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Patent Infringement Exemption for Research?
cheesedog writes "It has been said that 1/5th of all scientific research projects in the U.S. are currently being stifled by patent claims. Well, it looks like the Senate has taken notice, with a recent proposal that has made it into the PACE Education and Research Act that could extend an exemption from patent litigation for scientific research. The Act also proposes treating specialized industries (such as software and business methods) differently than traditional patent areas."
This will do very little though, becuase scientific research is mainly done at universities which have an eye on the end results for profit. The universities will not sponsor extensive research on projects which they will not be able to change into profit. Even if people can do the research for their PHD's then there will be a wealth of information in the "wouldn't it be nice if we could use it catergory"
*''I can't believe it's not a hyperlink.''
text of the bill.
It has over 40 co-sponsors (From Allen to Obama) and doesn't look like it's going to become a partisan battle, so maybe it'll actually pass.
The party of stupid and the party of evil get together and do something both stupid and evil, then call it bipartisan.
Hey, pay up, you just violated my newly minted business model patent on the 'failed' first post.
As I see it, this will allow people to do research on things that would have been blocked by patents otherwise. But doesn't that make products related to that research completely poisoned? I mean, it'd be fine for anyone doing the research for the sake of the research, but you'd have major IP issues if you tried to market something derived from the research, right?
What are these guys talking about? If you want something that's patented, you go and buy it at the store. How does that interfere with research? I don't get it. What am I missing?
When they say they had trouble "acquiring patented technologies" to use in their research, what do they mean? Examples please.
(I RTFA and skimmed the linked articles. It's a survey. I saw no examples of what they meant when they said they couldn't acquire patented technologies.)
Finally, they are starting to recognize that patents can actually deter progress.
There's a geologist in my department who developed a technique for measuring earth density. This could be good for looking for oil or other valuables underground. He published his work, like all scientists. So some mining/prospecting company read up on it, patented a related method and then tried to stop him from doing any more research on it, lest he give away 'their' secrets to their competitors.
Insane.
"May change the world if it works" inventions of the type that will make money even if you can squeeze out only a penny above patent licensing- because it allows you to find out if something works *before* you pay for patent licensing.
I've got just such a device in mind for repurposing high level nuclear waste- but the threat of patent litigation means somebody else will probably beat me to it; there's at least six patents on only tangentially related technology involved, the whole thing is made up of what are basically expensive off the shelf parts (well, except for the fuel, which is an expensive, highly controled, on the shelf part, but I'm sure I could convince the IAEA and the DEA to let me have a tankfull of Hanford's finest if I donate the new above ground, computer monitored tank to pump it into before it leaks into the Columbia).
SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
RIAA, MPAA, and other affected corporations stifled research into DRM in the past with legal threats and social threats, even though, the last time I checked, there is a exemption in the DMCA for bypassing DRM and other such content protection in the interests of reasearch. And the United States government didnt seem to care. And they wont care with this.
Boy, do I feel anti-captialist today.
Well, I'm not sure what would qualify one as a "researcher."
Since research often has some sort of financial aspect, this leads me to wonder where the breakpoint would be, and how effective it would be.
I mean, I can see how patent infringement shielding would be useful in teaching (if not already present), but research is often done with end-result: profit in mind. And if certain (synergistic, for example) technologies were developed using research that was protected by the shielding, where would that patent fall? Improvements on a patented idea?
I guess I don't know enough about what sort of research is affected by patent infringement litigation.
I mean, the patent system is a mess. We all know that. And I somehow feel that this is a Good Thing(TM). I hope there'll be improvements. But I still wonder...
This makes sense...It'll never pass...
Andy Out!
The original AAAS report on the effect of patents on science was broadly conducted across disciplines. Patents are not only a problem in BioTech and genetic research. There are *many* reports of research being canceled in electronics and even, yes, in pure computer science. For example, take a look at Chapter 11 of Security and Usability. The chapter is an overview of keystroke biometrics, and contains a section on the patent minefield in this area. It also states that one of the authors of the article was forced to remove keystroke collection and classification tools from the Internet by patent holders (perhaps unjustly), effectively killing research they were conducting in this area. Also take a look at slashdot threads following the original article on patents chilling science (linked above); there you'll find several other "me too" stories just like this one where researchers in computer science departments had to drop what they were doing because of patent licensing issues.
Ok, so I'm a researcher, and you've given me the freedom from patent restrictions to allow me to go ahead with my research and Company XYZ can't stop me because it's for "research" and not personal gain. Don't I eventually end up becoming a de facto researcher for Company XYZ? They still hold the patents and could make use of my research to improve their products, couldn't they? And where's the economic incentive for me to do this research?
