Editore"s Note
Tilting at Windmills

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February 7, 2006
By: Zachary Roth

PATENTLY ABSURD....There's been a lot of concern lately about the prospect that the BlackBerry might soon be brought down by a "patent troll" in this case, a small Virginia company, NTP, which holds a patent on wireless email technology and is now suing RIM, the BlackBerry's maker, after it refused to pay NTP a licensing fee.

This Slate piece does a good job of capturing the issues in play, but I'd argue with its contention that the problem is confined to the software industry. In fact, over-broad and possibly invalid patents stifle innovation in a range of fields, and the negative human consequences in areas like bio-technology are more immediate, and perhaps more damaging, than in software.

Take breast cancer research. As we reported in the Monthly last year, one company, Myriad Genetics, holds a patent on the study of a gene, BRCA1 known to cause breast cancer. Women who want to get tested for the gene have to go thru Myriad, and pay a much higher price for the test thanks to Myriad's monopoly. Worse, researchers trying to create a better test, one that could more accurately identify BRCA1, routinely receive cease and desist letters from Myriad's lawyers. One scientist at U Penn told me she'd moved on to other projects thanks to Myriad constantly hassling her.

Of course, without the incentive of a patent, companies like Myriad wouldn't conduct life-saving research. But in fact, a consortium of scientists from across the world was working to sequence BRCA1. Myriad's founder, Mark Skolnick was part of that group, and he used the group's work as a foundation before crossing the final hurdle himself. No one doubts that, absent Skolnick's work, the consortium would have got there soon afterwards.

In other words, a crucial area of breast cancer research is now effectively closed off to all but one for-profit company, despite the fact that their "invention" would surely have soon been developed without them. And just as with software patents, at the root of the problem is a patent system that makes patents too easy to acquire and gives patent-holders overly broad rights. Tell me how that promotes innovation again.

Zachary Roth 12:52 PM Permalink | Trackbacks | Comments (76)

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"No one doubts that, absent Skolnick's work, the consortium would have got there soon afterwards. "

If this is true, then the patent is invalid and should be challenged. You might say, but we all predicted the light bublb before edison patented it, but edison patented a unique construction with novel materials. Thew gene sequencer simply used industry standard methods to finally isolate the gene in question.

Or, did the researcher patent a novel and unique method to identify the gene?


Posted by: Matt on February 7, 2006 at 1:02 PM | PERMALINK

I don't have much knowledge of patent law. Does a US patent on something like a gene prevent the research from continuing in other countries? I'm sure US citizens would be forbidden from commercial exploitation of such research, but would they be punished for seeking medical treatment in Canada for breast cancer if a treatment were developed without Myriad's involvement?

Posted by: question on February 7, 2006 at 1:03 PM | PERMALINK

Those who think that software patents are a terrible idea might ask themselves the question, How can it really be a good thing to remove all barriers to copying software basically at will by the likes of Microsoft?

Isn't it pretty obvious that had Apple, say, been able to pursue patents for its UI way back when, and fully retained the rights to those patents, then Microsoft would NOT have been able to copy every last particle of the interface which they used to make Windows the dominant player?

Please explain why encouraging the outright and wholesale copying of ideas in the software world, as opposed to any other area of innovation, is somehow a positive thing? Do we want to guarantee that Microsoft or other huge industry players suck up EVERY good idea with no legal jeopardy whatever?

Posted by: frankly0 on February 7, 2006 at 1:06 PM | PERMALINK

frankly:There are really two issues here, and they are completly different.

#1. The problem with software patents, and to a lesser degree copyright, is the idea that you can get paid just for holding a patent. Namely, you don't ever need to release a product yourself, just get paid for holding the IP. This is not a good thing for innovation. Patents should be limited to non-obvious, truly unique methods, and limited to when they're actually in production.

#2. Health patents, including patenting genes, is limiting innovation. Mainly because it's completly blocking off things that are found in nature. This is not a good thing. To respond to Matt, if they did find a novel way of finding the gene, they can patent that method. What they shouldn't be able to do is patent the scientific finding.

Posted by: Karmakin on February 7, 2006 at 1:14 PM | PERMALINK

Right. We should abolish the profit incentive in business, too, as we know communism is so much more productive because people are so idealistic. Capitalism actually hinders economic development.

I will agree software is a poor field for patenting. Software should be in its own field of intellectual property, because copyrights are not adequate for protection, and software hardly seems worthy of being considered as "invention."

Whether a patent is "too broad" may be a deficiency of individual patent examiners and subsequent court reviewers, but not really of the patent system.

Posted by: Myron on February 7, 2006 at 1:18 PM | PERMALINK

frankly, software is fully covered under copyright (and for far longer than a patent - 95 years). Software patents are usually for ridiculous bullcrap such as the *sarcasm on*totally non-obvious*off* one click purchase.

Most software companies don't have patents. But if you copy their software without permission, they have every right to sue you for copyright infringement. It just means that you can't steel their work. But you can write it yourself if you are capable, unlike patents.

Currently, its a race to hold a defensive portfolio of patents, so that you have something to stalemate an opposition patent suit with. IBM has so many patents, if you sue them, you can guarantee that they will have something they can sue you right back with. None of this achieves anything, except for ensuring a higher cost of entry to the industry.

Posted by: royalblue_tom on February 7, 2006 at 1:19 PM | PERMALINK

The American system of patents is royally fouled up, and if you can't see that from reading this article, you're not trying hard enough.

Firstly: DO NOT succumb to the straw man that patent reform == elimination of patents. Don't engage that argument -- it's nonsense.

Secondly: in this specific case, the company holds a patent relating to a gene. Think about that for awhile. This gene has been around for hundreds of thousands of years -- there is no way in hell any way of looking at that gene should be patentable.

Worse, there are many parts of your body that are patented. That should wake you up.

Things that no human invented, which have existed for millennia, are patentable. Give me a break. It's time for a major house cleaning at the Patent Office.

The primary mission of the Patent Office is to better society. It is most emphatically NOT to make people rich. That's ancillary. And yet, securing revenue streams for dubious holders of patents is their only job these days, it seems.

(You can also patent math today, for crying out loud. That's just fucking stupid).

Posted by: teece on February 7, 2006 at 1:25 PM | PERMALINK

Myron, how is copyright not adequate for software? It's not like you can take just a key snippet and recreate a whole app. Most software is basic algorithms - very time consuming to make work correctly but not very special. So it's usually obvious if someone has lifted your code wholesale.

