Patents: good? bad? shade of grey?

[Dirigible]

As nicely stated in wikipedia, our patent system has its basis in article 1, section 8 of the constitution: "The Congress shall have power...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"
http://en.wikipedia.org/wiki/United_States_patent_law

In some fields, such as pharma, I think patents do help promote the progress of science and useful arts. Why would anyone invest hundreds of millions of dollars into a new drug, when others can piggyback and spend almost nothing to just copy the drug?

But there are strong arguments that our patent system often does a lot to hinder the progress of science and the useful arts in many fields. Take this article:
http://www.techdirt.com/blog/innova...ucts-past-few-decades-were-not-patented.shtml

I do wonder how the patent system could be tweaked to better promote progress. Abolish it altogether? Have it treat different technologies differently? Overhaul how it works?

Unfortunately, IP law in this country gets changed in a piecemeal fashion based on companies with deep pockets that want it changed to suit themselves. So I don't expect much meaningful change in my lifetime.

Still... If you were designing a patent system from scratch, how would you do it?



Full disclosure: I'm a long-time patent attorney who makes good money in the present system. Doesn't stop me from thinking our present system is wasteful and inefficient. I have not actually gone though the exercise of designing a patent system from scratch myself, and I'm too lazy to do it now.

 

[woolfe9998]

A question about your techdirt article. Where is says that over 90% of the R&D 100 awarded products were not patented (we're speaking of things like HDTV and fax machines), does that mean that no critical components of those things were patented?

 

[Kadarin]

I believe that patents can be positive and effective provided frivolous patents are kept out of the system. For example, a capacitive discharge touch screen should be able to be patented (or maybe a particular process for making one), but patenting the idea of swiping left to right to unlock a phone should not.

 

[Dirigible]

A question about your techdirt article. Where is says that over 90% of the R&D 100 awarded products were not patented (we're speaking of things like HDTV and fax machines), does that mean that no critical components of those things were patented?

1) Fuck if I know.
2) But since HD TV was listed, I bet components of it were patented, although I have no idea if they were critical components.
3) I have not read the source article referenced in the techdirt article. http://pascal.iseg.utl.pt/~depeco/wp/wp092013.pdf

How's that for uselessness?

 

[Hayabusa Rider]

Allow 15 years with no renewals, no extensions, no clever manipulations to keep things like Viagra off the generic market. After that it's public domain. A company would rather buy something so it can kill it than lose money to a competitor, and it makes no sense to scrap existing infrastructure for a marginal increase in profit.

 

[fskimospy]

One thing I remember when I read articles about patent trolls such as Project Paperless was that in most cases (at least for small business) it is so hideously expensive to litigate that you are better off settling even when you are pretty much sure that you aren't infringing or that their patent is bullshit.

Do you think that a shifting of legal cost burden would be possible and/or beneficial to limiting abuse?

 

[Dirigible]

I believe that patents can be positive and effective provided frivolous patents are kept out of the system. For example, a capacitive discharge touch screen should be able to be patented (or maybe a particular process for making one), but patenting the idea of swiping left to right to unlock a phone should not.

I have no idea how to define what is frivolous and what is not frivolous. Do you? To implement this idea, the boundaries would have to be defined in law.

 

[Dirigible]

Allow 15 years with no renewals, no extensions, no clever manipulations to keep things like Viagra off the generic market. After that it's public domain. A company would rather buy something so it can kill it than lose money to a competitor, and it makes no sense to scrap existing infrastructure for a marginal increase in profit.

15 years from when? Priority date (simplified, this would be 15 years from when the patent application was filed with the patent office)? From when the patent issues? I'm guessing you mean priority date.

I believe that if a patent was filed on the composition of viagra, and then the patent expires, anyone can then make and sell that composition of viagra. Pharma changes compositions and makes new combo drugs to get new patents, but that doesn't stop the original patented composition from being generically produced and sold.

So I'm not clear how you'd stop the patenting of a different composition of a drug. Right now, those are patentable because they are new, useful, and nonobvious. Would you change the rules for how to determine if something is nonobvious, or other similar tweaks? Any idea how to do that?

Not saying it's a bad idea, I just don't know how to do it. (This will be a theme in my posts in this thread, I think.)

 

[Craig234]

I'm going to put a plug in for government research.

Taxpayer funded to pay for research that's 'good for society', choosing priorities good for the country, with the results available for free to make things from.

This happens a lot with critical 'raw science' already, that's not very profitable or practical for the private sector on a lot of areas.

I think it's very important we support this type of research complementing private.

Seems to me it's an extremist position if someone tries to say all research should be privately funded - that will get a lot of research killed to satisfy a government allergy.

 

[fskimospy]

15 years from when? Priority date (simplified, this would be 15 years from when the patent application was filed with the patent office)? From when the patent issues? I'm guessing you mean priority date.

