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Why Geim Never Patented Graphene

Posted by Soulskill on from the makes-perfect-sense dept.

gbrumfiel writes "As we discussed on Tuesday, Andre Geim won this year's Nobel prize in physics for graphene, but he never patented it. In an interview with Nature News, he explains why: 'We considered patenting; we prepared a patent and it was nearly filed. Then I had an interaction with a big, multinational electronics company. I approached a guy at a conference and said, "We've got this patent coming up, would you be interested in sponsoring it over the years?" It's quite expensive to keep a patent alive for 20 years. The guy told me, "We are looking at graphene, and it might have a future in the long term. If after ten years we find it's really as good as it promises, we will put a hundred patent lawyers on it to write a hundred patents a day, and you will spend the rest of your life, and the gross domestic product of your little island, suing us." That's a direct quote.'"

52 of 325 comments (clear)

  1. But if he doesn't patent it... by Narcocide · · Score: 3, Funny

    Can't they just patent it anyway, and sue him instead?

    1. Re:But if he doesn't patent it... by Anonymous Coward · · Score: 5, Insightful

      If a Nobel prize doesn't count as prior art, the system is even more broken that it seems

    2. Re:But if he doesn't patent it... by dougmc · · Score: 5, Insightful

      Well, they don't have to patent graphene itself -- they can just patent every possible application of it that they can think of.

      That's really the way things seem to work -- if you patent something really awesome, somebody with a lot more lawyers will surround your invention with patents so it can't be used, even by you, without infringing on one of their patents. In general, these patents tend to be "obvious to the layperson" and therefore should be thrown out, but that requires lots of money, and it's easier to just pay their extortion money.

      The system is screwed up. It would be even more screwed up if you needed a Nobel prize to protect yourself against it, but at least in this case it's not needed -- and doesn't even help.

    3. Re:But if he doesn't patent it... by canajin56 · · Score: 3, Informative

      They seemed to think they would ruin him if he had a publication and a patent. Why would a Nobel Prize be a good example of prior art, but an actual patent would be a joke? Even with a patent and a Nobel prize and a dozen publications, there is nothing you can due when sued for violating 1,000 different patents and faced with a team of 200 lawyers filing a dozen lawsuits every day until you fold. That's the point. They don't care if they lose a lot in court. The point was they will never license his discovery, they will take and if he tries to fight, they will dedicate their entire existence to ruining his life. AKA they will act like any corporation ever. Steal and then sue your victim for 10 trillion dollars.

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    4. Re:But if he doesn't patent it... by DJ+Jones · · Score: 5, Informative

      RTFA. In the next paragraph Geim talks about what the guy from the electronics company meant. Patents only work if they are for specific devices or processes. Since graphene hasn't been use in any practical real-world solutions yet, there's really nothing to patent at this stage. The company that develop devices and uses for Graphene will end up filing more specific and enforceable patents.

      He wasn't necessarily knocking the system.

    5. Re:But if he doesn't patent it... by MozeeToby · · Score: 3, Insightful

      Oh yes, a very simple method to make graphene is covered by the prior art. But what if they come up with some tiny improvement to the process (or more likely a massive improvement if they're going to commercialize it I don't think using scotch tape and pencil lead is going to cut it). And then you can file a patent for each possible use that you can come up with, and another for every tiny incremental improvement you make to those uses, and even uses that you come up with that you know won't work but might end up being close enough to something that does work that you can sue someone later. Broken... broken... broken, I just can't express how broken the patent system is.

    6. Re:But if he doesn't patent it... by Anonymous Coward · · Score: 3, Insightful

      They'll also patent every way of making it. Then they'll patent every change/improvement
      to the process for the next 50 years.

    7. Re:But if he doesn't patent it... by Anonymous Coward · · Score: 5, Interesting

      That's how patents work in biotech. First you find a gene, then you immediately patent it - don't worry about figureing out what it does, because if you delay to do that a competitor might file first. Then you figure out what it does, and then you patent every possible application just to be safe. Commercial biotech research is basically driven by patents, but it can get extremally aggressive.

    8. Re:But if he doesn't patent it... by MozeeToby · · Score: 4, Insightful

      Never understood the 'not obvious to the layperson' requirement, seems to me like it should be 'not obvious to someone in the given field'. In other words, if you presented 5 engineers with a problem and they all came up with the same or similar solutions, that solution should not be patentable, there is no leap that is worth rewarding with a monopoly. But I guess just getting the layperson requirement to actually be honored would be a good step in the right direction.