Now lifting of features, well, there is some "invention" there, but again, very little is non-obvious. Most software is designed to do what users want - which means it was a common idea before it was built. Even things you may point to - such as the windows GUI - is obvious - ever seen a menu with pictures of the food that you can point to!

If I have to resort to the courts, patents provide no more protection than copyright. I'm either in court or I'm not.

Posted by: royalblue_tom on February 7, 2006 at 1:28 PM | PERMALINK

steal, not steel. Sorry all.

Posted by: royalblue_tom on February 7, 2006 at 1:29 PM | PERMALINK

Come on, guys, you should like Myriad. They're suppressing data on BRCA1 relevant to recent human evolution - because their lawyers are afraid it will upset somebody, somewhere. I've seen it, but who knows when you will? And isn't that as it should be?

Posted by: gcochran on February 7, 2006 at 1:38 PM | PERMALINK

I would agree with most everything teece has said, with one exception. The locus of the problem is not in the USPTO, which actually did a pretty good job of trying to rein this problem back in early on. The real culprits here are perhaps Congress, but mostly the knuckleheads on the US Court of Appeals for the Federal Circuit. These clowns - mostly judges with histories in corporate practice, and often little or no technical knowledge - have completely turned the "to promote Science and the Useful Arts" rationale underlying patent law on its ear. The scope of software patents has become an absurdity, that of biotech patents is arguably worse, and the scourge of "business method" patents (the State Street Bank case and its progeny) would be laughable were it not so pernicious. I'm usually not one to grouse about "activist judges," but I'll make a big exception for the Federal Circuit.

Posted by: rod on February 7, 2006 at 1:45 PM | PERMALINK

franklyO,

I don't know of any coherent arguments against patents per se, and thus I don't know of serious argument for simply NOT having patents. So your example of Microsoft soaking up innovations seems to me rather beside the point. (By the way, it wasn't Apple that invented the GUI interface. I believe it was Xerox's design center in California; Steve Jobs happened to visit, saw what they were doing (i.e., inventing the first mouse), and next thing all of it appeared in Apple Computers. Xerox was fiercely criticized for many years for having the single best and most innovative "skunk works" in all of high tech ... and a corporate headquarters in New York full of old fogies who didn't have a clue what any of it was worth or how to use it. A few patents on Xerox's part might have been both justified and valuable to the company).

The problem right now is this: little guy invents something ... Microsoft sees and then "reinvents" it and then, armed with tons of money and plenty of lawyers and an obscenely compliant patent office, patents the thing ... Microsoft sues little guy (original inventor) for patent infringement ... little guy is bankrupted. Either that, or Microsoft buys off little guy for chump change, then sues everybody else for infringement.

That's one problem. But the broader one, being dicussed here, is the corrosive effect of decades of corporate lobbying, combined with an overwhelmed patent office that's backlogged by 18-24 months on everything. People are seeking, and getting, patents for things they should NOT be able to patent. Congress has expanded patent protection so that it covers natural phenomena, an outrageous and inappropriate thing that ONLY benefits larger corporations or slick patent specialists.

The example in Mr. Roth's posting is a very fine one. Some nitwit has patented, for all practical purposes, a human GENE. Researchers trying to investigate it are threatened and harrassed; people whose very lives depend on testing related to that gene are being extorted out of scarce dollars (or, their insurance companies are).

Patents aren't the only area where unreasonable new rules favoring corporate giants over the rest of us have sprung up. Copyright law is similarly screwed up these days, almost entirely because Disney Corporation was terrified that underground artists and every local ad agency on earth were going to get the right to use Mickey Mouse whenever and however they wanted. So now copyrights have been extended to something just less than the end of time.

By the way, abuses of the patent system are not entirely new. In the 19th century especially, one popular scam by the quick-buck artists was to hang out at the patent office. When inventors would submit applications, the scam artists -- many of whom literally WERE artists -- would dash off copies in long hand from the public records. They'd rush back to their offices, crank out their own versions of the same creations (complete with fraudulent "working papers" creating a "record" showing they'd been hard at work on the project for months or years), and then come bursting in a day or so later to submit their own patent application. The best defense turned out to be long, carefully-documented working papers showing every step of the development process. Thomas Edison, in particular, just hated these people ... for pretty good reason.

Posted by: Roger Keeling on February 7, 2006 at 1:49 PM | PERMALINK

You're probably right, rod, I was thinking of the Patent Office in an abstract sense, as in everything that leads to the state of American patents.

I'm sure the USPTO is very much bound by the whims of their political bosses.

Posted by: teece on February 7, 2006 at 1:49 PM | PERMALINK

"Whether a patent is "too broad" may be a deficiency of individual patent examiners and subsequent court reviewers, but not really of the patent system."

wrong. by allowing ridiculous things like business-method and software patents to exist, the patent system (and those who control it, ultimately congress) is responsible for this clusterfuck. the PTO is having a hell of a time trying to attract new patent examiners (because it's overburdened with ridiculous patents) which in turn leads to rubber-stamping of patents by overworked examiners, which in turn stifles innovation and further burdens the judicial system. get rid of business-method and software patents, and we MIGHT see a return to something approaching normalcy.

Posted by: rigel on February 7, 2006 at 1:50 PM | PERMALINK

Everything Rod said at 1:45 above ... I concur. He obviously knows the legal details in a way I do not, and I appreciate his addition to this conversation.

Posted by: Roger Keeling on February 7, 2006 at 1:56 PM | PERMALINK

The reason why we have strong patent laws is because businesses like Disney and Merck like it that way. After nearly a century, a dead guy's cartoon mouse is as much public domain as a symphony; neither should changing one molecule of a medicine (which changes none of its properties) give the maker ten more years of windfall profits. This is a problem of the Business community's own making. Unfortunately, meaningful reform will not happen until American innovation has fallen well behind the rest of the world.

The next item to watch for during the 2006 election is if/how the Republican party will walk the tightrope between pro-"entrepreneurial" versus pro-"ownership" Republicans. And, call me a cynic, it will be the ones with the bigger campaign contributions will carry Dubya's party.

Posted by: Jon Karak on February 7, 2006 at 2:00 PM | PERMALINK

Roger Keeling: it wasn't Apple that invented the GUI interface. I believe it was Xerox's design center in California

And before Xerox PARC there was Doug Engelbart at SRI in the 1960's. Most inventions have a very long history if you dig past the usual one line attributions.

Posted by: alex on February 7, 2006 at 2:02 PM | PERMALINK

Isn't it pretty obvious that had Apple, say, been able to pursue patents for its UI way back when, and fully retained the rights to those patents, then Microsoft would NOT have been able to copy every last particle of the interface which they used to make Windows the dominant player?