I believe that if a patent was filed on the composition of viagra, and then the patent expires, anyone can then make and sell that composition of viagra. Pharma changes compositions and makes new combo drugs to get new patents, but that doesn't stop the original patented composition from being generically produced and sold.

So I'm not clear how you'd stop the patenting of a different composition of a drug. Right now, those are patentable because they are new, useful, and nonobvious. Would you change the rules for how to determine if something is nonobvious, or other similar tweaks? Any idea how to do that?

Not saying it's a bad idea, I just don't know how to do it. (This will be a theme in my posts in this thread, I think.)

Also, it appears that the USPTO is under resourced, do you think that if they had more staff and more resources to devote to each patent that they would be able to clear out some of the brush themselves? ie: recent USPTO invalidations of patents they had previously granted. If they had never been granted to begin with, a lot of litigation headache might have been avoided.

 

[Dirigible]

One thing I remember when I read articles about patent trolls such as Project Paperless was that in most cases (at least for small business) it is so hideously expensive to litigate that you are better off settling even when you are pretty much sure that you aren't infringing or that their patent is bullshit.

Do you think that a shifting of legal cost burden would be possible and/or beneficial to limiting abuse?

You're right. It is hideously expensive to litigate.

Potentially, yes. Shifting legal cost burden could limit some abuse. But most proposals say the loser in the law suit pays. Juries are so unpredictable that even if you think the patent case against you is BS, you could well lose and be on the hook for damages and the legal fees for both sides. Ugh.

The US legal system tends to spend big $$$ to get the "correct" result (quotation marks because I question how correct the results are). A lot of the $$$ is spent in discovery and because we have an adversarial system. We could potentially either keep the adversarial system and eliminate some of the more costly aspects and live with the idea that our cases will come out "correct" less often. Or we could try a non-adversarial approach, where a plaintiff could just tell a judge "I think Bob infringes my patent - decide and tell me if I win." I'm sure other options exist.

Most of my work is defending against patent trolls. The hideous cost of litigation is a two way street and very useful against the trolls as well. Show them that my client isn't paying without a fight, that they are likely to lose, and that any damages will be small and they often go away. That does take a client who can actually afford a law suit if it comes to that, though, and one with the fortitude to deal with losing a case now and then. If the client is a common target, it can help to generate a reputation for not being an easy mark.

 

[woolfe9998]

1) Fuck if I know.
2) But since HD TV was listed, I bet components of it were patented, although I have no idea if they were critical components.
3) I have not read the source article referenced in the techdirt article. http://pascal.iseg.utl.pt/~depeco/wp/wp092013.pdf

How's that for uselessness?

I'm really not trying to nitpick here, but the value of the observations in that article would seem to depend on the answer to my question. It isn't as simple as "90 of 100 innovations were not patented." I'm sure that as a patent attorney, you understand this.

 

[Dirigible]

Also, it appears that the USPTO is under resourced, do you think that if they had more staff and more resources to devote to each patent that they would be able to clear out some of the brush themselves? ie: recent USPTO invalidations of patents they had previously granted. If they had never been granted to begin with, a lot of litigation headache might have been avoided.

Note: The USPTO is a profit center for the government. Cash from the USPTO has historically been sent to the general fund and IIRC is about to be sent to the general fund again after a brief time when the USPTO kept the fees they collected.

In general, yes. I think if there were better defined boundaries about what is new and nonobvious, and the examiners had more resources to search and review prior art, a lot of patents that shouldn't be granted wouldn't be granted.

 

[Hayabusa Rider]

15 years from when? Priority date (simplified, this would be 15 years from when the patent application was filed with the patent office)? From when the patent issues? I'm guessing you mean priority date.

I believe that if a patent was filed on the composition of viagra, and then the patent expires, anyone can then make and sell that composition of viagra. Pharma changes compositions and makes new combo drugs to get new patents, but that doesn't stop the original patented composition from being generically produced and sold.

So I'm not clear how you'd stop the patenting of a different composition of a drug. Right now, those are patentable because they are new, useful, and nonobvious. Would you change the rules for how to determine if something is nonobvious, or other similar tweaks? Any idea how to do that?

Not saying it's a bad idea, I just don't know how to do it. (This will be a theme in my posts in this thread, I think.)

I'd have it for 15 years from date of patent acceptance. However I'd amend my time to say that if a patent is not put into use after 5 years it becomes public domain. That would get intentionally buried technology into the pipeline earlier.

 

[Dirigible]

I'm really not trying to nitpick here, but the value of the observations in that article would seem to depend on the answer to my question. It isn't as simple as "90 of 100 innovations were not patented." I'm sure that as a patent attorney, you understand this.

I understand your point and it is a good one.

