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Patent Nonsense
ziriyab writes: "This article from The Guardian, after a few paragraphs of corporation bashing, gives an interesting history of two countries (Switzerland and the Netherlands) who flourished without IP laws. The article, while not necessarily suggesting that the abandonment of patent protection is an essential precondition for development, seems to indicate that it can, in the right circumstances, be an effective tool."
It is a good article. One issue which they didn't mention is the recent trend towards companies which just produce intellectual property, and don't actually make anything (for example, who license chip designs to manufacturers). This is mostly a recent trend (say, last 10-20 years). Not that I'm saying this is a good trend - I'd be hard pressed to say that the world is bettter of with Rambus than without it. Maybe it comes down to: is there a shortage of ideas? Or is there a shortage of people who actually put those ideas into production use and hone off the fine edges? For the most part, intellectual property protection addresses the former and not the latter.
I think the existing laws are being abused by corporations who take advantage of back-logged and under-educated patent offices. I would support the exclusion of certain categories of intellectual property from the patent process. For example, I think the trend of patenting human genome sequences is a bad idea. I don't think you should be able to patent things that exist in nature, nor should you be able to patent mathematical or physical laws.
The patent process wasn't originally this dysfunctional. There was a time when it provided legitimate protection to inventors for a limited period of time. Now, I'm not so sure that the public is well-served by patent mechanisms (as was the original intent), given the short-lived nature of today's inventions.
Is the solution totally eliminating the patent system? I'm not sure. I would suggest that, in the time period discussed in the article, there was less up-front investment needed to produce a new invention or process. These days, in the drug industry, at least, the research costs are so high that I think some form of short-duration monopoly protection is required, just to insure that they can recoup their investment. We certainly wouldn't want research on things like cancer and AIDS drugs to slow just because of the risk of not recovering the research investment.
Yesterday it worked; today it is not working; Windows is like that...
As is the case in many of these debates, there are two extremes, and both are equally likely to have problems.
1. Eternal Patent and Copyright: This means that there is tremendous stability in development, very little "new directions" as a new direction would have to come from the company with the copyright or patent (or a company paying money to them). The downside is the cost of doing this if there is failure. Very high. --> Little change or innovation
2. No Patent or Copyright: Very dynamic creative possibilities because everything can be used to create new things. Everyone who has a different direction or idea can develop that, there are no barriers (cost) associated. Just time. This is also very chaotic... you can't have standards when everything is always changing. Stability of anything here... not good. As well, it ends up making things extra cmplicated as the only way to make money is to do it from services (installation, customization etc) so it is in the best interests of the creator to make it as difficult as possible to implement making sure that someone has to install it for you.
Seems to me that there is a happy medium. My personal preference is for the happy medium to be less restrictive than now, but that is for society to judge (which is why I have problems with where things are now, I don't believe society has decided, I think that society has abdicated that decision to corporate interests.
Who? R&D should be done where it belongs: at universities and independant research institutions. These should be funded only by tax money, so they can remain independant (no contract research serving commercial interests of small groups, but objective research for the benefit of all).
Where does the tax money come from? By no longer recognizing patents, the price of many products (such as medicines) shall drop massively. The people save large amounts of money, which can be spent on taxes instead, to fund R&D. The companies are "freed" of doing fundamental R&D (they still need to develop an efficient production process of course, but without expensive R&D they can survive much lower product prices) and the outcome of all R&D is open and free to use for everyone.
Maybe this sounds like utopia, but it sure would be interesting to try; I am convinced it would work, but alas companies with vested interests are blocking this, and bribe politicians/governments to prevent a change.
This is the way science has developed in Europe during the renaissance and later, free exchange of information and knowledge. I cannot believe that blocking free exchange of knowledge in the end can be good for the advance of mankind.
The current state of affairs makes me really sad and depressed. It is a disgrace for our generation that information that can benefit many (such as how to produce cheap medicines that can save many lives) is hidden only because of a supposed need to protect the current economic system.
