Category: Patent

The Parable of the Frog and the Scorpion in Silicon

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It appears that Qualcomm has plans to design a competitor to Apple’s M1 chip.

I don’t know if they actually have the technical ability to do this, they dominate the cell phone modem and SoC chip markets, but given their record of monopolistic and abusive business practices, what person in their right mind would rely on them for the technical core of their product?

Qualcomm’s new CEO, Cristiano Amon, says the company will have no problem producing laptop chips to compete directly with Apple’s M1—mainly because Qualcomm now employs some of the key minds behind Apple’s highly publicized breakthrough. Amon told Reuters in a recent interview that Qualcomm will attempt to design its own system-on-a-chip (SoC) for laptops without working with ARM, its partner in smartphone chips.

This SoC would include a 5G modem as well as a CPU. Explaining this strategy, Amon said:

We needed to have the leading performance for a battery-powered device. If Arm, which we’ve had a relationship with for years, eventually develops a CPU that’s better than what we can build ourselves, then we always have the option to license from Arm.

This year, Qualcomm purchased startup Nuvia for $1.4 billion. Nuvia was founded by former Apple employees who had worked on the Apple Silicon transition in the lead up to the launch of the M1.

Amon said that Qualcomm intends to use that Nuvia acquisition to drive the development of new chips for consumer devices, including laptops, to offer computer-makers a counterpoint to Apple’s highly efficient silicon.

Seriously, given their behavior in the past, how could ANYONE trust them not to institute onerous licensing requirements as soon as they have achieved a modicum of commercial success?

You know the senario, “Sorry, but we’ve changed our licensing terms.  Instead of the chip manufacturer paying a 30% royalty, the system manufacturer will have to pay a 20% royalty.  Have a nice day.”

New York Times Editors Come Out for State Owned Means of Production

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Not joking, they just wrote an editorial suggesting that not only should Covid-19 vaccine IP protections be suspended, but that the US government should set up its own state owned vaccine plants.

They have gone full Pinko:

The United States is well on its way to protecting Americans from the coronavirus. It’s time to help the rest of the world. By marshaling this nation’s vast resources to produce and distribute enough vaccines to meet global demand, the United States would act in keeping with the nation’s best traditions and highest aspirations while advancing its geopolitical and economic interests. It is a moment of both obligation and opportunity.

………

Covax, the World Health Organization’s initiative to pool vaccine resources, remains profoundly underfunded and has failed to meet even its modest target of vaccinating one-fifth of the population in the Global South. Without a major course correction, the rest of the world will have to wait until 2023 or later for large-scale vaccination initiatives like the one underway in the United States. The consequences of this disparity are expected to be severe. Hundreds of thousands more people will get sick and die from a disease that is now preventable with a vaccine. The global economy will contract by trillions of dollars, according to the International Chamber of Commerce, and tens of millions of people will plummet into extreme poverty as the virus continues to fester and evolve in the world’s more vulnerable reaches. 

………

President Biden can start by announcing that the United States intends to help and by appointing a vaccine czar to oversee the expansion of vaccine production. The federal government has ample legal power to compel the participation of the pharmaceutical companies, including the sharing of critical information and technologies. Congress has appropriated $16 billion to scale up production, most of which remains unspent.

Increasing manufacturing capacity has proved tricky. The global demand for vaccines may be high now, but once the coronavirus pandemic recedes, it will plummet back to normal levels. Increased public ownership, for its part, would ensure that vaccine-production capacity is ready for future pandemics, which are inevitable — potentially including new coronavirus variants for which routine boosters may be required.

To this end, the administration should consider taking a page from the Department of Energy playbook: Create publicly owned manufacturing facilities and contract with private companies to run them. (Several of the D.O.E.’s federally owned laboratories are run by private companies like General Electric and Bechtel.)

(emphasis mine)

I would note that the suggestion of federally owned manufacturing facilities is a good thing, and any future research or development contracts should require that these sites have a royalty free license.

But subcontracting to private companies to run them?  Too much of an opportunity for the sort of rat-f%$#ery that has pharma paying generic competitors not to produce.

Drugs factories are not like nuclear weapons factories:  Anyone can build one.

