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Patent Nonsense 312

Posted by michael from the emperor-has-no-clothes dept.
ziriyab writes: "This article from The Guardian, after a few paragraphs of corporation bashing, gives an interesting history of two countries (Switzerland and the Netherlands) who flourished without IP laws. The article, while not necessarily suggesting that the abandonment of patent protection is an essential precondition for development, seems to indicate that it can, in the right circumstances, be an effective tool."
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Patent Nonsense

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  • Small scale... (Score:3, Insightful)

    by cliffy2000 ( 185461 ) on Tuesday March 12, 2002 @04:52PM (#3152401) Journal
    Although such things can work in a small nation... one really wonders whether or not such findings can translate to the larger scale of the United States. Interesting, nevertheless.

    • Re:Small scale... (Score:2, Insightful)

      by Anonymous Coward
      small nation? scale?

      do you think something like in the netherlands, there are just living some happy freaks? big traders ever been, colonists, seafarers. highest population per area in europe. caused by that, best infrastructure in the world, I guess.

      Placed between london and switzerland, at the river rhine which comes through a "few" other cities. which is a quite small area, but this is the economic and overpopulated heart of the whole EU (and switzerland, of course).

      This "small nation" is in the middle of one of the largest scales on earth. And scales very well.

      And no, I'm not an orange one.

      but much of this bullshit in the world is just not needed. and the netherlands are very pracmatic in those cases, IMHO.

    • Re:Small scale... (Score:3, Interesting)

      by optikSmoke ( 264261 )
      I think, perhaps, that size is not necessarily the issue, as much as mentality. From what I can see, Americans are more rule-bound than many other nations. A quick example: in Canada (yes, I'm Canadian), our highway-level speed limit is 100km/h (a few miles faster than 60mph, to put it in perspective). However, its generally understood (in an unspoken type of way) that 120km/h is an acceptable speed. When you drive down to the States (or when Americans drive up here), they seem to drive very slowly. What am I getting at? The American psyche seems to be based around rules and boundaries. I personally don't know if this would work in the US, simply because the culture there isn't right for it. It seems that there is this idea that you must protect what you have, and if the current system doesn't work to do that, more rules must be created. Obviously, there is a point (which we are fast approaching, if not already at) where few but those able to pay for expensive lawyers will be able to benefit from such a rule-bound society.
      • Good Lord, where you been driving in the US? I go 80 on the freeway, and I'm in the fricken' "slow" lane, getting passed by people going waaay faster.
    • It doesn't seem to me that there is much evidence that the patent system has been generally advantageous to the United States, unless you consider large corporations and expensive lawyers to be and advantage.

      It also seems to me that there is considerable evidence that patents have been harmful to the citizens of the United States (on the average, rather than weighted by disposable income). And that they have been since the 1950's. (I first started hearing patent lawyers talk about how bad the patent system was in articles that I read from around 1952, though it's clearly gotten much worse since then.)

      Stupid patents/patent laws and "everlasting" copyrights are two of the major blocks forces centrallizing economic control and blocking economic growth in this country.

      I wouldn't claim that patents and copyrights are inherently bad. But I would claim that they are inherently dangerous. They are government approved monopolies, and those who have monopolies always try to extend them to cover more turf. As has happened with both the copyright laws and the patent laws. At this point I feel that we'd be better off without any such laws than with having the ones that we have. I also don't feel that this was true in 1950. In between ... I wasn't watching most of the time, but I'm rather sure that the transition was gradual.
      .

  • It is a good article. One issue which they didn't mention is the recent trend towards companies which just produce intellectual property, and don't actually make anything (for example, who license chip designs to manufacturers). This is mostly a recent trend (say, last 10-20 years). Not that I'm saying this is a good trend - I'd be hard pressed to say that the world is bettter of with Rambus than without it. Maybe it comes down to: is there a shortage of ideas? Or is there a shortage of people who actually put those ideas into production use and hone off the fine edges? For the most part, intellectual property protection addresses the former and not the latter.


  • Although a patent system does not exist in Finland or Sweden, all Finnish companies who sell their product do so internationally and will file patents with the U.S. Patent Office (e.g. Nokia). Since countries that want to trade with the U.S. must obey U.S. patent laws, a patent given in the U.S. is still good in Finland. This means that the Finnish government gives assistance to the U.S. if they believe there is a patent violation from someone in Finland.
    • Since countries that want to trade with the U.S. must obey U.S. patent laws

      Rubbish. Britain doesn't have (many) software patents, and therefore almost all US software patents are null and void over here.

    • Although a patent system does not exist in Finland or Sweden [...]

      There is a patent system in Sweden, unless 'patent system' means something highly specific/technical of which I'm not aware. Patents in Sweden are handled by Patent och Registreringsverket [www.prv.se].

    • Re:The Patents Occur in the U.S. (Score:4, Interesting)

      by Chuut-Riit ( 48419 ) on Tuesday March 12, 2002 @05:42PM (#3152754) Homepage
      Finland DOES have a patent system (I know because I lectured to a room full of Finnish patent agents in 1995, who were worried that because Finland was becoming part of the European Patent system (you file once in Europe and designate a bunch of European countries, and once the EP patent is issued, you file translations in each country where you want protection INCLUDING SWITZERLAND, THE NETHERLANDS AND SWEDEN).

      I found it interesting that the two companies mentioned in the article (CIBA and Unilever) are not at all shy of obtaining and enforcing patent rights throughout the world (including in their home countries), although their existence is, in some measure, due to their ability to knock off the innovations of others with impunity.

