Editore"s Note
Tilting at Windmills

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March 21, 2006
By: Zachary Roth

EVEN A STOPPED CLOCK....This is a couple days late but we've had a magazine to put out. Sunday's New York Times features a pretty good op-ed on out-of-control patents by the science-fiction writer Michael Crichton. Say what you want about Crichton who's lately begun leveraging his "scientific" credentials to carve out a second career as a prominent global warming skeptic but he sure knows patents.

Crichton highlights the fact that current law allows patents for things that simply should not be patentable. For instance, he notes, 20 percent of the human genome including the gene for diabetes is now privately owned. That could require anyone wanting to conduct research on the genetic basis of diabetes to pay a licensing fee to the patent-holder or they could be prevented from conducting research at all.

Crichton also alludes to the controversy over "business method" patents, though he doesn't use the phrase, and ignores entirely the area in which they do the most to stifle innovation: software. Since a landmark 1998 decision, courts have held that business methods essentially, ways of doing something, rather than concrete physical inventions are patentable. That decision opened the door to an unprecedented boom in patent applications on software, with the result that vast areas of technological innovation have been cordoned off.

Crichton also doesn't address a major part of the problem the patent office itself. As we showed in a story last year, thanks to a shortage of patent examiners and a perverse bonus system which incentivizes examiners to grant patent applications rather than reject them, the USPTO issues too many patents. Many of the problems of our patent system could be solved simply by reforming the office, so as to reduce the number of faulty patents that slip through.

Zachary Roth 11:28 AM Permalink | Trackbacks | Comments (80)

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As well, there need to be punative action taken for patents not made in "good faith". A good example is IP clearinghouses that exist for the sole reason of collecting royalties. These patents need to be revoked.

Posted by: Karmakin on March 21, 2006 at 11:30 AM | PERMALINK

That decision opened the door to an unprecedented boom in patent applications on software, with the result that vast areas of technological innovation have been cordoned off.

While I agree with the premise - there has been a big boom in software patents - I haven't seen the conclusion yet.

Do you have any examples of this?

Posted by: Tripp on March 21, 2006 at 11:31 AM | PERMALINK

I'm surprised the USPTO has a recruitment problem. If office space alone was a recruitment technique (and it is in my current career of advertising and it was when I lived in the Bay Area), the USPTO has the best and brand-spankingist new office in the all of Metro DC. (It's like a temple to coolness over there. All on land reclaimed from a rail yard and within walking distance to a Metro station and Old Town Alexandria.) I guess my boyfriend is right, all DC cares about is money and power. (As opposed to cool digs.)

Posted by: DC1974 on March 21, 2006 at 11:40 AM | PERMALINK

Actually the patent system is in the process of reform...and it's quite a bit more difficult today to garner a business method patent or some genetics related patents than it was a few years ago.

Crichton overstates the case as to research on portions of the genome...its not so much that research is directly stifled as it is that the potentially useful products of such research may run afoul of patents.

Posted by: Nathan on March 21, 2006 at 11:52 AM | PERMALINK

Umm... what credentials would those be?

Posted by: SombreroFallout on March 21, 2006 at 12:12 PM | PERMALINK

Bring Einstein back to the patent office.

Posted by: peBird on March 21, 2006 at 12:13 PM | PERMALINK
Umm... what credentials would those be?

Apparently, his "scientific credentials" consist of having a Harvard M.D. and having run a software company.

Posted by: cmdicely on March 21, 2006 at 12:16 PM | PERMALINK

...system which incentivizes examiners...
incentivize?
better would be "offer incentives to."

Posted by: Steven Rumbalski on March 21, 2006 at 12:16 PM | PERMALINK

Sunday's New York Times features a pretty good op-ed on out-of-control patents by the science-fiction writer Michael Crichton ...

You may want to reword this. At first I though the op-ed was about the patents that Michael Crichton himself had filed for and received.

Posted by: Matthew on March 21, 2006 at 12:17 PM | PERMALINK

I have recently received a patent entitled "Using HTML-based tools to comment on blog posts." Each of you is enfringing on my patent, and owe me 1,000/word. Please make arrangements to send me the money.

Posted by: POed Liberal on March 21, 2006 at 12:20 PM | PERMALINK
...system which incentivizes examiners... incentivize? better would be "offer incentives to."

well, if we're going to get into wordsmithing, I'd say "...offers incentives to examiners to grant...rather than reject..." would be a little better, but wordy; "rewards examiners for granting...rather than rejecting..." would be even better.

Posted by: cmdicely on March 21, 2006 at 12:21 PM | PERMALINK

I just 'got' the title of the post, a little slow this afternoon :)

You see this happen all the time, come to think of it: all these know-nothings screaming combinations of words that occasionally make sense. I wonder if we could convince Andrew Sullivan to create a stopped-clock award, then give it to himself ...