Apple did patent several key parts of their UI. Microsoft copied them anyway, went to court over it, fought for over a decade until both parties were exhausted, and eventually settled with Apple to the tune of several hundred million dollars (the actual amount was not disclosed - but part of the settlement was Microsoft buying a bunch of Apple's stock, and promising to support the Macintosh platform with MS Office and Internet Explorer releases).

Posted by: Osama_Been_Forgotten on February 7, 2006 at 2:07 PM | PERMALINK

Thanks, alex. I put in the weasel words, "I believe," because I was pretty sure there was a longer history behind Xerox PARC but just couldn't remember the details. I should have remembered Stanford Research Institute (SRI), though, because I used to know a couple of people from there.

Posted by: Roger Keeling on February 7, 2006 at 2:08 PM | PERMALINK

Steve Jobs happened to visit, saw what they were doing (i.e., inventing the first mouse), and next thing all of it appeared in Apple Computers. Xerox was fiercely criticized for many years for having the single best and most innovative "skunk works" in all of high tech ... and a corporate headquarters in New York full of old fogies who didn't have a clue what any of it was worth or how to use it. A few patents on Xerox's part might have been both justified and valuable to the company).

Ignorant Dumbass.

Apple licensed these technologies from Xerox - fair and square.

Posted by: Osama_Been_Forgotten on February 7, 2006 at 2:14 PM | PERMALINK

The problem with software patents, and to a lesser degree copyright, is the idea that you can get paid just for holding a patent. Namely, you don't ever need to release a product yourself, just get paid for holding the IP.

Look, that is a general problem with patents, not just software.

Thing is, it really goes both ways, and it's hard to make distinctions here that might both hold up in court and make good sense for encouraging innovation.

Many of the patents that "patent trolls" acquire were originally created by inventors who DID make a go of pushing the idea, but who were too early in the game, or perhaps simply lacked the marketing clout of a large company to get their ideas adopted. Should these inventors be denied any compensation whatever for their pioneering work, sometimes comprising many very frustrating years of their lives? (And should large companies be able to hold back, watch as others take the risk innovating, then simply swoop in to take over the market?)

The NTP patents were indeed filed originally by a well known inventor in the field, who had done very important and impressive work in a related area before he went independent. Describing him as a "patent troll" pretty well undermines the moral clout of the definition. (Not that the tremendously stupid Slate article even hints at this history for the patents).

The point is, even defining a "patent troll" is no easy matter. Truly, how would one put together a definition that could hold up as a matter of law, that would keep out the "bad" cases and keep in the "good"? It's not hard to come up with cases that seem like outrageous cases of extraction. Yet it's equally easy to come up with cases in which a large company simply as a matter of policy steals the very best ideas from smaller players, and attempts to dismiss them as "patent trolls" because they no longer are able to pursue the market that they may have pioneered. (Microsoft comes to mind.)

And in answer to another point above, copyright does NOT provide adequate protection against ripping off of ideas. Nothing is simpler in the world for Microsoft than to dedicate some of its tens of thousands of programmers to look at some application and write brand new software that mimics every little thing that it does. On the basis of copyright protection, it's almost impossible to prevent such wholescale copying.

Posted by: frankly0 on February 7, 2006 at 2:27 PM | PERMALINK

The patent system would work a lot better if the U.S. Patent and Trademark Office were a better gatekeeper. But they're underfunded and understaffed, especially when measured against the sophisticated and well-paid patent lawyers and scientists who submit so many applications to them. Too often the truth -- that there's nothing new in the patent -- only comes out when the patent is challenged. For example, in a large majority of cases where a generic company challenges a brand name pharmaceutical company's patent on a drug, the generic company wins on the merits. This is after years have gone by, and the brand name drug maker has made millions or billions of dollars off the overpriced drug.

Posted by: clb72 on February 7, 2006 at 2:46 PM | PERMALINK

Osama - No, in fact, Apple did not license the technology from Xerox. Jobs paid to have some developers visit Xerox - but he did not pay to license the technology.

Jon - Mickey Mouse has nothing to do with patents. Thats copyright.

So is it the position of many here that if a professor comes up with a great invention - really a life saver - and does not even try to turn it into a company herself, that she should have no stake in the payoff? That seems wrong to me. Lots of inventors are not in any position to make a go of it as a company - and we should encourage these people to keep inventing.

Posted by: billms on February 7, 2006 at 3:07 PM | PERMALINK

...copyright does NOT provide adequate protection against ripping off of ideas. Nothing is simpler in the world for Microsoft than to dedicate some of its tens of thousands of programmers to look at some application and write brand new software that mimics every little thing that it does.

That's not a bug; it's a feature. It's what they used to call "building a better mousetrap." If the new product simply "mimics" the previous product, it's unlikely to compete effectively because the previous product already holds market share. (I understand that the result may be different in the particular hypothetical case offered, because MS has such a formidable marketing machine, but we're talking about general principles rather than specific hypotheticals, and anyway, it's not clear to me that MS could afford its marketing machine but for its size - which arguably resulted from the market failures induced by a broken IP regime.)

Rather, the new product competes if it recreates the previous product but improves on it - makes it faster, simpler, more reliable, more elegant, whatever. That sort of innovation is exactly what the constitutional framework for IP set forth in Art. I, cl. 1, sec. 8 was intended to produce.

Posted by: rod on February 7, 2006 at 3:08 PM | PERMALINK

So is it the position of many here that if a professor comes up with a great invention - really a life saver - and does not even try to turn it into a company herself, that she should have no stake in the payoff? That seems wrong to me. Lots of inventors are not in any position to make a go of it as a company - and we should encourage these people to keep inventing.

No one's making that claim. It's the convenient straw men than many come up with to avoid actually using their mind on this issue.

Again, your paragraph has absolutely nothing to do with the thrust of patent reform. Stop pretending it does. It's damn annoying to see all talk of reform turned into "but you mean no one should get patent protection?"

Posted by: teece on February 7, 2006 at 3:13 PM | PERMALINK

I'm a patent attorney, and ex-Patent Examiner. Just wanted to throw some thoughts out there, both in reponse to misconceptions found in this thread and for general consumption.

Naturally occurring articles, materials, etc. are not patentable. Even if you artificially reproduce them, they are still not patentable. Period. The above statement "there are parts of your body that are patented" is crap, unless maybe you have artificial limbs, a pacemaker . . . you get the idea.