But I view that article as prompting me to ask the question of what our patent system should be, and not so much as providing answers. It, or the source material, may provide some interesting information in a field where hard data is hard to come by, but it's by no means complete or the last word.

 

[Craig234]

One thing I remember when I read articles about patent trolls such as Project Paperless was that in most cases (at least for small business) it is so hideously expensive to litigate that you are better off settling even when you are pretty much sure that you aren't infringing or that their patent is bullshit.

Do you think that a shifting of legal cost burden would be possible and/or beneficial to limiting abuse?

There are legal industries for 'scavengers' suing for patent violations (especially in high tech) and other areas.

While I disagree with most criticism of the invented 'legal abuses' that are behind tort reform simply to let rich people get away with murder, this is a legitimate problem.

The problem with reform here seems to me to especially be that 'what's good for society' has a lot less power in the rules decided than the interests affected.

Our founding fathers had the luxury of 'what's good for society'. Today, that's not really the case.

 

[Dirigible]

I'm going to put a plug in for government research.

Taxpayer funded to pay for research that's 'good for society', choosing priorities good for the country, with the results available for free to make things from.

This happens a lot with critical 'raw science' already, that's not very profitable or practical for the private sector on a lot of areas.

I think it's very important we support this type of research complementing private.

Seems to me it's an extremist position if someone tries to say all research should be privately funded - that will get a lot of research killed to satisfy a government allergy.

I'm not going to address whether the government should be doing or controlling R&D work in this thread, as I think it's too far from a topic that's already pretty big.

Do you think anything touched by taxpayer funding should be unpatentable? I think that question is on topic of how our patent system should work. And since universities are often funded by government, they patent much of the research results they achieve, and sue companies making products, it's also no idle question.

 

[Dirigible]

Gotta do some actual work. Hope to return to this thread soon.

 

[Craig234]

I'm not going to address whether the government should be doing or controlling R&D work in this thread, as I think it's too far from a topic that's already pretty big.

Do you think anything touched by taxpayer funding should be unpatentable? I think that question is on topic of how our patent system should work. And since universities are often funded by government, they patent much of the research results they achieve, and sue companies making products, it's also no idle question.

In short, my opinion is that:

The same rules apply for government-funded creations (free access) as private-funded (restricted access).

My only nuance right now is that I'd say what the government patents should take into consideration what's going on with private research when determining the public good - for example, if private research is going to find something, and it's not terribly important that it be 'free' information, then maybe that's not the best priority for tax dollars.

Problem is, that intent quickly turns into 'big company lobbies for protectign its profits'.

But another interesting question is, should public institutions ever be able to patent and profit from what they do in the interest of funding further research?

And another - take a private place like Harvard - given all the government contracts and financial assistance should the government be able to restrict their rights on patents?

One more: say a company invents a drug that saves lives, and just sits on the patent.

Should the government have the right to indepedently research the same drug (not copy it) and nullify the patent on that basis?

 

[Anarchist420]

IP needs to be *abolished*. I think it has severely reduced innovation in the fast food industry and especially in the tech industry. Drugs are way above market prices.
Microsoft's profits from patents have been estimated to be as high 75%.

Patents are something only economic fascists like the Federalist Party and the Nazis liked... IP was one of the most counter-revolutionary things included in the U.S. Constitution; it was simply a step backwards to the monarcho-monopolies that the anti-Federalists worked so hard to free the people from.
Barring abolition:
make litigation harder for patent holders trying to sue, such as making them pay legal costs as suggested by eskimospy.
put a quota on every industry. I'm talking not more than 2% of patents issued in FY2000.
reduce copyright terms to 8 years.
reduce patents terms to 5 years.
retroactively end all protection issued >=5 years ago, (>=8 years ago for copyright).
repeal DMCA (repeal would decriminalize copyright violations, if I'm not mistaken)
repeal CISPA
limit damages paid to big businesses.
limit damages paid by small businesses and individuals (something like less than 2.5% of their profits over the past year can go to a big company like microsoft).
repeal the America Invents Act.

The only neutral thing about them is that they probably don't make a difference in U.S. govt revenue.

Finally, I'm going to play devil's advocate and say the fact that 9% of the world's new drugs were invented in Italy during the ~20 year period they had no patents is simply a bottom line... I haven't really looked into it and I certainly haven't studied it.

I'd guess that patents make no difference as far as innovation goes overall. I'm sure they don't increase innovation by looking at the tech industry.

Do you think that a shifting of legal cost burden would be possible and/or beneficial to limiting abuse?

I'll refer you to Stephan Kinsella on that... here.

 

[colonelciller]

very interesting video (talk) on patents in the modern day, how they are abused... how software patents are not legal in today's world,andhow the legal system in general completely ignores the illegality of software patents (probably due to the $$$$$$ that software patents bring in)

http://www.youtube.com/watch?v=LPzpBn-XGxw