      I guess it helps to have a sense of irony when dealing with large corporations.

  • No easy answers... (Score:2, Insightful)

    by Yoda2 ( 522522 )
    This is such a tough call because both sides have merit. If you invent something, you don't want someone in a 3rd world country (or anyone else for that matter) taking it from you and marketing it at cut-rate prices. On the other hand, if you're in a 3rd world country how can you ever expect to get your foot in the door when you're competing with big business?

    Sorry, no cool links an no easy answers on this one.

    • if you're in a 3rd world country how can you ever expect to get your foot in the door when you're competing with big business?

      Sell it to yourself. Plenty of packaged food is seized at the borders of countries for failing or violating labeling laws. Does that mean that Chum-flavoured Crisps can't be sold in, say, America? Yes. Does that mean that the company can't sell a whole bunch of them in their own country and make quite a profit? No.

      --
      Evan

  • A bit idealistic (Score:3, Insightful)

    by ari{Dal} ( 68669 ) on Tuesday March 12, 2002 @05:02PM (#3152480)
    I find this author's view to be a rather idealistic one. After all, the situations he's mentioning are two isolated cases, founded on the success stories of a few very specific companies.
    What about all the companies that have flourished because of patents? And all the other countries that seem to be doing quite well WITH the systems in place?
    I'm the first to admit that some patents are just plain silly (one-click, anyone?), and that the system needs a serious overhaul, especially in the US. But to totally do away with it?
    I don't think a few isolated examples from the last century makes a good case for doing away with patent laws.
    In one place he says:
    This tool has been denied to poor nations, partly as a result of energetic lobbying by the very companies which once made use of it. .
    While i'm all for helping developing nations (and I think cheap medical supplies, drugs, and genetically enhanced food crops should be available to anyone, patents be damned), I don't see patents as being the cause of all their troubles. I find it very unlikely that a lifting of patent laws on underprivileged countries would fix all their problems. It may alleviate some issues, but it won't fix much in the long run.
    He could better spend his time focusing on how to get these countries the cheap food and medical sources they need, rather than putting forth examples of 'patentless society'.
    • What about all the companies that have flourished because of patents? And all the other countries that seem to be doing quite well WITH the systems in place?
      Well, sure... these companies were given government granted monopolies. I guess some companies can do well under Statism, but I'd rather live without governmnet granted mononpolies, thanks.
    • Please allow me to pile on to idealism attack. While I'll be the first to line up against IP laws that don't produce benefits for the public, the mere fact that two nations prospered without patent statutes doesn't mean nations without patent statutes do better.

      Note, for example, that some of the progress came from "borrowing" ideas from nations that *did* have patent statutes.

      What's more, the author's argument carries little weight unless he can prove the counterfactual - that these nations would not have done even better if they *had* employed IP laws.

      I'm inclined to believe that the late 1800s and early 1900s were fruitful eras in these nations for reasons other than the state of the patent law.

      Just adding my inflation-adjusted $.02.
    • But the point is that with no need to worry about patents they could produce their own drugs, and they could produce their own crops. Various seed companies (Syngenta -was Novartis- and others) have patented the basic crops that these countries grow, or genetically modified versions of them, and forced them to grow them and pay for them because now these companies also own 90% of the seed distribution companies around the world. These countries have very few options.

      This author is not suggesting that the US, UK or Australia do away with its patent laws, but is suggesting instead that they not be forced on countries that would do better without them. Like South Africa, who recently had a three year battle in the courtroom to develop cheap AIDS drugs, so that they could medicate their population. Patents and free trade could very well be the cause of all their troubles.
    • I don't think a few isolated examples from the last century makes a good case for doing away with patent laws.

      The article suggests no such thing. In fact it even says: "These examples do not necessarily suggest that the abandonment of patent protection is an essential precondition for development. But they do indicate that it can, in the right circumstances, be an effective tool."

      While i'm all for helping developing nations (and I think cheap medical supplies, drugs, and genetically enhanced food crops should be available to anyone, patents be damned), I don't see patents as being the cause of all their troubles

      Again, no one is suggesting that "all their troubles" are caused by patent-blockages. Did you read the article ??

      I find it very unlikely that a lifting of patent laws on underprivileged countries would fix all their problems.

      Again, who is suggesting that it would fix all their problems ??

      It may alleviate some issues, but it won't fix much in the long run.

      And why ?? Do you know what % of adults have AIDS in Africa ?? Up to 30% in soma areas !!! Do you know what percentage can affort drug treatment ?? Close to 0%. And you say it won't fix much ???

      He could better spend his time focusing on how to get these countries the cheap food and medical sources they need, rather than putting forth examples of 'patentless society'.

      If the 'developing' countries are to be able to 'develop' then giving their money away won't help. Although Africa can't affort to buy bug/desease resistant seeds (and once a year, because they won't create fertile seeds) or aids drugs, it can well affort to produce it itself. But "affort" is not enough if you are denied the ability by some company that puts profits before anything else.

      You are taking an extreme view on the issue without even having read the article in question.

      That makes you a troll mister !

  • Switzerland, bah (Score:5, Funny)

    by tiltowait ( 306189 ) on Tuesday March 12, 2002 @05:03PM (#3152488) Homepage Journal
    "In Italy for thirty years under the Borgias they had warfare, terror, murder and bloodshed but they produced Michelangelo, Leonardo da Vinci and the Renaissance. In Switzerland, they had brotherly love; they had five hundred years of democracy and peace and what did they produce? The cuckoo clock."
    - Orson Welles (1915-1985)
    • Well, that and the most stable and widely-used banking system on the planet. Gotta give 'em credit for that.