Posted by: Matt on March 21, 2006 at 12:22 PM | PERMALINK

Software patents stifle innovation at small companies. Large companies like Microsoft, IBM, and Sun Microsystems have cross licensing agreements for software patents. Basically they agree not to nuke each other with a patent infringement suit. Against smaller companies there is no danger of mutually assured self destruction in bringing a patent suit. This allows large companys to squeeze out smaller competition when they get too successful. I have read that fighting a patent lawsuit costs about $500,000.00, even if the patent is found to be invalid.

Software patents help established business stay in power, but they are not good for business in general.

Posted by: Steven Rumbalski on March 21, 2006 at 12:25 PM | PERMALINK

Sunday's New York Times features a pretty good op-ed on out-of-control patents by the science-fiction writer Michael Crichton ...

You may want to reword this. At first I though the op-ed was about the patents that Michael Crichton himself had filed for and received.

How about "Science-fiction writer Michael Crichton has a pretty good op-ed on out-of-control patents in last Sunday's New York Times."

Posted by: MS Spellcheck on March 21, 2006 at 12:25 PM | PERMALINK

. . .who's lately begun leveraging his "scientific" credentials to carve out a second career as a prominent global warming skeptic but he sure knows patents.

Actually, it's credentials that should be in quotations.

Crichton is a complete and utter tool. One of the worst popular pulp writers of the last forty years.

Give the current administration, and what Bush the Elder did, I'm surprised he hasn't become a "special adviser" to the National Academy of Science.

Posted by: Jeff II on March 21, 2006 at 12:27 PM | PERMALINK

I was involved with a business methods patent fight a few years ago. The patent holder claimed a patent on any and all medical records software. Somehow his patent had been approved. Well, the US government's development and use of medical records computer software predated the patent holder's claim by about a decade--both the DOD and VA were pioneers. It didn't take long to defeat the patent, but if the examiner had known anything at all about the subject he would have rejected the application out of hand.

Posted by: Ron Byers on March 21, 2006 at 12:28 PM | PERMALINK

How about "Science-fiction writer Michael Chrichton wrote a pretty good op-ed on out-of-control patents, which appeared in last Sunday's New York Times."

Posted by: cmdicely on March 21, 2006 at 12:29 PM | PERMALINK

Patenting specific human genes is totallys screwed up. Unbelievable.

Posted by: Freedom Phukher on March 21, 2006 at 12:40 PM | PERMALINK

Concerning natural gene sequences:

Isn't there something in the bible about it being a bad thing to give graven idols credit for God's creation? Are drug company CEOs the new golden calf?

I recommend throwing them in the fire, grinding them to powder, scattering them on water and forcing the patent clerks to drink it.

Posted by: B on March 21, 2006 at 12:43 PM | PERMALINK

"a perverse bonus system which incentivizes examiners to grant patent applications rather than reject them, the USPTO issues too many patents"

This is incorrect.

Mr. Roth, your story from last year gets this wrong. It states "But when examiners reject patent requests, applicants typically adjust the claim and file a continuation, denying the examiner a count." In fact, filing of a continuing application generally results in the abandonment of the previous application (resulting in a count) as well as a new application in which the examiner needs to do very little work to generate another rejection (the search and analysis having already been largely performed in the original application), resulting in yet another count.

In other words, the reality is exactly the opposite of what you stated. Examiners have an incentive to hold off on allowing applications, in hopes that the applicant will file a continuation, giving two easy counts to the Examiner instead of the mere one count associated with allowing the case. Any disinterested patent attorney or patent examiner could have told you this, but God forbid you consult with somebody like that.

Posted by: Derek on March 21, 2006 at 12:43 PM | PERMALINK

Freedom Phukher:

for the record, genes cannot be patented. period.

METHODS of isolating genes may be patented. recombinant genes may be patented.

Posted by: Nathan on March 21, 2006 at 12:46 PM | PERMALINK

The Amazon "single click" patent is a fine example of patenting business processes. Here's a story on Google trying to do similar...

http://www.infoworld.com/article/06/01/13/73912_HNgooglesingleclick_1.html

Posted by: Red State Mike on March 21, 2006 at 12:46 PM | PERMALINK

Nathan sez...

for the record, genes cannot be patented. period...recombinant genes may be patented.

????

Posted by: Red State Mike on March 21, 2006 at 12:48 PM | PERMALINK

Like most of these generic arguments against "out-of-control" patents, Crichton's article is mainly just stupid.

There are a million distinctions important to make when it comes to dealing with patents, and Crichton just pisses on them all to blur them.

For example, how many of the kinds of patents that trouble people would survive even the smallest amount of prior art search? Sure, it's not good that they were granted at all, but if they are clearly not going to hold up to challenges, how much do they really impact innovation?

Maybe patenting genes is a bad idea; maybe not. Probably patenting the mere correlation Crichton describes is wrong. But how do these criticisms turn into GENERAL AND BASIC criticisms against patents and the patenting process? Won't many of these problems go away with some tweaking?

