Monday, July 23, 2007

New Strategies Galore - Using emotional appeal to kill innovation in medical devices

[Click on Post Title for Link to External Article]

Warning: This is an unusually long post..

Here are a couple of paragraphs I have stolen verbatim from the article:

"Dragseth cited the recent case of Dr. Gary Michelson, who in 2005 received a $1.35 billion settlement after suing a medical device company over his patented spinal surgical technique that speeds recovery. Medtronic v. Michelson, No. 01cv2373 (W.D. Tenn.)."

"Last month, a veterinarian who sued a surgical instrument maker over his patented technique for declawing a cat also won his case when the U.S. Court of Appeals for the Federal Circuit upheld his patent. Young v. Lumenis, No. 06-1455 (S.D. Ohio). "

Now let me first acknowledge the article lest, ironically, sues me for freely using parts of their article (which was published after earnest research, and editorial skill for the common good I suppose)

Okay. Let us only look at these two examples. First Medtronic is not the small kid off the block who is being crushed by the Goliath Dr. Gray Michelson. Their positions in fact, would be switched if that were the case...

So what's actually going on? Medtronic, being the big company that it is, picked a problem area, saw a giant market opportunity and developed a product. Dr. Gray Michelson who had done the same thing, except a while ago - and had patented it, decided to sue. Its pure capitalism.

Now, lets imagine if the positions were switched. Let us say, Medtronic contrived of the whole thing, a few scores and some years ago (has to be less than a score for the patent to be valid, so lets say it was no scores and just a few years ago). Then comes Dr. Michelson who wants to perform the same procedure as "Michelson's special procedure". Do you think Medtronic would have said, "Oh, he looks like a poor enough doctor. And he is saving lives. So, let's not go after him..."

If you truly think Medtronic would have said that, I should say you need your head examined (some would say you need a head).

With quite a bit of further ado, let us look at our friendly Vet. Now, are we trying to say that just because a few people are overly taken by the love of their cats (which they buy mostly, thus promoting animal trade) would like to have them treated for cheap, the guy who actually invents the cat-life saving procedure (okay, cat de-clawing doesn't save lives, unless he/she plans to maul your other cats) should not expect to earn a little extra?

See the problem. This world is riddled with idiots. Simply put, their philosophy is "Don't live and most definitely, don't let live".

Innovation equates to and promotes progress. Innovation is needed for us to obtain new treatments. This innovation can grow only if rewarded. Patents are a very good business reward. In both examples above, the companies would have probably had good lawyers scoping the IP field before launching their products.

Don't even think they didn't....

So, in all probability, they decided to deliberately infringe on the patents, though on their life they would never admit it. They probably thought, "Its us, Megabucks Inc. versus single inventor dude. We are sure to win!" Again, not a bad strategy, business - wise. That is what companies do. They try not to own up for their costs as a strategy to reduce costs (thus increasing the miniscule possibilities of their executives paying a much needed visit to prison).

In neither case, would either company have entertained the idea of someone else infringing their patents or even coming close to matter how many lives, cat or human it could have saved. (Kyphon and Medtronic play the merry-go-round of suing each other)

More importantly, if individuals and companies are not allowed to protect and gain monetarily from their hardwork, they would have no motivation beyond their self. And we know how that would go....

Plus, doctors cannot be sued for using procedures, patented or otherwise (unless of course the doctors are not medical, or they are doing it to intentionally cause harm).

Summary: We have now reviewed a very poorly written article, that very poorly through its examples, fails to stand up to a very poor cause.

But who cares? Now "politicians" are looking at "patent reform". And we all know how that story will end...

Add to Onlywire

1 comment:

Katie Konrath said...

That's a very intelligent catch on your part. It's not about the health of the patents (human or animal), it's about money. Tragic, but true.

I liked how you looked at the opposite side of the issue--what would have happened if the cases were reversed. And you're right. The small-time doctor/vet wouldn't have come out on top.

It's really sad when companies tramp all over innovators in their field. The worst part is, that inventor came up with something revolutionary, and then was completely dismissed. If the companies were smart, they would have compensated the inventors appropriately, and then brought them on board for future projects.

But not the original inventors have little incentive to innovate again.