There was plenty of incentive to buy the best performing seed long before patents and DNA manipulation entered the scene.
I don't believe the issue is about creating incentive for farmers to buy. As you say, they already have natural incentive to buy the "best" seeds. The incentive created by IP laws is for the developer, not the consumer. That incentive is meant to promote development in new technology. Without that incentive, companies will not invest in the technology. Then the farmer will not have the option of buying modified seeds (in this example).
Yes, but with DNA we run into a different set of problems: if patents are allowed on naturally-occuring DNA (even if recombined in the laboratory), this means you extract a gene from one strain of wheat and patent it -- but how do you know that no other strain of wheat happens to share that same gene? You could wind up with a situation where unmodified wheat falls under patent. (Oversimplification, but you get the idea.)
First, patents are not allowed on "naturally occurring" DNA. Patents are only granted on isolated molucules--genes removed from their natural state by some procedure. While this practice itself can be questioned, it should not be confused with patenting something as it occurs in nature. The isolated genes are necessary for other research, so they have value. And it is not cheap or easy to find and isolate new genes. Anyway, the point is, no patent will ever cover a naturally occurring gene in a naturally occurring plant. In other words, if I take a wheat kernel and isolate the plant's DNA, then try to patent it, I can only get a patent on the isolated gene. I will never ever be able to get a patent on the wheat plant possessing that gene, because they already exist in nature. Note the distinction between this and inserting a novel gene into a wheat plant--then you create a plant that does not occur in nature, and such a plant could be patentable. However, I just wanted to point out that unmodified plants will never fall under anyone's patent under current law.
The idea that since farmers will still want to buy GM seeds so there will be incentive to make them misses one fact: the makers of GM seeds will no longer have incentive to make/develop them. Existing GM seeds would still sell, but no company in their right mind would attempt to develop new ones because once they do, anyone can sell their modified seed. Monopolies are not granted as incentive for (e.g.) farmers to buy seeds. The incentive is intended for the seed developer (in this case). No IP rights means no investment. No investment means no development.
That said, I hope the court can find a middle ground on the Percy case. It is not an easy decision. Bad implications either way you go.
And I agree, it's insane to allow patents on naturally-occurring DNA. If you built it entirely yourself from raw materials, maybe then -- but not if you just mixed around DNA that was found as natural mutations.
Nearly all patents in any technology are merely novel combinations of known elements.
If the guy really want to be sure it becomes and stays public, all he has to do is declare his discovery as public, issue a written.nfo statement about GPL'ing all of it and dump his data on a few hundred servers...
Thank you. I will even go farther.
(1) The sequence of a genome is (like the article says) a discovery, not an invention. They can't patent a genome sequence. The sequence is information, and you can't patent strict information. I suspect the article is missing some critical info--like what exactly this guy is filing a patent on.
(2) If the "inventor" or discoverer or whatever wants to make sure the info stays in the public domain, all he has to do is disclose it. Whether he patents it or not, he is the inventor, and NO ONE ELSE MAY FILE A PATENT ON HIS IDEA. So no one else can legally own the invention. If there even is one.
(3) Whether he seeks a patent or not, he can't prevent anyone else from filing patent applications on their own inventions based on his. So again, his filing a patent application won't make the invention or its non-obvious variations any more public than if he just published them.
I would like to see the actual claims, to know what he is trying to patent. Again, you can't patent this: "I claim the SARS virus genome sequence, which comprises..." That would be a discovery and is not patentable subject matter. Most patenting of genes don't patent the sequence of the gene, but methods of identifying or isolating the gene, or the gene in an isolated (non-natural) state.
I couldn't understand how you could have missinterpretted so much, it was as if you were doing it on purpose. I was so shocked at you ability to miss the point that I decided to look at your previous slashdot postings (to see if you were a M$ or IBM employee or similar).
I see. If I disagree with you or Stallman, I must have a monetary interest in the outcome.
It turns out that bashing Stallman, promoting patents, and not understanding software patents are three of your call signs. I notice that all of your posts (with one exception) have a score of 1, so obviously you're not convincing others
I did not intend to bash Stallman, and I conceded he makes several good points. Maybe you didn't read to the end of my post? I do maintain his bias and his inaccurate statements, particularly when he says the public policy issues raised by copyright and patents are "completely unrelated." I would also argue that my post was not as rude as Stallman's insults of patent examiners (IQs of 50?) or your post to me. I am not an examiner, but this kind of thing does not help his credibility with me. And having my posts rank low on slashdot is not a bad thing.
Finally, I wish you had posted your original reply, where you say you addressed the issues I raised, rather than your actual post questioning my intelligence and honesty but ignoring the issues.
As to the one-click patent, stupidest thing I ever heard. Business method should not be patentable IMO.
Thing is: you have the head start. You are pumping out your product and can have it on the shelves...if someone does it better/cheaper than you, well, then one hasn't done ones job very well.
A head start is not much of an advantage when you consider R&D that the free rider avoids.
As for companies adding value to IP: they buy it cheeap, sell it expensive...the original patent holder sees nothing of that added value, and anyway, it's an enron-y way of adding value...nothing has been added to the idea except that a richer buyer has been found.
It also moves the IP into a position to be exploited, where before it might have languished. And increasing tradability of IP does increase its value, even if only marginally. And Enron, to me, means cooked books, not mere usury. Usury is OK. Fraud is not.
And I'll go one further; patenting used to make sence, but for a number of reasons is making less and less sense. Not only do we see the so-called 'submarine' patents, but also a profilation of IP companies which do not even produce the IP (just buy it in...that's how MS-DOS happened, btw). Patenting in this way stiffles innovation, which is what it was supposed to engender to start with!
