New Study Points Out That Gene Patent On Trial Is Very, Very Broad
from the patenting-life dept
Last year a very important lawsuit was filed, challenging whether or not it was legal to patent genes. While that trial is still (slowly) moving forward, a study has come out pointing out that one of the genes that’s at the center of that trial, BRCA1, from Myriad Genetics, is incredibly broad and could be used to stifle all sorts of important research:
For instance, BRCA1 is on chromosome 17. But long stretches of DNA on chromosome 1 are identical to stretches in the Myriad patent, the researchers said.
“This claim and others like it turn out, on examination, to be surprisingly broad, and if enforced would have substantial implications for medical practice and scientific research,” they wrote.
In the meantime, we’re still waiting for someone to explain how it possibly makes sense to patent genes.
Filed Under: brca1, genes, patents
Companies: myriad genetics
Comments on “New Study Points Out That Gene Patent On Trial Is Very, Very Broad”
“how it possibly makes sense to patent genes.“
If corporations are allowed to patent genes they’ll get loads of money. Those corporations make promises to give politicians a cut for making these patents possible. We vote for those politicians because they’ve spent the most on their campaigns.
The corporations get what they want.
The politicians get what they want.
And we get the politicians we voted for.
Everyone’s happy.
Nothing living should be patentable. Neither should software. If you (or your licensee) doesn’t make a product with the patent within, say 3 years of filing, the patent is null and void and public domain.
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It can take five years or more to complete development of a product for which a patent already exists. Your 3 year time limit is unrealistic in many fields.
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The three year patent duration starts from the moment that the product hits the market, not a second before. If someone else releases a competing product before you, then that’s just competition and evidence that a patent wasn’t needed for similar products to reach the market. The competing product gets to continue even after your patent gets granted if your patent even gets granted. Or maybe whoever gets to the market first gets a patent. Or maybe the patent gets thrown away altogether. but if it really takes more than three years for the product to get to the market then there is no good reason for the patent to apply before that timeframe.
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I think I am misunderstanding something.
If someone else releases a product based on an issued patent faster than the company that got the patent, how does that prove the patent was unnecessary, especially if the competitor copied the technology from the patent?
Also, it could be that the first company takes a more conservative approach to be sure the technology is proven, while the second company is less concerned about whether their product is reliable and safe.
Re: Re: Re:2 Re:
“If someone else releases a product based on an issued patent faster than the company that got the patent”
A: If the patent is issued on the date of release, then there is no way that the company that released it first could have released it based on the issued patent.
B: Companies don’t release products based on patents issued to other companies, companies intentionally avoid looking at patents to avoid liability.
C: It doesn’t prove, with absolute certainty, that the patent was unnecessary but it is STRONG evidence for the fact that the patent was most likely unnecessary. But science doesn’t require absolute proof or else we could never reasonably conclude anything.
“Also, it could be that the first company takes a more conservative approach to be sure the technology is proven, while the second company is less concerned about whether their product is reliable and safe.”
It could be that the second company was just being lazy and didn’t want to produce the product because they are happy with the products they sell and they just grabbed the patent to prevent the first company from competing. In fact, this is likely being that most patents don’t make their way to products. It could be a million and one things, but this is mere speculation and your speculation, with a complete lack of evidence, isn’t nearly enough to justify preventing the first company from releasing the product first.
The first company has incentive to ensure the product works correctly and is safe because if they don’t they lose customers and/or get sued. Your speculative, non existent, problems are ones that the free market can sort out. If the first company really does a poor job with the product then the second company, upon releasing their improved more developed product, should easily take the market.
Re: Re: Re:3 Re:
“Your speculative, non existent, problems are ones that the free market can sort out.”
Or rather, your non existent problems are ones that the free market are much better able to sort out than government granting monopolies.
Re: Re: Re:3 Re:
“”If someone else releases a product based on an issued patent faster than the company that got the patent”
A: If the patent is issued on the date of release, then there is no way that the company that released it first could have released it based on the issued patent.”
That is absolutely true, but that was not the example. The example is whether the company that got the patent should be able to keep it based on using it, not whether the product was released the same day as the patent issuance, which happens in nearly 0% of all cases.
B: Companies don’t release products based on patents issued to other companies, companies intentionally avoid looking at patents to avoid liability.
This myth has been debunked, many times. There are numerous attorney web sites where the attorneys specifically recomend clients look at competitor patents. There are now HUNDREDS of companies whose only function is to search patents and provide the results. To say that companies intentionally avoid looking at patents is to limit your perspective to the few companies that are living in the old days or to old philosophy regarding looking at patents.
As for companies not releasing products based on patents, again, that was not the original hypothesis. The original hypothesis was relating to someone else releasing a product based on a patent before the patenting company. How could you release a product based on a patent to prove your case without releasing a product based on a patent? That makes no sense.
C: It doesn’t prove, with absolute certainty, that the patent was unnecessary but it is STRONG evidence for the fact that the patent was most likely unnecessary. But science doesn’t require absolute proof or else we could never reasonably conclude anything.
Your statements are conflicting, at best. If the patent exists, and someone releases a product based on the patent after the patent is released, then how does that prove the patent was not required?
“”Also, it could be that the first company takes a more conservative approach to be sure the technology is proven, while the second company is less concerned about whether their product is reliable and safe.”
It could be that the second company was just being lazy and didn’t want to produce the product because they are happy with the products they sell and they just grabbed the patent to prevent the first company from competing.”
Your comment makes zero sense. The first company got the patent. You keep saying that the second company would not copy. If that is true, then what are you talking about? The first, patenting company would probably be thrilled that the lazy copying company is not using their intellectual property.
“In fact, this is likely being that most patents don’t make their way to products. It could be a million and one things, but this is mere speculation and your speculation, with a complete lack of evidence, isn’t nearly enough to justify preventing the first company from releasing the product first.”
May I ask what you are talking about?
“The first company has incentive to ensure the product works correctly and is safe because if they don’t they lose customers and/or get sued. Your speculative, non existent, problems are ones that the free market can sort out. If the first company really does a poor job with the product then the second company, upon releasing their improved more developed product, should easily take the market.”
Ummm…my example was that the first, patenting company, takes their time to release a quality product. The second company, basing a product off the patent, rushes a product quickly to market that is unreliable and potentially unsafe. The problem is that the second company may have poisoned the well, so to speak, for the first, more conservative company.
As for speculative and non-existent problems, it seems like your comments are beyond speculation, they are pure fantasy, and certainly the logic and reason in them is non-existent.
Re: Re: Re:4 Re:
“That is absolutely true, but that was not the example. The example is whether the company that got the patent should be able to keep it based on using it, not whether the product was released the same day as the patent issuance, which happens in nearly 0% of all cases.’
and that’s what needs to change, it should happen in 100 percent of all cases that the person who gets the patent only gets it on the product release date.
“This myth has been debunked, many times. There are numerous attorney web sites where the attorneys specifically recomend clients look at competitor patents.”
which doesn’t debunk the fact that companies still intentionally avoid looking at competitor websites and it’s usually company policy to do so.
“There are now HUNDREDS of companies whose only function is to search patents and provide the results.”
This is mostly for when companies want to file for new patents and want to ensure that no one else has an identical or similar patent. After all, filing for patents costs money and no company wants the USPTO to reject their bogus patent proposal on the basis that someone else already has an identical or similar patent. This is evidence that people are perfectly capable of independently coming up with and releasing similar ideas without patents.
and even to the extent that you’re right, that companies patent search to avoid infringement, that alone is evidence that people are perfectly capable of independently coming up with, developing, and releasing similar ideas without patents.
Another reason for doing patent searches is for entities like patent trolls who want to buy a specific patent in order to “license” or even sell said patent to another company to give them grounds to sue or counter sue (as we’ve discussed here on techdirt before).
“As for speculative and non-existent problems, it seems like your comments are beyond speculation, they are pure fantasy, and certainly the logic and reason in them is non-existent.”
Of course you know better, it’s just that you make your money by exploiting your unearned monopoly rents. Typical monopolies.
“The problem is that the second company may have poisoned the well, so to speak, for the first, more conservative company.”
Again, this is completely baseless speculation and is no excuse to restrict market competition and slow down progress just because some company filed for a patent first. There are a million things that “may” happen, but your situation is very a very unlikely one and a far more likely one is that the second company will likely get a patent and never use it hence preventing the first company from ever innovating (and the evidence is in the fact that most patents never make it to market and in the amount of patent trolls that exist and try to hide their true identity even).
The system should assume abuse and make policy to prevent abuse. It shouldn’t assume honesty. Imagine if I logged onto my bank account and they assumed honesty and required no credentials. Everyone would abuse the system. Or imagine of workers compensation assumed honesty and just granted workers comp without any standards and never investigated any claims. Everyone would abuse the system. Likewise, if the patent system assumes honesty you will have abuse, just like we have today (ie: patent trolls) where the rule is to abuse the system and patents are hardly ever used to help innovation but only to harm it. Now assuming a system of abuse is not the same as assuming people guilty until proven innocent, as in a crime or a tort. Three strikes is an example of being guilty until proven innocent in that people are individually punished for a crime or a tort upon three accusations, they are guilty until proven innocent. In the case of assuming people are dishonest and will abuse the system and creating standards to prevent such abuse, the same standards apply to everyone who wants IP privileges equally. The same thing should be true when it comes to providing grant money, the system doesn’t merely grant research grant money to anyone who applies, it has standards. and that’s why our patent system is a joke, there are no such standards. and one good standard should be that you don’t get a patent until your product makes it to market in order to prevent you from getting patents for the sake of hindering the competition and suing others and if someone else makes it to market first they can have the patent first.
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err. sorry, it doesn’t debunk the fact that companies intentionally avoid looking at competitor patents *
Re: Re: Re:6 Re:
Just some evidence for you to consider…DEBUNKED!!!
By the way, if these references do not communicate to you the point that companies read and analyze competitor patents, I have another thousand references to add to the list…just let me know!
http://www.patent-ideas.com/Patent-Infringement/How-To-Avoid-Patent-Infringement.aspx
http://ezinearticles.com/?Competitive-Intelligence-=-Patent-Analysis-+-Patent-Mapping&id=571302
http://www.patentmatrix.com/
http://ipbiz.blogspot.com/2004/10/need-to-read-study-your-competitors.html
http://www.knoxpatents.com/PracticeAreas.html
http://www.matheo-patent.com/
http://en.wikipedia.org/wiki/Competitor_analysis
http://www.invention-machine.com/uploadedFiles/InventionMachine_InnovationConsulting_PatentAnalysis.pdf
http://www.fishiplaw.com/faqs/cat/opposing-patents/36/
Re: Re: Re:7 Re:
The fact that there is a site out there named, “how to avoid patent infringement” proves nothing.
Also read from your first link
“Some people will intentionally avoid becoming aware of a patent of a competitor believing this will help them later.”
Also, your site says,
“The fact is, ignoring a patent will not help you later in litigation and it can potentially result in a judgment finding that you have intentionally infringed upon a patent.”
Which is all wrong anyways which makes your site lose credibility. Ignoring a patent you know exists is worse than ignoring one you don’t know exists.
“C. Find Patent(s) You May Be Infringing Upon”
and if you are already infringing on a patent that’s just evidence that no patent is needed for the product to make it to market.
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and another thing to note is that a company that does patent portfolio analysis (as in your third link) is more useful for companies that want to either
A: Cross license
B: sue someone and ensure they have an advantage in the lawsuit when it comes to patent portfolios.
C: Defend against someone suing them for infringement.
Hardly any of which promotes any actual progress.
and your fourth website says
“Contrary to the idea that one shouldn’t read competitor’s patents”
Implying that such an idea is at least prominent enough to mention, and the rest is merely his opinion.
and the link also says, “and, if appropriate, make a rational decision to license or design around.”