The main problem with software patents and business method patents is that that they are relatively new (business method patents were not issued in the early 90s when I was an Examiner). Most Patent Examiners rely primarily on existing U.S. patents as prior art. Because the patent record does not include much in the way of business method or software patents, it is difficult to find evidence supporting the contention that a given business method or piece of software is not novel. And if some short-lived internet startup implemented a 1-click ordering system 10 years ago, there is probably no evidence of it now.

It can be argued that such patents are inherently evil, and reasonable people can differ on that, though I tend toward the view that our patent system is still struggling to adjust to them. No system is perfect, but as we continue to grapple with these problems I have little doubt that things will improve - until the next technological leap causes the system to bog down once again.

As for patent trolls, I wouldn't mind seeing some legislative chanegs made to deal with the issue, perhaps requiring that anyone seeking to enforce a patent be making, using or selling the invention at issue. It won't be easy.

Posted by: Derek on February 7, 2006 at 3:26 PM | PERMALINK

Teece - Karmakin above said "The problem with software patents, and to a lesser degree copyright, is the idea that you can get paid just for holding a patent. Namely, you don't ever need to release a product yourself, just get paid for holding the IP. This is not a good thing for innovation. Patents should be limited to non-obvious, truly unique methods, and limited to when they're actually in production." There you go! Evidence that you are wrong, people are suggesting that to own a patent you have to actually make the stuff. I've also heard this argument made by people over at slashdot. I'm glad to hear that you don't hold that opinion - but you are wrong when you call it a strawman that nobody holds.

You then go on to say "Again, your paragraph has absolutely nothing to do with the thrust of patent reform. Stop pretending it does." The only problem with this claim of yours is that I wasn't addressing patent reform and never claimed I was. Were you confusing something I said with something somebody else did?

Posted by: billms on February 7, 2006 at 3:40 PM | PERMALINK

One good recent change in the patent system, at least, is that the patent clock starts from the time of filing, not the time of issue, and so you don't have "submarine" patents anymore (i.e. one where the inventor kept tweaking the patent application to keep the patent application in review and hence under the radar until the time seemed ripe).

However, the institutional problems in the USPTO, caused by the problem with attracting good examiners and the need to issue patents within three years of filing, has caused the USPTO to allow crappy patents and leaving it for the courts to sort out. With the result that there are a lot of patents used as clubs.

Most patents can probably be successfully challenged - I'm thinking of the Aclara/Caliper lawsuits as examples (where someone found an obscure Chinese doctoral thesis to invalidate one of the patents), or another biotech firm that spent $1 million showing that a rival's patent was invalid because only a PhD, not a B.S., scientist could replicate the results in the examples - but most scientists or startups don't have those kind of resources.

Posted by: Urinated State of America on February 7, 2006 at 3:40 PM | PERMALINK

"If this is true, then the patent is invalid and should be challenged. You might say, but we all predicted the light bublb before edison patented it, but edison patented a unique construction with novel materials. Thew gene sequencer simply used industry standard methods to finally isolate the gene in question.


Or, did the researcher patent a novel and unique method to identify the gene?"

They don't have to. All you need to do for gene patents, as I understand it, is identify a gene and identify an application for it. You don't even have to be able to "do" the application.

Posted by: Ginger Yellow on February 7, 2006 at 3:44 PM | PERMALINK

That's not a bug; it's a feature. It's what they used to call "building a better mousetrap." If the new product simply "mimics" the previous product, it's unlikely to compete effectively because the previous product already holds market share.

This, of course, is a GENERAL argument against patents.

I wonder why that old fool Ben Franklin ever thought that granting patents might possibly be a good thing? In the 21st century, we are SO over that loon idea!

Posted by: frankly0 on February 7, 2006 at 4:02 PM | PERMALINK

Following Derek's comments, patent trolls shed a lot of light on how the patent system works. Many patents are made for legal cover rather than enforcement of ownership. If company A sues company B, lawyers from both sides line up all the relevant patents and use them as bargaining chips. Most companies would rather not go to trial (VERY expensive) and most patent litigation never gets past discovery.

Patent trolls don't have any assets - they don't make products and so therefore don't infringe on any one else's patent. They exist only to siphon money from those that make products (who may or may not be violating patent).

If Myriad Genetics exists to enforce this one patent, they would be a patent troll.

Posted by: Saam Barrager on February 7, 2006 at 4:06 PM | PERMALINK

Gee Osama_Been_Forgotten, considering that you and I agree on just tons of things here at Kevin's blog -- and I've complimented or backed you up more than once in comments -- I sure as hell appreciate how you repay those past courtesies by calling me a "dumbass." Thanks loads, buddy. Why don't you just say I'm wrong and then say why you think so, instead of acting like a troll?

In case you didn't notice, I did NOT say that Steve Jobs ripped off PARC. He didn't. Nor did I say that Xerox hadn't patented anything; they had, and you are quite right -- Apple paid for its use of those patents. What I said is simply a repeat of facts that have practically become Silicon Valley lore: that Jobs saw in the creations at PARC what Xerox itself failed to see. There were things shown to him that had NOT been patented, and -- no -- Apple didn't pay a nickel for those things, nor was obliged to. So to be technically correct, SOME aspects of the GUI were licensed from Xerox, and some weren't (but, very little of it was actually invented at Apple -- which was my point, after all -- and almost all of it was invented at PARC, or earlier. Apple may have cleaned it up and perfected it, but they didn't invent most of it).

Robert X. Cringely of InfoWorld Magazine (and the PBC series, and many other places) documented all of this. I forget if he did it just in "Revenge of the Nerds" (on PBS) or in his book, "Accidental Empires: How the Boys of Silicon Valley Make Their Millions, Battle Foreign Competition, and Still Can't Get a Date." Both are fun and worth checking out. Other writers have talked about it, too, IIRC.

Again, if despite my memory and the several times I've read parts of the story, I've got it wrong ... why don't you just say so? But save us the Al and Norman imitation.


Posted by: Roger Keeling on February 7, 2006 at 4:07 PM | PERMALINK

Economists interested in patent law and the history of innovation differentiate between inventions that are obvious extensions of existing innovations, and those that are "out of the blue".

The statement "No one doubts that... the consortium would have got there soon afterwards." is very reasonable in this context.

Patent law treats both forms of innovation the same way. So if Intel makes a faster chip, or some guy suddenly thinks "Velcro!" - these are rewarded in the same way. Though ideally we would reward Velcro more than a faster chip as the faster chip has a clear development path.

Posted by: Saam Barrager on February 7, 2006 at 4:13 PM | PERMALINK

As for patent trolls, I wouldn't mind seeing some legislative chanegs made to deal with the issue, perhaps requiring that anyone seeking to enforce a patent be making, using or selling the invention at issue. It won't be easy.

