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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."
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.
No, Universities often do research to get grants. They don't do research to directly make products, they aim to do basic research. They use successful research programs to win grants to do more research. Otherwise you'd see UNC or Berkley or Harvard branded products.
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?
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.
So the problem is less of one in creating, say, a Viagra tablet for drug research, but rather purchasing bottles of Viagra to do research on other health effects.
Javascript + Nintendo DSi = DSiCade
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!
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?
Consider the fact that certain individual genes are patented. Now consider that, to do research involving these genes, you need to purchase a "license" first. These licenses can be extremely expensive.
I think that this is what the legistaltion is aiming at, rather than, say, you average electronic widget.
And what's to stop the drug maker from tying up the research in court because they feel that it is a "defamation of their IP"? It doesn't matter if it the drug maker eventually loses, they can manage to delay the research for YEARS, potentially making it pointless. Thus the researchers have to negotiate a contract that says, "I won't divulge my data until the drug maker has a chance to review it."
Javascript + Nintendo DSi = DSiCade
Why? What's the penalty for just doing the research? Is it that you can't ultimately profit from the result?
No, the penalty is being sued for lost royalties by the patent holders, because you used their property without their permission, and then having your research confiscated as it contains and is based on their property. So you're out all that money, <i>and</i> you no longer have access to your own work.
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
It could apply in to non-software patents as well. Just because something is patented doesn't mean that it is being sold anywhere.
A scientist independently arrives at an idea that may be covered by an overly-broad or obvious patent claim. The scientist innocently begins conducting research in the area (because there is no way he is keeping track of the 100s of thousands of patents filed each year), eventually letting the world know what he is working on. Big Corp[s] (or Patent Troll[s]) that hold a patent gets wind of his work, and sends him a threatening 'cease-and-desist' letter.
If the researcher continues past this point, and a court later finds that his work did violate the patent, he is guilty of willful infringement, resulting in court-ordered payment to the patent holder. If willful, those payments may be treble what they would have been had the researcher licensed the technology upfront. And the patent holder can still force the researcher to stop his research immediately.
Patents grant are a legal right to exclude others from excercising the claims of the patent. That's it. Under current law, there is no exclusion for people excercising the claims in the name of science, solely for their own personal use, etc. The exclusion is 100%. It is an artificial monopoly.
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
<sarcasm>
But... but... but...
I thought patents were supposed to *encourage* research and innovation, not *interfere* with it... Now I'm all confused...
</sarcasm>
After 3 days without programming, life becomes meaningless
- The Tao of Programming
I thought patents were supposed to *encourage* research and innovation, not *interfere* with it...
They are. The problem comes in when modern business execs abuse the power they're given all to ensure the best results for the next quarter. What we need is a lot more barratry suits. Once a few lawyers start losing their licenses, they'll think twice about taking nonsensical crap to court.
Javascript + Nintendo DSi = DSiCade
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.
Now, if something gets done which is patentable and potentially licensable, they will certainly pursue it - but the university administration doesn't make the research decisions.
It's not wasting time, I'm educating myself.
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.