Have the government run these facilities.

Frau Merkel (Horses Whinny) Is at It Again

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The day after the Biden Administration said that it supported suspending IP rights on the Covid Vaccine, Angela Merkel comes out against this.

I think that her motivation is pretty simple:  Covid response is going pear-shaped in Germany, with Covid cases spiking, and by ginning up a controversy, she can avoid scrutiny of her handling of the pandemic.

This is not the first time that she has done this, it’s behind the whole policy of “othering” southern Europeans and spreading misery throughout the EU during and after the financial crisis.

She knows that if she’s seen as doing something, anything, with the argument that she is protecting Germans from the undeserving “other” she, and her CDU Party, can benefit, even if it provides no benefit to Germans, and may kill hundreds of thousands of people around the world.

Merkel is despicable:

The US and Germany are at odds on the issue of waivers for patents on Covid-19 vaccines, as Berlin argued that a waiver would not increase production and would inhibit future private sector research.

The disagreement is the first major rift between the two economic powers since Joe Biden took office, and threatens to deadlock discussions at the World Trade Organization (WTO) and sour relations within the G7 group of major industrialised democracies.

Any WTO decision on a waiver would have to be by consensus, so Germany opposition is a major obstacle to intellectual property rights on vaccines being suspended.

The Biden government’s announcement on Wednesday that it would back a waiver on vaccine patents was welcomed by the World Health Organization (WHO) as a step towards greater global equity at a time when poor countries have little access to vaccines and south Asia has been hit by a devastating outbreak. India accounted for 46% of the new Covid-19 cases recorded around the world over the past week, and there are signs the wave is spreading to Nepal, Sri Lanka and other neighbouring states.

But Angela Merkel’s government came out against a waiver on Thursday.

“The US suggestion for the lifting of patent protection for Covid-19 vaccines has significant implications for vaccine production as a whole,” a government spokeswoman said.

“The limiting factors in the production of vaccines are the production capacities and the high-quality standards and not patents,” she added, arguing that the companies were already working with partners to boost manufacturing capacity.

This argument about the difficulty of vaccines is patently false, as I noted yesterday. 

You can mass produce mRNA viruses in a space smaller than the file room necessary to store the quality control documents, and Angela Merkel knows this; she got her PhD in Quantum Chemistry.

Unfortunately, there is no one in politics in Germany who is willing to call her out on her lies.

A Stopped Clock Moment

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The 2nd worst Democrat in the Senate, Joe Manchin, has announced his support for IP waivers for generic Covid vaccines.

Of course, this might have something to do with his Kid’s business, as Heather Bresch probably still has outstanding stock options with the now a part of  Upjohn, Mylan.

Mylan is/was a generic drug manufacturer :

Sen. Joe Manchin expressed support for the World Trade Organization proposal to temporarily suspend enforcement of patent and intellectual property enforcement for Covid-19 medical treatments.

The waiver request, led by India and South Africa and backed by a coalition of countries, would allow more widespread global production and distribution of generic coronavirus vaccines, tests, and treatments.

Asked about the waiver proposal on Thursday, Manchin said it sounded like a good idea.

“I’ve always been a supporter of generics coming on,” said Manchin, speaking to The Intercept on Capitol Hill.

I really don’t care what his motivation is, it lends a some “Centrist” cred to the effort to place limits on the reach of IP.

The West Virginia Democrat referenced the fact that the U.S. government financed the research, development, and domestic deployment of coronavirus vaccines. He noted that the drug companies “shouldn’t” generate profits from a product sponsored by taxpayers.

This qualifier applies to every major pharmaceutical development over the past few decades.

Big pharma has devolved into an orgy of rent-seeking.  (Which seems to be my theme for tonight)

Bill Gates Is Really a Worthless Piece of Sh%$

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I have called Bill Gates a mass murderer for his efforts to prevent open source vaccines from being released, and now that there is a rising call for freeing up vaccines, the Microsoft founder is doubling down on his extremist mass-murdering agenda:

Bill Gates, one of the world’s richest men and most powerful philanthropists, was the target of criticism from social justice campaigners on Sunday after arguing that lifting patent protections on COVID-19 vaccine technology and sharing recipes with the world to foster a massive ramp up in manufacturing and distribution — despite a growing international call to do exactly that — is a bad idea.