Yeah, saying it won't be easy is putting it mildly. Most of the "patent trolls" I've heard of, including the NTP patent portfolio, are really the product of inventors who DID form companies to try to pursue the idea, but were forced out of the market by other companies using those very ideas.

Should such inventors and their investors be unable to collect a penny, if their companies went under, and only because someone else used their very ideas?

Sometimes one encounters a pure patent troll - Lemelson comes to mind - but how one can distinguish, under law, between the good cases and the bad cases is ALWAYS the deep problem.

Posted by: frankly0 on February 7, 2006 at 4:14 PM | PERMALINK

Correction: patent trolls have assets - the patents themselves. They don't make products, and their revenue model is based on ownership of IP.

Therefore when Adobe sues Macromedia (2001, again in 2003) for violating Adobe patents, Macromedia says: "Yeah but your products violate these Macromedia patents." Adobe's lawsuits never made it past discovery (actually I don't think money changed hands either, Adobe was pretty much just harassing Macromedia.)

Posted by: Saam Barrager on February 7, 2006 at 4:17 PM | PERMALINK

As a cancer geneticist, I want to expand a bit on the comments about Myriad and BRCA1. I was at the American Society of Human Genetics meeting when Myriad first presented its work on the identification of BRCA1. Most everyone in the room knew that, in a fair world, Mary Claire King would have been giving the paper on the podium instead of a newly minted post-doc from Myriad, because King's group had been in the race for BRCA1 the longest and had done the most work. But, life's not fair and neither are races for identifying disease genes.

Myriad went ahead and patented most of the uses of the gene, including clinical diagnosis. (By the way, you don't patent the sequence itself. Instead, you patent as many potential uses for the gene sequence that you can dream up). Myriad have a long history of defending the patent in court around the world, but have had mixed success outside of the US.

For example, in Ontario, DNA diagnostic laboratories have been offering BRCA1 testing in defiance of Myriad, because the conservative government of Ontario agreed to join the legal battle against patent enforcement. (The major motivation was cost, as the provincial government pays for all the genetic testing and would save thousands of dollars if the test were done by Ontario labs rather than by Myriad.)

In other countries, Myriad has dropped legal action when it looked like they would lose, aparently deciding that a formal legal ruling against them would be worse than letting a few outside laboratories offer the test.

Posted by: Platypus on February 7, 2006 at 4:19 PM | PERMALINK

Roger Keeling:

The problem right now is this: little guy invents something ... Microsoft sees and then "reinvents" it and then, armed with tons of money and plenty of lawyers and an obscenely compliant patent office, patents the thing ... Microsoft sues little guy (original inventor) for patent infringement ... little guy is bankrupted. Either that, or Microsoft buys off little guy for chump change, then sues everybody else for infringement.

This scenario is actually pretty rare, in my experience. To begin with, I'm not sure I've ever heard of a case of Microsoft suing a company for patent infringement, except perhaps "defensively". Microsoft has no need to do so; copying is its game, and always has been. Simply by mimicking the software, and stamping the MS name on it, it can put the other guy out of business. (BTW, why didn't Netscape patent the browser, or its own imporvements of it, instead of allowing MS to take over the market? Because the people at Netscape were business idiots, in case you haven't noticed.)

Mostly, the "little guy" with a small amount of business savvy will file for patents, and be awarded them, because he's first. This should afford him some protection from the likes of MS. At minimum, it allows him to have a far better upside in selling to MS or another firm if and when he chooses to sell, because there is the ever present threat of a lawsuit against MS (or whomever) that may cost close to a billion or more, in the right market.

Posted by: frankly0 on February 7, 2006 at 4:32 PM | PERMALINK

Myron, your a moron, the majority of scientific research has been conducted in absence of any profit motive.

Or did you think Einstein came up with the line, "It's all about the Bejamins!"

Speaking of Edison, I love how gushy Libbies get about him and how he invented thousands of things. All the while wholey motivated by the green he could get.

This whole narrative ignores the reality that Edison only personally invented six of the inventions he held patents for. The other two thousand plus patents were actually the inventions of the scores of real inventors that worked for him.

So the real creators get ignored by history and the guy who didn't do anything to create these devices gets remembered as some innovative genius.

Posted by: Dr. Morpheus on February 7, 2006 at 4:35 PM | PERMALINK

The patent system is FUBAR.

You shouldn't be able to patent genes in the first place.

Or anything else that you merely discover.

Calling a discovery a creation doesn't make it so.

Blame the courts as well as the patent office.

The system got screwed up a long time ago and it will very difficult to fix.

Posted by: Advocate for God on February 7, 2006 at 4:38 PM | PERMALINK

Why do I root for NTP in the current tussle between it and RIM?

Because I know that respect for IP more generally will go up enormously if it wins.

And what does that mean? That, say, Microsoft takes a whole lot more seriously the IP developed by other companies, either by holding off from copying their ideas, or by paying a large amount more to acquire the company and the technology.

What software patents really do, most importantly, is to spread the money in the technology world around, for those wise enough to get patent protection for their innovative ideas, instead of lodging last bit of it in "idea vacuum cleaners" like Microsoft.

Yes, sometimes genuine patent trolls will get undeserved money. But that's really the price of a patent system. It's a classic baby-and-bathwater situation.

Posted by: frankly0 on February 7, 2006 at 4:40 PM | PERMALINK

Congratulations, Advocate for God! You got your wish! One cannot patent something that is merely discovered, like a gene.

So I guess maybe its not *quite* so FUBARed afterall, huh?

Posted by: billms on February 7, 2006 at 4:44 PM | PERMALINK

I am a chemist in pharmaceutical research, and I have first hand experience at how ridiculous the granting of patents by the USPTO has become. Many patents are granted now that have no real enablement, are obvious, and many don't actually clearly disclose the invention. I think the blame lie in two places: (1) Congress needs to clarify by legislation what can be granted and what cannot, (2) the USPTO need more examiners if the load does not lighten. Companies file extremely broad patent applications for one major reason- to poison the water around their inventions. Every application becomes prior art and serves to block competitors from getting granted patents for similar inventions. The problem that seems to have developed is that these broad patents are often being granted, even if the original application is divided multiple time by the examiner.

Posted by: Yancey Ward on February 7, 2006 at 4:49 PM | PERMALINK

Roger Keeling,


According to the inventor of Apple's Quickdraw (who's name escapes me right now), he described all the elements of the Macintosh interface in his doctoral thesis in 1969. He argues that the Xerox visit had nothing to do with the Macintosh project because they were already working on it before Steve Jobs went to Xerox.