      Good quote, though. ;-)

      • ...the most stable and widely-used banking system on the planet...

        But the accounts in those banks are generally in U.S. dollars. It's not the banking system, but the currency that's important. Swiss law strictly limits use of its currency because it's economy is not large enough to support a large float.

        I believe in all the world The U.S. has the only one national treasury bond that is rated as having zero risk.

      • Re:Switzerland, bah (Score:2, Flamebait)

        by jafac ( 1449 )
        The only reason it's the most widely used is because it allows for anonymous accounts. Which generally are used by mobsters, terrorists, tax dodgers, drug dealers, and anyone else seeking a way to enjoy the ill-gotten fruits of their labors.
    • Well, if you know Da Vinci, well, we probably only saw a tiny fraction of his genious. He always complained how rulers only wanted him to make bigger and better war machines, to Leonardo a utterly boring and much to easy task, they wanted him to make pretty paintings, also not something for his great genious, though he performed very well at it.

      Leonardo wanted to learn how nature worked, and he wanted to learn how to fly. It was a great loss for humanity that Leonardo was unable to dedicate all his time to that.

    • It's a good quote, but I can't believe it took 70 years for him to come up with it.

  • I'm not against IP laws, but... (Score:5, Interesting)

    by RealTime ( 3392 ) on Tuesday March 12, 2002 @05:05PM (#3152501)
    I think the existing laws are being abused by corporations who take advantage of back-logged and under-educated patent offices. I would support the exclusion of certain categories of intellectual property from the patent process. For example, I think the trend of patenting human genome sequences is a bad idea. I don't think you should be able to patent things that exist in nature, nor should you be able to patent mathematical or physical laws.

    The patent process wasn't originally this dysfunctional. There was a time when it provided legitimate protection to inventors for a limited period of time. Now, I'm not so sure that the public is well-served by patent mechanisms (as was the original intent), given the short-lived nature of today's inventions.

    Is the solution totally eliminating the patent system? I'm not sure. I would suggest that, in the time period discussed in the article, there was less up-front investment needed to produce a new invention or process. These days, in the drug industry, at least, the research costs are so high that I think some form of short-duration monopoly protection is required, just to insure that they can recoup their investment. We certainly wouldn't want research on things like cancer and AIDS drugs to slow just because of the risk of not recovering the research investment.
    • The patent process wasn't originally this dysfunctional. There was a time when it provided legitimate protection to inventors for a limited period of time.

      the patent process also provided the public with information about the invention in exchange for that protection.

      patents also must provide sufficient information for someone "skilled in the art" to reproduce the work. this reduction to practice provides some justification for granting a limited monopoly on the product, even in the case of inventions that people in the field know are possible but have not successfully reduced to practice.

      Software patents fail this argument when they fail to provide source (and may not pass it even if they do).

    • I'm not a big fan of the patent system and particularly its gradual expansion into the realm of software engineering, but my biggest concern is that the playing field isn't level.

      If someone files a patent that in my mind is obvious, I'd have to challenge it in court, and even if I were to win, it would cost me significant money.

      I wouldn't mind the European Patent directives as much if I could file a complaint for a reasonable fee, say EUR 100, refundable if the patent is revoked as a result of the re-examination. That would pretty much level the playing field.

      I have written a piece of software that I can't publish because of a frivolous patent. On my reading of the patent, it doesn't apply to my case, but the patent owner will offer no guidance as to the applicability (but for US$25000 they'll allow my in-house usage of the patent, and they don't care if the patent applies in the first place). So, I'm stuck with two options: getting a patent lawyer to look at the case to find out if it applies (that would set me back at least EUR 1500), or not doing it. I opted for the latter.

      While I'm at it, bumping the price offenders pay for new patent applications would be cool too. If they employ their own patent lawyers their incremental costs for filing frivolous patents are pretty low, and if those lawyers get bonuses per patent passed the temptation to skimp on their homework becomes pretty big.

  • Copyrights (Score:2, Insightful)

    by kb3edk ( 463011 )
    Wow, it's shocking! "Intellectual property" violations have been going on for many years...

    1859: Ciba steals aniline dye process from the British

    Well, then not much has changed:
    1984: Compaq duplicates IBM BIOS and clones the PC

    And I'm sure you could come up with even more compelling examples since then. The whole concept and exploitation of "intellectual property" is just a rational concept that companies employ to increase profit. Can you imagine the bonuses that get passed around when a pharmaceutical company wins a big patent decision?
    • How about a compelling example from before then? Everyone remember Samuel Slater from their American history class? He came to the US, having learned about the English mechanized mills, to set one up of his own. The English were rather particular about intellectual property as well; he had to sneak out of the country in disguise.

  • *SIGH* (Score:4, Interesting)

    by flying_triguy ( 560874 ) <flying_triguy@ho[ ]il.com ['tma' in gap]> on Tuesday March 12, 2002 @05:09PM (#3152536)

    As is the case in many of these debates, there are two extremes, and both are equally likely to have problems.

    1. Eternal Patent and Copyright: This means that there is tremendous stability in development, very little "new directions" as a new direction would have to come from the company with the copyright or patent (or a company paying money to them). The downside is the cost of doing this if there is failure. Very high. --> Little change or innovation

    2. No Patent or Copyright: Very dynamic creative possibilities because everything can be used to create new things. Everyone who has a different direction or idea can develop that, there are no barriers (cost) associated. Just time. This is also very chaotic... you can't have standards when everything is always changing. Stability of anything here... not good. As well, it ends up making things extra cmplicated as the only way to make money is to do it from services (installation, customization etc) so it is in the best interests of the creator to make it as difficult as possible to implement making sure that someone has to install it for you.