I disagree with you on the "proliferation of IP companies" part. Making IP more of a commodity makes it more valuable. Companies such as this add value, just like banks add value by freeing up personal savings etc. for investment in the economy.
If you have an idea, I think you should (help) develop it. If you just sit on it, you should get squat.
This idea makes perfect sense and is the primary justification of patent law. Patents encourage people to develop their ideas (which costs time and money). If your idea is something that, once known it is easily copied, would you spend money developing it when your first disclosure would mean everyone could make, use, and sell your idea without your permission?
Patent law is not all good, but it seems there are some justifications for it that get overlooked frequently on these boards.
Any realization that is novel can be patented. This means that ideas cannot be patented
Patents protect ideas. There is no requirement that an idea be reduced to practice before patenting. All you need do is describe your idea well enough to enable a person with ordinary skill in the art (e.g., a software engineer in the relevant subfield) to practice your idea.
In the patent a claim is one of the assertions regarding how the artifact works. Patented artifacts are combinations that might be prior art. What is important is that the function be novel.
Claims can be directed to an apparatus or a process/method. An apparatus claim would include all the necessary novel features that comprise the apparatus. A process or method claim would include steps that comprise the invention. "Function" itself need not necessarily be novel, as a new device might perform the same function as an old one.
Copyrights protect ideas, text, and algorithms in the mathematical sense
Copyright doesn't really protect ideas, it protects expression only. I can copyright the instruction manual for a process (for example), but that copyright would not prevent anyone practicing the process--it would only prevent them literally copying the words of the manual. Sometimes copyrights can effectively protect an idea (e.g., if I can't copy the expression of the idea, I may have trouble using the idea), but this is counter to the intent of the copyright laws and there are provisions to limit these cases.
Now it costs quite a bit of money to implement even one of these ideas. That and about a year of my time. Thing is, that will mean I just don't really have the money to patent my invention!
It is much much cheaper to create and patent an invention than it is to create, develop, manufacture, promote, and sell your invention. Patenting allows you to own your idea, then shop it around without the need to have an entire manufacturing facility. Without patents, you would require a non-disclosure agreement with anyone you told the invention about. Or else they would be free to make, use, and sell your invention without your permission.
In other words, patents are just about the only vehicle by which an individual inventor can get to market. It is most certainly the cheapest vehicle. For a few thousand dollars you have presumptive ownership and a right to exclude others from your idea. I myself have not seen any better deals.
The article you cite makes some good points, but the author also says some pretty broad statements that I don't believe are true. For example:
Every patent covers some idea. Software patents are patents that cover software ideas, ideas which you would use in developing software. That is what makes them a dangerous obstacle to all software development.
Property rights are indeed an obstacle to use of the property, but consider where software development would be if there were no patents at all? Patents are property, and property is value that attracts investors. If you can't protect your product, why invest? Also consider that patents require the disclosure of novel ideas for protection. In this way they tend to promote release of information that would otherwise need to be kept secret. This is a basic argument for property rights which the author ignores.
You may have heard people using a misleading term "Intellectual Property". This term, as you can see, is biased. It makes an assumption that whatever it is you are talking about, the way to treat it is as a kind of property, which is one among many alternatives. This term "Intellectual Property" pre-judges the most basic question in whatever area you are dealing with. This is not conducive to clear and open minded thinking.
Here he makes no sense. Patents make property out of ideas. Copyrights make property out of expression. To consider them as anything but property is to miss the main point.
There is an additional problem which has nothing to do with promoting any one opinion. It gets in the way of understanding even the facts. The term "intellectual property" is a catch-all. It lumps together completely disparate areas of law such as copyrights and patents, which are completely different. Every detail is different.... None of them has anything in common with any of the others. Their origins historically are completely separate. The laws were designed independently. They covered different areas of life and activities. The public policy issues they raise are completely unrelated. So, if you try to think about them by lumping them together, you are guaranteed to come to foolish conclusions. There is literally no sensible intelligent opinion you can have about "Intellectual Property" .
I bolded the most egregious misstatements. Though copyright and patents are indeed different, historically and as to the subject matter they cover, their policy justifications are nearly identical. Both were enabled by the same phrase in the constitution, which specifically allows congress to grant monopolies in order to promote public access to useful arts and sciences. In both cases, the monopoly is intended to (1) prevent free riders on ideas or expression, (2) allow safe investment in creators of ideas and expression. Their legal justification, public access to the property (art or science), is identical. I would even argue that pretending they are as unrelated as he says is "foolish."
It takes typically some years for the application to get considered, even though patent offices do an extremely sloppy job of considering.
Now he's bashing an underfunded office that does a better job than any of its foreign counterparts and is severely overburdened while having its funds siphoned away. And still, most patents are handled professionally and given much more than a cursory examination.
When you hear people describe the patent system, they usually describe it from the point of view of somebody who is hoping to get a patent- what it would be like for you to get a patent. What it would be like for you to be walking down the street with a patent in your pocket so that every so often you can pull it out and point it out at somebody and say "Give Me Your Money!". There is a reason for this bias, which is that most of the people who will tell you about this patent system have a stake in it, so they want you like it. There is another reason- the patent system is a
...Except that infringement of a patent is not a right guaranteed under the constitution or laws of the US. Also, "conspiring" is an inherently wrong act. For example, you can't "conspire" to legally enforce your rights. You can only "conspire" to commit a wrong, by definition.
We all realize that our present patent law is questionable from a policy standpoint.