If one needs to “design around” that’s just evidence that their previous, more optimal design, didn’t need a patent for them to come up with but now that there is a patent they need to come up with a less optimal and probably more expensive design.
Patents should be obvious to those not trained in the arts, if someone really has to do a patent search to ensure that their invention is not already patented then that is evidence that the idea is obvious and people are perfectly capable of independently inventing it without patents.
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Your second to last link.
“Before your idea is tested, productized, and sold in the
global marketplace, you need to know if someone has already anticipated your
intentions, and has blocked your ability to practice your idea with patent protection.”
In other words, the patent is completely unnecessary for you to come up with an idea and advance it, but since the patent exists it will only hinder innovation and competition. But instead of innovating you must waste money on some stupid patent attorney service taking away money from actual innovation.
Re: Re: Re:8 Re:
“Your second to last link.
“Before your idea is tested, productized, and sold in the
global marketplace, you need to know if someone has already anticipated your
intentions, and has blocked your ability to practice your idea with patent protection.”
In other words, the patent is completely unnecessary for you to come up with an idea and advance it, but since the patent exists it will only hinder innovation and competition. But instead of innovating you must waste money on some stupid patent attorney service taking away money from actual innovation.”
No. In other words, to use your words, you should consider coming up with an even better invention now that you know what the competition is doing because they so willingly laid it out for you.
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“you should consider coming up with an even better invention now that you know what the competition is doing because they so willingly laid it out for you.”
Nothing is stopping the person from coming up with this “better” invention without the competitors patents to begin with. Instead of wasting resources on a patent search those resources could be better spent on coming up with a better invention. Coming up with a better invention requires resources and those resources shouldn’t be spent on patent searches and such. and what if this “better” invention is also patented by some other entity that doesn’t do anything with it?
The only thing they did was tell you what you can’t produce so that you can’t compete with them. Coming up with a “better” invention to the patented invention that would optimally promote the market had it not been patented is not possible. People independently come up with the simplest and best solution to a problem, for some corporations and patent trolls to take up the entire pool of possible inventions and patent them, especially since patents are often so broad in terms of how they can be interpreted and can cover so many inventions and aren’t designed to help the competition (why would they be?) doesn’t help progress, it only hinders it by preventing people from advancing a perfectly good invention and instead requiring a less reasonable one (as your website even admits).
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and your last link.
“Every company involved with newer technologies should keep current on the intellectual property of their competitors. It is almost always better to change a product than fight a lawsuit, and even if product change is not a realistic option, it is almost always less expensive to secure a license before the applicant has a product on the market than afterwards.”
In other words, who cares how bogus the patent is, it’s better that you change your product. No patent was needed for you to come up with idea X, because idea X is common sense. however, now that some retard selfish corporation has a patent on idea X, you must change to idea Y, which is unrealistic and unproductive but it’s better than litigation.
“After issuance there are really only two ways to invalidate a patent: (1) instigate a re-examination proceeding; and (2) litigate the validity of the patent in federal court. My preference is strongly in favor of filing for re-examination. First, a re-examination likely costs $6,000 – 25,000, while litigation easily costs $1,000,000. “
So when you say, “If that happens, it should be a relatively easy matter for the first company to prove they invented the device well before the other company. End of story.”
This is very likely to be false. But you know better of course. Litigation is expensive and it takes money that can be better spent on invention and innovation.
“Third, the patent examiners are quite experience in technology and patent law”
If this is the case, which is nonsense, then there would be no reason to re – examine as they would have gotten it right the first time.
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and furthermore, there should be HUGE CRIMINAL penalties for companies that acquire patents and never release products based on those patents, including potential civil penalties. ANY company that sues another company for patent infringement that doesn’t sell a product that uses the patent they are suing for is patent trolling and should be subject to treble damages and court fees. This would immediately eliminate all patent trolls being that all of the patents they sue for are for products they do not sell.
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and another standard should be that when you stop selling a product for the patents you earn the burden is on you to go to the patent office and declaim your patent. Once declaimed, it goes into the public domain never to leave the public domain again. Selling the patent to another entity should not be an option being that there is zero evidence that it does anything to promote the progress. For a company that temporarily sells a patented product, if they discontinue the product and don’t discontinue the patent there should be huge criminal fines and if they ever sue for patent infringement based on said discontinued patents there should be huge civil fines as well. Patent abuse is not acceptable and we need laws to prevent it.
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You need to adjust your tinfoil hat, it is becoming crooked.
Re: Re: Re:6 Re:
“and furthermore, there should be HUGE CRIMINAL penalties for companies that acquire patents and never release products based on those patents, including potential civil penalties. ANY company that sues another company for patent infringement that doesn’t sell a product that uses the patent they are suing for is patent trolling and should be subject to treble damages and court fees. This would immediately eliminate all patent trolls being that all of the patents they sue for are for products they do not sell.”
Your comment is the silliest damn thing I have ever heard. I think there should be criminal penalties for buying furniture they never use. I think there should be criminal penalties for accumulating junk in a drawer. Oh, please. You are being absurd.
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No it is not absurd. Buying furniture you do not use is not the same as buying a monopoly privilege you do not exercise. The furniture does not prevent others from creating and buying similar furniture, the patent takes away the rights of others for no good reason. To compare the two is just an example of your dishonesty. At least you admit, to some degree, your true motive. You claim it is rare for companies to have patents for the sake of holding them and preventing competition. When I propose laws to prevent such things, you reject such laws. If what you say truly is rare then you have no reason to reject such laws.
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Actually, there is a good reason. First, the constitution provides the right. Second, once you have property, or a property right, granted to you by the people of the United States, who are you to say what you can and cannot do with it? If you wish to have a law passed that says that you want to limit those rights, then go ahead. That too is guaranteed by the constitution. However, for you to claim the patent must issue on the same day as the product is released and if the company is not going to use the product on that very day is not only naive, it is ignorant and short-sighted and shows you have never been in a manufacturing environment.
Re: Re: Re:9 Re:
“First, the constitution provides the right. “
It’s a privilege, I don’t care what calls it a right. It’s not a right, it’s a privilege.
“Second, once you have property, or a property right, granted to you by the people of the United States, who are you to say what you can and cannot do with it?”
The people of the United states, who granted the unowed privilege, are to say. It’s an UNOWED privilege, there is nothing wrong with putting limits on the privilege. The U.S. citizens can simply say, “we don’t grant you the privilege to hold patents and do nothing with them. We grant you the privilege to use patents under these conditions.” It’s a matter of what the privilege is that’s being granted and the privilege to have a patent and not use it should not be granted. The IP maximist can do whatever he wants with the privilege he does get, but the privilege to have a monopoly and not use it should have never been granted to begin with is the point. Patents shouldn’t be a government handout to anyone who wants them without any reasonable standards in place to prevent abuse or abuse will be the rule, like it is now.
Regarding property rights, the government already limits what you can do on your own property. You have pollution limits, for example, you must follow building codes and such. So why not put limits on IP privileges as well, to ensure they actually promote the progress, especially if you claim IP is like real property.
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“That too is guaranteed by the constitution. However, for you to claim the patent must issue on the same day as the product is released and if the company is not going to use the product on that very day is not only naive, it is ignorant and short-sighted and shows you have never been in a manufacturing environment.”
No, the patent can be issued on the day or AFTER, but not a minute before. and it’s not ignorant and short sighted, the only thing that’s ignorant and short sighted is the notion that the government should be issuing monopoly privileges to begin with.
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Then the framers of the constitution should not have put the clause in.
However, given multiple papers that point out the harm to developing new inventions the loss of patents would present, it does seem that the framers knew what they were doing.
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“Then the framers of the constitution should not have put the clause in.”
The framers of the constitution put the clause in “TO PROMOTE THE PROGRESS.” It didn’t say, “to hold the patent and do nothing with it” what does it specifically say? TO PROMOTE THE PROGRESS. Holding a patent and doing nothing with it does nothing to promote the progress. Go back and read the constitution instead of promoting your unconstitutional and absurd policy that people should be allowed to hold a patent and do nothing with it.
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The only thing that’s absurd is the notion that anyone owes you a monopoly on anything to begin with. If we are to grant such monopolies laws should be in place to prevent abuse.
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Actually, it is not absurd, it is framed within the constitution. Now, if you wish to limit the grant of property rights, you can certainly work to do that, but as of now, you remain in the minority since the vast majority of people recognize the benefits such limited property rights bring.
Yes, there should be laws in place to prevent abuse, but the laws should be reasoned and not absurd quips you pull out of your butt.
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“Yes, there should be laws in place to prevent abuse, but the laws should be reasoned and not absurd quips you pull out of your butt.”
No, the laws I am coming up with ARE reasoned. The problem with you uncompromising IP maximists is that anything short of you getting your way 100 percent is considered unreasoned and uncompromised by you. That’s why the IP laws in place ARE absurd. Just look at copyright length. and the patent laws are no less absurd. If you don’t get your way 100 percent you cry to the government that no one is willing to compromise. and what does the stupid government do? They give you your way 100 percent, which is why the laws in place ARE absurd. What I’m saying is reasoned, but you are too selfish to allow for a compromise.
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“”That is absolutely true, but that was not the example. The example is whether the company that got the patent should be able to keep it based on using it, not whether the product was released the same day as the patent issuance, which happens in nearly 0% of all cases.’
and that’s what needs to change, it should happen in 100 percent of all cases that the person who gets the patent only gets it on the product release date.”
Completely unrealistic. Most patents issue well after product release, so your suggestion would be to have companies wait to release product until the USPTO has completed examination. Talk about stifling innovation.
“”This myth has been debunked, many times. There are numerous attorney web sites where the attorneys specifically recomend clients look at competitor patents.”
which doesn’t debunk the fact that companies still intentionally avoid looking at competitor websites and it’s usually company policy to do so.”
Please show me a company policy that says that your company does not avoid looking at company web sites. My experience has been that competitor web sites are one of our best sources of competitive intelligence. We assume that competitors will be looking at our web sites.
“”There are now HUNDREDS of companies whose only function is to search patents and provide the results.”
This is mostly for when companies want to file for new patents and want to ensure that no one else has an identical or similar patent. After all, filing for patents costs money and no company wants the USPTO to reject their bogus patent proposal on the basis that someone else already has an identical or similar patent. This is evidence that people are perfectly capable of independently coming up with and releasing similar ideas without patents.
and even to the extent that you’re right, that companies patent search to avoid infringement, that alone is evidence that people are perfectly capable of independently coming up with, developing, and releasing similar ideas without patents.”
Your conclusion does not follow. Yes, there are inventions that are developed separately, including tens of thousands of cases where the patents from the prior inventor ARE ALREADY EXPIRED. All that means is that yes, someone came up with that invention, two or three decades ago, which means that, gasp, the invention is now readily available for all to use for either further invention or further innovation.
Also, if you are looking at patents for patentability or infringement, then obviously you are reading the patents. Thank you for further confirming an already proven point.
“Another reason for doing patent searches is for entities like patent trolls who want to buy a specific patent in order to “license” or even sell said patent to another company to give them grounds to sue or counter sue (as we’ve discussed here on techdirt before).”
Somehow I doubt patent trolls are keeping thousands of searchers employed. However, I am more than willing to review your evidence.
“”As for speculative and non-existent problems, it seems like your comments are beyond speculation, they are pure fantasy, and certainly the logic and reason in them is non-existent.”
Of course you know better, it’s just that you make your money by exploiting your unearned monopoly rents. Typical monopolies.”
Non sequitur. You avoid answering questions just so that you can continue your dogmatic, though unarticulated beliefs.