    9. Re:But if he doesn't patent it... by hey! · · Score: 3, Insightful

      You don't understand how this works. You write patents like "Use of graphene as a conducting element in an electronic device," or "Method of fabricating graphene on silicon substrates employing one of several obvious design choices that nonetheless sound like witchcraft to anyone without a PhD in Materials Science."

      It doesn't matter if the patents won't stand up. If there's enough of them, it won't be worth the cost for any private party to knock them all down. The only way to stop this is to get tough on fraudulent claims. If an "inventor" shows a pattern of putting his name on patent applications that a professional working in the field would consider trivial, then he should go to prison for perjury.

      The problem with the current system for policing fraud is that it relies on competitors. But the whole strategy is to pile the BS so deep it's not worth the competitors' bother. Furthermore, the competitors aren't going to rock the boat because they're doing the same damned thing.

      Patent abuse is a win-some, lose-some proposition for the corporations engaged in it. It's the public and the real inventors who consistently lose.

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    10. Re:But if he doesn't patent it... by Dachannien · · Score: 4, Informative

      In the US, the standard is "not obvious to one having ordinary skill in the art". In other words, someone with more skill than Joe Sixpack, but less skill than an expert in the field.

    11. Re:But if he doesn't patent it... by MozeeToby · · Score: 4, Insightful

      I'm just saying that an army of patent lawyers will box in any important invention so much that any layman's patent is going to be 100% worthless because they won't be able to do anything with it without stepping all over a dozen other patents. Lets say that you're one of the inventors and want to start a business to actually sell a product that uses graphene. Oh, you want to mass produce graphene now? Well, there's 13 patents on ways to mass produce it so you'll need to license one of them even though it is really just an automation of the process that one you a Nobel prize. You want to use graphene in a touchscreen display? Sorry, that violate the patent on "monolayer semiconductor based resistive devices". etc, etc, etc.

    12. Re:But if he doesn't patent it... by danpat · · Score: 4, Interesting

      The problem is that it takes less than those 5 engineers to get a crap patent into the system in the first place. When the cost of entry is lower than the cost of removal, the system is going to tend to fill up with crap.

      Now, if there was a fine levied against those that had their patents invalidated......

    13. Re:But if he doesn't patent it... by Intron · · Score: 4, Insightful

      You can't obtain a patent on a substance. You can only obtain patents on the manufacturing or some "novel" usage of the substance.

      If there's only one way to make a material and you patent it, then you have essentially patented the material. That's how gene patents work too, they're on the process to produce the gene.

      --
      Intron: the portion of DNA which expresses nothing useful.
    14. Re:But if he doesn't patent it... by TheDarkMaster · · Score: 4, Funny

      Simply ignore the patents ... And if any laywer appeared at the door of your company trying to extort you because of such patents, return then to his employer by mail. Just the head.

      --
      Religion: The greatest weapon of mass destruction of all time
    15. Re:But if he doesn't patent it... by Grond · · Score: 4, Informative

      In the US, the standard is "not obvious to one having ordinary skill in the art". In other words, someone with more skill than Joe Sixpack, but less skill than an expert in the field.

      It's a little more complicated than that. The level of skill involved depends on the subject matter. If the patent is about a simple mechanical device, then the level of skill will be relatively low. Perhaps a bachelor's degree in mechanical engineering, if that. If the patent is about a complex genetically modified organism, then the person having ordinary skill in the art would have a high level of skill, probably a Ph.D in biology with some additional years of experience.

      You tend to have alleged infringers arguing that the level of skill in a given case is very high and therefore the super-genius involved would easily have found the invention obvious. The patentee tends to argue that the level of skill is very low and that the Joe Sixpack involved would find the invention astonishingly unobvious.

      The European Patent Convention--and thus the patent law of EU countries--follows a similar standard as the US ('a person skilled in the art').

    16. Re:But if he doesn't patent it... by Dachannien · · Score: 3, Insightful

      if you patent something really awesome, somebody with a lot more lawyers will surround your invention with patents so it can't be used, even by you, without infringing on one of their patents.

      If you hold the patent for Illudium Pu-36, for instance, then even if someone else patents the Illudium Pu-36 explosive space modulator, they will be on the hook if they try to make their invention without getting a license from you. So even if everyone else comes out of the woodwork getting patents that hedge out all the possible applications of your invention, you're still better off with the patent, since they can't make their own patented inventions without using your patented invention.