In short, here as elsewhere, Crichton proves himself a posturing, ignorant ass.

Posted by: frankly0 on March 21, 2006 at 12:48 PM | PERMALINK

RSM:

recombinant genes have been modified by human agency...that's what recombinant means.

no portion of the human genome has been patented.

Posted by: Nathan on March 21, 2006 at 12:55 PM | PERMALINK

Nathan, people can patent cell lines, which seems pretty darn funky in and of itself. Google and "patent" and "cell line"...

KIE: A patient's lawsuit against the University of California is raising questions about an individual's rights of ownership in relation to body tissues that have been turned over for biomedical research but are subsequently used commercially. In 1976, John Moore had his spleen removed at the University of California, Los Angeles, in connection with his leukemia treatment. The university and researchers David Golde and Shirley Quan recently received a patent on the biologically interesting Mo cell line, which was derived from Moore's spleen cells. Moore's suit claims that the university misappropriated his tissues and that the researchers failed to obtain a valid informed consent because they did not formally tell him about the potential commercial applications of the cell line.

So someone else can patent my cells???

Posted by: Red State Mike on March 21, 2006 at 1:01 PM | PERMALINK
recombinant genes have been modified by human agency...that's what recombinant means.

No, its not. There are a couple of different senses in which the term is used, one of which has no relation to human agency, and one of which is more narrow than "modified by human agency".

And "recombinant genes" makes no sense; recombinant DNA, in the sense related to human agency, means that the DNA of an organism has been engineered to incorporate genes from different source organisms. The individual genes themselves are not "recombinant".

Further, you are just wrong about human agency in altering the gene being required for patenting. While that is one way a gene could be patentable, its not the only way, as this summary from Oak Ridge National Laboratories Human Genome Project website makes clear: naturally occurring genes and gene fragments have been patented.

Posted by: cmdicely on March 21, 2006 at 1:09 PM | PERMALINK

RSM: yeah, I remember reading that case in law school.

no, they can't patent your cells. they can patent a line DERIVED from your cells. the key thing is that they applied a process creating something unique (there are of course novelty, non-obviousness and other requirements)....

Posted by: Nathan on March 21, 2006 at 1:09 PM | PERMALINK

>Sure, it's not good that they were granted at all, but if they are clearly not going to hold up to challenges, how much do they really impact innovation?

A lot. Let's say you and a friend have an idea, and want to make a go of it. Your available investment consists of around $50k between you, plus time and energy. In many fields, such as software, you would never even bother to seek a patent, because "first to market" matters more, and it causes delays you can't pay for. The only way you'll make a go of it is to work on the idea on the sly for a year, then enter a niche market.

But some ass has a low-quality patent. Now, you can either become your own amateurish lawyer, and spend that year of available wife/sign-others's patience on fighting the patent office. Or, blow maybe 4x your available credit/savings on legal fees.

For many niche technical markets, the sales available won't justify a large player's much higher entrance costs. The result is the field in question is denied both the product/idea and its contribution to advancing the state of the art, unless it shows up in half-ass open-source form, if at all.

Large tech/software advancements often arise "suddenly" from incremental advancements in many small, marginally profitable niche markets that support a community of independent workers in the field. Thus, those crappy little patents can wind up hobbling entire fields of innovation.

Posted by: Bruce the Canuck on March 21, 2006 at 1:13 PM | PERMALINK

Back in the ancient days when I was being educated in pro-American history, one of the distinctions so rudely pointed out was why the US advanced so rapidly compared to Latin America. One of the explainations proffered was that while Hispanic culture prohibited everything not explicitly permitted, under the common law anything not listed as prohibited was allowed.
I think the current trend of deep pocket liability, no matter how tenuous, combined with this patent and copyright mania will do more to hurt our competitiveness than the incompetence tolerated in our public schools.

Posted by: minion of rove on March 21, 2006 at 1:14 PM | PERMALINK

cmdicely:

"And "recombinant genes" makes no sense; recombinant DNA, in the sense related to human agency, means that the DNA of an organism has been engineered to incorporate genes from different source organisms. The individual genes themselves are not "recombinant"."

um...
http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_uids=2515992&dopt=Abstract

http://www.elsevier.com/wps/find/bookdescription.cws_home/678503/description#description

you also state:
"Further, you are just wrong about human agency in altering the gene being required for patenting. While that is one way a gene could be patentable, its not the only way, as this summary from Oak Ridge National Laboratories Human Genome Project website makes clear: naturally occurring genes and gene fragments have been patented."

um...no it doesn't...you might want to read it.

in fact, it says:
"In general, raw products of nature are not patentable. DNA products usually become patentable when they have been isolated, purified, or modified to produce a unique form not found in nature."

