From Fenwick & West:
After Director Kappos came the first testimony critical of the draft legislation, from Charles Duan, director of technology and innovation policy at the R Street Institute, an organization that “engages in policy research and educational outreach to promote free markets as well as limited yet effective government.” Duan, who was previously a patent attorney with Knobbe, Martens, Olson & Bear, stated he was “strongly concerned about the direction of the present legislative effort.” He brought forward two lines of concern, substantive and procedural, and asserted that “the draft legislation would do harm to economic and social interests of great importance to the American people.” While he acknowledged concerns with patenting software, he left the details on that issue for the Electronic Frontier Foundation to address (see below). His focus was on access to medicines and scientific research.
On the process side, Duan asserted that the draft legislation was the result of “five closed-door roundtables with a hand-picked list of invitees weighted toward patent professionals and industry.” He said that “the present effort – one born of an incomplete stakeholder process and one that would throw out two centuries of law, including legal results strongly supported by American consumers and American researchers – is not the right approach.”
Turning to the substance, he foresaw negative impacts on cost, quality and availability of American healthcare. He warned that the draft legislation would lead to “the practice of ‘evergreening,’ in which a drug company obtains a patent on a minor modification to a known drug compound, often years after the initial patent application on the drug was filed.” He further argued that patents on natural laws and products would reduce development of lifesaving tests and treatments. A third problem he asserted is that patents on genes and diagnostics would prevent patients from obtaining second opinions.
More generally, Duan argued that research scientists view patents as detrimental to their work, and pointed particularly to negative impacts from gene patents. He concluded by returning to his process complaint – that many concerned stakeholders have not been included in the Congressional discussions regarding the legislation.