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Comment by KevinGlass | Hacker News Reader

Frankly, I'm not surprised there was no backup plan in case the company went out of business. The quote from the engineer is telling, “We didn’t sell any more, we didn’t make any more, we didn’t have anything to do with it anymore.”

Like a company discontinuing a model of Bluetooth speaker or size of tire, as if the implant isn't a permanent part of their patient's bodies. Just leaving a small division that supported existing users, even with just spare parts, would not have been cost prohibitive.

It sounds like the suits demanded profitability and literally left them customers in the dark. I wonder if in the coming years and more and more biotech implant companies come to market some will be required for long term support. Maybe their relevant IP becomes public domain if the device is not "supported"?

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Honestly this seems like a good idea. If a company stops selling/supporting a product (or never starts), its IP rights should be forfeit. Require them to be sold to a company willing to sell/support the device, or they should become public domain. This change would probably fix most issues with current US IP law.

How would that keep the company in business to provide support? Seems like the same outcome, to me.

They should be forced to fund a trust that can support all users for their lifetime.

How much do you reckon that would cost per user?

A fairly large amount, even for minimal support. If it's prohibitive to create cool medical devices due to this, the government can assist (guaranteed loans against future profit? whatever, I'm sure there's a bunch of ways to structure it).

Maybe it will push these companies to make support easier as well, and Open Source parts of it where it makes sense to.

I am torn. On one hand, this is great idea (exactly for such cases). I feel unbelievably bad for users.

On another hand. Lifetime support of technology (say 50 years) is damn expensive. Let say you need a dozen of engineers (hardware + software) + doctors to keep it going. It's 12 people * 200k salary (if you don't like this number, pick your own) * 50 years = $120M.

I think you can potentially argue that you don't need a dozen people to support this. However, I think it's a fair number to support aging hardware + software.

Unfortunately, such things work only with a scale. You need 10 people to support 100 customers, 20 people to support 1000 customers and 40 people to support 10000.

If they got to 10000 customers, I could see them getting enough money to fund such trust. Having just 300 customers won't be enough.

Looking at the crunchbase (https://www.crunchbase.com/organization/second-sight). They whole funding was $130M.

Perhaps this could be accomplished by making them front or insure the cost of the expected liability — being at least the cost of removing unsupported devices.

It wouldn't necessarily, but it'd allow others to fill the niche should the company stop filling it themselves.

My understanding is that copyright law is meant to allow a company to profit off its ideas for a set period of time, in order to recoup R&D costs. Then, if the company no longer has the means to profit off the IP, and won't sell it to another who wishes to make the IP available, the IP should become public domain.

Easy to say but what about paying creditors? The legal system we have now needs to be radically rethought to allow a scenario where a company going bankrupt will be forced to give up its patents and copyright on software to the public, instead of selling them to the highest bidder who will then decide what to do. It's not simple, but we need a serious reform in this direction.

I don't see what would be so different than what we have now? A company in bankruptcy is already forced to sell all IP to satisfy creditors. Now the only additional requirement is they sell to a company planning to make use of the IP. If they can't the IP is worthless, and so should just end up in public domain.

I don't think you're considering how loose the definition of 'use' is in this case. They might intend to 'use' the IP in a way that makes them no more able to help previous customers than a patent lawyer is able to build a robot.

I think you're getting hung up on minutia that could be sorted out. The definition of "use" could be sufficiently limited to allow for the company to either support the previous customers, or lose the IP

But even if the new company plans on using the IP, there's no guarantee that the company buying the IP will use it for the same purpose or want to continue supporting the existing use. Like maybe the same technology is useful for implants to provide artificial hearing to deaf people and the new company wants to use it for that.

So if the sale of IP is allowed because the new company will use it, that still leaves the visual implant users in the dark (no pun intended), but if the sale of IP is not allowed or is placed into the public domain to allow visual implant users to use it, then the original company was deprived of the value of the IP.

Presumably the company that buys the IP would also be obligated to support the patients. And would have to prove their capability before the sale would be allowed.

And if nobody qualifies, then even if there are willing buyers the IP would be public domain'ed.

This is likely to have the unintended side effect of reducing research -- investors will be less likely to put money into a company if they'll have severe restrictions on what they can do with the IP if the company doesn't succeed and they may even have there millions of dollars of investment released to the public domain because they couldn't find a company willing to continue with an unsuccessful use of the IP even if it would be valuable for other uses.

The restriction is really “use it or lose it”. I don’t see how that would influence anything. If they are investing and plan to use it, then they retain all value. If they chose not to use it, they can sell it to someone who will or release it into public domain.

There is still a huge potential for earning by investing in something like this, even with restrictions as described.

If they chose not to use it, they can sell it to someone

Well, they can sell it to someone who is willing to continue supporting it for the use that the original company couldn't make work.

or release it into public domain

Yeah, that "lose it" part is the problem - if they can't find a company that's willing to continue supporting what was already proven to be an unsuccessful use case, then their IP has no value.

It is lose it. That’s the point.

> If they chose not to use it, they can sell it to someone who will

You're assuming that someone else can make it work financially in the original domain, but what if no one can?

The IP may have value in other domains, but you seem to be saying that it goes into the public domain if no one can make it work in the original domain.

If that's the rule on IP with medical uses, medical applications just went to the bottom of the list of uses. In fact, you'd be stupid to go for a medical application of IP that is used elsewhere.

This is a perfect case study on what should be required (legislation??) and considered before licensing a biotech company. These all should have the strictest warranties in the end user's favor.

I know I know, wish in one hand, shit in the other. See which fills up faster.

We have laws concerning doctors, hospitals and codes of medical ethics that govern health care.

I am sure that there are cases where a hospital shutdown due to bankruptcy without transferring their patients but that is not the norm. We should hold other companies in this space to the same standard.

Edit: >To be maintained to satisfy retention requirements under federal and state laws. Maintenance of medical records is especially significant if the organization is defined as a Covered Entity 1 under HIPAA. Failure to maintain and protect medical records can lead to significant fines and penalties even during organization closings and bankruptcy proceedings.

http://metalquest.com/files/Medical_Record_Considerations_Du...

I don't think companies should be allowed to sell products like this (requires invasive surgery, long term maintenance, more invasive surgery if something goes wrong) directly to patients.

They need to sell to the government/health insurance companies, and provide all the tools/training/equipment for those organizations to do the long term support for patients.

The problem is that the device and support associated with it outrageously expensive. Even if the company want to support their users, it may not be sustainable.

This sort of thing required ongoing government support to sustain until the technology is ready.

It seems more like proof of concept device that belongs in a lab rather than a commercially available technology.

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