Posted by: Dr. Morpheus on February 7, 2006 at 4:49 PM | PERMALINK

franklyO,

First, just to remind you, I'm generally a fan of your comments. I've disagreed with you a bit here, but I hope you didn't think I was being unfriendly in my reply.

Second, I probably shouldn't have said "Microsoft" in the example I used that you cite (I think I did it just because you'd previously used MS in your example vis-a-vis Apple). I meant it more generically: that big firms do this kind of thing all the time. Not just this sequence of events, but all SORTS of abusive uses of patents, copyright, and trademarks as well. A few years ago I came across a paper that described a whole stack of examples. Those I recall included the famous Parker Brothers attack on the creator of "Anti-Monopoly" (trademark infringement there, I think, or maybe it was copyright); I believe Parker Brothers ultimately lost, but not before the college professor had spent years and a small fortune defending his creation in court; and Kidde Industries which just plain ripped off the inventor of a neat little stacking emergency ladder (right down to stealing the photo from their box; Kidde's lawyer claimed, sneeringly, that it was just a stock photo ... until the model -- a friend or relative of the inventor -- showed up to prove otherwise).

Anyhow, you may be entirely right that Microsoft itself hasn't been guilty of being heavy-handed in this particular way ... although I sure met a lot of people in Silicon Valley over the years who hated Microsoft precisely because they felt the firm was brutally unscrupulous in its tactics, both legal and marketplace.

Posted by: Roger Keeling on February 7, 2006 at 4:50 PM | PERMALINK

Thx Platypus, that's good information. Since Ontario has decided to not compensate Myriad, have they decided to compensate King or any of the other researchers involved in BRCA1?

I assume they haven't. Isn't that a win-lose situation, where Ontario citizens get the benefit of the research but the scientists aren't rewarded for their efforts, thus dampening motivation to produce further research? I know that's a simplistic description, of course, but it seems to follow.

Posted by: kwo on February 7, 2006 at 4:51 PM | PERMALINK

Dr. Morpheus - Bill Atkinson was the creator of quickdraw. I don't think he has a PHD, and almost certainly not from 69. Maybe you are thinking of Jef Raskin?

Posted by: billms on February 7, 2006 at 4:59 PM | PERMALINK

I'd like to share some personal knowledge of Apple vs. Xerox.

The Macintosh UI differed in several important respects from the UI on the Xerox Alto text editor. Yes, they both used a bitmap display, a mouse, and WYSIWYG text formatting. But Mac featured modeless insertion (i.e., you don't have to hit a key or a select a menu item named "insert", you just type) and the Alto didn't. MacOS had many other simplifications as well. I think text selection was clunky also.

I had the privilege of using an Alto in 1980 at Stanford, and the Mac when it came out was a clear improvement UI-wise.

My point is that Apple did not simply imitate Xerox. They took the ideas and for the most part, improved on them. Whether the same could be said about Microsoft is dubious.

Posted by: Doctor Jay on February 7, 2006 at 5:06 PM | PERMALINK

billms: One cannot patent something that is merely discovered, like a gene.

That will come as a surprise to companies that essentially own patents on various bits of DNA cut from the DNA strands of living organisms.

And I guess you must have missed this . . .

"The company designed a test for mutations, then quickly applied for, and was granted, patents covering how the gene could be used."

For all intents and purposes, a patent on the gene.

So, I guess maybe you are just fubar'd, eh?

Posted by: Advocate for God on February 7, 2006 at 5:06 PM | PERMALINK

The tip off here is your use of the words "essentially" and "how the gene could be used". They don't own the patent on the gene, just some of its uses. I can patent a novel new use for Iron. That doesn't mean I own a patent on Iron, or on all uses of Iron. So, um, nope, I'm not fubar'd at all. Eh?

Posted by: billms on February 7, 2006 at 5:15 PM | PERMALINK

AFG - where was that living organism found? And if it was just found, why hasn't somebody gone off and patented all living organisms - you for instance. I know the answer - but I should since I work in this area. Do you know the answer?

Your second comment is irrelevant, but perhaps only because we are talking at cross purposes. I was discussing US patent law. There really is not universal patent law, so there needs to be a national context for any discussion. My mistake was leaving that unstated. US law does not allow you to patent something that is discovered.

Would you like to call me ugly as well? Or shall we discuss the issues?

Posted by: billms on February 7, 2006 at 5:21 PM | PERMALINK

Regarding KWO's comment as to whether Ontario compensated anyone for discovering BRCA1. No, they haven't. However, it should be born in mind that the vast majority of the work towards discovering BRCA1 was already paid for by governmental grants (primarily your US tax dollars at work).

KWO's comment reflects a somewhat narrow view of what can motivate medical scientists. The promise of sharing in some future patent goldmine is not what drives the majority of us in biomedical research. (Just ask the students and post-docs in my lab.) A regular paycheck (assuming your research grants get funded) and some glory are sufficient to get most of us to work long into the night.

E.g., this afternoon I submited a grant proposal for breast cancer research to the US Army (Didn't know that the Army spends hundreds of millions on breast cancer, did you?). What motivated me to submit this grant? I've thought of a clever new way for finding breast stem cell genes that I want to pursue and need the money to pay for one of my students to work on it.

What will I get out of this? Money? No, as my salary is paid for by my institution. Glory? Hopefully, as publishing in a "cool" journal like Science, Nature or Cell is a big reward. Intellectual and emotional satisfaction? - Another big motivator for me, as I want my work to make a difference to my patients.

Posted by: Platypus on February 7, 2006 at 5:23 PM | PERMALINK

billms: The tip off here is your use of the words "essentially" and "how the gene could be used".

The tip off is you didn't finish reading my posts or bother to even look up the info yourself.

Gene patents exist.

You can even google the terms to discover that yourself.

But don't bother.

You are clearly too fubar'd to comprehend any information you might run across.

Or you might want to quit looking like a dimwit and consult the following from the Patent Office itself . . .

In order to understand why genes are patentable . . .

Gee, now why would the US Patent Office consider genes patentable when billms says they aren't!

After all, billms must know more than the US Patent Office about what the US Patent Office does . . .

So, um, nope, I'm not fubar'd at all. Eh?

Well, yes you are! According to the Patent Office itself.

Posted by: Advocate for God on February 7, 2006 at 5:32 PM | PERMALINK

billms: . . .where was that living organism found . . .

Talk about irrelevant.

At no point did I assert that any discovered living organism has been patented or was subject to being patented, so you appear to be presuming facts not in evidence.