Patent law is questionable from a policy standpoint? There are parts that need revising, as there always are with laws that deal with technology. Law rarely keeps up with technology, but to argue that patent law is questionable from a policy standpoint? Maybe you were referring to some specific part of the law?
One thing I have noticed in news articles about patents, they consistently mischaracterize what a patent covers. For example, the current article says one patent covers obvious language from the tax laws, the only twist is using a computer with it. That would be obvious. Obviousness prevents patents from issuing. So my guess is there was some innovation in the patent claim not mentioned in the article.
That is not to say bad patents don't issue, they do. But I agree with Lionel, this is not a big problem. This is a reporter needing that one last article to make his quota...
So you say we must remove all tools that can distribute illegal material,
That is not what he said. He pointed out that Kazaa is about 99% used to distribute illegal material, and argued that since it is used very little for legal transfers, it is fair game. The term is "contributory infringement" and it's been around a long time. The legal standard, I believe, is whether there are "substantial non-infringing" uses. So a hammer has substantial non-infringing (or more appropriately for this example "non-illegal") uses since people build with them in large percentage. Uzis probably don't have "substantial non-illegal" uses.
You may remember a little case a few decades back involving Sony and the movie industry. The industry wanted to sue Sony as contributorily infringing copyrighted works by providing a device that allowed people to copy shows off TV. Sony won the case (and we hence all can legally have VCRs and DVD players) because VCRs were found to have "substantial non-infringing uses." The court said VCRs can be used for all kinds of copying that is not infringing and within fair use of copyright.
They didn't buy this argument from Napster. The non-infringing uses of Napster were not considered "substantial" I suppose.
Which was the point of the original post--Kazaa may have non-infringing use, but not much, especially compared to its infringing uses.
All that said, I think the DMCA was the worst piece of legislation ever written. I also think we need a "Fair Use Bill-O-Rights." Fair use is not a right, it is an affirmative defense against infringement. The RIAA can technologically take away our fair use and there ain't a damn thing we can do about it.
However, the *method* is specifically given, so unless the tables actually given in the patent itself are exactly what is being used, then it doesn't matter.
Actually the claims are all that matter. They are interpreted in light of the specification, but the specification does not directly limit the scope of the patent. Tables and other specific details put in the specification are necessary to describe a "preferred embodiment" of the invention. But that is just one embodiment of the claims, which describe the metes and bounds of the intellectual property itself.
Laches may prevent them from enforcing a patent after so long. If the owner knows of the infringement and delays enforcement, and the delay prejudices the defendant, laches MAY apply...
Clearly, these guys were aware that other companies and individuals were infringing on their patented material, and yet they did nothing until the market was so saturated with tools and equipment using JPEG technology that they thought they thought they could make good money charging license fees. They can't possibly say they weren't aware of all the people out there using JPEGs.
They might not have been aware that their patent covered JPEGs. I don't know about these guys, but many companies have so much IP that they pay lawyers many many dollars to maintain it all. It is possible someone found this claim and decided it could cover JPEGs.
We do hear about cases like this fairly often, but consider that for the most part, patents function pretty well. They definitely promote investment. It is expensive to litigate them, but that is the nature of such a complicated beast. You can't make simple rules for complex situations, or they are even easier to abuse than the current rules.
Actually, the best example is land. if you "squat" on someone's land for say, 15 years, it's legally yours. example: if your neighbor and you mow closer to your house than the actual property line, then one random decade you decide to claim that strip back, you're fscked. it's legally his, since you never said anything. this may be a more local application, but it's an example of how some property laws work.
The legal doctrine is called adverse possession, and there are many requirements, it is almost impossible to successfully make the claim. One requirement (in most states) is that you must openly and notoriously occupy the land for the entire duration (usually 20 years or more). Just moqing a bit over the property line is not enough. And if someone is openly staking a claim to part of your yard for 20 years and you do nothing, I personally think you deserve to lose it.
Stella Liebeck did not set out to mooch millions of dollars from McDonald's. She initially wanted a settlement of $20,000 to cover her medical costs -- which included eight days in the hospital and skin-grafting operations. A jury awarded her the $2.7 million dollars in punitive damages -- to punish McDonald's for knowingly continuing to put its customers in harm's way.
I don't believe juries can award punitive damages unless the plaintiff requests punitive damages. People do seek out the deep pockets. She may have had a legit case, I have no idea, I wasn't on the jury. But she definitely wanted the cash, it's not like she was trying to do a public service. Did she distribute the punitive damages to the 700 people burned by coffee over the previous ten years? (That doesn't sound like that many people to me, really, considering they sell to millions of people every year.)
Back to genes. Amgen has patented a means of achieving a desired end - the purification of some protein. If I come along and achieve the same end, by some other technique, I'm violating their patent. EVEN IF, and this is important, I use none of their actual inventions at all! I am violating their patent because I am seeking the same end.
I think you have a misconception. Using your example, Amgen patents one method of purifying a protein (e.g.). Their claim will include limitations on the method they use. The innovative steps they take to purify the protein will be limitations in the claim.
In order for you to infringe, you will have to take the same steps they do. You will not infringe simply by achieving the same goal that they did. Your example with the microprocessors shows this idea, but you don't apply it to gene patents. I don't understand why. Maybe you have information I don't?
Gene patents are the same as any other. You must include limitations in your claim. You can't claim "purify proteins" because that is obvious and too broad. It is known in the art to "purify proteins", unless Amgen actually came up with the idea to purify proteins before anyone else ever thought to do that. If Amgen's patent application was the first mention the very idea of purifying proteins, then they should get a patent on it.