Directly asked during an interview with Sky News if he thought it “would be helpful” to have vaccine recipes be shared, Gates quickly answered: “No.”

Asked to explain why not, Gates — whose massive fortune as founder of Microsoft relies largely on intellectual property laws that turned his software innovations into tens of billions of dollars in personal wealth — said: “Well, there’s only so many vaccine factories in the world and people are very serious about the safety of vaccines. And so moving something that had never been done — moving a vaccine, say, from a [Johnson & Johnson] factory into a factory in India — it’s novel — it’s only because of our grants and expertise that that can happen at all.”

………

Nick Dearden, executive director of Global Justice Now, one of the lead partner groups in an international coalition calling for WTO patent waivers at a crucial meeting of the world body next month, characterized Gates’ remarks — and the ideological framework behind them — as “disgusting.”

“Who appointed this billionaire head of global health?” asked Dearden. “Oh yeah, he did.”

Bill Gates has always been an asshole.

He was a bully as a boss, and he has spent the past few decades trying to launder his reputation through charity actions that frequently, as in the case of Covid vaccines do more harm than good.

By the time this pandemic is over, he will probably be responsible for more deaths than Saddam Hussein, and perhaps more than Pol Pot.

Supreme Court Sides With Google on API Copyright

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It should also be noted that the Supreme Court also slapped down the United States Court of Appeals for the Federal Circuit (CAFC, AKA, the “Patent Court”) once again.

This time, the Patent Court big-footed the normal appellate process, it does not normally handle copyright claims, and made an egregiously bad decision, which it pretty much always does, to boot.

Once the Supreme Court noticed, it was over but for the fat lady singing.

The purpose of patents is two fold:  To encourage innovation, and to make the information contained in patents available to the public.

The patent troll friendly CAFC is doing exactly the opposite.

This time the Supreme Court ruled that using the application programming interface (API) is fair use.

An API is a series of rules which describe how a computer program is programmed, or how it interfaces with hardware, and for program compatibility, programs running on the same hardware, or the same operating system, or on a similar language.

It’s not a creative expression (copyright) but a functional description of the system, like the manual for a toaster.  The specific words in the manual are covered by copyright, but the idea that you slide a lever from left to right to set the doneness of your toast is not.

For example, we can look at a “Hello World” program in Java, where Oracle was asserting infringement: (This is also an example of why I don’t want to program in Java, it’s way to obscure and verbose)

import javax.swing.JFrame;  //Importing class JFrame
import javax.swing.JLabel;  //Importing class JLabel
public class HelloWorld {
    public static void main(String[] args) {
        JFrame frame = new JFrame();           //Creating frame
        frame.setTitle("Hi!");                 //Setting title frame
        frame.add(new JLabel("Hello, world!"));//Adding text to frame
        frame.pack();                          //Setting size to smallest
        frame.setLocationRelativeTo(null);     //Centering frame
        frame.setVisible(true);                //Showing frame
    }
}

If you want to create an application, or an operating system, which is what Google did, and allow for Java programmers to work in this without learning a completely new way of doing the same thing, then you have to use the same code words, things like “Jlabel”, “Jframe”, “setTitle”, etc. 

That’s what Google did, and what the makers of IBM clones did in the 1980s, and what third party spare parts manufacturers do when they make cheaper parts for your (increasingly computerized) car.

The Supreme Court said that it’s fair use, which is nice, but not as nice as if they had said that it was not subject to copyright:

It’s taken over a decade, but the Supreme Court has finally said that Google’s copying of the Sun Java API for Android was clearly fair use in a 6-2 ruling (Barrett did not take part since she was not on the Court when the case was heard). The background of this case is actually kind of important to understanding what just happened, so here’s a quick(ish) recap.

As you’ll probably know, this case began in 2010 when Oracle, which had just taken over Sun, sued Google for patent infringement. The patent parts were quickly tossed out and what remained was what referred to as a “sideshow” to the main event: a question about whether APIs could be covered by copyright. Pretty much all historical evidence, including an important Supreme Court ruling from the 1990s, said no, interfaces are not covered by copyright.