    Seems to me that there is a happy medium. My personal preference is for the happy medium to be less restrictive than now, but that is for society to judge (which is why I have problems with where things are now, I don't believe society has decided, I think that society has abdicated that decision to corporate interests.

    • Patents only good for 7 years, no extension. ---note period. ;)

      • Patents only good for 7 years, no extension.

        Doesn't work for the drug companies or any other company with significant regulation that delays introduction of the patented thing.

        7 years is roughly what it takes for a drug to wind its way through the testing process, and it can be well over 10. It doesn't start making money for a few years after that. (Assuming it ever does: few drugs ever make back their development costs.)

    • you can't have standards when everything is always changing. Stability of anything here... not good.

      No. "Real" standards are not results of patents -- sometimes it seems it's exactly opposite. De facto standards ("Windows") may be a result of patents or copyrights, but the actual de jure standards are almost always result of a leading period of chaotic development. And usually this seems to be a good way to go. Premature creation of patents often leads to unusable bloated paper standards (ISO OSI model anyone? full X509?).

      As well, it ends up making things extra cmplicated as the only way to make money is to do it from services

      I don't think this is true either. Many big pharmaceutical companies make money manufacturing aspirin (or, rather, generic versions... name itself is trademarked? or was it?). So, patents are not a requirement for being able to sell a physical product -- you just need either a strong brand or best version of the product (cheapest, best, in some way better than competitors).

      It may make it more difficult to make money with a completely new product, but right now it seems that there are 2 main lifecycles for innovative new products:

      • Try to protect the idea and/or implementation as closely as possible. End up being proprietary thing no one wants (rambus, various wavelet packing algorithms, most new closed audio/video formats)
      • Share and enjoy; product itself becomes a hit, but not necessarily version you produce (mp3 is a good example... there's no real "leader" that creates most mp3 appliances).
    • As is the case in many of these debates, there are two extremes, and both are equally likely to have problems.

      "1 + 1 is 2!"

      "1 + 1 is 3! (this message paid for by 3com)"

      Oh, the truth must be somewhere in between these two extremes. Hence 1 + 1 is approximately 2.5.

  • Somewhere in the middle, please (Score:3, Insightful)

    by Fiver-rah ( 564801 ) <slashdot@NOSpam.qiken.org> on Tuesday March 12, 2002 @05:12PM (#3152564) Homepage Journal
    The point here is not that we should completely scrap patent laws. The point is that we should be wary about what we start labelling "intellectual property". There are two extremes. One has no protection whatsoever. So people lose a major incentive (profit) to produce new works. This is bad for society. But the other extreme is one in which everything is so tightly controlled that the great new works which are invented can't be disseminated to the people who need them (case in point: as mentioned in the article, the countries that really need it--African nations with 20-30% HIV positive rates can't use the AIDS drugs).

    There's no point in creating a multitude of useful and interesting things if nobody ever gets to use them. Somwhere between these two extremes is something that approaches sanity. Unfortunately, we seem to be cheerfully careening down the path towards over-control.

  • The corporation bashing isn't COMPLETE nonsense (Score:5, Insightful)

    by ragmana ( 562405 ) on Tuesday March 12, 2002 @05:15PM (#3152580)
    Don't skip those first few paragraphs. While there is a bit of a bias, the article talks about the sale of cheap medicines to third world countries. It's true that large, highly profitable companies are outpricing these nations on things they need.

    When will some people recognize that some rights - like food and medicine, i.e., basic health and survival - trump capitalism, intellectual property, and other protections which are fine to call "rights" in prosperous nations but do not deserve that designation in the Third World?
    • Funny how selling cheap "generic" versions of AIDS treatments to African nations was regarded as a Bad Thing, but that buying cheap generic versions of anthrax treatments is a Good Thing. Whoops! There goes that drawbridge again!
    • Just because providing medicine to poor countries that need it is the right thing to do doesn't mean stealing from the companies who developed the medicine is the right way to do it. If people are stealing bread because their families are starving (a la Jean Valjean) the correct thing to do is not to legalize burglary but to provide food to the poor at the public expense. The companies whose years of R&D and millions of dollars created a safe and effective medicine need compensation for this, or they won't produce drugs for diseases that effect mainly the Third World. If this cannot be provided from the poor nations themselves, the purchase should be subsized by richer nations.
      • ...including not just public funding, but also private philanthropists. If memory serves, one of the main focuses of the Gates Foundation happens to be immunizations in the Third World. I don't know whether it's negotiated any terms with drug companies regarding drugs that would otherwise be economically non-viable, however.

      • Re:Medicine (Score:3, Informative)

        by richieb ( 3277 )
        The companies whose years of R&D and millions of dollars created a safe and effective medicine need compensation for this, or they won't produce drugs for diseases that effect mainly the Third World.

        Actually a lot of their research depends on basic science done in publicly funded institutions. For example, the HIV virus was isolated by scientist at the NIH and equivalent organization in France(I know there is some controversies there).

        If you actually look at the budgets of the large drug companies, they spend more on marketing than research. For example see this article [salon.com].

    • Sorry; so-called "positive rights" are not rights at all. We may think it's good to be generous to the needy, and even think less of someone who isn't--but that doesn't give anyone or any group the right to be generous with other peoples' money.
    • When will some people recognize that some rights - like food and medicine, i.e., basic health and survival - trump capitalism, intellectual property, and other protections which are fine to call "rights" in prosperous nations but do not deserve that designation in the Third World?

