Tag Archives: Patents

Deconstruction of the USA

The idiot RFK, Jr

The very idea that a person like RFK, Jr, would land in Trump’s cabinet as the Secretary of Health and Human Services seemed so farfetched as to be bad pulp fiction. Yet there he is.

I have no special insights or knowledge on HHS other than what I read. Everything that could be said about the pathetic case of RFK, Jr, and his place in pseudoscientific madness has already been stated by better writers than I.

If you wanted to purposely obliterate certain patches of modern medical developments from the last 120 years, there are few better hatchet-men than RFK, Jr. RFK, Jr., is not without a certain charisma. His strength of conviction is taken as a measure of truth. He is a talented speaker despite his speech impediment and, like most popular speakers, is a performer playing to the entire USA. His compelling position on the stage lends a credibility to his assertions. His slashing of HHS funding and staff is jaw dropping in its extent and coverage.

The University-Government-Industry R&D Complex

Until Trump, the USA had accumulated considerable technological ‘soft power‘ internationally since WWII. An element of that soft power is the American University-Government-Industry research complex. The government funds basic university research across the spectrum of science and the universities provide basic research and training of scientists and engineers. Industry taps into this valuable technology resource for skilled technologists and develops applied science for their projects.

The USA has been a very productive engine of ingenuity, especially since the beginning of WWII. However, our dear leader’s administration has been deconstructing agencies in the name of rooting out the deep state. In reality he is busy putting in place his own deep state.

Project 2025, hosted by the Heritage Foundation, amounts to a libertarian coup backed by libertarian hardliners and supported by conservative protestant evangelical Christians. I’m trying to be fair to the evangelicals, but they have woven Trump into their Christian eschatology. They may still support #47, but many are holding their noses in doing so.

Why not remove the university research funding and leave it to industry? To our neoliberal friends that might sound appealing. Universities could continue to produce scientists and engineers but leave the R&D to industry. After all, letting the open market take care of R&D is one of the goals, right? Let industry produce and pay for their own R&D talent.

The problem will be that new R&D chemists hired into a company at the PhD level would have to be trained on how to execute chemical R&D. Normally this happens in graduate school and in a post doc appointment. But wouldn’t business prefer to hire walking, talking, trained, young and energetic chemistry researchers? I think so.

In #47’s administration, research efforts are being discontinued willy nilly by inexperienced and scientifically untrained actors whose only goal is to rack up dollar savings. Their amateur appraisal of what constitutes valuable scientific activity is cartoonish.

Having been in both academic and industrial R&D, my observation is that basic and commercial science can be quite different activities. Universities have a continuous stream of fresh students and post docs to do the actual work of research at a time period in their lives when they are the most productive and at a far lower labor cost than could industry. Benefits, if any, are quite modest.

The current approach simultaneously trains scientists and engineers while at the same time developing basic science and engineering for the price of a one or more grants. In the process, the advanced instrumentation and the many subject matter experts walking around in the building aid academic research greatly. If a transformation (i.e., a reaction) goes poorly, an academic lab may try to find a mechanism. A commercial R&D lab exists solely for the purpose of supporting profitable production. This means developing the best routes for the fastest conversion and highest yields of chemicals into money. Along the way, commercial chemists may discover new chemistries or have unexpected outcomes. If they are lucky, any given R&D ‘discovery’ may lead to a new product or better control of a reaction. The result of commercial R&D may be more profitable processing but also it may be of scientific interest.

The role of the university is quite different from the role of industry in our society. Universities are funded to provide leading edge research. Here, knowledge is acquired by exploring the boundaries of particular chemical transformations or in the realm of calculation. The driving force in academic R&D is funding and publication. Every scientist wants to be the first person to discover new processes and compositions. It is not uncommon in academics for a research program to finish with a sample of 2 milligrams of product for spectroscopic analysis. For a proof-of-concept result, a sample small enough to analyze and still get a mass for the yield closes the work.

The preferred role of industry is to take up where academia leaves off. If a known composition and/or process is commercially viable, the captains of industry would prefer not to fund enough basic R&D to get a product to market. Thirty minutes on SciFinder should provide an indication of the viability of a process to produce a given chemical substance. They would prefer their chemists work on scaleup to maximize the profit margin of a market pull product rather than wading into the murky waters of technology push.

You learn to do laboratory research by doing laboratory research. Reading about it is necessary but not enough. The success of much research requires broad and deep knowledge and specialized lab and instrument skills.