“”The problem is that the second company may have poisoned the well, so to speak, for the first, more conservative company.”
Again, this is completely baseless speculation and is no excuse to restrict market competition and slow down progress just because some company filed for a patent first. There are a million things that “may” happen, but your situation is very a very unlikely one and a far more likely one is that the second company will likely get a patent and never use it hence preventing the first company from ever innovating (and the evidence is in the fact that most patents never make it to market and in the amount of patent trolls that exist and try to hide their true identity even).”
My “speculation” is founded in actual events. Your speculation, on the other hand, is just that. It is rare for a company to get a patent on an invention that another company has been using for some time. If that happens, it should be a relatively easy matter for the first company to prove they invented the device well before the other company. End of story.
“The system should assume abuse and make policy to prevent abuse. It shouldn’t assume honesty.”
The one really nice thing about the system is that if a practitioner is involved and has been dishonest, they will have their registration, and thus their livelihood, removed. That is a very high penalty.
“Imagine if I logged onto my bank account and they assumed honesty and required no credentials. Everyone would abuse the system. Or imagine of workers compensation assumed honesty and just granted workers comp without any standards and never investigated any claims. Everyone would abuse the system. Likewise, if the patent system assumes honesty you will have abuse, just like we have today (ie: patent trolls) where the rule is to abuse the system and patents are hardly ever used to help innovation but only to harm it. Now assuming a system of abuse is not the same as assuming people guilty until proven innocent, as in a crime or a tort. Three strikes is an example of being guilty until proven innocent in that people are individually punished for a crime or a tort upon three accusations, they are guilty until proven innocent. In the case of assuming people are dishonest and will abuse the system and creating standards to prevent such abuse, the same standards apply to everyone who wants IP privileges equally. The same thing should be true when it comes to providing grant money, the system doesn’t merely grant research grant money to anyone who applies, it has standards. and that’s why our patent system is a joke, there are no such standards. and one good standard should be that you don’t get a patent until your product makes it to market in order to prevent you from getting patents for the sake of hindering the competition and suing others and if someone else makes it to market first they can have the patent first.”
Talk about speculation…
Re: Re: Re:6 Re:
“Completely unrealistic. Most patents issue well after product release, so your suggestion would be to have companies wait to release product until the USPTO has completed examination. Talk about stifling innovation.”
It doesn’t stifle innovation, PATENTS stifle innovation. and if most patents are issued after product release already then what’s your problem, the terms have already been met. NO I am not asking companies to wait for the USPTO to issue a patent before a product is released, I am merely saying that patents should not be issued until patent release date. The USPTO is free to review the patent before patent release date, they merely issue it after.
If you mean that most products are released after patent release, that’s an abuse of the system and is just evidence that people are abusing the system.
Re: Re: Re:6 Re:
“Your conclusion does not follow. Yes, there are inventions that are developed separately, including tens of thousands of cases where the patents from the prior inventor ARE ALREADY EXPIRED. All that means is that yes, someone came up with that invention, two or three decades ago, which means that, gasp, the invention is now readily available for all to use for either further invention or further innovation.”
But you’re missing the point. The point that I’m making is that the need to patent search for patents currently being enforced should not be necessary and is just evidence of the fact that people can independently come up with similar ideas within similar time spans.
and the fact that innovation only occurs after patent expiration is evidence to the fact that the patent itself hindered the innovation from advancing before the patent expired. The entity that has the patent didn’t innovate, they failed, and they insisted that everyone fail with them until the patent expired. It’s not that the patent was necessary for the innovation to occur.
“Also, if you are looking at patents for patentability or infringement, then obviously you are reading the patents. Thank you for further confirming an already proven point.”
But they usually have separate legal teams look at the patents, or third parties even, to avoid the people who actually create products from being accused. They don’t look at patents to avoid infringement, they avoid looking at patents to avoid intentional infringement.
“My “speculation” is founded in actual events.”
It’s founded in events in your imagination.
“It is rare for a company to get a patent on an invention that another company has been using for some time.”
Even if true, what does that have to do with this discussion?
“If that happens, it should be a relatively easy matter for the first company to prove they invented the device well before the other company. End of story.”
Easy, how so? Lawsuits are not cheap which is why most entities end up settling anyways.
“The one really nice thing about the system is that if a practitioner is involved and has been dishonest, they will have their registration, and thus their livelihood, removed. That is a very high penalty.”
Again, the majority of patents don’t make it to products and even as you admit, many products don’t make it to market until after the patent expires even.
“Talk about speculation…”
It’s not speculation, it’s reality.
Re: Re: Re:6 Re:
“All that means is that yes, someone came up with that invention, two or three decades ago, which means that, gasp, the invention is now readily available for all to use for either further invention or further innovation.”
For a patent to hinder the advancement of an innovation for TWO TO THREE DECADES is completely not acceptable. Yet you admit this is what is happening. Don’t give me this nonsense that without said patent no one would come up with the idea within two or three decades. That’s absolute nonsense, if anything two or three decades from the time someone came up with it society would have came up with the idea, without patents, and improved it 100 times over.
Re: Re: Re:6 Re:
“It is rare for a company to get a patent on an invention that another company has been using for some time.”
one of your very sites says
“A re-examination is a petition to the patent office to consider propriety of an issued patent in view of additional prior art. Re-examination petitions are not terribly difficult to prepare, and tend to be successful.”
http://www.fishiplaw.com/faqs/cat/opposing-patents/36/
If what you said was true then there why would most re – examination cases on the basis of prior art be successful? Apparently this happens frequently enough for the site to list it as a viable option.
Re: Re: Re:7 Re:
If what I said was true, then there would be VERY FEW re-examinations requested, which is in fact the case. So, the fact that the system for re-examination in place is one of those things that helps prevent abuse, which YOU thought was a good idea, and I agree.
You should also be aware that about 0.37% of patents issued each year are challenged in re-examination, which is extremely small. You should also be aware that only 0.04% of patents, in other words, a nearly negligible amount, are invalidated each year by this process. About 25% of the patents re-examined are upheld in their entirety. The remaining patents may have some claims held invalid, or may need amendments, but the patents remain in force.
So, we have laws in place to challenge the validity of the system, and the vast majority of the time the patents remain in force.
Re: Re: Re:8 Re:
“So, we have laws in place to challenge the validity of the system, and the vast majority of the time the patents remain in force.”
So we have laws in place to challenge the validity of the system and the fact remains, I can still come up with more examples of bad patents than you can come up with examples of good patents.
Re: Re: Re:9 Re:
and we’ve played this game on techdirt before, and if you weren’t around, IP maximists lost completely. The fact remains, we can come up with more examples of bad patents than you can of good patents AND we can pretty much refute or substantially diminish most of your claims that any patent has helped promote the progress. Give examples of good patents and demonstrate, with evidence, that they have helped promote the progress and how. Monopolies cause a known harm to society, they reduce aggregate output and increase price, and for the most part most of the evidence shows that patents only hinder innovation and don’t help promote it.
Re: Re: Re:10 Re:
and as such, since patents cause a known harm to society, the burden is on YOU to justify them. So start justifying, give examples of good patents, preferably recent ones, not ones from 200 years ago or 100 years ago.
Re: Re: Re:11 Re:
Patents cause a known benefit to society, so the burden is on YOU to show that any harm caused by patents outweighs the benefits from patents. So start justifying.
Re: Re: Re:12 Re:
“Patents cause a known benefit to society”
No, you are making a positive claim. Justify. The positive claim that patents/monopolies cause a known harm to society is proven by Econ 101. If you can’t trouble yourself to take a basic econ class then I can’t help you. The alleged benefit to society isn’t known, it’s speculative, and I want evidence to prove it.
Re: Re: Re:13 Re:
You asserted first, you prove first. Patents are not in the same category as many monopolies because they are extremely limited with many checks and balances. Furthermore, monopolies are KNOWN, as is taught in ECON 101, to provide benefits in certain defined situations, incentivizing invention being one of them…however, because I am a nice person, I offer you this information, which has been previously posted on this site.
Patents help provide greater dispersion of technology than non-patented products.
Sokoloff, Lamoreaux and Kahn showed that patented innovations “tend to be traded more than those that are not, and therefore to disperse geographically farther away from the original area of invention.”
Patents encourage foreign investment.
Boldrin and Levine provided a summary of 23 studies on patenting and innovation, “strengthening IP increases the flow of foreign investment in sectors where patents are frequently used.”
Patents can lead to more spending on R&D as a portion of R&D.
Kanwar and Evanson have data for 31 countries in the period 1981-1990. They found a correlation between higher patent protection and increases in R&D as a fraction of GDP.
Park and Ginarte studied 60 countries from 1960 to 1990 and found that the strength of IPR (including pharm) led to growth of R&D in developed countries.
Chun-Ya Tseng and Cheng-Hwai Liou in “Valuation of R&D and Patent: An Economic Value Added Perspective,” found a positive correlation between R&D and patents and the financial success of 219 Taiwanese electronic companies sampled from 1990-2003. This paper also provides references to quite a few other papers supportive of the value of patent to the economic health of companies.
Patents have been shown over and over and over and over again to help some small businesses to become established in the market place.
Hall and Ham noted “The results suggest that stronger patents may have facilitated entry by firms in niche product markets…”
Though authors disagree as to the scope, study after study after study has said that patents are an important part of providing motivation for investing.
Cohen et al/Levin et al found that patents were not important for securing returns on innovation, except in pharmaceuticals.
A study by Edwin Mansfield (I believe this paper is “Patents and Innovation: An Empirical Study,” Management Science, Vol. 32, No. 2. (Feb., 1996). pp. 173-181) concluded that 60% of pharmaceutical inventions and 38% of chemical inventions would not have been developed without patents. Mansfield also concluded that while 86% of all inventions would have been developed without patent protection, the reverse is true as well. 14% of all inventions would not have been developed without patent protection. Furthermore, Mansfield did not study the relative value of the 86% and the 14%.
Arora et al also found that increasing the “patent premium” does not increase R&D except in pharm and biotech.
Bessen and Meurer: “the patent system provides positive incentives in some industries like pharmaceuticals.”
Bessen and Meurer: “we find that small publicly traded firms get small positive R&D incentives from patents. This is also very likely to be true for small, non-publicly traded firms and non-profit inventors.”
Ruth Suehle in Redhat Magazine: “I have to admit, it’s easy for me, and I suspect others, to forget that patents can work quite well outside of software.”
Roberto Mazzoleni and Richard R. Nelson: “The collection of small and medium sized firms in the American biotechnology industry is, of course, a striking example of enterprises that would not have come into existence without the prospect of a patent, and which depend on patent protection to make their profits, and to attract capital, through one or another of these strategies.”
I also have found it interesting that at least one researcher has pointed out the flaw with many of the studies that conclude that patents add no value to companies.
Mazzoleni and Nelson, on reviewing an array of studies that concluded patents were not helpful to studied companies:
“On the other hand, as we also noted, an important limitation of the studies reported above is that they all have been focused on a particular class of innovators, typically large firms with an established presence in their product markets and thus having access to the complementary assets needed to commercialize the end-product of their innovative efforts.”
“Nor do these studies get at the question of whether the prospect of patents motivates firms and other organizations outside of a particular industry to undertake inventions which would be used inside that industry. This class of inventors, call them industry-outsiders, is likely to lack the complementary assets needed to appropriate the returns from innovation by being first to market or by rapidly moving down the learning curve. Studies such as that by Jewkes et al. (1969) have documented the importance of such outsiders to technical advance in a number of industries. For such outsiders, the prospect of a patent may be essential if there is to be incentive to invent.”