They've no reason to sell these things, and they know they've got value - because you want 'em...
Funny thing was, these patents were sitting idle, unused by their owners. However, the owners of these patents wouldn't sell licenses because they had no idea of the value of what they were giving out. So, when in doubt, they refused.
Something about this does not ring true to me. First, the patents have no actual value unless they are being used or licensed. By "used" I mean a number of things, like applying pressure to others for cross licensing purposes, preventing competitors from using the technology until the owner can enter the market, etc.
Second, licenses are not limited to flat fees. The idea that a company won't license out of ignorance of the possible return does not provide disincentive to license the technology. If the group licensing the patent can't make money from the licensed property, then the group who owns the patent has lost nothing by granting the license. And if the licensors do make money, even great amounts, then the owner gets a percentage--proportional to the amount made. So the uncertainty as to return doesn't seem to be a disincentive. Even graduated percentages can be negotiated for (e.g., if this turns out to be a killer app, you agree to pay us 15% instead of only 5%...).
I agree there are other reasons to not license out your IP, but the ones you mention don't seem to add up. It's not like they risk loss by licensing. I would think the main reason not to license is because the owner fears the competition--which presumes the owner intends to enter the market themselves. If the patent owner does not intend to enter the market themselves, the incentive is to license the IP.
Addendum: Please DONT advocate for the abolishing of intellectual property. This will never ever happen. Those who want this are ignorant of the economic factors involved and are hurting those of us who want the system to work. They are providing an excellent straw man for the people who want draconian copy protection to point at. All they have to say is, "See, those who are against this law are really against IP altogether." This MUST be changed. There is a middle ground for reasonable IP protection, and the idea is to find it, not eliminate IP and corporations. IP law will always be here. The trick is to make it work correctly. Good luck.
Hi, I have been reading the bill, and I have a couple of things to point out about it you may want to consider:
1- sec.2: findings: These findings are all questionable and obviously constructed to support the legislation. You might consider looking for facts that contradict these findings. E.g., the finding (1) says "the lack of high quality digital content continues to hinder consumer adoption of broadmand internet service and digital TV...". You could point out other market factors that also hinder widescale adoption of broadband. It isn't just piracy that hinders it as the bill asserts, there are other economic factors. You could point them out. Basically, attack the findings of section 2 of the bill with contradictory findings. That one is only an example, all the findings are subject to such attack. By attacking these premises, you call the remedy (i.e., the bill) into question.
2- Sec. 3: The fact that there is only a set period of time for the three groups mentioned in section 3(a)(1)(A) to come to agreement puts the content industry in complete control over the standard they are developing. Why? Because if they consumer groups and tech groups dont like what the copyright owners suggest for the standard, the copyright owners can just hold out for a year (see section 3) and the congress will step in to mandate a standard, and that standard will doubtless be in favor of the copyright owners, who are intended to be the beneficiaries of this law to begin with.
3- Sec. 3 (d) and (e): Note the language of these two sections, and how they differ: Section (d) says that the security standards SHALL ENSURE all the enumerated things in sec. (d). But in contrast, sec. (e), which places supposed limits to this power, only says that public access and fair use need only be "TAKEN INTO ACCOUNT", not "shall ensure." This different language in a statute is a signal to a judge interpreting the statute that congress intended these two passages to have different effect. Copyright owners rights SHALL BE ENSURED, while public access and fair use of copyrighted material need only be TAKEN INTO ACCOUNT. This means that protecting fair need not be part of the standard at all, because the law only says that in making the standard they must take fair use into account. If they intended the standard to PROTECT fair use, they would have said that the standard SHALL ENSURE PROTECTION OF FAIR USE, just like it says "SHALL ENSURE" in sec. (d).
This is one of the more telling parts of the statute. It reveals that protecting copyright owners property is more important to the law than protecting consumer access to that property. However, the whole reason that property rights are granted in content is TO PROVIDE PUBLIC ACCESS TO CONTENT. They are ignoring the entire constitutional justification for copyrights here. They are willing to protect the industry at the expense of public access. They will argue that providing property rights and protecting them will ultimately increase access to high qhality digital content, but if that were truly their goal, then they would have made the protection of fair use a mandate, and not just a suggestion, as it is in the current version of the law. This is maybe the biggest problem with the statute.
4- sec. 3 (e)(2): This section pretends to protect consumer rights to make personal copies of copyrighted work (which is protected under fair use), but the actual protection is extremely limited. E.g., they can't prevent copying of programming "at the time it is lawfully performed," and it only applies to TV basically. This means lawful copying of online content may be prevented under this law. In fact, by specifically mentioning cable tv, etc. and NOT mentioning the internet, this section specifically provides that lawful copying on the internet CAN be prevented under this law. This section basically says fair use may be prevented by the standard as long as it is not cable or broadcast. It is another example of the illusory protection the bill offers to consumer access.
This section should say that no lawful copying of any copyrighted works may be prevented by the security measures. That would protect consumer access. Instead it basically only protects lawful copying of broadcast content you get through your tv.
5- Sec. 3(h): this section provides that the security technology can be modified in the future for two reasons: first becuase the technology has been compromised (i.e., a way around the protection has been found, and they need to change the standard to prevent this circumvention); and second, if better technology has been otherwise developed to protect content. Note that there is NO REVISION POWER to increase public access to content or protect fair use and other lawful copying. In short, they allow revision of the standard to better protect content if it becomes possible, but not to better protect fair use if THAT becomes possible. This is another example of the fact that the bill chooses to protect property rights at the expense of access and fair use.