You appear to have deliberately misused the quote I reproduced (which included a statement that a living organism has been patented, a portion of the quote that was not relevant to the issue of genes, but merely provided the context for the phrase which was) to charge me with making claims that I have not.

Posted by: Advocate for God on February 7, 2006 at 5:42 PM | PERMALINK

billms: Would you like to call me ugly as well?

Since you seem inclined to misrepresent my posts as claiming something that they did not, it wouldn't be out of place for me to call you intellectually ugly.

BTW, iron doesn't exist in a pure state anywhere in nature.

By way of analogy, gene patents have been granted to pieces of DNA cut from the DNA of living organisms and "purified" in a sense similar to removing the impurities from iron ore.

Not to the process, mind you, but to the sequence of DNA itself, a sequence they neither created nor invented nor manufactured.

Thus, yes, I could patent pure iron if the same criteria being used for gene patents were applied.

Posted by: Advocate for God on February 7, 2006 at 5:47 PM | PERMALINK

Actually, what I wrote is precisly relevant. You said "You shouldn't be able to patent genes in the first place. Or anything else that you merely discover. Calling a discovery a creation doesn't make it so." The point in asking you where the living organism was found, or rather discovered, was to point out that it was not found or discovered. So that auote you bring up had nothing to do with the discussion at hand.

Having cleared that up, can we finally agree that you have received your wish, and that one cannot patent things one finds? For reference see See Ex parte Latimer, 1889 Dec. Com. Pat. 123 (finding plants are products of nature and therefore not subject to patent protection). The same argument is made with regards to algorithms.

Posted by: billms on February 7, 2006 at 5:49 PM | PERMALINK

billms: You said "You shouldn't be able to patent genes in the first place. Or anything else that you merely discover. Calling a discovery a creation doesn't make it so."

Which wasn't used in connection with the quote about a living organism, which, yet again, merely provided the context for the phrase "paving the way for genes to be patented as well."

It's only relevance, therefore, was to tive the "paving the way for [gene patents]" context.

To assert it was something more, when I didn't tie that portion of the quote in to any discussion of "discovery" nor did the context indicate otherwise, is quite simply misrepresentation.

No matter how much you try to spin it, I never suggested, hinted, or outright claimed that discovered organisms have, could, or should be patented.

But I forgive you.

Posted by: Advocate for God on February 7, 2006 at 5:56 PM | PERMALINK

Sigh....

Iron doesn't exist in a pure state in nature? Really? Here is a hint: wikipedia claims that there is speculation that the earth's core is made of a single iron crystal. They also tell us that it is hardly ever found in a pure state, which to you must mean never. You, sir, are a laugh a minute. Can't we just stop this?

But lets put this matter of iron aside - choose any material that you stumble upon. How about granite? Marble?

I did not misrepresent your post at all. I accepted that you used it to support your argument and I extended it through argument to show that it did not support your argument. It was your argument that was flawed, not my characterization of it.

When you say that patents have been given for segments of DNA that are found in nature I am intrigued. I don't know of any, and to the best of my knowlege one cannot hold a valid patent. What specific patent are you thinking of? I suspect they are all related to uses of the gene, not the gene itself.

Posted by: billms on February 7, 2006 at 6:04 PM | PERMALINK

I realize that this is so far upthread as to be ancient history, but...

I said:

That's not a bug; it's a feature. It's what they used to call "building a better mousetrap." If the new product simply "mimics" the previous product, it's unlikely to compete effectively because the previous product already holds market share.

And frankly0 said:

This, of course, is a GENERAL argument against patents.

I wonder why that old fool Ben Franklin ever thought that granting patents might possibly be a good thing? In the 21st century, we are SO over that loon idea!

I don't think that follows at all, although I can see how it might be inferred from my abbreviated comment. I concede that there are better mousetraps that infringe, and better mousetraps that do not. Suppose you invent and obtain a patent on a mousetrap which works by means of a spring-loaded lever which decapitates the poor beast. If I invent another mousetrap which functions on approximately the same principle, but which improves upon it in some way - say, I use an exotic rare earth spring which does the dirty decapititation deed 37% faster (c'mon, it's a hypothetical) - then I have probably infringed upon your patent, even though I improved on your idea. On the other hand, if I invent a mousetrap which functions on a completely different principle - say, the vermin is trapped alive in a small box by means of a valve-like trap door - then, I think, I have not infringed simply because both of our apparati serve the purpose of catching mice.

The problem in the software field, I think, is that it is not always easy to discern which of these admittedly silly examples is more applicable. Indeed, it is not always clear what the "invention" at issue really is - if you and I each invent spreadsheet programs that use drop-down menus, have I as the junior inventor infringed? Is the invention the spreadsheet? If so, neither one of us deserves a patent, due to the wealth of prior art. Is the invention found in the details of the code? If so, I clearly have not infringed, unless I reproduced your actual code (and note that I need not have copied it; because patent, unlike copyright, does not excuse a junior user who happens upon the same product by chance). Is the invention in the idea of drop-down menus? If so, then I may have a problem even if I implement such menus by completely different means.

When ol' Loony Ben Franklin (among others - shoulders of giants, and all that) gave us our present patent system, these questions were probably a lot less problematic than they are now. If you had one method or process for smelting iron, and I also had a method or process for smelting iron, it was probably pretty clear whether or not I had infringed (after all, no one was suggesting that you could get a patent in gross for the smelting of iron). Now, I think that equivalent hypotheticals may be a lot more difficult to parse, partly because of refinements in technology but mostly because of the expansion of our patent system. So, if you invent software that allows for the compression of audio files by means of one algorithm, and I later invent software that allows for similar compression by means of an altogether different algorithm, it can become a very sticky question whether or not I have infringed (leaving aside for a moment the philosophical debate over whether algorithms per se should ever be subject to patent protection).

It seems to me that the law is getting ever-closer to granting you a patent in gross for the very idea of compressing audio files (to take one hypothetical) by whatever method or process. This, I think is a problem, because it runs counter to the rationale set forth in the Patent and Copyright Clause. I think that the promotion of innovation requires a conservative approach to such problems. Others, however, may feel differently.

(Full disclosure - while my practice includes copyrights and trademarks, I am purely a dilettante with respect to patent.)

Posted by: rod on February 7, 2006 at 6:04 PM | PERMALINK

OK AFG, my bad, I apologize.

When you said the patent system was fubar and then went on to list a bunch of things that shouldn't be patented (discovered things, genes, ...), I jumped to the wrong conclusion that you were connecting the two. I should have assumed that you were just pointlessly rambling. I'll try to not be so hasty in the future.

