[Fsfe-france] Robin des bois des brevets

[Laurent GUERBY]

Je ne savais pas que c'etait Dan Ravicher qui avait fait
plier Microsoft sur le brevet FAT ...

Laurent

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-------- Forwarded Message --------
From: Darius Cuplinskas <address@hidden>
To: ipr & public domain list <address@hidden>
Subject: [ipr] FT on Public Patent Foundation: The gadfly buzzing around
big-name corporate patents
Date: Wed, 31 Aug 2005 09:00:13 +0100

The gadfly buzzing around big-name corporate patents
By Eli Kintisch 

Financial Times
August 30 2005
http://news.ft.com/cms/s/f01a352a-18f1-11da-8fe9-00000e2511c8.html


In June, the US Patent and Trademark Office ruled that Pfizer's patent
for Lipitor, a $12bn (£6.6bn)-a-year cholesterol drug, might be invalid.
Did the pharmaceutical company "get punked by a non-profit?" asked
Stephen Albainy-Jenei, a patent lawyer and blogger.



The decision was the latest in a string of successful initial rulings
won by Dan Ravicher, a 30-year-old lawyer and crusader against those
patents that he says are bad for the public. He has also used PTO
procedures to shoot holes in patents held by Microsoft and Columbia
University. Part vigilante, part gadfly, Mr Ravicher has quickly earned
a reputation for being part of a new breed of patent lawyers, and one
worth watching.

"The system has been created in a way that makes it difficult to see how
it impacts people," Mr Ravicher says. He believes patent busting could
result in better consumer products by removing barriers to innovation.
He hopes his efforts will inspire others to challenge the system by
drawing attention to bad patents.

Two years ago, Mr Ravicher set up the Public Patent Foundation (PubPat),
a non-profit organisation. Its work has already received the attention
of intellectual property insiders.

Hal Wegner of Foley & Lardner, a Wisconsin-based law firm, calls him a
"Robin Hood" for the patent world's have-nots. "What he's doing is
important," says LesFuntleyder, a healthcare analyst at Miller Tabak, a
New York brokerage. "Nobody's really kept an eye on what pharma's doing
from a patent perspective."

His corporate opponents will not comment publicly on their new
adversary. But critics say the current patent system serves the US
economy well by rewarding innovation. They also warn that his efforts
could backfire by making it harder for makers of low-cost generic drugs
to get their products to market.

Mr Ravicher did not plan to be a burr in the side of corporate America.
After graduating from the University of South Florida with a degree in
materials science and then the University of Virginia School of Law, he
became a New York patent lawyer, with clients including Johnson &
Johnson, the drug company. But as he watched small information
technology companies wage expensive battles against what seemed bad
patents, he became convinced that the current system "more often than
not treated the less-represented unfairly". By living frugally off his
six-figure income and winning agrant, he managed to raise $90,000 to
start the foundation.

As the foundation's executive director and only full-time employee, he
supervises a handful of volunteer scientists, postgraduates and legal
interns as they search for potential flaws in big-name patents. He
targets them because he believes they "are causing the most harm". For
example, he says, Pfizer's patent on Lipitor, in force until 2017,
precludes other companies from developing alternatives that might have
fewer side effects. Spurious software patents, he adds, reduce
competition and drive up prices.

The PTO's re-examination request system is Mr Ravicher's tool of choice.
He claims three recent successes support his argument that the PTO
issues extremely lucrative patents based on ideas already in the public
domain. His Columbia challenge involved a 2002 patent for a
gene-inserting process used in making drugs. The university's fourth
such patent, the technology has netted it hundreds of millions of
dollars.

Mr Ravicher argued that all subsequent claims were identical to the
school's 1980 patent. In that patent, he wrote, Columbia had described a
process for "generating DNA molecules" that was identical to a claim in
the 2002 request for a way of "producing the proteinaceous material".
Both would result in replicated DNA and translated proteins, he notes.
Facing lawsuits, Columbia later agreed not to assert the patent.

In 2003, Microsoft sought to license a file-storage system called FAT,
crucial to the operation of its Windows operating system. Months later,
Mr Ravicher filed a re-examination request on the company's 1996 patent,
pointing to two prior software patents that he said should have
prevented Microsoft's new application being granted. Neither one had
been mentioned in paperwork by the examiner who approved Microsoft's
patent. The company says its patent's file system goes beyond its
predecessors.

The stakes are high: if successful with final rulings, Mr Ravicher's
moves could cost Microsoft millions in licensing revenue and bolster a
campaign against Columbia's blockbuster patents. Investors expect
generics to defeat the Lipitor patent before its 2017 expiration, says
Jon LeCroy, pharmaceutical analyst at Natexis Bleichroeder in New York.
But Mr Ravicher wants to speed up their progress.

PubPat's method has been taken up by the Electronic Frontier Foundation
in San Francisco and the Washington-based Patients Not Profits is using
similar tactics to scrutinise drug and software patents. But not
everybody agrees with Mr Ravicher's approach.

Sceptics note that lawsuits, although more costly, are much more
effective than re-examinations, in which patentees may argue back and
forth with examiners and challengers are excluded. For its part, the PTO
resents the implication that it does not represent the public's
interest. Steven Lee, a lawyer at Kenyon Kenyon in New York City, says
re-examination requests such as Mr Ravicher's can "screw it up" for
other patent challengers, including makers of generic drugs, if the
government re-affirms the validity of the patent. Mr Ravicher has a
simple answer to that charge: bad patents pollute the system and
generics merely seek duopolies.

Mr Ravicher knows he is fighting an uphill battle. But he says that
events such as the 2001 anthrax letter attacks, which spawned a debate
over whether the government should break one of Bayer's patents in order
to produce drugs to counter bioterrorist attacks, illustrate the flaws
of the system. "The more technology becomes a part of life, the more
likely the patent system's failings are going to affect daily life," he
says.

This article was providedby AAAS and Science,its international journal.
www.aaas.org; www.scienceonline.org
>>