Posted by: Nathan on March 21, 2006 at 1:15 PM | PERMALINK

This would be a good area for some inventive partnerships with 3rd world countries that fail to enforce intellectual property law. There are some East Asian countries that would make very promising centers of excellence for people who want to work on projects impeded by low-quality patents in the US. And some West African ones, too.

Posted by: brooksfoe on March 21, 2006 at 1:17 PM | PERMALINK
For example, how many of the kinds of patents that trouble people would survive even the smallest amount of prior art search? Sure, it's not good that they were granted at all, but if they are clearly not going to hold up to challenges, how much do they really impact innovation?

Challenges aren't cheap, and even if the research is quick and straightforward, actually winning the legal battle can be time consuming.

Posted by: cmdicely on March 21, 2006 at 1:17 PM | PERMALINK
um... http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_uids=2515992&dopt=Abstract

http://www.elsevier.com/wps/find/bookdescription.cws_home/678503/description#description

Er, yeah, I'll rephrase:

"Recombinant genes make no sense without further qualification, though recombinant genes in a specified, named organism (because of the actual definition of recombinant, which means, in this sense "from different sources", not "modified by human agency") are meaningful, as the named organism is one source, and the "recombinant genes" are genes from some other source."

But, at any rate, you are still wrong that "recombinant" means, in any case, "modified by human agency."

um...no it doesn't...you might want to read it.

Um, yes it does. You might want to try to understand what you read.


"In general, raw products of nature are not patentable. DNA products usually become patentable when they have been isolated, purified, or modified to produce a unique form not found in nature."

You might want to learn what "isolate" and "purify" mean; neither requires modification.

If you are getting hung up on "modified", you might also want to learn what "or" means.


Posted by: cmdicely on March 21, 2006 at 1:23 PM | PERMALINK

...which incentivizes examiners to grant patent applications rather than reject them...

The verb is "to incent".

Thus: "...which incents examiners to grant patent applications rather than reject them...

An "incentive" is the noun one uses to incent.

"Incentivize" is a febrile attempt to turn that noun into a verb via a suffix, having not realized that the noun itself is a suffixed form of the verb.

I understand that "incentivize" is common usage, and as such may be accepted by most wordsmiths; this does not obviate the fact that it is awkward and wholly unnecessary.

Posted by: S Ra on March 21, 2006 at 1:29 PM | PERMALINK

cmdicely:

you might want to read the part of the sentence which states: "to produce a unique form not found in nature."

as for "recombinant"...for purposes of patents...human agency must be involved...you are, of course, correct that other mechanisms can create recombinant products (mutations etc.) which are not patentable in and of themselves.
I thought my meaning was obvious...apologies if it wasn't.

Posted by: Nathan on March 21, 2006 at 1:30 PM | PERMALINK
I understand that "incentivize" is common usage, and as such may be accepted by most wordsmiths

Its common bureaucratese, to be sure, but its not the kind of thing anyone who would describe themselves as a "wordsmith" likes to see.

Posted by: cmdicely on March 21, 2006 at 1:31 PM | PERMALINK

You're not quite right Nathan. They don't have to have an unnatural gene sequence. The process of isolating a natural sequence, cloning it and putting in a bottle is patentable -- if a future commercial purpose exists. That purpose might be as vague as some far off gene replacement therapy or as lowly as licensing the patent to someone else that might be able to find a use for it.

under the current patent law doctrine in the U.S. and the E.U., patent protection is not granted for the genomic sequence as it exists in nature, but only for the inventive steps of isolating a gene, determining its function, and putting it into a commercially useful format. Accordingly, the U.S. Patent and Trademark Office (USPTO), as well as the European Patent Office in Munich (EPO), are issuing patents for isolated (i.e. separated from its natural state) or purified (i.e. excluded from the way the particular DNA occurs in nature) human genes encoding protein drugs, diagnostic probes, receptors, immunogens, and gene replacement therapy.

http://www.ostina.org/html/bridges/article.htm?article=1129

Posted by: B on March 21, 2006 at 1:32 PM | PERMALINK

cmdicely: Challenges aren't cheap, and even if the research is quick and straightforward, actually winning the legal battle can be time consuming.

Frequently it leads to a shakedown. Pay the patent holders $X to drop the lawsuit, even though it's obvious to anyone with half a brain that it's completely without merit. I've been involved in a small company that wound up doing this. There was also a good article about IBM doing this to Sun in the early days, though unfortunately I've lost the link. I'm confident that since then Sun has done it to other companies.

The difference between arsenals of frivolous patents and a protection racket is ...

(left as an exercise for the reader because I can't figure it out)

Posted by: alex on March 21, 2006 at 1:33 PM | PERMALINK

Challenges aren't cheap, and even if the research is quick and straightforward, actually winning the legal battle can be time consuming.

True, but those legal battles are ALSO very expensive for those pressing the claims of the patent. Entirely frivolous patent suits are fairly uncommonly pursued -- it makes no sense as something to invest in.

