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"It is often argued that the best case for patents is in the pharmaceutical industry. The fixed cost of innovation is large, with estimates of the average cost of bringing a single new drug to market as high as $800 million in current dollars... Indeed, according to industry surveys, the only industry in which patents are thought to play an important role in bringing new products to market is the pharmaceutical industry...

The pharmaceutical industry is a complicated beast to vivisect, which can be approached from many contradictory angles and viewpoints. We will stick to ours, narrow that it may be, and ask - how strong is the case for patents in pharmaceuticals? Is there substantial evidence that without patents we would not have the medicines we have, or at least we would have a lot fewer and worse medicines? Would the industry shut down and talent move to some other, more rewarding, enterprise if patents on drugs were more or less abolished, that is, if the world became like Switzerland until 1978 or Italy until a year later?"

1. He goes on and on about "patent theory", and it's worlds apart from how patent systems work in practice. His feeble connection is that practice is based on theory.

2. He cites a paper that directly contradict what he's saying.

2. a) He cites a paper to ostensibly support his theory that patent offices are pro-individual, but the reference actually says, without paraphrasing, "The patent laws do very little to prompt this view." It actually concludes that the lone-inventor rhetoric "has done little to stave off the increasingly anti-individual-inventor changes in substantive patent law."

2. b) He perpetuates the same "Watt stopped Steam" myth that Boldrin and Levine make. And to support this, he cites the Turner/Selgin paper that asserts precisely the opposite!

3. Further, regarding steam, he insinuates patent law didn't work as expected because Watt's patents promoted steam research by forcing workarounds. In fact, innovation through forced workaround has long been a known (though possibly post-facto) rationalization of the patent system.

4. All the examples he gives of "multiple independent invention" are actually examples of multiple individuals independently inventing different inventions. And he further proves it by saying that many of those inventors secured patents for their own inventions as well!

5. All the other parties working on the "genius" inventions did contribute to overall knowledge, but a) their work was not wasted since they did things differently, exploring the problem space further, and frequently got their own patents, and b) those inventions that ended up being remembered as genius were actually the commercially more successful ones, typically because they were either technically superior or their inventors were sharper businessmen.

6. He implies accidental inventions are less deserving of protection, completely omitting that those inventions all happened in labs or research environments by people who were actively experimenting.

Throughout this paper, Lemley consistently makes two mistakes:

* He conflates the broad “idea” of something with the specific implementation that makes that something work;

* He conflates popular narrative about patents with the patent system;

And based on these two, he enumerates flaws in popular narrative where most major inventions were not invented only by those that got all the credit.

And then he completely fails to show how this flawed narrative has anything to do with the patent system, which, by his very own examples, does reward individual and incremental contributions.

If we look at industries with less regulation, like software, the necessity for a patent system is a lot less clear.

The big elephant in the room problem with patents on medicine, is that government trade the life of some poor people for the incentive that some people might be more willing to invest in medicine research with patents rather than without it. We don't even ask if there is an alternative ways for the government to intervene, and use an 200 year old approach which creates value by excluding people who can't afford to pay to get access to medicine.

When people builds nuclear reactors, we ask what the potential good vs the potential harm there is. If we don't people die, which is why there is regulations. With patents, we have chosen the path of causing deaths, and we don't even ask if the price tag is worth it.

Patents are much more 'powerful' than needed for pharma industry. They hinder good research by universities and other NGOs.

And of course: what proportion of drug development is to replace high earning drugs for which the patent protection is expiring. (ie "solved problems").

I am not convinced that the drug industry needs patent protection. I have a gnawing suspicion that we have reached a point where it might be a better idea to just remove patents and see where the chips fall.