Hope this helps. I am really against this law in its current form. It could provide utter hegemony of net content by a few corporate entities.
Yes it is. And if you read Article 1 Section 8 of the US Constitution, you will find the legislature empowered to do as you said:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To promote the progress of science and useful arts, not to promote financial gain. You seem to agree that the scientific model works well, so I guess I'm not understanding why you think corporations deserve distinguished status. Are we talking strictly about promoting progress here?
Public access is promoted by providing incentive in the form of property rights. I agree, it sounds contradictory--promote public access by granting exclusive rights. But we must remember that the property right creates incentive for authors and scientists to create. Without this property right, the creator is not on equal footing with others who want to market the invention/expression. The creator has already invested R&D, while everyone else has not. So if teh creator tries to go to market without IP rights, free riders will take the idea and manufacture it themselves, without incurring R&D cost. This means that creators are forever at a disadvantage to others when it comes to market exploitation--meaning it is more profitable to be a free rider than a creator in a market with no property rights. This is not a sustainable model for the creation of innovation. The property rights alleviate this problem, letting the creator make some money before the invention becomes public property. Money is the incentive. Making creators rich is not the goal of IP law--it is the MEANS. Capitalism harnesses selfish action for public good. This is a perfect example.
Slashdot Mirror
I don't believe the issue is about creating incentive for farmers to buy. As you say, they already have natural incentive to buy the "best" seeds. The incentive created by IP laws is for the developer, not the consumer. That incentive is meant to promote development in new technology. Without that incentive, companies will not invest in the technology. Then the farmer will not have the option of buying modified seeds (in this example).
Yes, but with DNA we run into a different set of problems: if patents are allowed on naturally-occuring DNA (even if recombined in the laboratory), this means you extract a gene from one strain of wheat and patent it -- but how do you know that no other strain of wheat happens to share that same gene? You could wind up with a situation where unmodified wheat falls under patent. (Oversimplification, but you get the idea.)
First, patents are not allowed on "naturally occurring" DNA. Patents are only granted on isolated molucules--genes removed from their natural state by some procedure. While this practice itself can be questioned, it should not be confused with patenting something as it occurs in nature. The isolated genes are necessary for other research, so they have value. And it is not cheap or easy to find and isolate new genes. Anyway, the point is, no patent will ever cover a naturally occurring gene in a naturally occurring plant. In other words, if I take a wheat kernel and isolate the plant's DNA, then try to patent it, I can only get a patent on the isolated gene. I will never ever be able to get a patent on the wheat plant possessing that gene, because they already exist in nature. Note the distinction between this and inserting a novel gene into a wheat plant--then you create a plant that does not occur in nature, and such a plant could be patentable. However, I just wanted to point out that unmodified plants will never fall under anyone's patent under current law.
The idea that since farmers will still want to buy GM seeds so there will be incentive to make them misses one fact: the makers of GM seeds will no longer have incentive to make/develop them. Existing GM seeds would still sell, but no company in their right mind would attempt to develop new ones because once they do, anyone can sell their modified seed. Monopolies are not granted as incentive for (e.g.) farmers to buy seeds. The incentive is intended for the seed developer (in this case). No IP rights means no investment. No investment means no development.
That said, I hope the court can find a middle ground on the Percy case. It is not an easy decision. Bad implications either way you go.
And I agree, it's insane to allow patents on naturally-occurring DNA. If you built it entirely yourself from raw materials, maybe then -- but not if you just mixed around DNA that was found as natural mutations.
Nearly all patents in any technology are merely novel combinations of known elements.
Thank you. I will even go farther.
(1) The sequence of a genome is (like the article says) a discovery, not an invention. They can't patent a genome sequence. The sequence is information, and you can't patent strict information. I suspect the article is missing some critical info--like what exactly this guy is filing a patent on.
(2) If the "inventor" or discoverer or whatever wants to make sure the info stays in the public domain, all he has to do is disclose it. Whether he patents it or not, he is the inventor, and NO ONE ELSE MAY FILE A PATENT ON HIS IDEA. So no one else can legally own the invention. If there even is one.
(3) Whether he seeks a patent or not, he can't prevent anyone else from filing patent applications on their own inventions based on his. So again, his filing a patent application won't make the invention or its non-obvious variations any more public than if he just published them.
I would like to see the actual claims, to know what he is trying to patent. Again, you can't patent this: "I claim the SARS virus genome sequence, which comprises..." That would be a discovery and is not patentable subject matter. Most patenting of genes don't patent the sequence of the gene, but methods of identifying or isolating the gene, or the gene in an isolated (non-natural) state.
I see. If I disagree with you or Stallman, I must have a monetary interest in the outcome.
It turns out that bashing Stallman, promoting patents, and not understanding software patents are three of your call signs. I notice that all of your posts (with one exception) have a score of 1, so obviously you're not convincing others
I did not intend to bash Stallman, and I conceded he makes several good points. Maybe you didn't read to the end of my post? I do maintain his bias and his inaccurate statements, particularly when he says the public policy issues raised by copyright and patents are "completely unrelated." I would also argue that my post was not as rude as Stallman's insults of patent examiners (IQs of 50?) or your post to me. I am not an examiner, but this kind of thing does not help his credibility with me. And having my posts rank low on slashdot is not a bad thing.
Finally, I wish you had posted your original reply, where you say you addressed the issues I raised, rather than your actual post questioning my intelligence and honesty but ignoring the issues.
As to the one-click patent, stupidest thing I ever heard. Business method should not be patentable IMO.
A head start is not much of an advantage when you consider R&D that the free rider avoids.
