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New Patent Treaty
Alan Cox was kind enough to inform us of a new patent treaty proposed by the World Trade Organization. This Channel 4 news story shows the indirect effect on the cocoa industry. The agreement, Trade Related Intellectual Property Rights (TRIPS), the text of which can be read here, allows virtually anything, including genes to be patented. The possible ramifications of this are huge, and it raises plenty of questions about concepts of "intellectual property".
The topics are something we should be concerned about, but we should not get in an uproar because this is something new, because it's not.
...phil
...phil
"For a list of the ways which technology has failed to improve our quality of life, press 3."
The big genetic companies, seeing the possibility
of patents on DNA being made impossible by
legislation, cleverly decide to get the WTO to
start up talk about new patent rules explicitly
allowing genetic patents, so the US would look
backward (or like a loose cannon) if it were to
ban genetic patents. Pretty clever, and certainly
not in our best interests..
For every problem, there is at least one solution that is simple, neat, and wrong.
Patents exist to protect our intellectual property.
No. Patents (and copyrights) exist to promote the progress of science and useful arts (clause 8) (non-Americans may substitute their own national references).
What needs to be thought is this treaty - specifically what can and cannot be considered new technology that is patent-worthy.
Yes. That's definitely something that needs to be revised.
But I'm also concerned about what this treaty means in other ways. If I understand this correctly, the treaty basically aims to force every nation to recognize patents from other nations.
If this were to happen, it would spell disaster for a lot of free software, and for the economies of many third-world countries. Consider the example of RSA encryption -- since the RSA algorithm is patented in the United States, American cryptographers cannot write code using that algorithm (unless they obtain a "license"). So anybody who wants to sell an RSA-based product has to base their business in Australia or some other country -- and even then they probably still can't sell to the United States. The situation is even worse for free software, because while a commercial organization may be able to pay the "license fees" to use the patented algorithm, no free software project will be able to do that.
So, what happens if Australia is forced to honor the American patent on RSA? All of the RSA development that moved to Australia to escape the patent is screwed. And if every country honors the patent, then the project is essentially terminated, because there will be no escape from the IP police.
Also think about what this means to Australia (or any other country) -- the commercial organizations who moved their business to Australia probably gave a nice little boost to the local econonmy. If they can't continue their business, then Australia's economy takes a hit.
I think this proposed treaty is a bad idea.
As for WTO, I'm quickly developing a chronic dislike for it. It only serves the interests of the big players - countries, companies.. Who cares what happens to the rest.
In general I think that world-wide agreement on what constitutes a patentable invention is a good thing. In Europe for example there are provisions that allow people to contest a patent before it is issued (something that would kill a lot of the stuff with obvious prior art that gets issued in the US).
Of course the stuff about genes is dubious public policy, but I think that patenting genes in the long run isn't going to make much difference. It is going to take a long time to go from a gene to a product based on that gene, and patents have a 20 year lifetime. After the patent is up, it's all back in the public domain.
Patent terms are much more of an issue in software where things are developed much more quickly than in biotech.
They are already doing so. A Texas company called RiceTec was granted a patent for Basmati rice. Basmati is a kind of rice that grows only in the foothills of the Himalayas in India and Pakistan. Like how the label ``Champagne'' may be used only for products from a particular place. Read an analysis of the patent and its consequences.
For centuries in India, turmeric has been used as a home-remedy and traditional medicine for wounds. In March 1995, a patent was granted to the University of Mississipi Medical Centre for precisely this use. What made this a particularly disgusting case was that the patent was in the name of two Indian researchers at the university. The US Patent Office did uphold a challenge to this patent and it was revoked. There are many such patents that need to be cancelled.
Cancelling these patents is the first step in stopping biopiracy. The author of this piece reiterates that patents must be granted on the basis of Novelty, Non-obviousness, and Utility.
In the US, foreign knowledge, use and invention are all excluded when ``prior art'' is considered in relation to a US patent application. This helps US companies in the short run and hence the government is unlikely to try and change this.Software patents are not the only area in which patent laws are hopelessly out of sync with reality. The two-fold problem is:
You mean sticking them in the ground and throwing water on them?
The point is, the issue that needs to be resolved here is not whether there should exist a worldwide patenting office, but what the new, techno-savvy definition of intellectual property should be. That would make a far more interesting debate, I think
Nicely worded, but completely wrong. The alternative to patents is for corporate entities or individuals to keep all of their internal research as secret as possible to prevent competitor's copying their work. This practice of keeping everything possible a close secret is in fact what patent law was designed to abolish in the early 18th century.
Actually, history offers much stronger support of my contention than it does of yours (recall, for example, the inventor of the intermittent windshield wiper, the numerous inventors who had their ideas. and rights to said ideas, stolen by Thomas Edisson, etc. etc. etc.).
While you are correct in that the original purpose of patent law was to insure that new ideas be published and thereby the knowledge not lost, you are very incorrect to imply that the patenting system actually encourages technological development, and that it would not occur without it.