These two researchers also concluded:
“In some areas, patent rights certainly are economically and socially productive in generating invention, spreading technological knowledge, inducing innovation and commercialization, and providing some degree of order in the development of broad technological prospects.”
Patents tied to economic growth:
http://www.washingtonpost.com/wp-dyn/content/article/2007/05/04/AR2007050402691.html
0 6 May 2007
The notion that patents are tied to growth is not entirely new. A study published last year by the Federal Reserve Bank of Cleveland found that the single best predictor of how a state’s income will grow is the number of patents in the state per capita. Education ranked second.
From:
http://www.clevelandfed.org/research/trends/2008/0308/03regact.cfm
14 Mar 2008
Education and innovation contributed more to income growth at the state level than other potential factors, according to research conducted at the Federal Reserve Bank of Cleveland. Educational attainment, for example, increased a state’s average per capita personal incomes relative to other states by 8 percent, but innovation “measured by patents per capita” boosts personal income nearly 20 percent. Given the importance of innovation to economic performance, we investigate patenting activity in the Fourth District and compare District trends with those across the nation.
Albert G.Z. Hu and I.P.L. Png, in their extremely well researched paper “Patent Rights and Economic Growth: Cross-Country Evidence,” found a positive mathematical relationship between patents and economic growth. From their conclusion:
Using an ISIC 3-digit industry level database that spans 54 manufacturing industries in 72 countries between 1981-2000, we found evidence that stronger property rights were associated with faster industrial growth measured by value added. The impact of stronger patent righs was both statistically and economically significant in three of the four periods we analyzed: 1981-85, 1991-95, and 1996-2000, and had become stronger in the 1990s compared to the in the 1980s.
Our analysis also showed that the stronger patent rights promoted industrial growth through technical progress in the 1981-85 and 1996-2000 periods and through more rapid factor accumulation in the 1991-95 period.
In another, related area, here is a study showing the incentives from the Plant Act:
http://www.patenthawk.com/blog/2005/04/patent_economics_part_5_theori.html
As an example, the Plant Variety Protection Act of 1970 provided patent protection for sexually reproducing plants. In the 1960s, about 150 new plant varieties were developed in the U.S. In the 1970’s, after providing patent protection, over 3000 new plant varieties were developed. Truly, patents provide the seeds for innovation.
Re: Re: Re:14 Re:
“You asserted first, you prove first. Patents are not in the same category as many monopolies because they are extremely limited with many checks and balances.”
I don’t care what you personally categorize them as or what the system personally categorizes them as, they are a monopoly. Exclusive rights to do something = monopoly. They have the same economics involved.
Re: Re: Re:15 Re:
Well, good then. So all the benefits provided to limited monopolies in controlled circumstances accrue to patents. I am glad we have settled that.
Re: Re: Re:14 Re:
“You asserted first, you prove first.”
No, your assertions are that patent monopolies are good for society. Patents take away the rights of others and as such the burden should be on you to substantiate the removal of others rights. Society owes you no monopoly, if you want special privileges, the burden is on you to justify, not the other way around.
Re: Re: Re:15 Re:
And I justified…so there you go.
Re: Re: Re:14 Re:
“Sokoloff, Lamoreaux and Kahn showed that patented innovations “tend to be traded more than those that are not, and therefore to disperse geographically farther away from the original area of invention.””
The assumption here is that patents are the reason they get traded more. Perhaps the reason they get traded more is simply because people get patents on good ideas that would be traded anyways.
Re: Re: Re:15 Re:
Well, by golly, we look for your explanation. However, they merely made a factual observation and we look for your factual observation, not unsupported speculation.
Re: Re: Re:16 Re:
But they did nothing to demonstrate that patents are the reason they are traded more. Correlation does not equal causation, you must prove that patents cause inventions to be traded more, not that there is a mere correlation, especially when there is good reason to believe that something else causes these things to be traded more.
Re: Re: Re:17 Re:
“But they did nothing to demonstrate that patents are the reason they are traded more. Correlation does not equal causation, you must prove that patents cause inventions to be traded more, not that there is a mere correlation, especially when there is good reason to believe that something else causes these things to be traded more.”
The observation was that items that were patented were traded more often than items not patented. If you have an alternative explanation and can provide controlled experiments to prove your hypothesis, then go for it. There have been a number of observations regarding spread of trade of patented items, and the observation appears consistent. While not evidence, it continues to support the observation, which I point out is not a theory, but an observation, so your “correlation” vs. “causation” is irrelevant.
Re: Re: Re:14 Re:
“Patents encourage foreign investment.”
For all the wrong reasons, because the foreign company isn’t allowed to innovate itself.
Re: Re: Re:15 Re:
Do what? Why would the foreign company be unable to innovate? The point here is that a foreign company sees a good investment based on a patent, and the investment fits with their goals, so they invest. Your statement is pure speculation without evidence.
Re: Re: Re:16 Re:
“Why would the foreign company be unable to innovate?”
It is unable to innovate on the innovations that the companies it is investing in is innovating on because the company it is investing in has patents restricting its innovation.
“Your statement is pure speculation without evidence.”
Except that this is a lie and you know it.
Re: Re: Re:17 Re:
“”Why would the foreign company be unable to innovate?”
It is unable to innovate on the innovations that the companies it is investing in is innovating on because the company it is investing in has patents restricting its innovation.”
lol…If you are investing in a company, surely you would be smart enough to gain access to the intellectual property from that company. Or are you saying investors are stupid?
“”Your statement is pure speculation without evidence.”
Except that this is a lie and you know it.”
You have not proven my statement to be a lie, so you are speculating without facts – again. You are boring.
Re: Re: Re:14 Re:
“Chun-Ya Tseng and Cheng-Hwai Liou in “Valuation of R&D and Patent: An Economic Value Added Perspective,” found a positive correlation between R&D and patents and the financial success of 219 Taiwanese electronic companies sampled from 1990-2003. This paper also provides references to quite a few other papers supportive of the value of patent to the economic health of companies.”
The fact that a patent helps a monopolist financially does nothing to demonstrate that it helps innovation. When a government grants a monopoly of course it helps the monopolist financially, but it harms everyone else.
Re: Re: Re:15 Re:
Wait a moment. The point of the paper was that they were a factor in the success of the electronic companies. Innovation is irrelevant with respect to this particular case. Remember your original question, which was the benefit of patents. I provide evidence and then you change the subject. Stay on track.
Re: Re: Re:14 Re:
“The notion that patents are tied to growth is not entirely new. A study published last year by the Federal Reserve Bank of Cleveland found that the single best predictor of how a state’s income will grow is the number of patents in the state per capita.”
This is only evidence of the economic harm patents cause. Monopolies bring money to the monopolists, of course, but it comes at the expense of everyone else.
Re: Re: Re:15 Re:
Wrong. The evidence showed that there was clearly a higher per capita income in a state where more patents were issued. You made your argument up with what? Thin air? FACTS, bring FACTS.
Re: Re: Re:14 Re:
“As an example, the Plant Variety Protection Act of 1970 provided patent protection for sexually reproducing plants. In the 1960s, about 150 new plant varieties were developed in the U.S. In the 1970’s, after providing patent protection, over 3000 new plant varieties were developed. Truly, patents provide the seeds for innovation.”
as a result of patents Monsanto owns almost the majority of food crops and has cornered the market. This is truly sad. And to say that 150 new plant varieties were developed isn’t significant, people have been cross breeding plants and developing new varieties for centuries, nature does it all by itself even. To say that only 150 new plant varieties were developed in the 1960’s before patents on them is nonsense, nature alone creates provides more variation every time a new plant is born.
Re: Re: Re:15 Re:
Wrong, again. You are on a roll. If you look at who is awarded the plant patents, you will find a huge array of companies. So, you not only exaggerated, you LIED.
As for your irrelevant comment about plant varieties, wrong again. Nature does not create a “new plant variety” every time a new plant is born. While mutations may be created, they are not necessarily viable, and you, consistent with your track record has provided zero evidence for anything you have said.
Do you have anything other than made up arguments, assumptions, innuendo, and a little ad hominem?
Re: Re: Re:16 Re:
“Wrong, again. You are on a roll. If you look at who is awarded the plant patents, you will find a huge array of companies. So, you not only exaggerated, you LIED.”
You’re the one unfairly benefiting from patents, not me, so you have the incentive to lie.
Re: Re: Re:17 Re:
“”Wrong, again. You are on a roll. If you look at who is awarded the plant patents, you will find a huge array of companies. So, you not only exaggerated, you LIED.”
You’re the one unfairly benefiting from patents, not me, so you have the incentive to lie.”
Actually, we all benefit from patents, so that gives you an incentive to lie by your logic.
Re: Re: Re:16 Re:
“While mutations may be created, they are not necessarily viable”
So provide evidence that the varieties produced via patents are viable and that patents are the reason for their existence.
“and you, consistent with your track record has provided zero evidence for anything you have said.”
Except that this is not true and it is you who has provided zero evidence to justify a harmful monopoly.
“Do you have anything other than made up arguments, assumptions, innuendo, and a little ad hominem?”
I have economic theory and facts, you have nothing.
Re: Re: Re:17 Re:
“”While mutations may be created, they are not necessarily viable”
So provide evidence that the varieties produced via patents are viable and that patents are the reason for their existence.”
Actually, the characteristics in a plant patent have to be reproduceable, and proof is required. The the existence of the plant patent is the evidence of viability.
As for proof that the plant exists only because of the patent, I will point out that China recently found the same thing, only even more dramatically. China recognized that NO new plant species were being developed because, according to surveys from seed producers, seeds were too easy to copy and there was no market incentive for the cost to develop new varieties. China implemented a new seed protection program and suddenly hundreds of new varieties were developed. So, you have two sets of evidence, one from the U.S. and one from China.
I believe that if you went the other way, removed the protections, the number of new plant varieties would return to near zero.
Of course, you may provide evidence to prove otherwise.
“”and you, consistent with your track record has provided zero evidence for anything you have said.”
Except that this is not true and it is you who has provided zero evidence to justify a harmful monopoly.”
Not true, I keep providing evidence and facts and you provide philosophy. Philosophy, while interesting, is not a substitute.
“”Do you have anything other than made up arguments, assumptions, innuendo, and a little ad hominem?”
I have economic theory and facts, you have nothing.”
No, you have philosophy, and perhaps theory, but thus far, in terms of facts you have NOTHING, ZILCH, NADA, ZIP.
Re: Re: Re:16 Re:
You’re the one that holds the absurd position that people who do not use their patents to produce a product should still be able to hold their patents despite the fact that this does nothing to promote the progress. This, of course, is nonsense and unconstitutional being that the constitution says that IP should be used to promote the progress, not to hold onto patents for no good reason. You are wrong about everything, your positions are absurd, yet you defend them only because they unfairly benefit you. You have yet to explain how holding a patent and not implementing it in a product does anything to promote the progress. You have no reasonable explanation, but you hold such a position only because it promotes your personal agenda. and the rest of your position and comments are equally as absurd.
Re: Re: Re:17 Re:
(to continue) but of course you pick and choose which parts of the constitution you like. You pick the part where congress can IP, but you ignore the part where it says, to promote the progress. You only pick the parts that serve your agenda and ignore the rest.
Re: Re: Re:18 Re:
err. you pick the parts where congress can issue IP …
Re: Re: Re:18 Re:
“(to continue) but of course you pick and choose which parts of the constitution you like. You pick the part where congress can IP, but you ignore the part where it says, to promote the progress. You only pick the parts that serve your agenda and ignore the rest.”
Of course new knowledge promotes the progress – unless you have evidence it does not.