The most likely thing a patent troll might pursue with an easily challenged patent is to try to get companies to pony up a small amount of money so that they DON'T have to do anything legal (which is the last thing the patent troll wants either). But the amount of money involved is unlikely to deter innovation -- if it actually materially affected business, it would be pursued legally.

Posted by: frankly0 on March 21, 2006 at 1:33 PM | PERMALINK

B: "The process of isolating a natural sequence, cloning it and putting in a bottle is patentable"

my understanding is that this statement, as it stands, is correct. however, my understanding is also that if an identical natural sequence is isolated, clones and preserved with a future commercial purpose By Different Means then that would not constitute patent infringement.

Posted by: Nathan on March 21, 2006 at 1:39 PM | PERMALINK

frankly0: if it actually materially affected business, it would be pursued legally

Ain't necessarily so, and I do speak from experience. See my above post.

A protection racket doesn't have to break everybody's kneecaps to get their money. Big company X threatens little comapny Y. X will pursue it until Y goes belly up. X may not make money on that particular deal, but small company Z will learn and pony up when treatened by X.

Nice little business you have there, be a shame if those expensive plate glass windows got broken, or your garbage wasn't collected.

Posted by: alex on March 21, 2006 at 1:39 PM | PERMALINK

More on incent vs. incentivize:

"Incent" is actually of more recent vintage than "incentivize", which dates to the 1970s. Both are back-formations from the far older "incentive". (Much as "sculpture" led to the verb "to sculpt".)

I apologize if I gave the impression that "incent" came first.

Preference for "incent" over "incentivize" is purely a matter of taste. Which means, of course, that everyone should hew strictly to mine.

Posted by: S Ra on March 21, 2006 at 1:40 PM | PERMALINK
you might want to read the part of the sentence which states: "to produce a unique form not found in nature."

If you knew anything about either the science or the law here, you'd know that, as applied to "purify" or "isolate" (rather than "modify"), this isn't a bar to patenting naturally occurring gene sequences (as simply isolating or purifying a gene sequence -- which are essential, in practice, to identifying them -- themselves alter the physical product -- while preserving the gene sequence -- in a way that makes them eligible for patent.)

And, indeed, the page refers to patents to naturally occurring gene sequences and gene fragments, that are neither recombinant by the actual definition, or your made up one.


as for "recombinant"...for purposes of patents...human agency must be involved...you are, of course, correct that other mechanisms can create recombinant products (mutations etc.) which are not patentable in and of themselves.

The requirements for patent protection have nothing to do with the gene being "recombinant", period.

Posted by: cmdicely on March 21, 2006 at 1:46 PM | PERMALINK

Nathan: my understanding is that this statement, as it stands, is correct

In other words they're effectively patenting basic science. Kill this menace before it breeds further.

Posted by: alex on March 21, 2006 at 1:46 PM | PERMALINK

Nathan, I still think we should pull an Exodus 32:20 on the bastards. You can never be too careful with balsphemy.

Posted by: B on March 21, 2006 at 1:49 PM | PERMALINK

cmdicely:
you're over-simplifying (and the statements on your link are, I think, somewhat incorrect).

once again, an identical sequence, if isolated through a different method, would not infringe upon a patent.

you can't patent Okazaki fragments...what you can patent are the products of the purification or isolation of Okazaki fragments.

tell you what, I'll call my mother over lunch (who's newly minted biotech patent attorney) and see what she has to say.
I'll post here again in a half hour or so.

Posted by: Nathan on March 21, 2006 at 1:51 PM | PERMALINK

oh...and nothing that you've posted contradicts my statement that patents are not issued for naturally occuring human genes (you already rewrote that into "fragments") but have been issued for recombinant genes. Do you dispute this?

Posted by: Nathan on March 21, 2006 at 1:53 PM | PERMALINK

The verb is "to incent".

Both "incent" and "incentivize" are of recent coinage, though incentivize seems to have appeared first and is slightly more widely accepted.

Both are ugly, though I think incentivize is probably preferable, particularly when speaking ("incents" sounds too much like "incense"). Personally, I vote for "encourage."

http://www.harbus.org/media/paper343/news/2003/10/06/Viewpoints/Random.Observations-521030.shtml

Posted by: Nagual Haven on March 21, 2006 at 1:54 PM | PERMALINK

What the corrupt, rubber-stamping Congresses of late have done recently is to undermine the validity of intellectual property as an idea. Perpetual copyrights. Software patents. Patenting genes. Speciously vague patents.

Until the laws are rationalized, there's no intellectual incentive to honor IP as a class. It's similar to Prohibition in that it encourages the kind of avoidance schemes that are so popular.

Posted by: Jeffrey Davis on March 21, 2006 at 2:00 PM | PERMALINK

How many different methods are there to isolate a particular targeted gene sequence? If that's the way of bypassing a patent on a natural gene sequence, the patent clerks are even bigger idiots than I thought.