Finland DOES have a patent system (I know because I lectured to a room full of Finnish patent agents in 1995, who were worried that because Finland was becoming part of the European Patent system (you file once in Europe and designate a bunch of European countries, and once the EP patent is issued, you file translations in each country where you want protection INCLUDING SWITZERLAND, THE NETHERLANDS AND SWEDEN).
I found it interesting that the two companies mentioned in the article (CIBA and Unilever) are not at all shy of obtaining and enforcing patent rights throughout the world (including in their home countries), although their existence is, in some measure, due to their ability to knock off the innovations of others with impunity.
I guess it helps to have a sense of irony when dealing with large corporations.
Interesting point..
According to the article, Switzerland didn't have patent laws until 1907.
According to A.E.s biography he worked at the patent office from 1902 to 1909..
Any swiss IP historians around who can elucidate?
Many people confuse patent and copyright, and in the case of intellectual property they do begin to blur.
The patent was originally intended to protect processes, usually mechanical ones, where the idea was a fairly insightful one. At least in principle you could keep your idea to yourself and still make a profit at it by building the thing yourself. That's not always practical, so patents were created to give you a legally enforceable way to limit the distribution of your idea to just the people you sell it to. The "price" of that is that it's time-limited, which is just as well because eventually somebody is going to figure it out anyway.
A copyright covers something more clearly defined, a particular sequence of letters, recording, or an image. Determining identity is relatively simple; just check the sequence of letters/notes/pixels. By contrast, an idea is kind of hazy.
But unlike a process, you _must_ reveal all of the details for your invention (i.e. your book, song, or image) to have any market value. You can't market half a book, or just the ones of a piece of software. But you can sell a ballpoint pen, say, without telling anybody what's in the ink, and it's not easy to figure out.
The cost of stealing a copyright is relatively low; just copy the book. The cost of stealing a patent, as originally conceived, is much higher: you have to manufacture something.
So they invent copyrights. Unlike a process, which can be changed and added to, a book or song more clearly belongs to its owner, so the terms are much longer. Taking a book and adding a chapter to it, or "improving" a few words and selling it, and then profiting from the sale and keeping 100% of the proceeds, would certainly seem like stealing no matter how long it was available.
Unfortunately, software works more like a process to be patented, but it's as easily stealable as a document, and you have to reveal it to make it valuable. It fits into neither category cleanly, so whenever one topic is broached on Slashdot, the other will come up.
In the end it will turn out to be its own category, I suspect, with a whole new set of compromises. The existing patent and copyright laws are already difficult to interpret; for example, how much do you have to change a manufacturing process before you can claim it's a whole new one? In software, the cost of taking somebody's idea and re-implementing it is relatively low most of the time.
I think, perhaps, that size is not necessarily the issue, as much as mentality. From what I can see, Americans are more rule-bound than many other nations. A quick example: in Canada (yes, I'm Canadian), our highway-level speed limit is 100km/h (a few miles faster than 60mph, to put it in perspective). However, its generally understood (in an unspoken type of way) that 120km/h is an acceptable speed. When you drive down to the States (or when Americans drive up here), they seem to drive very slowly. What am I getting at? The American psyche seems to be based around rules and boundaries. I personally don't know if this would work in the US, simply because the culture there isn't right for it. It seems that there is this idea that you must protect what you have, and if the current system doesn't work to do that, more rules must be created. Obviously, there is a point (which we are fast approaching, if not already at) where few but those able to pay for expensive lawyers will be able to benefit from such a rule-bound society.
IANAL && IANAG*, that said, I am familiar with the medical devices (and the medtech industry by much association) and other technology industries. Your understanding of the business, legal, and regulatory realities is what causes most of your trouble here.
Firstly, it's common practice in patent law to cast as wide a net as possible (without getting it thrown out entirely) because if you don't someone can come up with a slight modification, but to have it and its application to be essentially the same, and get away with it.
Secondly, the effective strength of a patent is NEVER is strong as it would appear to be to a layman; it's a mere fraction of it. The vast majority of a patent's strength is decided in a court of law and rarely, if ever, comes anything close to what you may think it sounds like.