Whether or not a patent is issued, a company will produce a product if it feels it can make a profit on it. It will do so, even knowing that foreign competitors will copy and sell the product, though of course it will cry foul at the prospect (who wouldn't). A good example of this is the software industry, which thrived in the US without patents for quite some time and thrives outside the US in places without software patents, despite the ease with which not only their ideas, but their very products, can and are copied by others. Not only have patents proven to be unnecessary to the prosperity of the software industry, they have been very destructive to progress in the industry in recent years. Worse, they have had absolutely no effect on limiting the kind of copying (of ideas, algorithms, or even product) which they purport to protect the "inventor" against.
Another example is any industry in countries which have a, shall we say, less than optimal (in the West's eyes) enforcement policy of patents. Those industries produce and improve upon products, despite the fact that their improvements will also be "stolen" and copied by others. Odd, that these industries thrive so well without any significant "protection" through patents, isn't it?
Similarly negative effects on innovation and related problems to those suffered by the software industry arise in other fields such a biotechnology and even traditionally patent-friendly fields such as automotive engineering. The negative ramifications are merely less evident to the casual observer, though if you give it some thought, you'll think of numerous examples where either the technology itself was stifled or even suppressed (e.g. hydrogen burning motors, etc.) or the inventor was not only not protected, but actually victimized by the patenting system (intermittent windshield wipers, etc). Even in areas where few of us question the concept of patents one can, with only a little observation, see the active and ongoing harm that the patenting system has on the industry and the stifling effect it has on technological innovation.
With modern reverse engineering techniques (which until very recently were legal in the US, and still are legal most other places) the actual publishing of patented information is much less of an issue than the stifling effect a government sanctioned monopoly on ideas has. By expanding this to software, genetics, mathetmatics, and numerous other fields of scientific endeavor this negative impact will become greater. As past progress in these areas shows, patents are not only not needed, but detrimental.
The Future of Human Evolution: Autonomy
This is a terrible development. Clearly Corporate Earth (i.e. international corporations and big business) is able to have a much greater impact on international agendas and accords than any (other) constituents. Alas, it matters little to such entities that the exponential progress in technology and human knowledge to which we have grown acustomed could be severely curtailed by such draconian privatization of knowledge and so-called intellectual property. What is far more important to them are their short (and to a lesser degree) medium term profits. The larger picture (much slower technological growth, squandering of the intellectual capacity of humankind by limiting what we're allowed to invent because of patents which have already closed off access to the concepts and ideas, etc.) means little when the primary, indeed in most cases the only, goal is immediate profit. It is here that the profit motive truly does break down and begin to cause significant harm to society as a whole.
...
I can only see three possible outcomes of this, one of which is unthinkable, one merely bad, and only one good.
(The Good News First)
1) This could wake people up, and perhaps lead to reform in the entire patenting process (extremely unlikely IMHO)
2) There could be some resisitence, resulting in compromises which result in worldwide patents extending to broader areas than are currently permitted, but not "everything." This would be bad -- things are bad enough now, but if there is no where in the world for progress to be made when absurd patents are, say, granted by the US Patent Office, then the stifling effect of patents will become far more acute and immediate. Still, things could be much worse
3) The proposal could go through largely unchanged, resulting in a draconian, world-wide net of patent law which stifles and ultimately kills most innovation, except that by large corporate entities which can afford licensing fees or leverage their existing patent portfolios. The result would almost certainly be a dramatic slow-down of technological progress on nearly every front, as any promising research idea or direction is fenced off by numerous patent applications, most of which, given the recent history of the US Patent Office, would probably be granted.
More insidiously, the individual would be cut off from taking any significant part in any technological developments, except as an employee or lackey of some large firm. This could result in the very best minds simply losing interest in persuing any field of endeavor where their ability to invent and achieve has been so severely limited before the fact, resulting in a shrinking intellectual pool of (active) talent from which even the largest and best financed corporations could benefit. The potential damage to Universities and other open scientific forums for research doesn't bear thinking about.
The Future of Human Evolution: Autonomy
Now however, we extend this to genes, enzymes and who knows what else. So all of a sudden, it may be possible for an enterprise to own what may be basic building blocks of life or gene sequences that (may or may not) determine your intelligence, (at least partially) your character and all sorts of fancy stuff. This IMNSHO is just not acceptible. Each of us (and just about every living thing may) carry this stuff around with us and have been doing so since long before we ever heard the words IP lawyer ... I don't think any company ought to be able to own this kind of stuff ... this should be released to the public domain so anybody who cares to has access to it; sort of like electricity ...
What happens 20 years down the road if someone actually finds (and patents) a gene sequence which improves intelligence? Would I, as a reasonably intelligent guy, own them royalties?? You know eventually business will try to do this. For many kinds on patents the proper (wishful) thinking may just be that old proverb (that already failed once miserably): Just Say No!
Of course you are free to sayt "Just say no", but who's gonna listen to you?? And what about the other 5billion+ people who just don't know or care?