Re: Re: Re:17 Re:
“You’re the one that holds the absurd position that people who do not use their patents to produce a product should still be able to hold their patents despite the fact that this does nothing to promote the progress. This, of course, is nonsense and unconstitutional being that the constitution says that IP should be used to promote the progress, not to hold onto patents for no good reason. You are wrong about everything, your positions are absurd, yet you defend them only because they unfairly benefit you. You have yet to explain how holding a patent and not implementing it in a product does anything to promote the progress. You have no reasonable explanation, but you hold such a position only because it promotes your personal agenda. and the rest of your position and comments are equally as absurd.”
The promotion of the progress does not come when there is a new product, but when there is new knowledge. There are people who invented and gave new knowledge and never produced a product. You would deprive the world of the vast knowledge of these geniuses just so that you can have a cute philosophical point. If you had your way, we would still be using inefficient DC electricity instead of AC electricity invented by Nikola Tesla.
Re: Re: Re:14 Re:
“monopolies are KNOWN, as is taught in ECON 101, to provide benefits in certain defined situations, incentivizing invention being one of them”
This is not true. It maybe taught in econ, but there is no math behind it or good theory, only speculation. Incentivizing invention is mere speculation, people have incentive to invent without patents, there is no economic theory describing how patents incentivize invention.
Re: Re: Re:15 Re:
Well, considering how much speculation and made up arguments you use, I guess I can use a little speculation myself.
As for people being incentivized to invent without patents, that may well be true that some people will invent without patents, but many inventors have said they REVEAL their inventions because of patents. Extremely well documented.
As for economic theory, that is irrelevant. We are talking psychology here.
Re: Re: Re:16 Re:
“Well, considering how much speculation and made up arguments you use”
Absolutely zero.
“I guess I can use a little speculation myself.”
100 percent of what you say is speculative.
“As for economic theory, that is irrelevant. We are talking psychology here.”
“As for people being incentivized to invent without patents, that may well be true that some people will invent without patents, but many inventors have said they REVEAL their inventions because of patents. Extremely well documented.”
The assumption here is that no one else can invent something identical or similar without someone revealing their patents.
No, economic theory IS relevant.
“As for economic theory, that is irrelevant. We are talking psychology here.”
Economic theory is relevant, patents cause a known harm to society so the burden is on you to justify them.
Re: Re: Re:17 Re:
“”Well, considering how much speculation and made up arguments you use”
Absolutely zero.”
Actually, 100% of your arguments were PURE SPECULATION and completely made up. In fact, you did not present a single fact.
“”I guess I can use a little speculation myself.”
100 percent of what you say is speculative.”
Actually, the vast majority of what I said was fact. In the few cases where I speculated, I said I did. You hide your speculations like the slinking cur dog that you are.
“”As for economic theory, that is irrelevant. We are talking psychology here.”
Economic theory is relevant, patents cause a known harm to society so the burden is on you to justify them.”
Already done – you are just ignoring the evidence. Does that make you an ignorant?
Re: Re: Re:16 Re:
“As for people being incentivized to invent without patents, that may well be true that some people will invent without patents, but many inventors have said they REVEAL their inventions because of patents. Extremely well documented.”
The fact that someone can ask the government to give them a monopoly on an idea or design that they came up with and not produce a product using said design does society no good whatsoever. The only thing it does is it prevents someone else, who would independently come up with and produce such a design, from producing such a design. and to say that no one could independently come up with similar solutions to a problem is also nonsense.
“As for economic theory, that is irrelevant. We are talking psychology here.”
You not only ignore basic economics but your psychology makes no sense either.
Re: Re: Re:17 Re:
and people don’t look through patents to look for new ideas to implement, they search through patents to either avoid infringement or to try and see if anyone else has a patent on an idea in order to get a patent on an idea.
To the extent that they search through patents to avoid infringement, this is only evidence that patents are not needed for people to independently come up with similar or identical ideas.
and the later does nothing to help invention or innovation either.
Re: Re: Re:18 Re:
“and people don’t look through patents to look for new ideas to implement”
Not true at all. In fact, data mining from patents, which means literally finding valuable stuff from patents to implement, has become quite a cottage industry – one which is expanding. There is a ton of knowledge in expired patents just waiting to be used.
“To the extent that they search through patents to avoid infringement, this is only evidence that patents are not needed for people to independently come up with similar or identical ideas.”
But what you failed to account for is that many of the patents located are already long expired. So, yes, they might have independently come up with the idea (though probably not, or we would not issue 180,000 patents per year), but how many decades after the first inventor? One of the values of the patent system is the speed with which knowledge is catalogued and made available for others to evaluate and use as an incentive for alternative developments.
Re: Re: Re:17 Re:
“The fact that someone can ask the government to give them a monopoly on an idea or design that they came up with and not produce a product using said design does society no good whatsoever.”
Not true. The knowledge is not available as an incentive for others to find alternatives. Further, once the patent expires the knowledge is available for all to use at no charge, which is a huge benefit to society.
“”As for economic theory, that is irrelevant. We are talking psychology here.”
You not only ignore basic economics but your psychology makes no sense either.”
You totally ignored my point, which was that patents provide inventors with incentive to share knowledge that they might otherwise keep secret, which is psychology, which you have completely ignored.
Re: Re: Re:14 Re:
and Mike addresses many of your studies here
http://www.techdirt.com/articles/20090107/0023103308.shtml
One problem is that your studies focus on the very narrow sectors with the patents, not the overall economy of innovation and the overall economy as a whole.
Also see
http://www.techdirt.com/article.php?sid=20081027%2F0350312652&threaded=true&sp=1#comments
Where Mike refutes your foreign investment argument as well.
Re: Re: Re:15 Re:
The problem with your refutation is that you have none. You asked for evidence that patents provide benefits. I provided the evidence. You counter with excuses and bull.
As for the Mike refutation, please do not make me scroll through comment after comment to find a “refutation.” Either provide it or admit you do not have one.
Re: Re: Re:16 Re:
“The problem with your refutation is that you have none.”
No, the only problem is that you can’t refute it, which is why our corrupt mainstream media censors anti IP viewpoints. They wouldn’t dare allow these viewpoints on their government monopoly infrastructure and airwaves, they are too evil.
“Either provide it or admit you do not have one.”
It’s been proven, you are the same one with the same exact post that you pasted here that was pasted elsewhere and you got refuted.
Re: Re: Re:17 Re:
“”The problem with your refutation is that you have none.”
No, the only problem is that you can’t refute it, which is why our corrupt mainstream media censors anti IP viewpoints. They wouldn’t dare allow these viewpoints on their government monopoly infrastructure and airwaves, they are too evil.”
Oh please, there are tons of articles about IP, both positive and negative. Your viewpoint is beyond paranoid.
On the other issue, YOU were the one who needed to refute my facts, and YOU HAVE NOT, because YOU CAN NOT.
“”Either provide it or admit you do not have one.”
It’s been proven, you are the same one with the same exact post that you pasted here that was pasted elsewhere and you got refuted.”
No, it did not get refuted. But, I give you the chance to do so now.
Re: Re: Re:16 Re:
“You asked for evidence that patents provide benefits.”
You provide benefits that monopolies provide benefits to the monopolists. Well, DUH. I knew that already. Please provide evidence that they provide benefits to society.
Re: Re: Re:17 Re:
err, you provided evidence that monopolies provide benefits to monopolists …
Re: Re: Re:17 Re:
“”You asked for evidence that patents provide benefits.”
You provide benefits that monopolies provide benefits to the monopolists. Well, DUH. I knew that already. Please provide evidence that they provide benefits to society.”
No. I provided evidence that patents increase per capita income, increase investment, and numerous other benefits, TO SOCIETY.
Re: Re: Re:14 Re:
“In the 1960s, about 150 new plant varieties were developed in the U.S. In the 1970’s, after providing patent protection, over 3000 new plant varieties were developed. Truly, patents provide the seeds for innovation.”
No, the fact that there were 3000 patents on various plant varieties is not evidence that patents are responsible for these varieties. It just means that some companies took a variety of existing plant varieties and patented it, not that the patents were responsible for such varieties. People have been creating plant varieties for thousands of years via cross breeding and every farm has a different variety of plants, to some extent, than any other farms. This has been true for thousands of years, no two farms have had the same identical plants and heck, variety within a farm has always existed. It’s just that there were only 150 documented new varieties before patents were granted, but once patents were granted the only thing that happened is they went and took a bunch of existing varieties that naturally occur and patented them.
Re: Re: Re:15 Re:
err. “It’s just that there were only 150 documented new varieties before patents were granted” for those specific years that is, not that such is the only plant variation that occurred during those years. Other plant variations occurred during those years on farms as it naturally does occur, and if more than 150 farms existed then more than 150 plant variations occurred (not to mention plant variations that occurred within a farm that were used for crops and hence perfectly viable, and all the plant variations that occurred in nature as well). To say that the plant variations that nature naturally produces beyond the 150 documented ones for those years wasn’t used is nonsense being that thousands of plant variations occur all the time within farms every time a new plant is born just about.
Re: Re: Re:16 Re:
“err. “It’s just that there were only 150 documented new varieties before patents were granted” for those specific years that is, not that such is the only plant variation that occurred during those years. Other plant variations occurred during those years on farms as it naturally does occur, and if more than 150 farms existed then more than 150 plant variations occurred (not to mention plant variations that occurred within a farm that were used for crops and hence perfectly viable, and all the plant variations that occurred in nature as well). To say that the plant variations that nature naturally produces beyond the 150 documented ones for those years wasn’t used is nonsense being that thousands of plant variations occur all the time within farms every time a new plant is born just about.”
One of the things we do well in our society is to document plant species, ESPECIALLY valuable plant species. Had there been more than 150 new plant species, they would have been documented. Your suppositions are not evidence and do not controvert the presented facts. Please come back with evidence.
Re: Re: Re:15 Re:
“”In the 1960s, about 150 new plant varieties were developed in the U.S. In the 1970’s, after providing patent protection, over 3000 new plant varieties were developed. Truly, patents provide the seeds for innovation.”
No, the fact that there were 3000 patents on various plant varieties is not evidence that patents are responsible for these varieties. It just means that some companies took a variety of existing plant varieties and patented it, not that the patents were responsible for such varieties. People have been creating plant varieties for thousands of years via cross breeding and every farm has a different variety of plants, to some extent, than any other farms. This has been true for thousands of years, no two farms have had the same identical plants and heck, variety within a farm has always existed. It’s just that there were only 150 documented new varieties before patents were granted, but once patents were granted the only thing that happened is they went and took a bunch of existing varieties that naturally occur and patented them.”
Actually, they had to prove that they created a new variety of plants – and they still do. There is a substantial database of all existing species of plants and that database is used as the comparison database to determine whether a new species is in fact eligible for plant act protection.
Of course, if you have evidence otherwise, I look forward to your presentation of the evidence.
Re: Re: Re:10 Re:
How about the engine compression brake patent (1957) by Clessie Cummins, which not only became a huge success in the market place, which Mike Masnick defines as innovation – gee, an invention that was innovative – but it reduced accidents and deaths in the trucking industry.
Oh, and Clessie Cummins said he developed the brake and released it to the public because he was able to get patent protection.
Oh, and multiple engineers refused to look at his design because the did not believe a sole inventor who said it came to him in a flash of inspiration could design a better brake than they could.
Re: Re: Re:9 Re:
Really? Since we have a system in place to challenge so-called “bad” patents, which is a relative term in any case, then I start by pointing out that any issued patent that is not challenged by re-examination, or not invalidated by a trial, which is the HUGE majority of patents, is, by YOUR definition, not mine, a good patent.
Re: Re: Re:8 Re:
“You should also be aware that about 0.37% of patents issued each year are challenged in re-examination, which is extremely small.”