    17. Re:But if he doesn't patent it... by Spatial · · Score: 5, Insightful

      We've arranged a society based on science and technology, in which nobody understands anything about science and technology. And this combustible mixture of ignorance and power, sooner or later, is going to blow up in our faces. I mean, who is running the science and technology in a democracy if the people don't know anything about it?

      Carl Sagan

    18. Re:But if he doesn't patent it... by Impy+the+Impiuos+Imp · · Score: 3, Interesting

      Never understood the 'not obvious to the layperson' requirement, seems to me like it should be 'not obvious to someone in the given field'. In other words, if you presented 5 engineers with a problem and they all came up with the same or similar solutions, that solution should not be patentable, there is no leap that is worth rewarding with a monopoly. But I guess just getting the layperson requirement to actually be honored would be a good step in the right direction.

      This is exactly why the poster child for bad patents, Amazon's 1-click purchase (i.e. no confirmation) is a terrible example of a bad patent. It's quite an awesome one.

      I came from that era, and earlier. No programmer in their right mind would ever do something so stupid as to let a book get bought and shipped by one click -- "What if the guy accidentally clicked it? There should be a confirming dialog!"

      Bezos say no.

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    19. Re:But if he doesn't patent it... by HungryHobo · · Score: 4, Informative

      Something obvious you simply avoid doing for (probably)good reason is still obvious.
      How many of those same programmers who I assume were at least moderately skilled in the art would have had the slightest problem creating code to let a book get bought and shipped by one click?
      Where is the invention?
      Where is the non-obvious bit?

      If every gun manufacturer included a safety but is quite capable of building one without but don't that doesn't make it an "invention" when one of them does even if it turns out that people like guns with no safetys.

      It's an ideal poster child for bad patents.

    20. Re:But if he doesn't patent it... by ChipMonk · · Score: 4, Funny

      using XML

    21. Re:But if he doesn't patent it... by brainboyz · · Score: 4, Insightful

      But if they're big enough compared to you, they'll make their space modulator anyway and drag things out in court when you sue. Better have the money to have lawyers dedicated to the case for 8 years. If you run out of money, they win. If your lawyers miss an objection or technicality, they win. If you win, you'll eventually get money and damages.

    22. Re:But if he doesn't patent it... by Hal_Porter · · Score: 5, Funny

      Hey, I work in commercial biotech research! Are you calling me aggressive?

      You wanna come over and say that, buddy?

      --
      echo -e 'global _start\n _start:\n mov eax, 2\n int 80h\n jmp _start' > a.asm; nasm a.asm -f elf; ld a.o -o a;
    23. Re:But if he doesn't patent it... by Jafafa+Hots · · Score: 3, Informative

      They used to say that about copyrights.

      --
      This space available.
    24. Re:But if he doesn't patent it... by Kvasio · · Score: 5, Funny

      mod parent +1, aggressive

    25. Re:But if he doesn't patent it... by dougmc · · Score: 3, Informative

      By default rm asks for confirmation before deleting a file. You have to override this behavior with the -f flag.

      You're wrong. rm only asks for confirmation if it's given the -i flag or if you're doing something unusual like removing a file you don't have write access to.

      Perhaps you have an alias set up that maps "rm" to "rm -i" -- it's a pretty common default alias, but it's a function of your *nix setup, not the rm command itself.

    26. Re:But if he doesn't patent it... by Dachannien · · Score: 3, Insightful

      It's a little more complicated than that.

      True, but it's nigh impossible to convince /.ers to read the claims of a patent, so I figured I'd give the Cliff Notes version.

    27. Re:But if he doesn't patent it... by dgatwood · · Score: 3, Insightful

      And, of course, the way it should work is this:

      • Gather a panel of people with a typical level of knowledge in the field.
      • Ensure that none of them are aware of the invention.
      • Tell them the problem the invention is trying to solve.
      • Give them any building blocks used.
      • See if they can replicate the invention or a close approximation thereof.
      • If so, reject the patent.

      The problem is that 99% of "inventions" are nothing of the sort. They're little more than ideas that are obvious as soon as you are told the problem that you're trying to solve, and the only reason they weren't invented decades earlier is that nobody was trying to solve that problem yet because the problem space itself did not exist.

      For example, a patent on how to take bids via the Internet could not reasonably be invented prior to the Internet. But ask ten people how they would set up an auction site on the Internet, and even if they've never used eBay or heard people describe how it works, they'll still describe most of it pretty accurately. As such, it's obvious to even a nimrod who knows how the Internet works and wants to conduct auctions online. Since the core purpose of patents is to protect an inventor's exclusivity temporarily in exchange for publishing how something works instead of keeping it a trade secret, and since a patent on that concept would contribute nothing of consequence to the general understanding of technology, such a patent should be soundly rejected.