Posted by: B on March 21, 2006 at 2:01 PM | PERMALINK
you're over-simplifying (and the statements on your link are, I think, somewhat incorrect).

once again, an identical sequence, if isolated through a different method, would not infringe upon a patent.

That's not necessarily true (even ignoring the limited palette of techniques available for isolating any given sequence); patents of gene sequences are patents of the product not the process. The application of some method isn't what is patented, it is what makes the product into something distinct from "nature" for the purpose of patent law and thus potentially (assuming utility is demonstrated) subject to patent as an invention (spurious as one might argue that categorization is.)

Now, insofar as a different process, if any were reasonably available, might produce a product that contains the same sequence but is different in some other way, it is conceivable that it might not be covered by the patent, but far from clear.

Posted by: cmdicely on March 21, 2006 at 2:02 PM | PERMALINK

This allows large (software) companys to squeeze out smaller competition when they get too successful.

I've seen this statement offered three times so far, so it appears to be "common knowledge" that "everybody knows", but I'm still skeptical.

Can no one offer a recent case (say in the last 10 years) of this happening?

My experience is that the software market (like the game market) has matured to the point where the idea of the small software company consisting of a couple people is no longer doable. Not because of patents but because most of the simple easy stuff has already been done and the bits remaining are done open-source.

But I'm willing to be proven wrong.

Posted by: Tripp on March 21, 2006 at 2:04 PM | PERMALINK
oh...and nothing that you've posted contradicts my statement that patents are not issued for naturally occuring human genes (you already rewrote that into "fragments") but have been issued for recombinant genes.

No, I didn't rewrite anything. I posted that both naturally occurring gene sequences and naturally occurring gene fragment sequences have been patented, per the ORNL link.

Now, I don't have Science login information with me, but the summary of this article highlights both the status quo and the impact: "In this Policy Forum, the authors show that 20% of human gene DNA sequences are patented and that some genes are patented as many as 20 times. Unsurprisingly, genes associated with health and disease are more patented than the genome at large. The intellectual property rights for some genes can become highly fragmented between many owners, which suggests that downstream innovators may face considerable costs to gain access to gene-oriented technologies."

Posted by: cmdicely on March 21, 2006 at 2:17 PM | PERMALINK

Big company X threatens little comapny Y. X will pursue it until Y goes belly up. X may not make money on that particular deal, but small company Z will learn and pony up when treatened by X.

It's actually pretty rare for a large software company to go after small companies, not least because it is the large company that typically has the greatest patent exposure -- they have their thumbs in more pies. It's also why smart small companies seek patent protection themselves -- so that they can have a defensive position against larger companies, if need be, threatening to launch countersuits if necessary.

Microsoft and Oracle, for example, can always be pretty much counted on to try file briefs in major patent cases AGAINST those claiming infringement -- as they did in the NTP vs. RIM case.

You may want to ask, if you generally find yourself in the company of Microsoft and Oracle on patent issues, how can that be a good thing? How can that be encouraging innovation, as opposed to ripoffs?

Posted by: frankly0 on March 21, 2006 at 2:20 PM | PERMALINK

Here's a general point: if you are indeed doing something innovative, and if the Patent Office is supposedly granting patents only too easily, why shouldn't you be able to get patents on your own innovation? And if you do have such patents, why shouldn't you be able to fend off larger companies with the threat of at least a countersuit if they go after you over the same market?

Posted by: frankly0 on March 21, 2006 at 2:23 PM | PERMALINK

"Now, insofar as a different process, if any were reasonably available, might produce a product that contains the same sequence but is different in some other way, it is conceivable that it might not be covered by the patent, but far from clear."

see your other quote:
"some genes are patented as many as 20 times."

Posted by: Nathan on March 21, 2006 at 2:24 PM | PERMALINK
It's actually pretty rare for a large software company to go after small companies

Right, because small companies can't afford to take the risk of infringing on a patent held by a big company, and if they get anywhere close, they get a letter from the big companies lawyer and walk off without a fight.

Big companies are often the only ones that can afford the risk of taking patent cases to court.

Posted by: cmdicely on March 21, 2006 at 2:26 PM | PERMALINK

Does this mean that if I want to research a gene using a sample from my own body I would have to pay some corporation a royalty?

Posted by: cld on March 21, 2006 at 2:27 PM | PERMALINK
"Now, insofar as a different process, if any were reasonably available, might produce a product that contains the same sequence but is different in some other way, it is conceivable that it might not be covered by the patent, but far from clear."

see your other quote:
"some genes are patented as many as 20 times."

There is no contradiction here if you don't presume that the PTO isn't granting some patents that it shouldn't be from the standpoint of novelty.

Posted by: cmdicely on March 21, 2006 at 2:29 PM | PERMALINK

cmdicely,

It would be very nice if you could come up with convincing examples, instead of rhetoric.