Yes, but a small percentage of patents make it to product. The only patents that would be challenged to re – examination would be ones that are actually filed. But many corporations hold many many patents that they never use, it’s only a small percentage that ever gets used. and it’s only a small percentage that people sue over, namely, the relevant percentage that someone else accidentally infringes on. This still doesn’t diminish the fact corporations, even as your website notes, are prone to just avoid infringing on bogus patents and waste money creating an inferior product instead of wasting money getting a patent invalidated (or just ditch the idea altogether).
The fact that the majority of patents never make it to use means but are still held by the corporations is evidence that they provide some value. and if they’re not being used then their value isn’t in promoting the progress but instead in creating cross licensing deals and having cross licensing leverage and patent portfolio leverage to sue others or when you get sued in the case of settlements. Of course none of this promotes the progress, it only promotes expensive litigation taking away money from innovation. When two companies are settling on a cross licensing deal, instead of a lawsuit, no group of lawyers is going to seek to invalidate the other companies portfolio of patents, that’s ridiculous and expensive, it’s just cheaper to settle, and the entity with the most patents has more leverage in these deals. None of which contributes to innovation.
Re: Re: Re:9 Re:
Even this contention is in error. About 1/3 of patents die when the first maintenance tax is owed, which shows that corporations are uninterested in holding onto worthless assets.
By the time the second maintenance tax is owed, 60 to 65% of all issued patents are dead, showing again that there are multiple limits on the scope of patents and what can be done with them.
So, if your “evidence,” weak as it is, is that corporations hold onto patents, then you lose, because as few as 1/3 of patents are kept to the end of their life. The rest die in the period in between.
Re: Re: Re:4 Re:
“May I ask what you are talking about?”
“99.8% fail. Only 3,000 patents out of 1.5 million patents are commercially viable.”
http://www.inventionstatistics.com/Innovation_Risk_Taking_Inventors.html
Re: Re: Re:
A 5 year lead over the competition – wow. So why would you need a patent in that case?
Re: Re: Re: Re:
patenting genes was meant to give corporations time to research the hell out of them, develop a cure for some genetic disease, and market the cure for insanely high prices
that alone is bad, except they’re not even doing that, they’re just suing the hell out of each other
Re: Re: Re:2 Re:
“patenting genes was meant to give corporations time to research the hell out of them”
but patents almost never gave corporations incentive to research anything, they just gave corporations incentive to file first (shoot first) and maybe ask questions later (ie: research later), but mostly just do nothing because they are happy with the products they already sell and don’t want competitors to sell anything so they grab patents to prevent such competition.
Re: Re: Re:2 Re:
“patenting genes was meant to give corporations time to research the hell out of them”. Wrong. Patents are granted for a “final” product to provide the creator with a limited monopoly on selling the product. Of course that does not mean that you can’t continue researching.
A problem with both copyright and patent law is that it has been bastardized. One of the bastardized concepts being that copyright and patents are meant to protect the creator from alternative forms of competition.
Re: Re: Re: Re:
“A 5 year lead over the competition”
The fact is that a basic present value analysis will tell anyone with a bit of common sense that 20 year patents are absurdly too long. Income 20 years from now probably doesn’t have the present value to justify much further investment in research today, especially if the risk factor is high.
Re: Re: Re:2 Re:
Actually, the real problem is that we have an array of technologies, from those that still require the 17 year average life of a patent (there are no patents that live for 20 years from the date of issuance) to achieve a reasonable payback, to patents on software and incremental improvements that are likely better classified as innovations than inventions that may require only months and at most a few years to achieve payback.
Unfortunately, most people argue the extremes, from they are absolutely necessary to they are completely unnecessary. As a statement of opinion, since neither position is factually supported, they are both wrong.
A truly optimized system would review the average time to payback for various scientific and engineering fields and tailor the length of patents based on a required level of incentive for each field. Considering the limited factual evidence presented in various locations, software would likely get, at most, one, two or three years of patent life, and perhaps none at all. Mechanical inventions, perhaps chemical inventions, and perhaps pharmaceutical inventions, might be entitled to the maximum available patent length, which is 20 years from the date of filing, or an average of about 17 years from patent issuance. All other technologies would fall between those ranges.
Re: Re: Re:2 Re:
The fact is that a basic present value analysis will tell anyone with a bit of common sense
The ability to understand a present value analysis is probably not as common as you think. 😉
Re: Re: Re:3 Re:
Considering that the number of people that understand NPV is relatively small, you are absolutely correct.
Re: Re:
And, you shouldn’t be able to retroactively patent technology that’s already in existance, especially if you can’t prove that you were the originator of the technology.
An Emerging Issue With The Patenting Genes
Many of these researchers “steal” the genetic material for their research from their patients. Of course the researchers won’t phrase it that way. But the point of all this is that some people believe that they have a right to take something and then claim it as their own.
Genes should NOT be patented.
If any of this work is publicly funded patents should NOT be granted.
See If Gary Locke Wants To Incentivize Commercializing Research He Should Look To Get Bayh-Dole Repealed
Re: An Emerging Issue With The Patenting Genes
How can you “steal” genetic code? Are the patients deprived of their code? No. In fact, do they even know the information has been taken? In some cases, perhaps many cases, no, because the information may be acquired through dead tissue.
Re: Re: An Emerging Issue With The Patenting Genes
Your point is why Steve put “steal” in quotes.
Re: Re: An Emerging Issue With The Patenting Genes
“Are the patients deprived of their code?”
It’s stealing because now others are deprived of using the code.
Re: Re: Re: An Emerging Issue With The Patenting Genes
roflmao…No, the mere act of acquiring the code and keeping others of using the code are two separate acts.
Also, how do you “deprive” someone of something they never had?
Re: Re: Re:2 An Emerging Issue With The Patenting Genes
“roflmao…No, the mere act of acquiring the code and keeping others of using the code are two separate acts.”
The act of keeping others from using it IS stealing because you are depriving them of something they had before you took it.
The right to inspect the code is something that everyone always has had until you stole it. The patent deprives them of that right.
Re: Re: Re: An Emerging Issue With The Patenting Genes
(to continue). and the difference is that the right to use the code is rightfully everyone’s right. Society owes you NO monopoly on anything. To deprive society of a right that’s rightfully theirs is stealing. The privilege to have a patent is not a privilege that is rightfully yours. Me depriving you of the privilege to enter my house and take my TV against my will isn’t stealing because such isn’t a privilege that’s rightfully yours. But you depriving society of the right to look at genetic code and use it to their own advantage IS stealing. You aren’t the only one that can look at code and figure out how to use it, others can too and are perfectly willing to do so, and release their results even, without patents or IP provided that ridiculous laws (like the patent ones) don’t stop them.
But you are like one of those people on Techdirt who used to argue that music will die without copyright despite the fact that many people release music under CC licenses intended to circumvent copyright. You will say anything to persuade others to give you your unearned monopoly rents. You know what you are saying is a lie but your complete disregard for morality prevents you from telling the truth.
Re: Re: Re:2 An Emerging Issue With The Patenting Genes
Give me a break. If I discover something and never tell you about it, other than the fact that I discovered something, have I deprived society? No. You cannot deprive someone of something they never had.
As for your copyright comments, you are making assumptions without basis and putting words in my mouth. I am arguing philosophy, not benefit.
As for calling me a liar, butthole, watch your mouth.
Re: Re: Re:3 An Emerging Issue With The Patenting Genes
“If I discover something and never tell you about it, other than the fact that I discovered something, have I deprived society?” If you don’t want to tell anyone about it, that is fine.
What is wrong is claiming a patent/copyright entitlement that deprives the public of of the ability to use knowledge that has been publicly disclosed. Hence, it should be freely available to the public.
Re: Re: Re:4 An Emerging Issue With The Patenting Genes
Separate issue entirely. My comment was directed to the person commenting about “stealing” and “depriving.” Even though I keep pointing out that deprivation can never occur when you never had the item in the first place, somehow I keep getting ignored. It is almost as though the stealind and depriving crowd wish to avoid admitting that they do not control private knowledge.
Nonsense
It’s ridiculously laughable to claim a patent on a gene, our genes belong to all of us! Whose crazy idea was it to try and restrict research to a small group of people when sharing the info and ‘research rights’ would surely produce more ideas and get more results? Would we have cured cancer by now without patents? geez that makes me mad. Besides, the ‘rights’ to those genes belong to the first humans who lived millions of years ago, since they ‘created’ them in the first place, and they’re loooong dead, so the patent’s expired.
Questions:
1. Barring any examples of specific new genetic material created through either gene manipulation or splicing, how is there not prior genetic art for every one of these patents?
2. How do copyright and patents butt up against each other? Because it seems to me that if you’re going to allow for IP on genes in the form of patents, what would stop anyone from claiming copyright on their own genetic sequence, which would of course exist automatically upon expression (which opens up a far more fun conversation on when expression/life begins, and if a fetus can own copyright mid-expression)?
Oh dear..
I can understand patenting the research of and resulting outcomes of genetic code but trying to patent genetic code itself is a trainwreck waiting to happen. Imagine big pharma companies arguing over who can do research on a specific gene. Imagine some company getting the patent on some sort of life saving procedure that involves using some part of a gene sequence but said company decides its not “cost efficient” and therefore shelves it for all eternity while people die from a condition that could have been treated by it. And in RIAA/MPAA fashion…
every few eons when there is a major evolutionary step that renders some company’s research obsolete instead of developing something new they try to appeal to the government to somehow stop evolution so that said company can continue to exist with its outdated business model.
Re: Oh dear..
The fact is that the alleged justification for patents is no more credible than the alleged justification that the RIAA puts forth to justify the government destroying our lives (ie: the claim that piracy undermines humanitarian efforts in Haiti). These people will say anything, no matter how absurd or incorrect or how much of a lie it is, to persuade governments and the public alike to maintain their government sanctioned monopoly rents because that’s what government granted monopolies do. They rent seek, it’s just the nature of these sort of monopolies to lobby to keep their unearned monopolies and the laws that restrict competition for no good reason. They will fabricate evidence and do whatever it takes to maintain their government monopoly rents. Morality is not an issue.
Re: Oh dear..
I can understand patenting the research of and resulting outcomes of genetic code but trying to patent genetic code itself is a trainwreck waiting to happen. Imagine big pharma companies arguing over who can do research on a specific gene. Imagine some company getting the patent on some sort of life saving procedure that involves using some part of a gene sequence but said company decides its not “cost efficient” and therefore shelves it for all eternity while people die from a condition that could have been treated by it.
I find it curious that you’re speaking of all this as if it’s a hypothetical situation that hasn’t happened yet. The train wreck is already occurring.
Re: Re: Oh dear..
If only you guys knew. The situation is actually far worse than you think. There are companies that have conducted research that is potentially life-saving that has never been disclosed because the companies that have done the research see no value in putting the information into the public domain and they have never filed a patent application on the knowledge. While I am unaware of any duplicate discoveries that have been shelved, I would be unsurprised.
Re: Re: Re: Oh dear..
Maybe so, that companies don’t disclose information that could be potentially life-saving, but they are under no obligation to disclose the information unless of course one assumes that all corporations follow a moral code which, as far as I know, isn’t the case. So unless it was federally funded research wherein taxpayer money was involved, the taxpayers and general public cannot expect that people using their own private resources to conduct research should divulge the results of the research.
Re: Re: Oh dear..
True.
Re: Re: Oh dear..
True. I’m just so used to saying these things in a “what if”-like sense that I just went with it when typing that. You are right that such things are already happening.
thos is gay
I remember when patents were based on inventions or a blueprint of a prototype. Not an idea, not something created naturally, but something physical; be it sketch or a physical representation of the invention. Like the cotton gin, light bulb, street light, telephone, radio, etc, the list goes on. If you invented something, you file a patent based on something physical that was created by the human hand.