The industrial end is a bit different from academia. In applied science there are two bookends in business-to-business product development-

In order for a company to allocate resources for an R&D project, sales projections, cost and margin studies must be performed to convince management to proceed. A great starting point is with a known substance and a good public domain procedure for it. This is where academia really shines. Industrial R&D will collect academic research papers on all aspects of the production of a new product.

One serious caveat for industrial R&D is the intellectual property (IP) status of all of the compositions of matter and the processes used therewith. In chemistry, IP is divided between the composition of matter and the method or process. Chemistry patents are often written with Markush claims that use variables to enrobe vast swaths of compositions of matter within patent coverage.

Some academics file for patents as inventors, leaving the ownership costs to the university assignees. The thinking has been that the university may someday collect license fees from the invention. The wild-eyed inventors may honestly believe that industry will beat a path to their door wanting licenses. More chemical patents of all kinds are allowed to quietly expire unlicensed than most realize.

Research IssueUniversityIndustry
Discovery of new chemistryBuilt to excel in itCan do but would much rather avoid the expense and time
Publication of resultsCritical to career growth and scientific progressResearch developments are confidential
Patenting IPMixed views. Some patents may provide revenue to the university. Patents that are contested are very expensive to protect.Patents enforce exclusivity for 20 years and cement competitiveness of the assignees.
R&DMuch time and care can be spent on the research. Research is distributed through publications and seminars.Prefers that existing R&D be applied to scale-up and process improvements
Career growthStudents, post docs and professors can choose academics or industryScientists can take the business path or stay on the R&D path
Safe and smart technologyAcademics have the ability to pursue environmental and safety matters with the chemistry.Industry is a slave to quarterly growth. Changes that will increase the quarterly EBITDA are most favored by the C-suite and the board of directors.
“A patent is only as good as the latest attempt to invalidate it”. -Arnold Ziffel.

Some loose talk about patents

Many in academia view a patent as a publication that they can stuff into their vitae. While being awarded a patent is a validation of an idea, it also means that the examiner was unable to find a reason to deny the patent. Citizens are entitled to patents and the USPTO must find a reason to deny the application. The language in a patent application must be internally consistent, be written in the ‘patent dialect’ and provide a description for others to understand the claimed art enough to avoid infringement. The USPTO does not require that the reality of the claims be proven. (I’ve been involved in 2 technology startups based on patents that were not proven by prototyping because it was not required by the USPTO. Both were business disasters because the claimed art didn’t work well enough).

Patents can induce a high credibility impression that may or may not be valid. Patents are commonly used to impress investors and are found stapled to a business plan. The startup may have an attorney on the board of directors who is supposed to serve as council. The attorney may or may not be a patent attorney. But if they do not possess patent and technical knowledge, they can only help with word smithing documents like NDAs, contracts, and sitting in on meetings to catch the odd procedural misstep. They can bring confidence and comfort to the startup founders with business structure, agreements, and negotiations etc., sorta like a big ole’ teddy bear for the CEO.

Summary

One of the purposes of government is to protect ourselves from each other. Another purpose that has worked well until now is that gov’t has been able to blunt many of the harsh and brutal forces of nature like disease, famine, drought, earthquakes and storms.

The USA has excelled in medical research for decades. The Food and Drug Administration (FDA) was begun to assure that food and drugs were safe for the public to consume. Every new drug developed in the USA has a paper storm trailing behind it. To be compliant with FDA generally, a sizeable amount of operational rigor must be demonstrated and practiced. Food safety in restaurants and in the food supply chain as well as drug development and testing are all subject to complacency or outright evasion without gov’t oversight. People and organizations will always drift away from safe practices if nobody is watching and auditing.

The Mother of Invention

There is an old saying that goes “necessity is the mother of invention.” Its meaning is obvious. It says that when you run into a problem, you can invent your way around it. Or at least try to. The other solution to a problem is simply to live with it.

I recall that during the Apollo project in the late 1960’s, many conservatives would complain about the cost of going to the moon. Social progressives likewise made a complaint that was directed at shifting those NASA funds to social programs here on earth. Technology progressives would retort that it is worth it because of all of the spin-offs that were appearing out of the effort. The reply to this was that if you wanted some shiny new widget, just invent it. You don’t have to go to the moon.

