those who accept an absolute obligation of confidentiaHty, and then only for purposes of which the trade secret owner knows and approves. 

A major disadvantage is the large deadweight losses due to monopoly power associated with granting a patent. Also, in the presence of substantial insurance coverage, market valuations may not be accurate measures of value. On balance, there is strong case for considering alternatives to patents here. 

One alternative to patents is prize-based incentives (deLaat 1997 Kremer 1998). This type of reward has been proposed for pharmaceuticals as well (Abramocicz 2003 Hollis 2005a, b Shavell and Van Ypersele 2001 Hollis, Chapter 4 Maurer, Chapter 5). Under a prize system, the developer is rewarded for the innovation, as with patents, but the new product is placed in the public domain and prices are set near to marginal cost so that the deadweight loss associated with patents is avoided. The key to the success of a prize system is the degree to which the prizes can be structured to approximate the value of the delivered innovations. 

As far as the subject allows, only the general principles will be outlined which apply to patents in the field of biomedical products, rather than dealing with specific cases (as the interpretation of their patentability changes with time). For practical reasons emphasis will be laid on the patent policies of the European Patent Organization (EPO) and of the USA, since these are most advanced in this field and strongly influence other countries policies. Patents are usually applied first in the USA in in EPO countries, as they represent major markets. Important deviations from the EPO s or USA s policies in other countries will be mentioned and summarized where necessary. Alternatives to patents will also be briefly discussed. 

When the best mode requirement is not violated by maintaining a trade secret, a trade secret can coexist with a patent in a single area of technology. In general, however, a trade secret is an alternative to patent protection. 

The patentability of combinatorial libraries is examined, requirement by requirement. In general, combinatorial libraries can be patented, as long as the library meets the statutory criteria of utility, novelty, and non-obviousness, and the application meets the standards of enablement, best mode, and written description. Licensing and alternatives to patenting are also considered, along with potential problems unique to combinatorial chemistry agreements. 

An alternative to traditional mass flow bin design is to use a patented BINSERT, which consists of a hopper-within-a-hopper below which is a single-hopper section (Fig. 15). The velocity pattern in such a unit is controded by the position of the bottom hopper. A completely uniform velocity profile can be achieved which results in an absolute minimum level of segregation. Alternatively, by changing the geometry at the bottom of the hopper, a velocity profile can be developed in which the center section moves faster than the outside, thus providing in-bin blending of the materials (7). 

Little l-//-pentafluoropropylene is produced anymore, because its existence IS no longer justified as a less stable alternative to HFP m VDF-based elastomers, given the expiration of patents covenng the basic VDF/HFP/(TFE) compositions Perfluoro-1,1-dimethyl dioxole is prepared from hexafluoroacetone and ethylene oxide in four propnetary steps [5] (equation 4)... 

Hydroquinone is another safe alternative to hydrazine and was originally covered under a Betz patent. Related compounds and their alkyl-substituted derivatives were similarly patented, including o- and /7-diamino and aminohydroxybenzenes. 

Recently, rhodium and ruthenium-based carbon-supported sulfide electrocatalysts were synthesized by different established methods and evaluated as ODP cathodic catalysts in a chlorine-saturated hydrochloric acid environment with respect to both economic and industrial considerations [46]. In particular, patented E-TEK methods as well as a non-aqueous method were used to produce binary RhjcSy and Ru Sy in addition, some of the more popular Mo, Co, Rh, and Redoped RuxSy catalysts for acid electrolyte fuel cell ORR applications were also prepared. The roles of both crystallinity and morphology of the electrocatalysts were investigated. Their activity for ORR was compared to state-of-the-art Pt/C and Rh/C systems. The Rh Sy/C, CojcRuyS /C, and Ru Sy/C materials synthesized by the E-TEK methods exhibited appreciable stability and activity for ORR under these conditions. The Ru-based materials showed good depolarizing behavior. Considering that ruthenium is about seven times less expensive than rhodium, these Ru-based electrocatalysts may prove to be a viable low-cost alternative to Rh Sy systems for the ODC HCl electrolysis industry. 

Fluidized beds, in general, and the air-suspension technique patented by Wurster, in particular, now offer an attractive alternative to pan coating. The basic principle underlying their operation is to suspend the... 

One alternative to PET fiber which did compete historically was poly (1,4-cyclohexylene dimethylene terephthalate) (PCT) (Figure 12.5), commercialized under the name Kodel II by Eastman. This polyester gained an early footing because it was not covered by the existing patents, and was able to establish a raw material base from which it could compete both technically and economically. 

Hollis (Chapter 4) offers a clever alternative to estimation. His Optional Reward system would let drug companies waive their normal patent rights in exchange for sharing in a fixed-prize fund. The size of each company s share would then be announced using predefined health metrics (e.g., DALYs ). The virtue of such a plan is that new companies would continue to join the plan, bidding down the value of each DALY saved, until... 

The main alternative to grants is for sponsors to award best entry prizes to whichever researcher(s) achieve the most important results in a prede-hned period. Like patents, prizes are a powerful method for eliciting new ideas. Since researchers cannot claim a prize without concrete results, best entry prizes also provide substantial protection against lazy or inefficient researchers. Best entry prizes are already widely used to solve chemical engineering problems. The best-known prizes are managed by a company called Innocentive. It specializes in problems that companies have been unable to solve in-house, attracting solutions from around the world (Maurer 2005). 

In the United States, Celanese has obtained a license from Bayer to expand their vinyl acetate production. In addition, National Distillers has developed an alternative vapor-phase process and will use it in a new plant nearing completion. The adoption by Celanese of the Bayer vapor-phase process has led to patent infringement litigation among National Distillers, Celanese, and Bayer (6). 

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