Oracle and friends then spent the next decade deliberately gaslighting basically everyone who doesn’t understand what an API is, and insisting that it’s the same as executable code. The district court, under Judge William Alsup, who somewhat famously taught himself Java to better understand the issues in the case (he already knew how to code and was a hobbyist programmer), correctly found that APIs are not subject to copyright as they represent a “system or method of operation” which is explicitly not covered by copyright, as per Section 102(b) of the Copyright Act.

Rather than go to the 9th Circuit (as it should have) the case went to the Federal Circuit, which hears all patent appeals. That was because the case began as a patent case, even though it no longer was. CAFC judges are somewhat infamous for never finding a patent issue they couldn’t screw up, and decided to extend that to copyright. In the ruling overturning the lower court, they made it clear that because they were code illiterate they could not understand the difference between executing code and an API, even though it’s like the difference between a novel and a dictionary.

The CAFC bigfooted the case, which is not surprising.  They also do things like change determinations of fact by the lower courts, something that is not supposed to be done by appellate courts, which are only supposed to adjudicate matters of law.

The case went back to the district court, where the jury this time sided with Google, this time saying that the use of the code was covered under fair use. That whole trial was a little weird, because reading between the lines, you could see that nearly all the arguments for why copying an API was fair use were really about why an API shouldn’t be covered by copyright at all (as per Alsup’s original ruling) and then squeezing that square peg into the round hole of fair use to make it work. Once again, however, CAFC got flummoxed by an API looking like code and overturned — which is quite crazy because CAFC had, in its first ruling, insisted that the jury should decide this issue (as a matter of fact) and then when the jury said “fair use” CAFC suddenly decided that it was a matter of law that it could overrule.

It’s taken over a decade, but the Supreme Court has finally said that Google’s copying of the Sun Java API for Android was clearly fair use in a 6-2 ruling (Barrett did not take part since she was not on the Court when the case was heard). The background of this case is actually kind of important to understanding what just happened, so here’s a quick(ish) recap.

So, basically, we have another set of incoherent, and weird rulings from the CAFC, and once it gets on the SCOTUS radar, they shoot it down.

The patent court needs to be abolished.  The argument for it, that there needs to be a court with a specialized focus on patents is simply not justified by the results.

Instead, we have an institution that is completely captured by the patent bar, and has literally allowed for the patenting of a rainy day (Bilski v. Kappos,).

Just shut them down, and reassign the current judges to traffic court.

 

I Endorse this Group

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The Repair Organization is dedicated to the idea that people have the right to repair the stuff that they own without being locked out through IP protections:

Last summer, when the Copyright Office asked if anyone wanted to defend the right for video game console jailbreakers to mod or repair their systems, no one had a formal legal argument prepared. A new association representing repairmen and women across all industries was just formed to make sure nothing like that ever happens again.

Repair groups from across the industry announced that they have formed The Repair Coalition, a lobbying and advocacy group that will focus on reforming the Digital Millennium Copyright Act to preserve the “right to repair” anything from cell phones and computers to tractors, watches, refrigerators, and cars. It will also focus on passing state-level legislation that will require manufacturers to sell repair parts to independent repair shops and to consumers and will prevent them from artificially locking down their products to would-be repairers.

………

That problem—that manufacturers of everything are trying to control the secondary repair market—has two main sources, Gordon-Byrne said. First, manufacturers use federal copyright law to say that they control the software inside of gadgets and that only they or licensed repair shops should be allowed to work on it. Second, manufacturers won’t sell replacement parts or guides to the masses, and often use esoteric parts in order to specifically lock down the devices.

These problems have been well known in the smartphone, computer, and consumer electronics for years, and it’s why groups like iFixit and the Electronic Frontier Foundation have been able to mount successful challenges to the DMCA in recent years. Increasingly, however, these problems are spilling over into just about every other industry.

………

And so The Repair Coalition will primarily work at a federal level to repeal Section 1201 of the DMCA, which states that it’s illegal to “circumvent a technological measure that effectively controls access to a work protected under [the DMCA].” Thus far, activists have tried to gain “exemptions” to this section—it’s why you’re allowed to repair a John Deere tractor or a smartphone that has software in it. But the exemption process is grueling and has to be done every three years.

