Patents: A Necessary Evil
BY JOSEPH T. BARR, OD, MS, FAAO, EDITOR
When I worked for Dow Corning from 1980 to 1983, I learned how important patents are to major corporations. Patents drive a company to develop new products -- in Dow Corning's case, 100 percent silicone contact lenses. Dow Corning had patents on silicone contact lenses and on using plasma to treat the surface of these lenses. The company also held the Ron Seger, OD, patent on the Silsoft contact lens design. I remember when Bausch & Lomb was issued a new patent for silicone hydrogel contact lens materials similar to what Dow Corning was trying to develop, and I can't tell you in print what our reaction was that day. Interestingly, the B&L patent cited many of Dow Corning's previous patents. I remember a good patent attorney and chemist who worked with us to prepare new patents. Dow Corning respected the patents of others. Even though some thought it should be overlooked, Dow Corning respected the patent of David Volk, MD, for aspheric contact lens designs and paid royalties to Dr. Volk for the aspheric rigid lenses that the company sold.
Neil Bailey, OD, PhD, our former editor-in-chief, frequently consulted on patent cases in the contact lens field and as a result, some manufacturers did not take kindly to him. Patents and royalties have been a part of this field since the early years of corneal lenses, and the current peace in the orthokeratology field demonstrates this fact.
On the other hand, recent events deviate from the relative bliss of the past in the contact lens field. CIBA Vision has enforced its silicone hydrogel lens patents, resulting in the removal of B&L's silicone hydrogel lens in some countries. This has alarmed some practitioners and patients who used the B&L lens. Surprisingly to me, the negative feedback has not been as strong as I would have expected. Now Vistakon/Johnson & Johnson has asked a patent judge to rule on the worthiness of its new silicone hydrogel lens that would compete with CIBA Vision's and B&L's lenses. CIBA Vision has suggested that a royalty agreement would be more appropriate. Would it be better for all of us if manufacturers did not challenge patents and instead honored them and paid royalties?
No matter what we think the answer is, it's likely that the patent court battles will continue to rage for some time. This field has matured and exclusivity of product offering is more important than ever. It's probably better for us to use the products we have for our patients as best we can and not worry too much about what might have been.