      Further, any patent on any software technology that does not include the corresponding source code to demonstrate how something is done should be rejected. And again, if the source code is obvious once you've been told its inputs and expected outputs, the patent should similarly be rejected.

      It should not be enough to be the first to think of doing something. The patent should at a minimum provide some significant insight that would not be obvious to a typical person who has been exposed to the problem. Most patents do not, and as such, most patents are junk.

      --

      Check out my sci-fi/humor trilogy at PatriotsBooks.

    28. Re:But if he doesn't patent it... by Ihmhi · · Score: 3, Funny

      Mod Parent "+1, Like, You're a Cool Guy Man, And... And And I Like What You Said Dude, It Reached Me. Really Reached Me."

      --
      Random Thoughts From A Diseased Mind (Not For Dummies)
  2. Name and Shame. by Hatta · · Score: 4, Interesting

    He could at least have mentioned which "big, multinational electronics company" he spoke with.

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    1. Re:Name and Shame. by FooAtWFU · · Score: 4, Insightful

      Yeah..... that is one of the many reasons the US put "freedom of speech" in a Constitutional amendment and wrote very loose slander/libel laws.

      --
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    2. Re:Name and Shame. by ObsessiveMathsFreak · · Score: 3, Interesting

      My first guess was actually Intel. The "little island" comment lead me to think that the executive had mixed up the UK and Ireland (Intel have a big plant in Ireland). Then again, I wouldn't put it past the executive of any major US company to use the a pejorative like "little island" when referring to the UK. UK-ians need to learn to stop speaking American.

      --
      May the Maths Be with you!
  3. Re:That's not a direct quote. by Tim+C · · Score: 3, Insightful

    The two are not mutually exclusive.

    --
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  4. One word: libel by dazedNconfuzed · · Score: 3, Funny

    Do that, and he'll spend the rest of his life and gross income fighting interminable libel suits.

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    Can we get a "-1 Wrong" moderation option?
    1. Re:One word: libel by Intron · · Score: 4, Funny

      It isn't libel if what he said is true. If the other guy did indeed say that.

      Didn't you read the article? They have 100 lawyers sitting around waiting for something to do.

      --
      Intron: the portion of DNA which expresses nothing useful.
    2. Re:One word: libel by haruchai · · Score: 3, Informative

      Geim lives in the UK. Libel is a pretty big deal by UK laws. If you don't have money and good lawyers, you don't want to be sued for libel

      --
      Pain is merely failure leaving the body
  5. What island are they referring to? by jeffmeden · · Score: 3, Funny

    I don't get it, he is Russian born and works in Manchester, England. Are they saying $2.2 trillion (nominal GDP of England in 2006) isn't enough to win a patent war? My god, if that's the case, then what is?

    1. Re:What island are they referring to? by jorenko · · Score: 4, Insightful

      While we're being pedants here, the UK isn't an island either.

      Or are you one of those people who doesn't understand the difference between the UK and Great Britain?

    2. Re:What island are they referring to? by BadAnalogyGuy · · Score: 3, Insightful

      It's really simple, and Geim seems to have totally misunderstood the guy's comment.

      By patenting it, and the company creating patents surrounding it, Geim stands to gain in licensing incredible amounts of profit. He would be able to "buy his own island".

      Geim calls this comment arrogant, but by not patenting it he has simply made it possible for the multinational electronics company to use his invention at no cost. They reap all the benefit while his work to discover/invent goes unrewarded - even the Nobel prize award would be dwarfed by the licensing fees he could make if the invention is truly useful. Geim's altruism benefits only the "arrogant" companies he seems to disdain.

    3. Re:What island are they referring to? by Lumpy · · Score: 4, Funny

      you can for sure win a patent war.

      You just use weapons the other size will not expect.

      If the entire other side ended up in a horrible accident, you suddenly win.

      Just saying.... I have a hundred "associates" just sitting around waiting to do something.... Am I making my self clear? capisce?

      I would hate for an unfortunate circumstance to happen, causing something to happen... Right Vito?

      --
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  6. Patents help the little guy by Stiletto · · Score: 5, Insightful

    This is as fine example as any about how patents help the small business and/or lone inventor.