Thirdly, while these particular genes may be obvious (not my expertise), identifying the significance of them, and getting past the very significant regulatory (e.g., FDA) hurdles, plus the huge marketing cost (which is VERY essential to society, as much as some geeks may deny it. Drugs generally don't sell themselves) is both very expensive, very risky, and takes a long time to ever reach the market (a major issue to anyone familiar with finance).
Fourthy, the medical technology industry is almost too costly to engage in as is, completely ignoring any fault of the companies', because of the factors that I've mentioned above. Reducing the strength and duration of these patents can easily make it financially unviable proposition, because no one in their right mind is going to take the level of risk required if a competitor can get a mostly free ride on their coattails and reduce their profitability.
Fifthly, although it may be arguable that the prior identification of them would constitute prior art as it was concieved of initially, that definition is simply untenable to the development of them in today's society. The point of that phrase was to encourage the taking of risk towards worthwhile pursuits. If it wasn't non-obvious back then, then it wasn't probably didn't require much risk. That's quite different today with these kinds of pursuits as the barriers to entry here are huge. The gene itself may be obvious, but making it into something worthwile is non-obvious AND requires a lot of risk taking.
Nor are "ideas" patentable. Nowhere in my post did I claim ideas were property. I did use the verb "steal" because it describes a diversion of money from one corporation to another by illegal means.
Over 80% of *all* big-Pharm R&D (top 7 pharmaceutical companies in the US) is funded by the gov't.
Could I get a source on this? I'm curious. I find the point irrelevant, however. The subsidizing governments are not the ones making the decisions.
multinational corporations, many of whom don't pay taxes (or pay very little)
Hmmm. So why does Pfizer's report "provisions for taxes on income" at a rate of 35%? Do I misunderstand the fiscal meaning of this term?
I would also like to address your discussion of rights. I agree that a way should be found to make basic medical care available to everyone. I simply do not feel that the best way to do this is to entirely dismantle this system of patent monopolies.
Another interesting topic is why the same antibiotics sold to humans cost such-and-such/pill, while they are sold at 1-10% of the price when sold to animals
Products for animals are less regulated. Testing and modeling drug interactions is much less expensive. Many animal medications are sold direct in bulk to farmers. The cost of animal care isn't inflated by comprehensive insurance or by as extensive malpractice suits. Many of these factors apply to all aspects of animal medicine. If you look at the prices to do a CBC (complete blood count) for a human vs a dog, you will probably be tempted to send your little red topped tube off with the vet and just look up the reference ranges for humans in a textbook.
OS/2's demise was caused more by bad handling then MS did. It didn't compete with MS on the home or small business desktop, because each iteration demanded the newest hardware available, thus the average user never heard of it, thus "everybody" knew how to use some version of Windows, making it much easier to roll out to a work-force relatively cheaply (both in hardware and training).
If MS had to open the windows source, and keep it open for subsequent releases, a compatible alternative, priced reasonably could very well get a goodly chunk of the pie. That's what happened with the PC.
"Standard" in this case means "runs the programs deemed neccessary", not that there is a start button in the lower left corner.
I'm not a big fan of the patent system and particularly its gradual expansion into the realm of software engineering, but my biggest concern is that the playing field isn't level.
If someone files a patent that in my mind is obvious, I'd have to challenge it in court, and even if I were to win, it would cost me significant money.
I wouldn't mind the European Patent directives as much if I could file a complaint for a reasonable fee, say EUR 100, refundable if the patent is revoked as a result of the re-examination. That would pretty much level the playing field.
I have written a piece of software that I can't publish because of a frivolous patent. On my reading of the patent, it doesn't apply to my case, but the patent owner will offer no guidance as to the applicability (but for US$25000 they'll allow my in-house usage of the patent, and they don't care if the patent applies in the first place). So, I'm stuck with two options: getting a patent lawyer to look at the case to find out if it applies (that would set me back at least EUR 1500), or not doing it. I opted for the latter.
While I'm at it, bumping the price offenders pay for new patent applications would be cool too. If they employ their own patent lawyers their incremental costs for filing frivolous patents are pretty low, and if those lawyers get bonuses per patent passed the temptation to skimp on their homework becomes pretty big.
Bert Driehuis -- All I asked was a friggin' rotatin' chair. Throw me a bone here, people.