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The Law of Unintended Consequences: Patents
An anonymous reader writes "Fortune has an
interesting article about the relationship between patent law and innovation. It compares the biotech industry with the computer industry and discusses the effects of the Bayh-Dole amdendment, which has allowed universities to make a lot of cash. But in the process innovation and scientific collaboration seem to have been stifled."
Of course patents help science and tech! If patents hadn't existed, The Great E could never have gotten a job at the patent office, and may never have ended up making his amazing findings, or maybe never publishing them.
Where would we be then?
... is actually a fundamental problem built into all IP law: the assumption that money is the prime motivator for creative endeavors. (And yes, science is a creative endeavor.) This is a myth successfully propagated by generations of moneymen, but a myth is all it is. Scientists, like artists, certainly want to make a living from their work, but the best ones pretty much always do what they do simply because they want to do it, not because they expect it to make them rich. If your primary concern is making money, OTOH, you don't have the time (or, probably, the brainpower; suits who think of themselves as intellectuals because they have an MBA simplye have no idea what goes into a serious scientific education) to become good at anything that constitutes real creative work.
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
While there are certainly areas of crossover, like the algorithms to filter through the volumes of data that biotech firms have, the fundamental difference between bio companies and computer companies is that biotech produces *something*. Computer technology is basically ephemeral. But Biotech leads to medicines and other discoveries that are both difficult to discover and inherently valuable.
It makes sense to cover biotech with patents, as it took significant effort to research and develop those things.
Computer tech, on the other hand, is primarily focused on automating processes. Computers are inherently faster than humans at doing repetitive tasks, especially in regards to calculations. But it is difficult to find a program that implements a process that doesn't exist already in another form, or that isn't blatantly obvious to everyone. Something like developing "a secure mechanism by which encrypted media data is stored on a device and available for playback when read and decrypted by the client application" would probably be a good candidate for a patent. "Users can click once and purchase an item without having to load the shopping cart menu" is both obvious and not really that far removed from the systems that preceded it.
That people get greedy and innovation slows down when companies are competing is just a small side-effect of the patent process.
Jesus saved me from my past. He can save you as well.
Nothing will hurt innovation more than the Patent Reform Act of 2005.
Why? Because it sets limits on damages for willful and even fraudulent patent infringement so that large corporations will find patents easy to ignore.
Meanwhile, the limits are still big enough to remain a deterrant for small companies and independent inventors.
In other words, if you are a big corporations, you might be able to knowingly ignore patents while startups and inventors don't have the same benefit.
There are some good improvements in the Patent Reform Act of 2005 but this fundamental flaw is going to hurt innovation by making the patent system benefit a small percentage of companies at everyone else's expense.
Please write to your representatives and respectfully ask them to fix the flaws before it becomes law.
Grease keeps systems working smoothly. Lawyers, money speculators, used car salesman, and a zillion other occupations are society's grease. In a frozen static society, you could get rid of them once you had polished the system to the nth degree. But in a dynamic society, these greasers keep the various diverse parts all working together relatively smoothly.
But too much grease in a gearbox bogs it down. That's what has happened with intellectual property in general. Those idiots in Washington listened to their corporate sponsors and believed what they said about the more the merrier.
At some point, hopefully sooner rather than later, business and politicians will notice what the true innovators and researchers have long since learned the hard way, and cut back on the flow of grease. In the meantime, the rest of us are stuck with completely counterpdocutive IP legal wrangling getting in our way. It may take a long time to notice the drop in innovation and productivity, but I sure hope not.
Infuriate left and right
Also, if someone wants to question the patent system in biotech, then what's the alternative? Patents have, despite a few cases of misuse, been proven to be the suitable intellectual property rights regime in that field. In contrast, today's leading software companies like Microsoft, Oracle and SAP needed no patents at all during the first 10+ years of their existence. SAP only had a total of four patents a few years ago. It would be too simplistic to say that copyright law alone protects software because it's actually a combination of copyright, trade secrets, complexity, trade marks, and the possibility of converting a technological lead into sustainable economic value (by selling products, acquiring customers, building the brand identity of an innovator). That form of protection is much more dynamic than patents because it requires someone to actually market a product, as opposed to just sitting on a patent and waiting for others to unwillingly and unknowingly "infringe" upon it.
The other issue is who should own the outcome of the research work that is performed with tax money. I don't think it's reasonable to let the public pay twice for the same work, upfront by employing many such scientists for decades in each case (the fewest of which ever come up with something that can be commercialized on a large scale) and subsequently through patent royalties.
From the article.
" A 1979 audit of government-held patents showed that fewer than 5% of some 28,000 discoveries--all of them made with the help of taxpayer money--had been developed, because no company was willing to risk the capital to commercialize them without owning title"
To all those in this thread that argue "scientists will do it for the love" or any of that crap. That sentence above says it all. Scientists might do it for the love, but companies won't pay to develop it. I work at a biotech company - we won't do stuff that won't make us money. We have to pay our salaries. If we do something that we DON'T have patent coverage on, our competition will just copy it at no cost to them... oh yeah - we will have spent A LOT of money to do the development. If we can't get an exclusive license, then for the most part we won't touch it. It WONT make financial sense to do so.