As for companies adding value to IP: they buy it cheeap, sell it expensive...the original patent holder sees nothing of that added value, and anyway, it's an enron-y way of adding value...nothing has been added to the idea except that a richer buyer has been found.
It also moves the IP into a position to be exploited, where before it might have languished. And increasing tradability of IP does increase its value, even if only marginally. And Enron, to me, means cooked books, not mere usury. Usury is OK. Fraud is not.
Why? If you have a patent, the invention is published. Some other consideration?
What does your sig mean? Crazy chess?
I disagree with you on the "proliferation of IP companies" part. Making IP more of a commodity makes it more valuable. Companies such as this add value, just like banks add value by freeing up personal savings etc. for investment in the economy.
If you have an idea, I think you should (help) develop it. If you just sit on it, you should get squat.
This idea makes perfect sense and is the primary justification of patent law. Patents encourage people to develop their ideas (which costs time and money). If your idea is something that, once known it is easily copied, would you spend money developing it when your first disclosure would mean everyone could make, use, and sell your idea without your permission?
Patent law is not all good, but it seems there are some justifications for it that get overlooked frequently on these boards.
Patents protect ideas. There is no requirement that an idea be reduced to practice before patenting. All you need do is describe your idea well enough to enable a person with ordinary skill in the art (e.g., a software engineer in the relevant subfield) to practice your idea.
In the patent a claim is one of the assertions regarding how the artifact works. Patented artifacts are combinations that might be prior art. What is important is that the function be novel.
Claims can be directed to an apparatus or a process/method. An apparatus claim would include all the necessary novel features that comprise the apparatus. A process or method claim would include steps that comprise the invention. "Function" itself need not necessarily be novel, as a new device might perform the same function as an old one.
Copyrights protect ideas, text, and algorithms in the mathematical sense
Copyright doesn't really protect ideas, it protects expression only. I can copyright the instruction manual for a process (for example), but that copyright would not prevent anyone practicing the process--it would only prevent them literally copying the words of the manual. Sometimes copyrights can effectively protect an idea (e.g., if I can't copy the expression of the idea, I may have trouble using the idea), but this is counter to the intent of the copyright laws and there are provisions to limit these cases.
It is much much cheaper to create and patent an invention than it is to create, develop, manufacture, promote, and sell your invention. Patenting allows you to own your idea, then shop it around without the need to have an entire manufacturing facility. Without patents, you would require a non-disclosure agreement with anyone you told the invention about. Or else they would be free to make, use, and sell your invention without your permission.
In other words, patents are just about the only vehicle by which an individual inventor can get to market. It is most certainly the cheapest vehicle. For a few thousand dollars you have presumptive ownership and a right to exclude others from your idea. I myself have not seen any better deals.
Every patent covers some idea. Software patents are patents that cover software ideas, ideas which you would use in developing software. That is what makes them a dangerous obstacle to all software development.
Property rights are indeed an obstacle to use of the property, but consider where software development would be if there were no patents at all? Patents are property, and property is value that attracts investors. If you can't protect your product, why invest? Also consider that patents require the disclosure of novel ideas for protection. In this way they tend to promote release of information that would otherwise need to be kept secret. This is a basic argument for property rights which the author ignores.
You may have heard people using a misleading term "Intellectual Property". This term, as you can see, is biased. It makes an assumption that whatever it is you are talking about, the way to treat it is as a kind of property, which is one among many alternatives. This term "Intellectual Property" pre-judges the most basic question in whatever area you are dealing with. This is not conducive to clear and open minded thinking.
Here he makes no sense. Patents make property out of ideas. Copyrights make property out of expression. To consider them as anything but property is to miss the main point.
There is an additional problem which has nothing to do with promoting any one opinion. It gets in the way of understanding even the facts. The term "intellectual property" is a catch-all. It lumps together completely disparate areas of law such as copyrights and patents, which are completely different. Every detail is different. ... None of them has anything in common with any of the others. Their origins historically are completely separate. The laws were designed independently. They covered different areas of life and activities. The public policy issues they raise are completely unrelated. So, if you try to think about them by lumping them together, you are guaranteed to come to foolish conclusions. There is literally no sensible intelligent opinion you can have about "Intellectual Property" .
I bolded the most egregious misstatements. Though copyright and patents are indeed different, historically and as to the subject matter they cover, their policy justifications are nearly identical. Both were enabled by the same phrase in the constitution, which specifically allows congress to grant monopolies in order to promote public access to useful arts and sciences. In both cases, the monopoly is intended to (1) prevent free riders on ideas or expression, (2) allow safe investment in creators of ideas and expression. Their legal justification, public access to the property (art or science), is identical. I would even argue that pretending they are as unrelated as he says is "foolish."
It takes typically some years for the application to get considered, even though patent offices do an extremely sloppy job of considering.
Now he's bashing an underfunded office that does a better job than any of its foreign counterparts and is severely overburdened while having its funds siphoned away. And still, most patents are handled professionally and given much more than a cursory examination.
When you hear people describe the patent system, they usually describe it from the point of view of somebody who is hoping to get a patent- what it would be like for you to get a patent. What it would be like for you to be walking down the street with a patent in your pocket so that every so often you can pull it out and point it out at somebody and say "Give Me Your Money!". There is a reason for this bias, which is that most of the people who will tell you about this patent system have a stake in it, so they want you like it. There is another reason- the patent system is a
...Except that infringement of a patent is not a right guaranteed under the constitution or laws of the US. Also, "conspiring" is an inherently wrong act. For example, you can't "conspire" to legally enforce your rights. You can only "conspire" to commit a wrong, by definition.