      Why is always "evil corporations putting profits before lives in the third world"? It would be more accurate to criticize "evil governments for putting corruption and war before the lives of their own citizens".

      You may criticize Big Pharma, but without them, there would be no drugs to buy, at all, at any price. You see, a "right" to medicine presupposes that the medicine exists. If it doesn't exist, your "right" doesn't amount to much. Stealing pharma IP works in one generation, but the next disease comes along, and you find Big Pharma is devoting its energies to Viagra and Prozac drugs, that are profitable and aren't likely to be appropriated by corrupt third world governments.

      It's in everyone's best interest that patents on drugs to treat serious illnesses are protected - particularly the people who are or may suffer from those illnesses.
  • I can't wait for my Slashdot Reply Button
    "One-Click Patent" gets approved.

    Then you will all have to pay me to reply to these messages.

    Sweet...

    Sean
    --
    perl -e 'print pack("H*","736e6f77646f6740626967666f6f742e636f6d0 a")'

  • Two Types Of Invention? (Score:4, Insightful)

    by istartedi ( 132515 ) on Tuesday March 12, 2002 @05:20PM (#3152611) Journal

    Perhaps there are two types of invention: Those that will occur without protection, and those that won't occur without it.

    Obviously, not having protection won't hinder all invention, as the "inventive spirit" is something that most of us believe exists.

    Also, while there may have been invention during that time, there was probably also more trade secrecy, something the article doesn't explore at all.

    If the patent process slows business, it may actually be because it requires disclosure. Companies go for the "sure thing" by patenting, but give up the possibility of perpetuating their monopoly through secrecy which can be *very* effective. Thinking Coca-Cola? Chump change. Consider Ziljan (the cymbal people) IIRC, they kept the process a family secret for something like 400 years or more. If all the Ziljans get hit by a bus, nobody will ever be able to make those exact cymbals again. So, what was that about patents being bad for society?

    Of course this is all just speculation and stuff. Nobody has the time to do an unbiansed, rigorous, statisticly valid study and present it in such a way so that laymen could understand it. That would be... a lot of work!

    • Perhaps there are two types of invention: Those that will occur without protection, and those that won't occur without it.
      Those cases do not exhaust the possibility set; one case you left out is "those that won't occur with protection." which is the chief benefit of reforming or removing the current laws. Leaving out forms of invention that are to some degree indifferent to the legal regime, I would claim the two most interesting categories of invention for purposes of our current discussion are:

      (a) those that won't occur without at least the current level of protection, and
      (b) those that won't occur with it.

      Making protection "too strong" will produce more innovation of type (a) and less of (b); making protection "too weak" will produce more of type (b) and less of (a).

      • My initial reaction to this was to dismiss it as more AIP rhetoric, but I think you have a point.

        I now think the 3 classes should be:

        1. Those that are more likely to occur when protection exists (a new type of motor that requires a $500,000,000 investment to perfect).

        2. Those that are less likely to occur due to the presence of protection (a software project that can't afford to defend itself from frivolous lawsuits because, oh say... XOR mouse cursors are patented).

        3. Those that will occur no matter what (some guy mixes cough syrup into a drink, sets it on fire, and discovers that it tastes good).

        A simple "how strong should IP protection be" is really too simple a question when we view things in this light. Perhaps the questions should be 1. Which classes of inventions fall into which category. 2. How much protection should that class enjoy to omptimize output.

        Notice I said *optimize* output. It is entirely possible for a society to determine that some types of IP should be minimized as opposed to maximized (e.g., child porn, or for a less extreme example... they might want to encourage TV networks to produce more serious programming and less mental pablum). But then when you start to talk about discouraging some forms of IP, you get into free speech issues...

        Difficult questions indeed...

        • Those that are more likely to occur when protection exists (a new type of motor that requires a $500,000,000 investment to perfect).

          The other necessary criteria is that the object should be quite cheap to manufacture once it has been perfected. Drugs, at least in theory, fall into this catagory. (But only so long as the drug company is actually developing from scratch...)

  • Gene Patents (Score:5, Informative)

    by President Chimp Toe ( 552720 ) on Tuesday March 12, 2002 @05:20PM (#3152614)
    I found these points interesting:

    Novartis was one of the companies which successfully lobbied for the European convention allowing companies to patent genes

    New global trade rules have also allowed big corporations to patent crop varieties and, in effect, the genes of plants, animals and human beings.

    Even without going into ethical debates, gene patenting is notoriously dubious. The standards that these companies apply to patenting genes is very poor at best. My patent law is not up to scratch, so i would be happy if someone could point me in the right direction on this. However, my genetic knowledge is rather good ;-)

    Essentially, companies (such as novartis) cast a very wide net when patenting genes. Alot of the time, they dont actually do anything particularly pro-active when attempting to discover them. They essentially take a pool of all genes expressed in a certain tissue ("mRNA") and randomly sequence these genes. And then slap a patent on them. This is quite clearly discovery. Furthermore, it is cheap, non-directional, quick and easy.

    Originally, companies like novartis argued that cloning genes would take a strategy of e.g. specifically identifying genes causing a disease. This takes alot more effort and money, and is more likely to have medical significance. Therefore it is easier to argue that patenting is to some degree fair.