Present to me a case in which a small software company had a solid patent portfolio in an important market, and simply folded without a fight against a large software company.

Posted by: frankly0 on March 21, 2006 at 2:31 PM | PERMALINK
Present to me a case in which a small software company had a solid patent portfolio in an important market, and simply folded without a fight against a large software company.

Huh? Since that's not even what I am suggesting happens, I don't understand the demand.

Posted by: cmdicely on March 21, 2006 at 2:34 PM | PERMALINK

frankly0: It's actually pretty rare for a large software company to go after small companies

Where did I say anything about software in specific? Software is just one field of many. In electronic hardware and other fields it's quite common for large companies to play the protection racket game with small companies.

Posted by: alex on March 21, 2006 at 2:36 PM | PERMALINK

You know what's REALLY destructive to innovation?

Threads like this, which basically encourage people who start small firms to shun patents on ideological grounds, instead of doing what they absolutely SHOULD be doing: getting every last bit of patent protection they should get.

Unfortunately, too many people in software go out and start a company WITHOUT seeking patent protection, then wind up in a market they may have innovated without the slightest ability to attack copiers or to counterattack large companies trying to enter the market. And this they do because they don't BELIEVE in patents.

Well, if the world has to make them believers, whose fault is that?

Posted by: frankly0 on March 21, 2006 at 2:36 PM | PERMALINK

frankly0: It's actually pretty rare for a large software company to go after small companies

Where did I say anything about software in specific? Software is just one field of many. In electronic hardware and other fields it's quite common for large companies to play the protection racket game with small companies.

Furthermore, when this does happen, you rarely hear about it. Usually we're talking settlements before it even gets to court.

Posted by: alex on March 21, 2006 at 2:37 PM | PERMALINK

In electronic hardware and other fields it's quite common for large companies to play the protection racket game with small companies.

Well, one reason I focus on software is that it is certainly the one most often held up as allowing vague, abstract, and general patents that should never have been awarded.

In electronic hardware, I'd expect that many of those objections may carry far less weight.

How about the idea that these larger companies in electronic hardware really HAVE patented something worthy of a patent, and that they DO apply to the innovations the smaller companies generate -- which may be improvements on the more basic inventions of the larger, older company?

Posted by: frankly0 on March 21, 2006 at 2:44 PM | PERMALINK

frankly0: In electronic hardware, I'd expect that many of those objections may carry far less weight.

Nope. How about a patent on dial tone generated within a wireless telephony device? Since dial tone has been used in telephony since the 1930's, I'd hardly call this "not obvious to someone with ordinary skill in the art". I'm citing this from personal experience BTW.

How about a patent on a carrier recovery technique that was literally pulled out of a textbook?

How about the idea that these larger companies in electronic hardware really HAVE patented something worthy of a patent

Once in a rare while, that may actually happen.

Posted by: alex on March 21, 2006 at 2:58 PM | PERMALINK

>frankly0: Unfortunately, too many people in software go out and start a company WITHOUT seeking patent protection...

Because you wind up spending several person-years of effort or cash obtaining such protection, which you then won't have the resources to defend anyways. Your typical startup/innovation people find that prospect about as much fun as tax filing.

In electronics and software, the field generally moves fast enough that if you're a year or more behind, you might as well not start. The result is the minimum scale of entry into any market - niche or otherwise - jumps from a 2 person outfit to a full venture-capital deal not focussed on the application or the technology.

I'm thinking "frankly0" is a lawyer, or other form of gatekeeper with a vested interest in the current mess.

Posted by: Bruce the Canuck on March 21, 2006 at 2:59 PM | PERMALINK

"In the electronics industry, patents are of no value whatsoever in spurring research and development."

- vice-president of Intel Corporation,
Business Week, 11 May 1981.

Posted by: Bruce the Canuck on March 21, 2006 at 3:07 PM | PERMALINK

Actually almost everything in this article is flat wrong or misleading. Please see Nathan and FranklyO for details. To summarize:

- Examiners are not "incentivized" to issue patents. They like continuation applications just fine.

- Products of nature cannot be patented. Methods and modified substances can be.

- I have seen no evidence that vast areas of technological innovation have been cordoned off. I doubt it's true.

- Similarly, I can't see how people are unable to research. Please provide examples.

As a patent attorney I am *all* in favor of improving the patent office. It is to no one's benefit that bad patents get through - not even the patent holders, who think they have something they don't really have. Examiners ought to have much more time to examine patents. They should be paid more, to encourage those who develop expertise to stick around. The patent office brings in plenty of money through fees to do these things, but Congress would rather raid them for the general fund - hardly the patent office's fault.

I'd like to see more evidence that business method patents or software patents are stifling innovation before the law gets changed. Let's have some hearings on this in Congress. Surely they will step up to this task, which after all is their job.