Everyone has ideas, but you can’t legitimately patent them because we would all be sued on what we think. Did Einstein patent his theories? No. If the patent system existed when Newton came up with his Laws of Motion or the idea of Gravity, do you think he would have patented them? No. Because they were ideas of man. Anyone can have an idea.
How can you patent something that naturally occurs in life? Man didn’t physically make it, it was created by the process of life. It is a discovery. Did Curie patent Radium? No. Did the person who discovered gold patent it? No. Did any of the elements in the periodic table get patented. No. You can’t patent a discovery. It was already there before that person came along.
Why hasn’t air, trees, flowers, rocks, dirt, clouds, etc been patented? It is basically what the concept of patenting genes comes down too. Genes, DNA, chromosomes, the building blocks of life has been here since they came into existence. I have the rights to every cell, every chromosome, every piece of DNA, every single molecule that resides in my body, not some other individual or company hoping to make a buck of it.
Do I have to pay money to some patent holder of gene XYZ to continue to exist? If I decide not to pay, will I get recalled or get slapped with an injunction not to procreate? If so, my parents screwed me over…
Patenting genes…what a concept. I can just see it now:
“I’m sorry sir, we have detected that you are carrying unlicensed genes in your DNA. Please pay us our patent fee within 90 days, else we will have to repossess you and your children.”
WTF??
Re: Re:
Imagine if the guys in that new “Reop Men” movie coming had to collect DNA…
Re: Re: Re:
Then the movie would be called Next, by Michael Crichton.
Gene Patents
Last Summer, I attended a lecture by David Magnus, a philosophy guy who spoke about bioethics. I asked him why a gene could be patented, and he said that it takes all the work to discover it. It made me think of mining as a metaphor for the situation.
In mining, like DNA sequencing, the object of desire already exists in the real world. I could only justify to myself the patenting of the processes by which the work is done, but it does not make sense to patent the material which is mined.
Abolish patents......
I’ve written it before, and I’ll write it again (not that anyone in necessarily going to do anything about it).
Patents have long out lived their usefulness.
Just reading what others have written in this thread should be enough to get them repealed.
Patents were _supposed_ to be about promoting the progress of science and the useful arts. Instead of keeping your new invention of a physical object (cotton gin, gun trigger, etc.) a closely guarded trade secret, to perhaps be lost to the annals of time, you got a patent on it.
The patent had to be detailed enough so that someone else, skilled in the trade, could recreate it from just the patent. If it wasn’t obvious, to people skilled in the trade, your reward was a limited monopoly building that invention for a set period of time. This was in return for you helping advance the start of the art.
Anything that existed, or could exist without your patent wasn’t patentable. If the day before you ‘invented’ your patented invention it already exists somewhere in the world, then you can’t patent that. When people used to talk about it, it was said that you couldn’t patent it because God already had that patent. It was why you couldn’t patent; rocks, trees, plants, animals, gravity, light, etc.
Without the patent in question would the BRCA1 gene exist? Ummmm… why yes. What should have happened is that the patent office _should_ have stamped that application as “not patentable subject matter”. Have a nice day, thank you for playing.
So let’s see, it fails right there. Next test; does the patent describe in sufficient detail to someone skilled in the trade, how to _build_the_BRCA1_ gene? I would imagine not (it’s a genetic sequence naturally occurring in women). Fail 2.
Just like ‘software’ patents, genetic patents are a perversion. A pariah, a pox, and a plague upon us all.
If I ‘patent’ the gene sequence for blue eyes does that mean I get to demand payment from anyone on the planet that happens to have blue eyes? Can I get an injunction? I know I’ll get the ITC to ban the ‘import’ of any blue eyed people into the U.S. That’ll show them. I can be like SCO (the one that’s formally Caldera) I’ll offer to sell couples “Blue eye source licenses” then in the event that you happen to conceive a blue eyed child you’ll be indemnified (i.e. I won’t sue you) against your inadvertent infringement of my patent.
— That’s the great thing about patents you don’t have to even know about them to infringe. —
With a little bit of clever lawyering, I bet I could get it extended at least a couple of times. Then I’ll prevent anyone else from even looking at those genes. Follow up related patents; brown eyes (there are a lot of infringers of that one), green eyes, black eyes, and hazel (that one was real tricky). A favorable court decision and I could get one of my patents broadened, after it’s been granted, to encompass eyes themselves. Wouldn’t that be great!
Unless you are using a braille reader, or text to speech, everyone reading this post is using my patent pending eyes. Please submit payment promptly (for current and past infringement) and then gouge out your eyes. Please include documentation (no actual eyes please) along with your payment as proof that you are now eyeless.
Don’t you wish you’re parents had purchased a “Blue eye source license” before you were born……. Get yours now and save your future children the cost and inconvenience of having to go through life sightless. Buy one today, just think of the children.
{for the sarcasm impaired, that last portion was sarcasm }
The argument for gene patents
I can’t tell you why it makes sense, Mark, ’cause I don’t think it’s good policy, but here’s the argument for patenting a gene sequence:
To be patented, a gene has to be isolated and purified. It’s a form that does not exist in nature, because in our bodies the gene sequence is always bound to other things. It takes a significant amount of time and effort to isolate a gene and remove all the extraneous proteins and other items that are connected to the DNA. Once isolated, the gene becomes a valuable diagnostic tool. It’s that thing — the valuable diagnostic tool — that’s being patented.
Again, I’m not trying to defend the patentability of genes. I’m on the other side. See http://articles.latimes.com/2010/jan/10/opinion/la-ed-genepatents10-2010jan10. But the question folks should be debating here is whether patenting such a tool advances science or deters it. Bio companies argue that the patent incentivizes companies to invest more money in isolating gene sequences, creating more diagnostic tools that leads to tremendous advances in medical science. Personally, I think the voluminous work by university researchers to isolate genes suggest that the incentive provided by patents is unnecessary. Of course, universities have been known to be motivated by the promised riches of patents, too.
Re: The argument for gene patents
Universities have been known to be funded by public tax dollars as well.
Ooops
Make that “Mike,” not “Mark.” D’ohhh!
RE: The argument for gene patents
Jon,
Actually the patentable part of your description isn’t the genes themselves (you’ve admitted that they already occur) it’s the machine to _purify_ them.
If Eli Whitney were Myriad then he would have been granted a patent on cotton, no the cotton gin. After all what’s what a cotton gin is right, a device to purify cotton. I may exists in nature, but he came up with a more efficient way to isolate it. By your reasoning he should have been granted the cotton patent. Certainly much more valuable than the one he got on the gin. No one else could have done anything with cotton without his permission. Just think of the advances in science and technology that were wasted by not giving Eli the exclusive rights to cotton. Um, no that’s not right. Neither is Myriad getting a patent on the BRCA1 or any other gene sequence.
They want a patent on their gene purification machine, go for it. They want (and sadly got) a patent on genes themselves, That’s eeeevvvviiiillll….
The original invention
“1. Barring any examples of specific new genetic material created through either gene manipulation or splicing, how is there not prior genetic art for every one of these patents?”
Bingo. Everything that exists and carries DNA should be considered prior art, invented by the Universe/God/Flying Spaghetti Monster/random chance/nature, and displayed to us every day. The alternative is one of the few ideas, that I would ever describe in any context as frightening.
“You can’t develop a vaccine for polio, we own it!”
Does anyone care about the facts?
There have been thousands of research articles published on the gene in question. Where is the stifling of research?
There is no patent on the gene as it exists in any person. The gene itself IS NOT PATENTED.
The patent is on a nucleic acid, a chemical structure. Such things have been found patentable for over a hundred years
If you are the first person to isolate or synthesize a chemical, establish it has utility, and establish that it is not obvious in view of the prior art, you have fulfilled much of what the law requires to obtain a patent to that subject matter.
It is no different from any other subject matter. Arguing against this is arguing that the entire patent system should be changed. Maybe you believe that, maybe you don’t, just please do not be distracted by (or try to use to your advantage) the histrionics surrounding the “gene” aspect of this case.
Re: Re:
“The patent is on a nucleic acid, a chemical structure. Such things have been found patentable for over a hundred years”
Effectively the patent is on the gene. No difference.
Re: Re:
There have been thousands of research articles published on the gene in question. Where is the stifling of research?
As you well know, the number of research articles is not the real indication of whether or not important research is being done on the gene.
There is no patent on the gene as it exists in any person. The gene itself IS NOT PATENTED.
Well, actually, that’s not quite true.
The patent is on a nucleic acid, a chemical structure. Such things have been found patentable for over a hundred years
And what does that chemical structure make up? The gene. Hence, the gene is patented.
As for these things being found patentable for over a hundred years, again, that’s not quite true. Chemical structure patents have been approved for synthesized chemicals, but not so much for those just found in nature.
Even so, just because court systems have chosen to allow patents on chemical structures, doesn’t make it right, now does it?
If you are the first person to isolate or synthesize a chemical, establish it has utility, and establish that it is not obvious in view of the prior art, you have fulfilled much of what the law requires to obtain a patent to that subject matter.
This is false, and it is misleading for you to claim it. I’m guessing you’re a lawyer, but you should be a lot more forthright in discussing this. To receive a patent, something must be *new*. The nucleic acid in question is NOT NEW, and thus does NOT meet the requirements to be patented. Even if you take the (ridiculously) overbroad claim by Rich that the patent system covers ‘anything under the sun made by man,” we have a problem — since the nucleic acid in question is not, in fact, made by man, but by nature (unless you’re going to argue that the process of human creation qualifies as “made by man” which would be an interesting legal rathole that you probably don’t want to go down).
It is no different from any other subject matter. Arguing against this is arguing that the entire patent system should be changed. Maybe you believe that, maybe you don’t, just please do not be distracted by (or try to use to your advantage) the histrionics surrounding the “gene” aspect of this case.
Yes, we think the patent system should be changed — but even as it is it is difficult to see how this qualified for a patent at all. And if your claim is that it’s okay because synthesized chemical structures have been found to be patentable, then the end result of this case should demonstrate how ridiculous that concept is, and why we should never have allowed such things to be patentable in the first place.
Re: Re: Re:
*Sigh* As much as I think patents provide value in incentivizing invention, I am not so sure about genes. The part I really struggle with is that the gene already existed, so in effect the company that isolates the gene is merely discovering a new physical fact. It seems to me that such matter is unpatentable, and I do not understand the theory that makes it patentable.
I think I'll patent eagles.
That makes as much sense to me as allowing people to patent genes. How can anyone possibly claim any proprietary rights over something naturally occurring in nature? If I held the patent on eagles, then when native American want to use eagle feathers in their rituals, they will not only have to get the necessary permits from the federal government, they will have to pay me a license fee, because hey, I OWN THE PATENT. If anyone can come up with a really good way to get this by the patent examiner I’ll go halves with you on it.
Re: I think I'll patent eagles.
Supreme Court ruled that patenting living, naturally-occuring animals is not allowed.
What is allowed are patents on transgenic animals and recombinant DNA.
Creation should be different from discovery
If you are the first person to isolate or synthesize a chemical, establish it has utility, and establish that it is not obvious in view of the prior art, you have fulfilled much of what the law requires to obtain a patent to that subject matter.
Synthesizing a chemical is one thing, I think there’s room for reasonable discussion about something that was created in a lab.
In the case of Myriad and BRCA1, they simply discovered the protein. Even if you argue that this doesn’t cover a partcular gene, it is a company essentially claiming to own something that has been there all along, just because they happened to find it. If it’s reasonable to argue then that a discovered protein can be claimed and monopolized, why not a gene? It would be like discovering trees and patenting lumber.