………


On a state level, the group will push for laws such as one being proposed in New York that would require manufacturers to provide repair manuals and sell parts to anyone—not just licensed repair people—for their products. The thought is that, if enough states pass similar legislation, it will become burdensome for manufacturers to continue along with the status quo. At some point, it will become easier to simply allow people to fix the things they own.

“We want to become an umbrella organization for repair,” Gordon-Byrne said. “We want to help the small repair technicians that aren’t getting help from anywhere else.”

When the DMCA was passed, we were warned that this would happen.

And now it has.

The law needs to be fixed, though repeal would be a better option.

This is Insanely Sensible

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The Virginia AG has set up an task force specifically to go after patent trolls:

Suing a company for patent infringement just got a lot tougher in the state of Virginia.

The state (technically a commonwealth) has created a new legal office focused entirely on patent litigation. Specifically, the state’s Patent Troll Unit will look to extract penalties and legal fees from companies who make unjust patent infringement claims against businesses operating in the state.

The task force will seek out companies who file infringement claims on dubious or vague patents, seeking a quick payout. The legal team, reporting to the Attorney General, will file for injunctions against companies it deems acting in “bad faith” with infringement claims.

………

“Virginia businesses of all sizes can be targets, from a small, local business up to a large, high-tech firm,” Virginia Attorney General Mark Herring told the local Augusta Free Press.

“Under the bipartisan legislation we were able to help craft last year, my office has strong new enforcement powers and we’re going to use them to protect Virginia businesses from these bad actors.”

………

Those who believe they are being targeted by a patent troll are being advised to contact the Attorney General’s office with details including the demands of the patent troll, contact information and patent details.

This is an excellent idea.

Defending against a patent troll is frequently expensive, and so companies frequently settle. 

Having the Attorney General’s office on your makes it far less ruinous to fight patent extortion.

Why it Pays to be a Professional Badass

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After a patent troll realized that they had sued Newegg, a company that is known for going to the mat against patent trolls, they dropped their case like it was plutonium:

A shell company that sued dozens of computer peripheral makers has quickly dropped Newegg house brand Rosewill from its list of defendants. The motion to dismiss, filed yesterday, comes just days after Newegg’s lawyers filed notices of their appearance in the case.

Minero Digital LLC dismissed its case against Rosewill one day after Newegg Chief Legal Officer Lee Cheng authorized his outside lawyer to try to settle the case in exchange for a “nominal donation to charity.” During that conversation (the attorneys’ first discussion about the case), Newegg’s outside counsel said that although the proposed agreement wouldn’t pay Minero anything, it was likely to be Newegg’s best and final offer. He suggested Minero search the Internet for news articles about Newegg’s policies on settling “patent troll” type cases. (The short version: Newegg doesn’t pay patent trolls.)

The next day, Minero dismissed the lawsuit against Rosewill. The dismissal is without prejudice, which means it could be re-filed in the future.

It appears that Newegg Chief Legal Officer Lee Cheng is kind of bummed, because no one wants to dance with him any more, “I never get invited to parties anymore. Now I keep getting kicked out.”

BTW, while there are a concerns about how one reigns in patent trolls while continuing to incentivize creativity, adding transparency to the process, to prevent obscure shell companies from obscuring who owns, and who benefits from, their behavior.

I think that naming and shaming the likes Nathan Myhrvold, who tries to pretend that he’s a scientist and philanthropist, and not an extortionist, would make the world a better place.

Ripper Patent Rulling In Oz

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The Australian Supreme Court just completely slapped down gene patents, which, with a bit of common sense, should be an end to that particular abomination in IP land:

Australia’s highest court has ruled unanimously that a version of a gene that is linked to an increased risk for breast cancer cannot be patented. The case was brought by 69-year-old pensioner from Queensland, Yvonne D’Arcy, who had taken the US company Myriad Genetics to court over its patent for mutations in the BRCA1 gene that increase the probability of breast and ovarian cancer developing, as The Sydney Morning Herald reports. Although she lost twice in the lower courts, the High Court of Australia allowed her appeal, ruling that a gene was not a “patentable invention.”