Presently I can look back at the two major research domains, academic and industrial, and make comparisons. In academia, a professor’s work product is split between research, teaching and service to the school. Research is commonly measured by the number of papers published, especially in the prestigious journals. In some institutions, patenting is also taken into account. As for teaching, there are student evaluations and performance reviews by the department chair or the dean. This includes past performance in committees. A motivation in the first few years is to get tenure. Academic research includes putting research results in the public literature for all to use.

So, what about the mother of invention? Generally, in chemistry an invention comes from some kind of investigative activity, curiosity or need. Sometimes you may want to invent around an active patent rather than go into a licensing agreement.

The US patent office allows only one invention per application. If you choose, you can lop off your other invention and file it separately as a divisional patent. You would do this because the patent examiner will have raised an objection to your original filing. Doing a divisional filing allows you to use content from the first, or parent, patent application and you get the filing date of the parent as well. Early filing dates are very important.

Sometimes patents are written very narrowly and leave “white space” or potential claims around them. This is not always desirable so the matter can be solved by the use of “picket fence patents.” You patent your core art as broadly as the patent office will allow, then you file for patents that cover related art that a competitor could conceivably patent that would allow them to compete against you. By raising the cost of entry into your market or narrowing the scope of new art, you can dissuade competitors from entry or at least make them pay a heavy price for it. Who knows, maybe they’ll decide to buy a license from you or even an entire patent. An argument against picket fence patenting is that patents can be very expensive.

Academic research has a high reliance on external funding. This requires that the funding organization recognizes the novelty and p[otential intellectual value of the research proposal. Industrial research has a high reliance on market potential of an invention. What is the breakeven time and sales potential of the invention? Will demand last long enough for the invention to provide a healthy return on investment?

Academics can and do patent their work on occasion, especially if the university pays for it. The thing I object to is that a great deal of research is paid for by the taxpayers. We pay for the research and then it gets patented and its use is restricted for 20 years. Maybe taxpayers (businesses) can enter into a licensing agreement, but maybe someone else has bought exclusive rights. Licenses can be somewhere between reasonable to absurdly restrictive, depending on the terms of the agreement. Many will want to add an extra fee based on the sales income of the product. This means that there will be an annual audit with pencil neck auditors poking around your business. It’s like having a ferret in your shorts. Avoid if at all possible.

But, many companies leverage their output through licensing agreements of technology they have no interest in developing.

Industrial research is quite different in terms of administration of the endeavor. Industrial chemists are supervised by an R&D director and use in-house technology and science and/or what they learned in college, but here the results are aimed at producing something for sale or improving the profit margin of a process. There is no desire to share information. Industrial research produces in-house expertise as well as, hopefully, patentable inventions. Industrial invention can be driven by competition in existing markets or by expansion into something entirely new. Often it is to provide continuous margin growth if market expansion is slow.

The argument can be made to keep everything as a trade secret. Publishing your art in the patent literature can help competitors have their own brainstorms about the subject, or some may even be tempted to infringe on your art that is carefully laid out in front of their eyes. Competitors may be cued into a new product’s capabilities and gives insight into new products.

Both academic and industrial chemists invent. The difference is that in industry some inventions or art are held in trade secrecy, even if they never get commercialized. Academic researchers can and do keep secrets when they are aiming for a patent, at least until the patent is granted. Compartmentalization in a research group is critical, since disputes about inventorship can kill a patent. Once issued, academics will publish as many papers about the patented art as possible. Commonly, patents are assigned to whoever pays for it- usually an organization. An academic patent is assigned to the inventor’s institution while in industry the company is the assignee. In both cases the inventor is usually awarded only a token of appreciation and the “satisfaction” of having a patent.

So, what about “necessity is the mother of invention”? There are some inventive projects that are too large or risky for a business or even a consortium of businesses to handle. I’m thinking of the Apollo Moon Landing program. The project required the resources of a government. A great deal of invention by many players allowed the moon landing to happen. The necessity for all of this invention was that the US government set a goal and farmed out thousands of contracts with vendors to make it happen. Much wealth was spread around into the coffers of industry, but with contracts having stringent specifications for man-rated spaceflight and tight timelines to be met.

That’s one of the values of having a government like we had in the 1960’s. They created the necessity and private industry made it happen. Despite the cultural upset of the 1960’s and the Viet Nam war, the Apollo Project worked. No astronauts died in space. This necessity/invention pressure does work.