Agreed.
We all realize that our present patent law is questionable from a policy standpoint.
Patent law is questionable from a policy standpoint? There are parts that need revising, as there always are with laws that deal with technology. Law rarely keeps up with technology, but to argue that patent law is questionable from a policy standpoint? Maybe you were referring to some specific part of the law?
One thing I have noticed in news articles about patents, they consistently mischaracterize what a patent covers. For example, the current article says one patent covers obvious language from the tax laws, the only twist is using a computer with it. That would be obvious. Obviousness prevents patents from issuing. So my guess is there was some innovation in the patent claim not mentioned in the article.
That is not to say bad patents don't issue, they do. But I agree with Lionel, this is not a big problem. This is a reporter needing that one last article to make his quota...
That is not what he said. He pointed out that Kazaa is about 99% used to distribute illegal material, and argued that since it is used very little for legal transfers, it is fair game. The term is "contributory infringement" and it's been around a long time. The legal standard, I believe, is whether there are "substantial non-infringing" uses. So a hammer has substantial non-infringing (or more appropriately for this example "non-illegal") uses since people build with them in large percentage. Uzis probably don't have "substantial non-illegal" uses.
You may remember a little case a few decades back involving Sony and the movie industry. The industry wanted to sue Sony as contributorily infringing copyrighted works by providing a device that allowed people to copy shows off TV. Sony won the case (and we hence all can legally have VCRs and DVD players) because VCRs were found to have "substantial non-infringing uses." The court said VCRs can be used for all kinds of copying that is not infringing and within fair use of copyright.
They didn't buy this argument from Napster. The non-infringing uses of Napster were not considered "substantial" I suppose.
Which was the point of the original post--Kazaa may have non-infringing use, but not much, especially compared to its infringing uses.
All that said, I think the DMCA was the worst piece of legislation ever written. I also think we need a "Fair Use Bill-O-Rights." Fair use is not a right, it is an affirmative defense against infringement. The RIAA can technologically take away our fair use and there ain't a damn thing we can do about it.
Actually the claims are all that matter. They are interpreted in light of the specification, but the specification does not directly limit the scope of the patent. Tables and other specific details put in the specification are necessary to describe a "preferred embodiment" of the invention. But that is just one embodiment of the claims, which describe the metes and bounds of the intellectual property itself.
Laches may prevent them from enforcing a patent after so long. If the owner knows of the infringement and delays enforcement, and the delay prejudices the defendant, laches MAY apply...
They might not have been aware that their patent covered JPEGs. I don't know about these guys, but many companies have so much IP that they pay lawyers many many dollars to maintain it all. It is possible someone found this claim and decided it could cover JPEGs.
We do hear about cases like this fairly often, but consider that for the most part, patents function pretty well. They definitely promote investment. It is expensive to litigate them, but that is the nature of such a complicated beast. You can't make simple rules for complex situations, or they are even easier to abuse than the current rules.
The legal doctrine is called adverse possession, and there are many requirements, it is almost impossible to successfully make the claim. One requirement (in most states) is that you must openly and notoriously occupy the land for the entire duration (usually 20 years or more). Just moqing a bit over the property line is not enough. And if someone is openly staking a claim to part of your yard for 20 years and you do nothing, I personally think you deserve to lose it.
I don't believe juries can award punitive damages unless the plaintiff requests punitive damages. People do seek out the deep pockets. She may have had a legit case, I have no idea, I wasn't on the jury. But she definitely wanted the cash, it's not like she was trying to do a public service. Did she distribute the punitive damages to the 700 people burned by coffee over the previous ten years? (That doesn't sound like that many people to me, really, considering they sell to millions of people every year.)
I think you have a misconception. Using your example, Amgen patents one method of purifying a protein (e.g.). Their claim will include limitations on the method they use. The innovative steps they take to purify the protein will be limitations in the claim.
In order for you to infringe, you will have to take the same steps they do. You will not infringe simply by achieving the same goal that they did. Your example with the microprocessors shows this idea, but you don't apply it to gene patents. I don't understand why. Maybe you have information I don't?
Gene patents are the same as any other. You must include limitations in your claim. You can't claim "purify proteins" because that is obvious and too broad. It is known in the art to "purify proteins", unless Amgen actually came up with the idea to purify proteins before anyone else ever thought to do that. If Amgen's patent application was the first mention the very idea of purifying proteins, then they should get a patent on it.
Funny thing was, these patents were sitting idle, unused by their owners. However, the owners of these patents wouldn't sell licenses because they had no idea of the value of what they were giving out. So, when in doubt, they refused.
Something about this does not ring true to me. First, the patents have no actual value unless they are being used or licensed. By "used" I mean a number of things, like applying pressure to others for cross licensing purposes, preventing competitors from using the technology until the owner can enter the market, etc.
Second, licenses are not limited to flat fees. The idea that a company won't license out of ignorance of the possible return does not provide disincentive to license the technology. If the group licensing the patent can't make money from the licensed property, then the group who owns the patent has lost nothing by granting the license. And if the licensors do make money, even great amounts, then the owner gets a percentage--proportional to the amount made. So the uncertainty as to return doesn't seem to be a disincentive. Even graduated percentages can be negotiated for (e.g., if this turns out to be a killer app, you agree to pay us 15% instead of only 5%...).
I agree there are other reasons to not license out your IP, but the ones you mention don't seem to add up. It's not like they risk loss by licensing. I would think the main reason not to license is because the owner fears the competition--which presumes the owner intends to enter the market themselves. If the patent owner does not intend to enter the market themselves, the incentive is to license the IP.