You can preach about "greater good of man" and all that. At the end of the day I just want to send my daughter to college and be able to go surfing. To do that, we have to make tools that help people, and I enjoy being part of that. I love solving the problems. I enjoy working on the projects. BUT - I have to eat and the company has to make money.
Gavin Fischer
The problem with patenting algorythms and functions is in the very concept and purpose of computers. Programming languages are basically tools for expressing thoughts. As human toungues are used for expressing speakable words, programming languages are used to implement thinking processes of the mind. Data is non-material, and computers merely receive, process and output data, as human nervous system does. Algorythms are same as thoughts - they are ways of analyzing and processing data.
Patenting physical devices (ever computer hardware) is fine by me, but patenting algorythms is comparable to patenting and restricting ways of thinking. Imagine what would happen if a law ordered people to think (or avoid thinking) in a certain way...
I am not saying that everything on the computer must be completely patent-free. I believe that only unique, sophisticated and unparalleled applications should be allowed to be patented by the US Patent Bureau, for a limited time.
- Matvei M.S
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From TFA
Universities have evolved from public trusts into something closer to venture capital firms. What used to be a scientific community of free and open debate now often seems like a litigious scrum of data-hoarding and suspicion. And what's more, Americans are paying for it through the nose.
And who's to blame for that? Yup, the good old American system.
The fact of the matter is, America doesn't care about science. We worship things like actors and singers and sports figures and then snub our nose at scientists in academia and pay them crap. Business is the most popular major, not because it provides the most to society, but rather it is the most profitable. In other countries, scientists are looked up to and admired (for example, India).
In the US, the budgets have been cut drastically for academia (most grants are getting a 8% cut straight across the board this past year). Adjusting for inflation, the NIH and NSF budget's have actually shrunk over the past 10 years-- which is ridiculous considering the massive amounts of improvement in technology that have occured. With such a drastic decrease in available funds, researchers need to tighten their projects, search for alternative funding, and be wary of who they tell people what they are doing. Sharing data with someone you aren't collaborating with or on unpublished work is a sure way to find yourself out the door in academia. This is further being complicated by the fact that tenure reviews are starting to shift from the old paradigm of how many papers you published, to a newer paradigm of how much grant money you bring in (while this is usually correllated, it is not always the case).
It's not the scientists that have created the environment, it's the environment that has created the scientists. There's a reason why College Professors were listed as one of the top 5 undervalued professions in America. Patents are the one bone that academia gets and the writer seems to think that scientists are exploiting America. Academia is already losing a lot of great talent (and henceforth, progress) as it is in America due to lack of funding-- how do you think it would be if patents didn't exists?
I'm surprised the parent was modded +5 insightful, since I'm not sure the poster actually took the time to read the article. Anyhow...
Technically, the Bayh-Dole law that the article talks about doesn't really say too much about companies being able/unable to patent the results of research that's been privately funded.
Even prior to the law, if you want to spend your money on research, you of course had the rights to patent the results. However, Bayh-Dole made it so that your company could spend tax-payer(read 'our') money to do research and development and then still be assured of your company owning the resulting intellectual property. So, the whole thing really seems like a big corporate well fair racket, whereby companies have been essentially gifted valuable IP by the American tax-payers.
Maybe the NIH or NSF should start acting a little bit like a VC firm in these cases. That is, if companies and/or universities want to profit by patenting the results of publicly funded research, then maybe the funding federal agency should get a proportion of the proceeds. That money could then be funded into other new and interesting research projects.
Just look at art and science in totalitarian countries. In all former communist countries, you definitely couldn't get rich by doing science, not even in relative comparison to general population. Yet they had a lot of excellent scientists, and produced huge amount of research.
As far as art goes, not only you couldn't get rich, in many cases you could get yourself locked up. Still, all the Soviet block countries had very active unofficial art scenes.
AccountKiller
Wrong root cause--the blame lies with the left and their reaction to the Vietnam War, with their one permanent reform the destruction of basic research in United States universities through the Mansfield Amendment. Just go to the musty bookshelves of one's university to the mathematics section and look for books before 1970. Many of them will have an acknowledgement of funding through some agency such as the Office of Navel Research.
The Mansfield Amendment deliberately destroyed the relationship between the United States military and university basic research, so that instead of getting crumbs from a gargantuan Department of Defense budget, which meant the crumbs were quite substantial, basic research had to rely on the politically castrated National Science Foundation with no important constituency to push for funding.
Faced with the prospect of basic research almost completely disappearing, the only alternative was something similar to Bayh-Dole, because there was no way anymore to politically push through explicit funding. What an irony that now what were once considered public goods are now the property of the largest corporations and the rich only get richer. Now that is the true unintended consequence considering who initiated the Mansfield Amendment.
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