Posted by: EmmaAnne on March 21, 2006 at 3:17 PM | PERMALINK

EmmaAnne>Similarly, I can't see how people are unable to research. Please provide examples...I'd like to see more evidence that business method patents or software patents are stifling innovation before the law gets changed.

You can't "see how", or see the "evidence" because you're out in space.

The "grassroots" of technical innovation, research, and startups are a completely different culture than that which you clearly come from, and the incentives and disencentives are not entirely monetary. A chilly climate for innovation from that sector will not be visible to someone who's worldview works only via large-scale corporation models.

The trouble is that a sector ill-equipped to understand what they are effectively managing have would up in charge. The tail is wagging the dog.

Posted by: Bruce the Canuck on March 21, 2006 at 3:27 PM | PERMALINK

EmmaAnne: I have seen no evidence that vast areas of technological innovation have been cordoned off.

And I've seen no evidence that completely eliminating patents would discourage technological innovation. In fact, there are examples from 19th century Europe where countries did just fine in technological innovation without any patent protection.

As a patent attorney I am *all* in favor of improving the patent office.

No, like any other vested interest you're all in favor of whatever lines your pockets.

I'd like to see more evidence that business method patents or software patents are stifling innovation before the law gets changed.

I'd like to have seen some evidence that business method patents or software patents would encourage innovation before the law was changed.

The most fundamental and important software techniques were developed before there were software patents. In fact, it was done at a time when it wasn't clear that you could even copyright software.

The onus is on those who have chosen to enlarge the scope of what can be patented to prove that those changes actually encourage innovation.

Posted by: alex on March 21, 2006 at 3:38 PM | PERMALINK

The Wall St Journal has a much better op-ed today authored by Economics prof Adam Jaffe and business prof Josh Lerner. Can't link to it, but basically it discusses how the patent system is now out of control, tracing this back to policy decisions such as the creation of a centralized appelate court of patents in 1982, changes made to the operations of the US Patent and Trade Office, etc. They argue that our system now contains powerful disincentives to innovation and that this threatens the underpinnings of the capitalist system.

Actually, the Journal has been very good on this issue for a few weeks now, with trenchant editorials and op-eds.

Posted by: Aidan on March 21, 2006 at 3:59 PM | PERMALINK

I can't resist including one excerpt from today's op ed in the Journal in which the authors sum up the consequences of our dysfunctional patent system:

"While we have not yet killed the geese that lay the golden eggs, we are increasingly hindering and distracting the people and firms that must breed, feed and care for the geese. If we continue on this course, it is inevitable that they their output will decrease"

Posted by: Aidan on March 21, 2006 at 4:06 PM | PERMALINK

Thanks Aidan.

Apparently we have the business people and the engineers on one side, and the patent lawyers on the other. Hmmm...

Posted by: alex on March 21, 2006 at 4:25 PM | PERMALINK

Apparently we have the business people and the engineers on one side, and the patent lawyers on the other.

You'd be guessing wrong in my case.

In fact, I cofounded a company in 1995, and filed for some very basic patents in 1996, which were awarded.

I find myself in a position in which a number of engineers today are now wanting to rip off our ideas, because, you know, they were supposedly so "obvious", and so by rights they should be able to do so.

Funny, though, how the people who think these ideas were so obvious didn't seem to be thinking a single thought in their direction at the time we conceived of them. Now that they've heard of them, of course, they're suddenly easy-peasy to think up, always were.

All of which brings up another point: if the patents are so easy to get based on obvious ideas, why aren't these guys out there getting them?

My suggestion: because they can't think of any novel, non-obvious, and genuinely useful idea, except, of course, in hindsight.

Posted by: frankly0 on March 21, 2006 at 5:04 PM | PERMALINK
I'd like to have seen some evidence that business method patents or software patents would encourage innovation before the law was changed.

You act like promoting invention or increasing the store of public-domain knowledge was part of the Constitutionally-mandated function of IP law or something.

Posted by: cmdicely on March 21, 2006 at 5:27 PM | PERMALINK
Threads like this, which basically encourage people who start small firms to shun patents on ideological grounds, instead of doing what they absolutely SHOULD be doing: getting every last bit of patent protection they should get.

Er, threads like this don't discourage any rational person from seeking patent protection; indeed, they encourage it even if they discourage supporting the policies that enable it in some borderline cases.

There is a difference between "what should be allowed in an ideal world" or "what I should do out of prudence in the present circumstance".

Posted by: cmdicely on March 21, 2006 at 5:30 PM | PERMALINK

I have a patent awaiting publishing in September that a lot of people are going to claim was an "obvious" method of space launch. Of course much of the idea, once you put it in words, is intuitive and simple, but I guess it wasn't that obvious because no one else worked out all the details to make it actually function.

Posted by: Michael L. Cook on March 21, 2006 at 11:20 PM | PERMALINK




 

 

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