Addendum: Please DONT advocate for the abolishing of intellectual property. This will never ever happen. Those who want this are ignorant of the economic factors involved and are hurting those of us who want the system to work. They are providing an excellent straw man for the people who want draconian copy protection to point at. All they have to say is, "See, those who are against this law are really against IP altogether." This MUST be changed. There is a middle ground for reasonable IP protection, and the idea is to find it, not eliminate IP and corporations. IP law will always be here. The trick is to make it work correctly. Good luck.
1- sec.2: findings: These findings are all questionable and obviously constructed to support the legislation. You might consider looking for facts that contradict these findings. E.g., the finding (1) says "the lack of high quality digital content continues to hinder consumer adoption of broadmand internet service and digital TV...". You could point out other market factors that also hinder widescale adoption of broadband. It isn't just piracy that hinders it as the bill asserts, there are other economic factors. You could point them out. Basically, attack the findings of section 2 of the bill with contradictory findings. That one is only an example, all the findings are subject to such attack. By attacking these premises, you call the remedy (i.e., the bill) into question.
2- Sec. 3: The fact that there is only a set period of time for the three groups mentioned in section 3(a)(1)(A) to come to agreement puts the content industry in complete control over the standard they are developing. Why? Because if they consumer groups and tech groups dont like what the copyright owners suggest for the standard, the copyright owners can just hold out for a year (see section 3) and the congress will step in to mandate a standard, and that standard will doubtless be in favor of the copyright owners, who are intended to be the beneficiaries of this law to begin with.
3- Sec. 3 (d) and (e): Note the language of these two sections, and how they differ: Section (d) says that the security standards SHALL ENSURE all the enumerated things in sec. (d). But in contrast, sec. (e), which places supposed limits to this power, only says that public access and fair use need only be "TAKEN INTO ACCOUNT", not "shall ensure." This different language in a statute is a signal to a judge interpreting the statute that congress intended these two passages to have different effect. Copyright owners rights SHALL BE ENSURED, while public access and fair use of copyrighted material need only be TAKEN INTO ACCOUNT. This means that protecting fair need not be part of the standard at all, because the law only says that in making the standard they must take fair use into account. If they intended the standard to PROTECT fair use, they would have said that the standard SHALL ENSURE PROTECTION OF FAIR USE, just like it says "SHALL ENSURE" in sec. (d).
This is one of the more telling parts of the statute. It reveals that protecting copyright owners property is more important to the law than protecting consumer access to that property. However, the whole reason that property rights are granted in content is TO PROVIDE PUBLIC ACCESS TO CONTENT. They are ignoring the entire constitutional justification for copyrights here. They are willing to protect the industry at the expense of public access. They will argue that providing property rights and protecting them will ultimately increase access to high qhality digital content, but if that were truly their goal, then they would have made the protection of fair use a mandate, and not just a suggestion, as it is in the current version of the law. This is maybe the biggest problem with the statute.
4- sec. 3 (e)(2): This section pretends to protect consumer rights to make personal copies of copyrighted work (which is protected under fair use), but the actual protection is extremely limited. E.g., they can't prevent copying of programming "at the time it is lawfully performed," and it only applies to TV basically. This means lawful copying of online content may be prevented under this law. In fact, by specifically mentioning cable tv, etc. and NOT mentioning the internet, this section specifically provides that lawful copying on the internet CAN be prevented under this law. This section basically says fair use may be prevented by the standard as long as it is not cable or broadcast. It is another example of the illusory protection the bill offers to consumer access.
This section should say that no lawful copying of any copyrighted works may be prevented by the security measures. That would protect consumer access. Instead it basically only protects lawful copying of broadcast content you get through your tv.
5- Sec. 3(h): this section provides that the security technology can be modified in the future for two reasons: first becuase the technology has been compromised (i.e., a way around the protection has been found, and they need to change the standard to prevent this circumvention); and second, if better technology has been otherwise developed to protect content. Note that there is NO REVISION POWER to increase public access to content or protect fair use and other lawful copying. In short, they allow revision of the standard to better protect content if it becomes possible, but not to better protect fair use if THAT becomes possible. This is another example of the fact that the bill chooses to protect property rights at the expense of access and fair use.
Hope this helps. I am really against this law in its current form. It could provide utter hegemony of net content by a few corporate entities.
When did this change? I don't think you can patent mathematical formulae.
Plus risk that the decision will go against you anyway.
What else do you want? Omniscient factfinding? When you figure out how to implement it, let me know and we'll patent it. You'll make a billion.
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To promote the progress of science and useful arts, not to promote financial gain. You seem to agree that the scientific model works well, so I guess I'm not understanding why you think corporations deserve distinguished status. Are we talking strictly about promoting progress here?
Public access is promoted by providing incentive in the form of property rights. I agree, it sounds contradictory--promote public access by granting exclusive rights. But we must remember that the property right creates incentive for authors and scientists to create. Without this property right, the creator is not on equal footing with others who want to market the invention/expression. The creator has already invested R&D, while everyone else has not. So if teh creator tries to go to market without IP rights, free riders will take the idea and manufacture it themselves, without incurring R&D cost. This means that creators are forever at a disadvantage to others when it comes to market exploitation--meaning it is more profitable to be a free rider than a creator in a market with no property rights. This is not a sustainable model for the creation of innovation. The property rights alleviate this problem, letting the creator make some money before the invention becomes public property. Money is the incentive. Making creators rich is not the goal of IP law--it is the MEANS. Capitalism harnesses selfish action for public good. This is a perfect example.