Discovering things that already exist shouldn’t be an innovation that merits patent. Patents should represent the application of discovered knowledge to create something new. Now that they know about the protein, Myriad should feel free to take advantage of that knowledge to invent and patent tests, drugs, or even new, lab-derived proteins.
Genes are discovered
Genes are discovered not invented – so they should never have been patentable. Who ever originally allowed this dsidn’t look properly at what the law said.
That does not mean that processes using the genes could not be patented
Re: Genes are discovered
There is a very important caution here. You wrote “That does not mean that processes using the genes could not be patented”. I will acquiesce to the fact that a specific process, clearly spelled out in a “blueprint”, could be patented. (No cloud boxes allowed) However, you should not be allowed to have a broad patent that covers all processes/methods for testing a gene.
I will even say that competitors should have a right to “reverse engineer” a test. Reverse engineering has been (was) a legitimate innovative approach for developing an alternative implementation to something that was patented.
Re: Re: Genes are discovered
Steve:
The failure of the U.S. system to permit “reverse engineering,” or more appropriately, building a test unit to be able to determine whether the patent teaches what it claims to teach, is a major weakness of the U.S. system. It is literally impossible to see whether a patent is truly enabling under the current system. Other countries permit an “experimental use” exception that allows building of units strictly to test the performance of the invention, typically to aid in building alternatives or improving the primary invention, which could only benefit “promoting the progress.” Real patent reform would permit such testing.
Ok, Amazons double click patents. Patent on swinging sideways on a swing. The patent on the wheel. I think the majority of Americans would unanimously agree these are bad patents.
Re: Re:
Ah, yes. Three patents. Out of 7.6 million. You only have to prove that 3.8 million patents were and are bad…keep going. By the way, what that means is that even if you find 76,000 “bad” patents, which is a meaningless term anyway, that number is so insignificant as to be irrelevant when balanced by all the remaining patents…but I love to be entertained by flying monkeys…
Re: Re: Re:
I will reasonably assume that the rest of the patents are equally bad unless you can demonstrate otherwise.
Re: Re: Re: Re:
And I will assume that the rest of patents are equally good unless you can demonstrate otherwise. Of course, under U.S. law a patent is presumed valid and a defendant accused of infringement has to show, by a preponderance of the evidence, that the patent should not be valid or “good.”
Have fun!
Re: Re: Re:
“You only have to prove that 3.8 million patents were and are bad…keep going.”
Apparently you know nothing about math or statistics either. In order to determine how many gold fish are in a body of water, they don’t take out every fish in the water. They take statistical measures and deduce the population of fish and how many of each type of fish are present in the water based on a SAMPLE. and such deductions are reasonable.
So far, bad patents = 3.
Good patents = 0
Re: Re: Re: Re:
Not true. Your samples are not random and are therefore not statistically significant. On the other hand, if you wish to take a statistically significant sample size and determine whether that sample is “good” or “bad,” which no one would believe anyone since you are shooting from the hip and have no criteria for “good” or “bad,” then you might have a point. Until then, you are blowing smoke.
Re: Re: Re:2 Re:
“which no one would believe anyone since you are shooting from the hip and have no criteria for “good” or “bad,” then you might have a point.”
and if there are no criteria to determine good from bad patents then how can we expect the patent office to make such a determination before granting a patent?
Re: Re: Re:3 Re:
The patent office does not tell “good” from “bad.” Their criteria is whether the invention is novel, whether is would or should have been obvious, whether it has utility, and whether the patent properly teaches how to practice the invention.
Re: Re: Re:4 Re:
“Their criteria is whether the invention is novel”
Except they grant many non – novel patents.
“whether is would or should have been obvious”
Except they grant many obvious patents.
“whether it has utility”
Monopolies usually have utility to the monopolists, the questoin is whether it has utility for society. You have yet to demonstrate.
“and whether the patent properly teaches how to practice the invention.”
Microsoft has many patents yet their software is still closed source.
Re: Re: Re:5 Re:
“”Their criteria is whether the invention is novel”
Except they grant many non – novel patents.”
Your opinion without factual support.
“whether is would or should have been obvious”
Except they grant many obvious patents.
Your opinion without factual support.
“whether it has utility”
Monopolies usually have utility to the monopolists, the questoin is whether it has utility for society. You have yet to demonstrate.
No, there is no requirement for “utility to society.” The requirement is for utility, period.
“”and whether the patent properly teaches how to practice the invention.”
Microsoft has many patents yet their software is still closed source.”
So, prove that Microsoft has a patent that does not properly teach how to practice an invention.
Re: Re: Re:4 Re:
If the job of the patent office isn’t to grant good patents then they should not exist and neither should patents.
The criteria you mention are attempts to come up with criteria that constitute GOOD patents, patents that cause more benefit to society than harm.
Again, I provided a small sample of bad patents, I’m still waiting for you to come up with examples of good patents and to explain why they’re good and your criteria for claiming they are good and why such criteria makes sense.
Re: Re: Re:5 Re:
(to continue) but instead, you seem to admit that determining the quality of a patent is subjective which is just a good argument against our patent system.
Re: Re: Re:6 Re:
Actually, you are the person claiming that patents can be “good” or “bad.” I said before that there are specific criteria that are used to judge whether a patent application should become a patent; criteria that do their best to be non-subjective.
Re: Re: Re:5 Re:
I continue to disagree. The “goodness” of a patent is not at issue here. Whether the patents provide unique knowledge of inventions to mankind is the proper standard, not whether it is “good” or not. Knowledge is neither “good” nor “bad,” it is merely knowledge.
And I provided an example of a valuable patent, which you ignored.
Re: Re: Re:4 Re:
and shouldn’t one criteria for the continual existence of a patent be that it “promote the progress” as depicted by the constitution? And as such, wouldn’t be make sense to automatically remove patents that are not implemented in products?
Re: Re: Re:5 Re:
err, one criterion *
Re: Re: Re:5 Re:
The requirement is that the patent add to human knowledge, which promotes the progress. There has never been a requirement that a patent be used. Would it make sens to eliminate patents that have never been used in a product? Maybe. However, given that some technologies require years to perfect, I would recommend a reasonable period of time before removing the patent – though, as I previously pointed out, companies already do that because of the tax on keeping patents in force. An easier way to accomplish what you are seeking is to increase the tax, decreasing the desirability of keeping non-performing patents maintained.
Re: Re: Re: Re:
Which mean that, if I know nothing about statistics, then you know less than nothing.
Re: Re: Re:2 Re:
If this is true, and my sample is biased, then it shouldn’t be very hard for you to come up with an unbiased sample of good patents and to demonstrate, using good reasoning, that such inventions and innovations would not occur without patents. Heck, come up with a biased sample of ten good patents. You still haven’t, because you can’t. If most of the patents out there are good then it shouldn’t be difficult for you to prove it with a sample.
Re: Re: Re:3 Re:
“If this is true, and my sample is biased, then it shouldn’t be very hard for you to come up with an unbiased sample of good patents and to demonstrate, using good reasoning, that such inventions and innovations would not occur without patents. Heck, come up with a biased sample of ten good patents. You still haven’t, because you can’t. If most of the patents out there are good then it shouldn’t be difficult for you to prove it with a sample.”
Okay, I will do you one better. I will give you 10 great patents.
#1 – The cotton gin. Eli Whitney only revealed his knowledge because he was able to get a patent. Otherwise, he almost assuredly would have kept the knowledge to himself, setting back progress in the cotton industry by decades, possibly more.
#2 – The patent on the electric motor. The value to society is incalculable. Nikola Tesla was notorious for not revealing his knowledge without patents, and it is well documented that he destroyed much of his knowledge because he did not want to give it to the public, even with patents. Nikola was the ONLY person pursuing AC energy, and without patents, not only would the electric motor not have existed, but AC might not have come about for many more decades.
#3 – The ice machine. It all began here; refrigeration and air conditioning all extend from this patent.
#4 – The telephone. While there are complaints that Bell was not the first, in fact Gray did not know how to make a good microphone, and Bell did, which was the heart of the invention. In fact, Gray later copied Bell’s microphone since he recognized that it solved the problem he had with his own. It has been well documented that Bell’s first concern was to gain a patent, for otherwise he had no reason to reveal his solutions to the world. Gray’s solution was irrelevant, since he did not understand how to solve the microphone problem.
#5 – The phonograph. Still used today, it made music readily accessible to tens of millions, along with the ability to record sound. Only one inventor was known to be working on the theory behind the phonograph and it came as quite a revelation to the world.
#6 – The light bulb. Along with electric motors, the light bulb is probably yet another of the greatest inventions ever and the basic technology remains the same described in the patent. There were other light bulbs during this era, but they were unreliable and expensive. Of course, it tooks hundred of experiments to find one that worked and few companies were interested in improving the bulb, but one company was interested and did because the reward for their hard work was a patent.
#7 – The electric adding machine. While the original machine was kind of clunky, it did work and worked well. Further, the chain that led to the computer began with the electric adding machine. The electric adding machine was developed for a specific purpose, but patents encouraged the inventor to reveal his knowledge to the world rather than keeping his secret behind a locked door.
#8 – The airplane. Yes, there are many people who were working on a flying machine, but, the Wright Brothers did it first, and they did not hide their knowledge or suppress it, but put it into a patent. Further, they came up with the basic control concepts that are still used today.
#9 – The bread slicer. Such a seemingly small invention, but before it was invented bread had to be sliced at home. The bread slicer was probably the biggest improvement in bread since bread’s creation – millenia before. If a bread slicer was obvious, why did it take until 1932 to come up with one?
#10 – The invention of AC electricity. Nilola Tesla waged a running battle with Edison, who pushed for DC electricity because he had only DC generating capability. However, AC electricity was better for long-distance transmission and though it took more than a decade to actually begin to implement AC practically, since we did not have the technology to actually USE AC, its value is clear since it has been the dominate form of electricity for the last 100 years.
DO you have any other questions?
and to the extent that only those with patents invent/innovate the most, perhaps it’s only because those with the most patents are the only ones who have the most permission to invent/innovate, not that patents aid the process, but it just hinders everyone else from competing with their own inventions/innovations in fear of infringement.
Re: Re:
Patents are equal opportunity. Anyone can invent and apply for a patent. You do not need “permission.” The only hindering is when people do not invent – then the innovators struggle to have a product to improve. Lack of inventions to “innovate” would be a serious problem.
Re: Re: Re:
“Patents are equal opportunity.”
No, patents favor those who get them at the expense of everyone else.
“The only hindering is when people do not invent – then the innovators struggle to have a product to improve. Lack of inventions to “innovate” would be a serious problem.”
But the assumption is that people can’t invent without patents, which is not true.
Re: Re: Re: Re:
“”Patents are equal opportunity.”
No, patents favor those who get them at the expense of everyone else.”
No, patents encourage inventors to share their knowledge so that once their extremely limited property right ends, their knowledge is shared with everyone so that all benefit.
“”The only hindering is when people do not invent – then the innovators struggle to have a product to improve. Lack of inventions to “innovate” would be a serious problem.”
But the assumption is that people can’t invent without patents, which is not true.”
Of COURSE people can invent without patents. I never said that anything else. BUT, patents ENCOURAGE and INCREASE invention, and even MORE importantly, they encourage inventors to share their knowledge.
THIS IS OUTRAGEOUS!!!!
1. Patenting something that it is not designed/synthetic is outrageous. WHAT IS THAT!!!!!!
2. So genes can be patented! what will stop them from cloning those genes in full? Now what, they will own that clone as well? Hhhhm.. I’m not liking where this is heading..
3. Where is the info on a petition??? Has anyone found one? This Corporate and government corruption has gone on long enough people!! when are the Americans going to step up to the plate?