GetOuttaMySpace - The Anti-Social Network
Follow the link to the AAAS report on how patents are killing scientific research if this still isn't clear to you -- 40% of pure research is adversely affected in some way by patent licensing issues, with roughly 20% of research projects being canceled each year because of problems with patent holders.
First of all, the section dealing with patent reform actually doesn't change anything. It would just say that the Senate thinks Congress should enact legislation to make such changes.
However, I bring your attention to Sec. 321 (3) (A):
"Congress should implement comprehensive patent reforms that--
(A) establishes a first-inventor-to-file system"
While this would make the patent office's job easier (prior art is restricted to everything filed with them), it means that prior art that is not filed is no longer a defense.
First to file is not good. The research exception would be insignificant next to this change.
What?
As Winston Wolfe of Pulp Fiction fame eloquently put it.. "Let's not start sucking each others' dicks just yet."
While this does sound like a good proposal, it is only one part of the PACE Act. There is one measure in this act that I found very disturbing and that is the establishment of a "First inventor to file system." Basically, that sounds like it would kill off any prior art claims that had not been a part of a previously filed patent. I wouldn't be surprised if it didn't increase the number of BS patents filed because companies would be scrambling to file for things just to get it on record. Very Scary.
-- Knowledge shared is power lost. -- Aleister Crowley
At least it seems that way.
You are being MICROattacked, from various angles, in a SOFT manner.
Despite ill-informed posts to the contrary, subsequent discoveries may be patentable over the original patent.
Imagine you invented the (propeller) airplane and patented it. Now somebody invents the jet engine while tinkering with airplane propulsion. They can patent the jet engine.
That's one place the value could come in: you may hold the patent on airplanes, but jet engines are obviously the right way to go. He can't make a jet airplane commercially without your patent, and you can't make one without his. So you cross-license.
Alternatively, as someone else pointed out, you might not need the original patent to commercialize after your research is complete. (For example, in pharmaceuticals, if you need to test your new drug against the patented drug.)
Prior art will continue to be a defense against patent infringement. If they sue you for infringement, you can still point to publicly available prior art. In other words, they can't claim work that has been previously published by someone else.
On the other hand, if I invented something and used it, they could patent it before me and deprive me of the ability to use it. Probably the best thing do do is forget patents and just publish everything.
Universities now file their own patents, while the inventing professor(s) take an extended leave of absence to found a for-profit company that licenses the research from the university, to the better bank balances of professors and universities alike. This is why there's a grumbling about the change in direction of academic research and the decreasing amount of basic research that is being done. Grants are fewer, patent licenses are greater, research goals are shifting.
--Parity
'Card carrying' member of the EFF.
The issue is not as straightforward as you might think. First, one common bar to receiving a patent is prior art, which is generally covered in 35 U.S.C. 102. The big hammer for prior art made by someone else is 102(b), which says that you can't get a patent if your invention was "in public use" or "on sale" in the US more than a year prior to the filing date of your application. The "on sale" part is fairly easy to understand, but has a few quirks that I won't go into now. The "public use bar", as it's called, is what we're talking about here.
There is a famous Supreme Court case that says experimental use of an invention, even in the public, isn't a "public use". Such use is not a public use, within the meaning of the statute, so long as the inventor is engaged, in good faith, in testing its operation. City of Elizabeth v. American Nicholson Pavement Co., 97 U.S. 126, 134-35 (1877). This is the "experimental use defense" to the public use bar. You may think to yourself, that's all well and good, researchers are performing experiments, that must be experimental use, right?
Not so fast. Read the Federal Circuit's take on experimental use, Madey v. Duke University, 307 F.3d 1351 (Fed. Cir. 2002). The court ruled that use does not qualify for the experimental use defense when it is undertaken in the "guise of scientific inquiry" but has "definite, cognizable, and not insubstantial commercial purposes." 307 F.3d at 1362. Here's their reasoning:
Regardless of whether a particular institution or entity is engaged in an endeavor for commercial gain, so long as the act is in furtherance of the alleged infringer's legitimate business and is not solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry, the act does not qualify for the very narrow and strictly limited experimental use defense. Moreover, the profit or non-profit status of the user is not determinative. Id.To sum up: even though a university may be conducting research with no perceived commercial benefit, there are indirect benefits. If the exception for research were broadened, schools would receive a windfall. So would anyone else claiming "I'm not quite done with my invention yet, but isn't it pretty." (Think "Google whatever -- still in beta!") There's an argument to be made that this is OK, but that's a matter of opinion and public policy.
This post expresses my opinion, not that of my employer. And yes, IAAL.
What it means is that if I have an idea for a new gizmo that might or might not work and there are patents on technology that is somehow connected to the idea, I can go and develop the idea without worrying about the patents. Then, if the idea doesnt work, I dont need to worry about the patents.
I only have to get a licence if my idea actually works and goes into production.