    However, the first strategy is quite clearly against patenting law (even the stretched definition for gene patenting). For example, I often see "patents" for DNA sequences of the gene MYB (which I know quite well ;-), despite the fact that it was originally identified in 1986 [nih.gov]. If this isnt prior art, I do not know what is.

    This is a result of the essentially random, "wide-net" strategy the companies are utilising. Even worse, it is trivial to check (using a homology search) whether there is "prior art" on a gene or not. But the companies do not do this.

    BUT I COULD. And may well do. I have been thinking about comparing the database of patented DNA sequences against those in the public domain (It will take some time to set up, which i dont have right now, and significant computer resources, which i dont have right now - help anyone? reply to this as above email wrong ;-) . It will show huge proportion of "patented" sequences have prior art.

    But who would I go to with these results? Could the companies be held responsible? If, so what would be the result?
    • Aside from prior art, I think there's an even more compelling argument against gene patents- they aren't "non-obvious". Anyone with sufficient training and funding can perform the protocols the biotechs use to find genes for patenting. There's absolutely no innovation involved. Patenting a method for gene finding might be slightly more viable- except that these probably wouldn't be "inventions", they'd be more like a cookbook for an intro bio lab.

      The real problem here is that, as often, the legal system can't keep up with technology. Gene finding might have been difficult 10 or 20 years ago, but it sure isn't today, at least not to reach the PTO's moroning standards. What makes more sense is allowing these companies to copyright their databases and sell access- Celera's original business plan*, and actually a good one. They could even charge royalties on products developed using their database. Unfortunately, that doesn't have as much long-term potential- a few years later, some university will come out with a better (free) sequence as technology catches up. So by patenting genes, biotechs ensure that they'll be able to buttfuck any researcher who actually finds a use for the genes, even if independent discovery of said genes would have been both trivial and obvious.

      *They were going to patent some too. But they're not even remotely "evil" compared to Incyte or Human Genome Sciences. Craig Venter is warm and cuddly compared to some execs out there, and he has genuinely contributed immensely to public research.
      • I think there's an even more compelling argument against gene patents- they aren't "non-obvious". Anyone with sufficient training and funding can perform the protocols the biotechs use to find genes for patenting. There's absolutely no innovation involved.

        Most /. readers have no concept what a gene patent is. A gene patent is NOT merely a patent on the genetic code; in fact such a patent is specifically barred under law - rather it is a patent on the USE of the structure of the gene in some application. The USPTO has a discussion of this very important issue that /. readers would do well to understand so they don't look totally unwashed when writing about this topic.

        http://www.ama-assn.org/ama/pub/category/3607.ht ml
        http://frwebgate.access.gpo.gov/cgi-bin/getdoc .cgi ?dbname=2001_register&docid=01-322-filed

    • Re:Gene Patents (Score:3, Interesting)

      by FallLine ( 12211 )
      IANAL && IANAG*, that said, I am familiar with the medical devices (and the medtech industry by much association) and other technology industries. Your understanding of the business, legal, and regulatory realities is what causes most of your trouble here.

      Firstly, it's common practice in patent law to cast as wide a net as possible (without getting it thrown out entirely) because if you don't someone can come up with a slight modification, but to have it and its application to be essentially the same, and get away with it.

      Secondly, the effective strength of a patent is NEVER is strong as it would appear to be to a layman; it's a mere fraction of it. The vast majority of a patent's strength is decided in a court of law and rarely, if ever, comes anything close to what you may think it sounds like.

      Thirdly, while these particular genes may be obvious (not my expertise), identifying the significance of them, and getting past the very significant regulatory (e.g., FDA) hurdles, plus the huge marketing cost (which is VERY essential to society, as much as some geeks may deny it. Drugs generally don't sell themselves) is both very expensive, very risky, and takes a long time to ever reach the market (a major issue to anyone familiar with finance).

      Fourthy, the medical technology industry is almost too costly to engage in as is, completely ignoring any fault of the companies', because of the factors that I've mentioned above. Reducing the strength and duration of these patents can easily make it financially unviable proposition, because no one in their right mind is going to take the level of risk required if a competitor can get a mostly free ride on their coattails and reduce their profitability.

      Fifthly, although it may be arguable that the prior identification of them would constitute prior art as it was concieved of initially, that definition is simply untenable to the development of them in today's society. The point of that phrase was to encourage the taking of risk towards worthwhile pursuits. If it wasn't non-obvious back then, then it wasn't probably didn't require much risk. That's quite different today with these kinds of pursuits as the barriers to entry here are huge. The gene itself may be obvious, but making it into something worthwile is non-obvious AND requires a lot of risk taking.
  • I must have missed the corporation bashing part of the article, but everybody knows that patents are mostly bad for innovation. And too much innovation and progress however, is bad for big established businesses. It is costly and disruptive to the business. Why innovate, if the law guarantees excellent returns on past inventions until the current management retires? But that is not a good way to keep the status quo, so a little FUD is needed.

    Lawmakers must choose between public good and corporate good, and since corporations pay for their reelections, they help their donors. The catch is that a bad economy is bad for getting reelected, and fallout from recent court decisions and the frenzy to uphold software and business method patents will be felt soon.

    Basically, the patent frenzy will be felt first by people seeking venture capital. Investing in a startup is already a risky proposition. But with patents it is much worse, since you have no reasonable way of knowing which patents your programmers are violating. Which means you have to cash out through an IPO before the lawyers come after your baby. And once a few promising startups get tripped up, you will see venture capital dry up.

    And where would the Internet be today without venture funding? Without small startups creating a whole new economic sector? Does anybody really think the telcos would have invented any of this stuff? Not likely.