    1. Re:Patents help the little guy by rufty_tufty · · Score: 3, Interesting

      They do help a little. I have a number of friends involved in startups and the patents they own are valuable, but they are not everything. As with all things in life if the big guy wants something they'll find a way to get it.

      IME if you have done a startup (e.g. electronics company) then you have three things of value:
      1) Your customer: lets say you have interest (but not sales) from a large company A and another large company B wants to sell to A. By buying you if they can get a foot in the door to company A that would be worthwhile.
      2) Your employees: startups tend to attract the bright go-getters - often useful to infuse a big old company
      3) Your IP, the code and the patents, although given the fact that the big company can out compete you in terms of bruteforce coding then once they know what you are up to, which if you have come onto their radar they will do; then once you have proved your technology then you have a very short window in which to get bought before this last item becomes worthless because they can set 100 monkeys onto the job.

      I've seen on a number of occasions the patents protect the small startup, but only as far as the demonstration of the specific technology they have developed.

      --
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  7. Blackmail is illegal, right? by jd · · Score: 4, Insightful

    Y'know, just asking. If this isn't a demand with menaces, it sure the hell ain't kippers.

    The interesting part of this is the use of the patent system to prevent an inventor patenting their invention. (You know damn well that the company WILL file patents in ten years anyway and will make gob-loads of money, prior-art not withstanding.) The sole value of a patent system is to ALLOW the inventor to patent their invention. It serves no other function. (The other theoretical value of properly documenting an invention has long-since given up the ghost.) That we now have a verifiable, demonstrable example of patent inversion shows that the system as it stands must be replaced.

    --
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  8. And that's why, my friends, patents are evil. by wazoox · · Score: 3, Interesting

    As said in the freely available e-book "against intellectual monopoly". I didn't write it, but it's well worth a read.

  9. I'm confused. by masterwit · · Score: 3, Funny

    It also has the largest surface-to-weight ratio: with one gram of graphene you can cover several football pitches (in Manchester, you know, we measure surface area in football pitches).

    Can someone put this in terms of American Football fields please? Or perhaps school buses will work...thanks.

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  10. Special Slashdot Memo #456555 by Anonymous Coward · · Score: 3, Informative

    You CANNOT patent basic elements: Graphene is a form of carbon.

    However, you CAN patent a process for using graphene.

    Go ahead and mod this post DOWN !

    Yours In Akademgorodok,
    Kilgore Trout

    1. Re:Special Slashdot Memo #456555 by Grond · · Score: 3, Informative

      You CANNOT patent basic elements: Graphene [wikipedia.org] is a form of carbon.

      It wouldn't be a patent on carbon itself as graphene can be considered an indefinitely large molecule. In the US it would be a patent on a 'composition of matter,' which is one of the basic classes of statutory subject matter. Although graphene does occur naturally in graphite and elsewhere, it does not occur in an isolated, purified form. The patent claims would be to isolated, purified graphene, probably having certain other characteristics (e.g., an average sheet size of at least X mm or whatever). All of this would be backed up with a description of (and probably claims for) a method of making graphene with those characteristics.

  11. it's not in public domain? by z-j-y · · Score: 3, Interesting

    isn't his research funded by public money?

  12. Patents by cjcela · · Score: 4, Insightful

    Maybe patents use to work 50 years ago. Now it is always the case that the company with deeper pockets always gets its way one way or the other. What really gets to me is the hypocrisy of people saying 'patents protect innovators'. They do not. Patents do anything but protecting innovation.

  13. Geim also won the Ig Nobel by walmass · · Score: 4, Interesting

    TFA asks: "Finally, are you one of those Nobel prizewinners who is going to go crazy now that you've won? "

    The interviewer probably didn't know that Dr. Geim won the Ig Nobel for levitating a frog.

    Between that and the fact that he cited saving taxpayer's money as a reason behind not filing a patent and his Friday experiments (which led to the scotch-tape on graphite) discovery, I think I have a new hero.

  14. patents and the US legal system by bl8n8r · · Score: 4, Insightful

    Patent System: A system put in place to be manipulated to protect corporate IP while stifling competitive innovation.

    Legal System: A corporate asset which is manipulated to keep innovative products from being competitive.

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  15. We have another option. by TheDarkMaster · · Score: 3, Interesting

    Kill the "big company", with bullets, literally. There is no dialogue with the kind of company that says such things. You do not tell to the bad guy "please, do not shoot me!", you shoot him. Twice.

    --
    Religion: The greatest weapon of mass destruction of all time