Posted by: billms on February 7, 2006 at 6:09 PM | PERMALINK

Rod - from my experience you've found the nut. I most issues that touch on software, even if they could be implemented in hardware, the assumption from the PTO is if you can describe it you can build it. My invention is collecting this data, processing it in this way, correlating it with something else, and printing the result. If nobody has thought of these steps it may be an idea that should have patent protection by virtue of bringing benefit to society, being novel, etc. But if the individual steps clearly lent themselves to known algorithms for solution you would have a hard time finding a sw person who wouldn't shrug their shoulders and say "yep, I could code that".

So we end up with inventions that are never built, because the PTO decides that the written description serves to reduce them to practice. Can be good, can be bad. And of course, we can always catch the errors on a re-exam! :)

Posted by: billms on February 7, 2006 at 6:15 PM | PERMALINK

Sounds like Skolnick was just digging on a beach along with a bunch of others searching for a treasure gene. Did he use some truly inventive new, useful and unobvious method to find the treasure gene? Or, was he just digging away using standard picks and shovels and a map.

Hypothetical:

If I travel through space in an inventive new, useful and unobvious type of spacecraft, and I find life in a new solar system, and I proceed to employ known methods to map the genes of fantastic new lifeforms, do I actually get a patent on those genes?

Posted by: yesh on February 7, 2006 at 6:52 PM | PERMALINK

My understanding is you can get a patent on thier use, but not the gene's themselves. And not all uses, just those that you enable and claim.

Posted by: billms on February 7, 2006 at 7:04 PM | PERMALINK

I spent several months researching and writing up a novel extension on an old reform, which would solve a lot of the problems of the current patent and copyright systems. If you've got 20 minutes, give it a try- http://fullembrace.blogspot.com/2005/12/fair-freedom-for-patents-and.html

Posted by: Ben Seeley on February 7, 2006 at 7:30 PM | PERMALINK

'Myron, your a moron, the majority of scientific research has been conducted in absence of any profit motive.

Or did you think Einstein came up with the line, "It's all about the Bejamins!"'
________________________________________-
Scientific research and commercial innovation are not the same. Einstein had a refrigerator patent. Greedy bastard.

Mouse clickers have a rather limited perspective on patents because their only familiarity is with software and a couple of the six millions patents that are problematic. Engineers and R&D people are more tolerant.

Posted by: Myron on February 7, 2006 at 8:20 PM | PERMALINK

Or, was he just digging away using standard picks and shovels and a map.

Posted by: yesh on February 7, 2006 at 6:52 PM | PERMALINK

Still have to incentivize the digging -especially when someone might beat you to the treasure and get all the rewards.

Hence great returns for the patent holder.

Reward has to make up for failed research too to make research worth it, even if the eventual winner didn't do any.

Posted by: Mca on February 7, 2006 at 9:34 PM | PERMALINK
frankly, software is fully covered under copyright (and for far longer than a patent - 95 years). Software patents are usually for ridiculous bullcrap such as the *sarcasm on*totally non-obvious*off* one click purchase.

And even more often for things like mathematical formulae (encryption and compression algorithms, for example.)

The main problem with patents, though, is the "grant everything and rely on expensive private challenges to resolve errors" approach, which, as I understand, is mostly a recent "innovation" -- the patent office used to, I've heard, deny patents a lot more readily. I've heard this attribute to ideology in government, though there are other possible explanations.

Since a patent is a public monopoly, there should be a strong bias against granting them rather than a bias for granting them.

Posted by: cmdicely on February 7, 2006 at 10:45 PM | PERMALINK

Are you thinking of some formulas and algorithms that have been patented? I'd like to know - I'm not a lawyer but I don't know of any. A lot of people say that RSA was a patented algorithm, but thats not true.

Posted by: billms on February 8, 2006 at 2:37 AM | PERMALINK

RSA may not have been but LZW was

Posted by: almostinfamous on February 8, 2006 at 8:15 AM | PERMALINK

Totally agree, the patent system is broken. I'm in semiconductors, and I see patents on techniques I did in the lab in grad school, and I promise you I did not invent them. Both Patent and Copyright laws are supposed to BENEFIT THE PUBLIC by fostering innovation by temporarily distorting the free market.

Posted by: Chuck on February 8, 2006 at 8:39 AM | PERMALINK

LZW is an algorithm which does not require any hardware. The patent people use to refer to LZW is 4464650. I scanned it quickly, and from over 200 claims only saw 2 independant. Both of them require hardware. Patent 4464650 does not cover LZW.

Posted by: billms on February 8, 2006 at 9:50 AM | PERMALINK

cmdicely,

There shouldn't be a bias one way or the other, a patent should be granted for an invention if the invention fits the laws laid down for such; unless you mean that the laws should be rewritten to make it tougher to obtain a granted patent.

Posted by: Yancey Ward on February 8, 2006 at 12:01 PM | PERMALINK

Yancey Ward: a patent should be granted for an invention if the invention fits the laws laid down for such

The problem is that phrases in the law like "not obvious to someone with ordinary skill in the art" are, to put it mildly, imprecise. Nor do I know of a way to make the qualifications more precise. The reality is in the implementation of the patent approval process.

Patents are granted for just about anything these days. I used to work for a company that had to work around a patent for generating a dial tone for a wireless device. WTF? Dial tone has been in use since the 1930's. If using it for a phone like device that happens to wireless isn't obvious, then I don't know what is.

Posted by: alex on February 8, 2006 at 12:50 PM | PERMALINK

alex,

It is true that there is a certain amount of subjectivity, but, as you point out, the USPTO isn't really applying a standard in a lot of cases any longer. They are even granting patents without any enablement or that even teach toward a preferred embodiment. More and more, I am beginning to lean towards doing away altogether with patents and copyrights. Lets just have a free-for-all.

Posted by: Yancey Ward on February 8, 2006 at 3:31 PM | PERMALINK

Yancey Ward: They are even granting patents without any enablement or that even teach toward a preferred embodiment.

Yeah, that's the problem with the so-called gene patents. Discover a gene and patent possible diagnostics and therapies that use that gene, without describing any specifics. If this were possible when Newton was around, he could have said that he didn't patent gravity, just all the possible applications of it. Anybody who hasn't accidentally flown off into space please pay up (see I. Newton "Method for Keeping People's Feet on the Ground").

More and more, I am beginning to lean towards doing away altogether with patents and copyrights. Lets just have a free-for-all.

That's throwing the baby out with the bath water. Let's just return to the system that's worked so well for so long, by tightening up the application process.

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