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12/17/2004

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Sami

I appreciate your addressing my concerns. Thinking about it a little more, from my own experience, I can see cases where drug development could be going slow for reasons specific to that drug, longer than the 10-12 years I suggested for the smaller biotech development timeline. Lowering the patent term would in effect allow someone to possibly finish the job and get the reward while the first company loses out on all the work the have done.

I agree with you that assigning patent terms based on the size of the company would not work, especially since many drug patents are licensed out to other companies during development. However, what would think to reforming the patent system so that you lower the original patent term but allow for the patent holder to petition for an extension? The extension would be granted of course only to companies that adequatly show that it is necessary to for the continued development of the drug. That way if the patent runs out while the drug is still in development, the company doesn't lose anything.

PDS

Judge Posner: you are to be commended for this blog, and your thoughtful comments in response to the comments of others. Please keep up the good work. PDS

Michael at the Calico Cat

I would hardly say that the huge amounts of money spent by drug companies on marketing are "meaningless."

I suspect that people who wouldn't mind spending $100 on a drug where $80 went to pay for the R&D would mind very much spending $300 on the same drug with $160 of it going to pay for the drug company's marketing expenses.

Shouldn't one's doctor be able to prescribe the right drug without the drug companies spending such a vast amount of money on marketing?

Paul Gowder

Intrigued but unconvinced, eh? I'll briefly defend my suggestion that product trademarks should lapse with patents for the product. Of course "the consumer and physician are entitled to know who the producer is." However, rendering trademarks on patented drugs statutorily generic would not in any impair that important principle because there is an extant trademark on the manufacturer's name.

In a nutshell: if we end the trademark for "Viagra" at the same time as we end its patent, consumers will still be able to identify the manufacturer as Pfizer because its product can accurately be described as Pfizer Viagra, as opposed to Nike Viagra or Coca-Cola Viagra.

At the same time, the undesirable monopoly effects of the lingering trademark on the name will be ameliorated, because consumers will not longer be misled to believe that "sildenafil citrate" is somehow different and inferior to "Viagra."

I think the key here is that the name "Viagra" is more associated, in the public mind, with the drug "sildenafil citrate" than it is with the manufacturer "Pfizer." If the purpose of trademark law is to identify the manufacturer, a trademark that has a stronger association with the generic product than with the actual manufacturer should become itself generic.

I guess what I'm really suggesting, then, is a lower standard for finding genericide to alleviate some of the undesirable post-patent monopoly effect of trademark that you correctly identify.

Cogliostro Demon

I'm leaving town for two weeks. When I check back in, if I don't see at least one Spawn reference . . .

Anonymous

Spawn? What in the world are you talking about? Why would Judge Posner want to comment on comic books? Don't ruin this blog!

Timothy

Richard: You're missing the point that individuals react differently to different SSRIs. For instance, Celexa worked wonders for me, but three of my friends all tried it at one point or another and found the side effects nearly worse than the depression, so they switched to Zoloft or a non-SSRI like Wellbutren. The re-patenting thing is a bit troubling, but when only 1/15,000 drugs [IE patented compounds] ever turns a profit, I can see why it happens.

With regard to advertising, Posner is correct. The companies have probably reached a point where the marginal return on another dollar invested in research is so small as to be worthless, where the marginal returns on advertising may still be large. Further, advertising and R&D are very different things and I wonder if the equilibrium use of advertising for a firm [marginal benefit=marginal cost] is simply a greater number of nominal dollars than the equilibrium point of R&D.

Anonymous

Dear Professor Posner,
appreciating your blogging a lot even as an offline nature - is it possible to make a prediction when the by now famous Posner/Patry collaboration will turn from ghost to a publication available on the market? All the best - anonymous!

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