    Without small companies and individuals taking risks, patents mean stagnation or slow economic growth at best. That is why when you get rid of patents, you spur economic growth. Pretty logical, until you get to the FUD part used to scare everybody.

    Just for kicks, take any drug company and look at their numbers. Most (if not all) spend a lot more on marketing and operating expenses than R&D. Obviously they don't mind doing that without patent protection.
    • I must have missed the corporation bashing part of the article, but everybody knows that patents are mostly bad for innovation.

      I think that everybody does NOT know this at all. The fact of the matter is that the almost all industrial R&D, from the time of Edison has depended on the use of patents to provide the commercial incentives for justification of investment into the development of new technologies. Without patents we would have never had the development of large industrial research organizations at companies like DuPont, Intel, Merkh etc. etc.

      These organizations have supplied tremendous advances to society - synthetic polymers and fabrics, the CPU, streptomycin, to name a few. All developed with the incentive and goal of obtaining a commercially exploitable patent as the business incentive for funding the R&D.

      The idea that patents hinder innovation cannot be justified by any evidence drawn from the history of technological process. It is no accident that Great Britain, the country that first adopted a patent system was also the first country to experience the fruits in it's 18th century industrail revolution.

      The article cited in this story bears out all to well the issue of the necessity of patents in a modern industrial society - both Switzerland and the Netherlands adopted patent systems 100 years ago. Countries in today's world that do not support a patent system are countries with no significant technological infrastructure.

      • The article cited in this story bears out all to well the issue of the necessity of patents in a modern industrial society - both Switzerland and the Netherlands adopted patent systems 100 years ago. Countries in today's world that do not support a patent system are countries with no significant technological infrastructure.

        Interesting spin and partially true. But most of those [presumably third world] countries were the victims of the great colonial powers of the time, with a lot of taking and no giving--unless you count misery. There are a lot of reasons why those countries are not doing well. Lack of education, continuing armed conflict, disease, anarchy, you name it. Patents don't make the list. Patents in those countries mostly cause more misery in the form of desperately needed drugs unavailable due to the high cost of patented drugs.

        I am by no means against IP protection--in the form of copyright. But patents, especially the recently extended life of patents, are a disincentive to innovators.

        I think patents can be likened to a mine field. If you can afford hundreds of mine sweepers (lawyers), then burying more patent mines may seem like a good idea. But keep in mind that even the patent office regularly issues patents for things that are already patented (for an example look up the history of the GIF patent).

        Patents are also a good idea if you are a giant corporation with thousands of patents. Then you can sit down with other giant corporations and negotiate a truce. Which of course keeps the new players (those little companies that come up with billion dollar ideas that drive the economy, think Amazon, eBay, ...) out of the game.

        And of course, the software industry is proof that patents are not needed to create enormous wealth and incentives. Think Bill Gates. Virtually all of the important software inventions were made without patent protection. I have never seen anybody complain about Microsoft not making enough money. All that was accomplished without patent protection. And even without patents they ended up being a monopoly. So what makes you think that any large corporation would not have gotten just as big, or bigger, without patents.

        Patents (software patents in particular) mean that you have no idea if your work will pay off, because somebody may own the ideas you thought up, even if those ideas seem obvious (a reason why the patent office should deny the patent application, but rarely does). And sooner or later, independent developers with great ideas will just die out.
    • I must have missed the corporation bashing part of the article, but everybody knows that patents are mostly bad for innovation. And too much innovation and progress however, is bad for big established businesses.

      That's nonsense. You clearly don't know that patents require you to publish details of your process - and they don't forbid anyone from using that information, they merely permit you to charge (license) people for making use of the information that you might have invested considerable time and money to discover/develop.

      The alternative to patents is secrecy, because that's the only way that an investment can be recovered. This would preclude from the market any product whose workings could be derived from inspection. It's hard to think of anything more anti-innovation where the only way to justify the cost of the development of a new product was to ensure that no-one ever saw it.

  • Random Euro-URLs (Score:5, Informative)

    by guerby ( 49204 ) on Tuesday March 12, 2002 @05:22PM (#3152633) Homepage

    The prime source of information about software patents in Europe is the patents mailing list [aful.org] on the AFUL web site [aful.org] (french free unix user group).

    Some information is also available on the APRIL web site [april.org] (french association for research in free software).

    In particular, to date, all the big (poll-wise) candidates to the french presidential election have expressed their opposition to software patents, see in french Haro sur les brevets [liberation.fr] and Tous les candidats dans l'opposition [liberation.fr].

    And of course the EuroLinux web site [eurolinux.org] and FFII web site [ffii.org] (Foundation for a Free Information Infrastructure ) have links to a lot of ressources and interesting readings.

    We, european citizens, are seeking ways to get other european countries take position against the current proposed european law that opens the gates of unrestricted software and ideas patenting.If you're willing to help the cause, please contact your local free software association and try to get some activism in place together with the established assiociations like the FSF Europe [fsfeurope.org]. If you are French or German you can even make a tax-deducible donation, it may help the cause too.

    --
    Laurent Guerby <guerby@acm.org>

  • I live in The Netherlands myself and while I generally disagree with the whole patent process
    (especially in the US) I must point out that The Netherlands and Switzerland have a very different
    economy than the US. Their economies are based primarily on trade and services (banking,
    insurance, transport).
    So it's not that big of a surprise to see how the patent laws developed differently from the US in
    these countries.

  • There is not a one size fits all solution (Score:3, Insightful)

    by DeadPrez ( 129998 ) on Tuesday March 12, 2002 @05:28PM (#3152678) Homepage
    I would love there to be one, of course.

