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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."
Although such things can work in a small nation... one really wonders whether or not such findings can translate to the larger scale of the United States. Interesting, nevertheless.
I find this author's view to be a rather idealistic one. After all, the situations he's mentioning are two isolated cases, founded on the success stories of a few very specific companies. .
What about all the companies that have flourished because of patents? And all the other countries that seem to be doing quite well WITH the systems in place?
I'm the first to admit that some patents are just plain silly (one-click, anyone?), and that the system needs a serious overhaul, especially in the US. But to totally do away with it?
I don't think a few isolated examples from the last century makes a good case for doing away with patent laws.
In one place he says:
This tool has been denied to poor nations, partly as a result of energetic lobbying by the very companies which once made use of it.
While i'm all for helping developing nations (and I think cheap medical supplies, drugs, and genetically enhanced food crops should be available to anyone, patents be damned), I don't see patents as being the cause of all their troubles. I find it very unlikely that a lifting of patent laws on underprivileged countries would fix all their problems. It may alleviate some issues, but it won't fix much in the long run.
He could better spend his time focusing on how to get these countries the cheap food and medical sources they need, rather than putting forth examples of 'patentless society'.
Moral indignation is jealousy with a halo - H. G. Wells
"In Italy for thirty years under the Borgias they had warfare, terror, murder and bloodshed but they produced Michelangelo, Leonardo da Vinci and the Renaissance. In Switzerland, they had brotherly love; they had five hundred years of democracy and peace and what did they produce? The cuckoo clock."
- Orson Welles (1915-1985)
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.
There's no point in creating a multitude of useful and interesting things if nobody ever gets to use them. Somwhere between these two extremes is something that approaches sanity. Unfortunately, we seem to be cheerfully careening down the path towards over-control.
Read Bujold. Free (as in
Patents require disclosure of an invention (in full detail), have to be applied for, and are time-limited (they last for 17 years after being granted, IIRC). Copyright applies to the expression of ideas (actually, to any tangible expression of anything; writing, sheet music, musical performances, etc.), are automatic and last until 70 years (YMMV) after the author's death (different rules apply to companies, of course).
Most software doesn't have patents applicable to it (about the only examples I can think of are MP3s (Fraunhofer own the compression algorithm) and GIFs (Compuserve, now Unisys, I think, own the compression algorithm), but all software is subject to copyright, unless explicitly made public domain (very different from open source, but you knew that). So doing away with (eg) software patents would have next to no effect on the software industry. Some would say that doing away with copyright would have similar impact, but that's more contentious :)
Don't skip those first few paragraphs. While there is a bit of a bias, the article talks about the sale of cheap medicines to third world countries. It's true that large, highly profitable companies are outpricing these nations on things they need.
When will some people recognize that some rights - like food and medicine, i.e., basic health and survival - trump capitalism, intellectual property, and other protections which are fine to call "rights" in prosperous nations but do not deserve that designation in the Third World?
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.
Perhaps there are two types of invention: Those that will occur without protection, and those that won't occur without it.
Obviously, not having protection won't hinder all invention, as the "inventive spirit" is something that most of us believe exists.
Also, while there may have been invention during that time, there was probably also more trade secrecy, something the article doesn't explore at all.
If the patent process slows business, it may actually be because it requires disclosure. Companies go for the "sure thing" by patenting, but give up the possibility of perpetuating their monopoly through secrecy which can be *very* effective. Thinking Coca-Cola? Chump change. Consider Ziljan (the cymbal people) IIRC, they kept the process a family secret for something like 400 years or more. If all the Ziljans get hit by a bus, nobody will ever be able to make those exact cymbals again. So, what was that about patents being bad for society?
Of course this is all just speculation and stuff. Nobody has the time to do an unbiansed, rigorous, statisticly valid study and present it in such a way so that laymen could understand it. That would be... a lot of work!
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
I found these points interesting:
;-)
;-), despite the fact that it was originally identified in 1986. If this isnt prior art, I do not know what is.
;-) . It will show huge proportion of "patented" sequences have prior art.
Novartis was one of the companies which successfully lobbied for the European convention allowing companies to patent genes
New global trade rules have also allowed big corporations to patent crop varieties and, in effect, the genes of plants, animals and human beings.
Even without going into ethical debates, gene patenting is notoriously dubious. The standards that these companies apply to patenting genes is very poor at best. My patent law is not up to scratch, so i would be happy if someone could point me in the right direction on this. However, my genetic knowledge is rather good
Essentially, companies (such as novartis) cast a very wide net when patenting genes. Alot of the time, they dont actually do anything particularly pro-active when attempting to discover them. They essentially take a pool of all genes expressed in a certain tissue ("mRNA") and randomly sequence these genes. And then slap a patent on them. This is quite clearly discovery. Furthermore, it is cheap, non-directional, quick and easy.
Originally, companies like novartis argued that cloning genes would take a strategy of e.g. specifically identifying genes causing a disease. This takes alot more effort and money, and is more likely to have medical significance. Therefore it is easier to argue that patenting is to some degree fair.
However, the first strategy is quite clearly against patenting law (even the stretched definition for gene patenting). For example, I often see "patents" for DNA sequences of the gene MYB (which I know quite well
This is a result of the essentially random, "wide-net" strategy the companies are utilising. Even worse, it is trivial to check (using a homology search) whether there is "prior art" on a gene or not. But the companies do not do this.
BUT I COULD. And may well do. I have been thinking about comparing the database of patented DNA sequences against those in the public domain (It will take some time to set up, which i dont have right now, and significant computer resources, which i dont have right now - help anyone? reply to this as above email wrong
But who would I go to with these results? Could the companies be held responsible? If, so what would be the result?
The prime source of information about software patents in Europe is the patents mailing list on the AFUL web site (french free unix user group).
Some information is also available on the APRIL web site (french association for research in free software).
In particular, to date, all the big (poll-wise) candidates to the french presidential election have expressed their opposition to software patents, see in french Haro sur les brevets and Tous les candidats dans l'opposition.
And of course the EuroLinux web site and FFII web site (Foundation for a Free Information Infrastructure ) have links to a lot of ressources and interesting readings.
We, european citizens, are seeking ways to get other european countries take position against the current proposed european law that opens the gates of unrestricted software and ideas patenting.If you're willing to help the cause, please contact your local free software association and try to get some activism in place together with the established assiociations like the FSF Europe. If you are French or German you can even make a tax-deducible donation, it may help the cause too.
--
Laurent Guerby <guerby@acm.org>
I would love there to be one, of course.
Personally, I think there should be no software patents what-so-ever. Innovation occurs fine without them. Competition is only stifled with them. Finally, software is one of the fastest changing markets and traditionally patent law seems horribly ineffective when applied.
Once you get out of the software patent arena it gets a lot more gray. The general trend is to expand patent laws and extend expiration of patents. It is also fairly easy, to keep a patent open and gain all the benefits of having the patent without having that time count against you. I think these two trends need to be reversed. Patents should not last longer than a decade and should count from the day of the first filing. If you can not exploit your invention in this period of time, the public should not be punished any longer.
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?
Maybe it just explains why he had enough spare time at work to figure out relativity?
Actually a lot of their research depends on basic science done in publicly funded institutions. For example, the HIV virus was isolated by scientist at the NIH and equivalent organization in France(I know there is some controversies there).
If you actually look at the budgets of the large drug companies, they spend more on marketing than research. For example see this article.
...richie - It is a good day to code.
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.
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.