    Personally, I think there should be no software patents what-so-ever. Innovation occurs fine without them. Competition is only stifled with them. Finally, software is one of the fastest changing markets and traditionally patent law seems horribly ineffective when applied.

    Once you get out of the software patent arena it gets a lot more gray. The general trend is to expand patent laws and extend expiration of patents. It is also fairly easy, to keep a patent open and gain all the benefits of having the patent without having that time count against you. I think these two trends need to be reversed. Patents should not last longer than a decade and should count from the day of the first filing. If you can not exploit your invention in this period of time, the public should not be punished any longer.
  • Switzerland has no IP laws? But what about the smartest patent clerk ever?

    poor guy would be unemployed today.
  • The arguments presented vis a vis patents don't make any sense. First, he makes a big deal about how not respecting other countries patents encouraged economic growth in Switzerland. However, this isn't really a debated point. Stealing gets you more money. So does exploiting child labor. That doesn't mean either should be allowed.

    He also claims that despite patents, Switzerland produced many important innovations in food production. However, I don't see any evidence, either in the article or from looking up various descriptions of the inventions, that these innovations were made public. Patent protection is granted only in exchange for publishing the details of your invention so that others can build on and be inspired by it (this is why patents are not supposed to be granted for obvious extensions of the art). Something like a chocolate receipe can be kept a trade secret for far longer than 20 years, in the end producing less public good than a patented invention.
    • I was just about to post and say the same thing. Somebody mod the parent up. Let me extend this point by saying two things:

      1. Take a look at game theory, such as the iterated prisoner's dilemma. In many games, if everyone cooperates then everyone will do well. If a few people defect, they will do even better. However, if the majority of people defect then everyone will suffer. Thus, the fact that two nations prospered without patent law does not imply that the system could be extended to the whole world.

      2. The fact that the author could name a few inventions that were developed during the patent-free period (even if they were more like trade secrets) doesn't prove anything. Anecdotal evidence only proves that something is possible or true in principle. You need to have quantitative evidence to prove that things are true in general. E.g. the fact that Red Hat has had at least one profitable quarter shows that you *can* make money selling free software, but it doesn't prove that they have a solid business case.

      -a
      • All nations have prospered without patent law. Go back to the last century. Inventions were still happening.

        Go back just a decade in computing, to before you could patent computer programs. How much invention happened then? Most of the important new concepts in computing were developed without patents.

        What if IBM had been able to patent the BIOS of the PC? The evolution of the PC industry would have been slowed down immensely.

        The prisoners dilemma doesnt match up against IP problemspace. If everyone defects, they still will not be worse off, in fact it might map the other way around.

        This isnt really news tho, look up the criticism of patents on the eurolinux alliance website; a lot of research that has come to the conclusion that patents hamper innovation is available.
  • From the article:
    The two countries relied for their growth not upon exclusive rights but upon high educational standards and technical ability.

    Do you think that there's a direct correlation between the more restrictive IP laws we now have and the fact that customer service is at an all time low? I sure do. Why would companies want to offer good service if they know their guaranteed to make a buck?

  • Sweden and the Netherlands have a patent system (Score:4, Informative)

    by werdna ( 39029 ) on Tuesday March 12, 2002 @06:36PM (#3153221) Journal
    As the article acknowledges, both Sweden and the Netherlands did ultimately adopt a patent system. Reasonable people may dispute (and, indeed may have the better argument) the article's assertion that these systems were adopted for "political," and not economic reasons.

    Significant industry in Sweden and the Benelux states relied heavily upon foreign patents for their "flourishing" as they competed in foreign markets that provided the bulk of their revenues. The "political" pressure was simple -- as industrial nations adopted multinational conventions providing access to certain foreign patent privileges only to citizens those nations that afforded reciprocal protection and privileges, Swedish nations would have found themselves "out of the loop," and at a competitive disadvantage. To me, this can be argued to be evidence of the necessity of a patent system for Swedish industry to flourish -- they relied upon access to the international market, not upon domestic economic incentives, to support their "innovation." To compete in those markets, they required patents.

    Historically, nations that have abandoned or abstained from IP laws typically come around. France, shortly after the Revolution, abandoned their Copyright Act. During that period, unsurprisingly, publishers died, and writers found it difficult to make a living -- accordingly, written works fell off, and France quickly adopted a Copyright Act.
  • This Economic Times article [indiatimes.com], (which was rejected by the editor's) very beautifully articulates that Intellectual Property is not a right but a privilege. Qoute: "Few people outside Cuba and North Korea would be opposed to the concept of patents, trademarks and copyrights. However, given that the cost of these to the public, worldwide, is in tens of billions of dollars, it is desirable that the debate on the subject be carried out in rational terms. It is therefore advisable that a non-emotive term be used to describe these concepts. IPRs have a closer relationship with innovation, novelty and distinctiveness. Normally, every IPR would involve innovation or novelty, though not everything which is innovative may be entitled to an IPR. As discussed above, IPRs are, at best, negative rights. An IPR-holder has an exclusive right to do something to the exclusion of all others. In essence, therefore, an IPR is not a right, but a privilege. When the holders of such exclusive rights sue to maintain the exclusion against third parties, they can hardly be said to be defending their rights, they are actually enforcing their privileges. In terms of their legal incidents, IPRs are no different from such privileges, albeit with a far better policy justification to support them." So, to summarise, by using term's such as right, Corp's & lawyer's are essentially exaggerating their claim.

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