 The court based its reasoning (PDF) on the fact that, although an isolated gene such as BRCA1 was “a product of human action, it was the existence of the information stored in the relevant sequences that was an essential element of the invention as claimed.” Since the information stored in the DNA as a sequence of nucleotides was a product of nature, it did not require human action to bring it into existence, and therefore could not be patented.

 Although that seems a sensible ruling, the pharmaceutical and biotechnology industry has been fighting against this self-evident logic for years. The view that genes could be patented suffered a major defeat in 2013, when the US Supreme Court struck down Myriad Genetics’ patents on the genes BRCA1 and the similar BRCA2. The industry was hoping that a win in Australia could keep alive the idea that genes could be owned by a company in the form of a patent monopoly. The victory by D’Arcy now makes it highly likely that other judges around the world will take the view that genes cannot be patented.
………

 Striking down gene patents in Australia, as in the US, clears the path for new entrants to the gene testing market, which is likely to drive down prices. It could also spur more biomedical innovation by allowing researchers freedom to investigate previously patented genes and develop new therapies, without fearing potential lawsuits.

 If the judgement is followed by courts in other jurisdictions, and the whole idea of gene patents is rejected, the number of people whose lives could be saved will be correspondingly greater.

It has been patently* clear for decades that isolating genes is a process of discovery, and not invention, and hence they should not be covered by patents.

The biotech industry’s counter-argument has always been, “But we want our money!:

In a statement, Myriad also expresses its disappointment with the ruling. “The High Court’s decision comes at a critical time when we’re entering the golden era of personalized medicine,” it says, as GenomeWeb reports. “In order for personalized medicine to become a reality, strong patent protection is essential because it provides the research-based companies like Myriad with an incentive to continue to invest in R&D.”

(emphasis mine)

Basically, they are arguing that if we won’t allow them to patent their discoveries, they will take their marbles and go home.

There are two things wrong with this:

  • Patents are for inventions, not discoveries.
  • Allowing for rent seeking through patents makes it more likely that genetic products will will be released without adequate testing, because the potential profits are so huge.

And that is ignoring the fact that it is taxpayer funded research that have led to these discoveries.

*Pun not intended.

Nice That This Has Made The Times

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It appears that the mainstream media is finally noticing that a big problem in US healthcare is prices, and not people taking their children to the doctor for a case of the sniffles:

As complaints grow about exorbitant drug prices, pharmaceutical companies are coming under pressure to disclose the development costs and profits of those medicines and the rationale for charging what they do.

So-called pharmaceutical cost transparency bills have been introduced in at least six state legislatures in the last year, aiming to make drug companies justify their prices, which are often attributed to high research and development costs.

“If a prescription drug demands an outrageous price tag, the public, insurers and federal, state and local governments should have access to the information that supposedly justifies the cost,” says the preamble of a bill introduced in the New York State Senate in May.

In an article being published Thursday, more than 100 prominent oncologists called for support of a grass-roots movement to stem the rapid increases of prices of cancer drugs, including by letting Medicare negotiate prices with pharmaceutical companies and letting patients import less expensive medicines from Canada.

“There is no relief in sight because drug companies keep challenging the market with even higher prices,” the doctors wrote in the journal Mayo Clinic Proceedings. “This raises the question of whether current pricing of cancer drugs is based on reasonable expectation of return on investment or whether it is based on what prices the market can bear.”

………

“The industry has used R&D costs for the justification, but anyone who is reasonably sophisticated understands those are sunk costs and have little to do with pricing,” Mr. Rother said. “The more important information is any calculation of value. If the drug actually cures people, then what costs in health care are you saving?”

Dr. Jerry Avorn, a professor at Harvard Medical School and critic of some drug company practices, said the industry “has brought this on itself by charging prices that are so astonishing, it makes citizens wonder, ‘Where did this figure come from?’ ”

Yes, it does make citizens wonder.

What could help is ending evergreening, where a company uses a compliant FDA and US Patent Office to extend their legal monopolies, or the insane way in which the orphan drug act is used to grant legal monopolies on drugs that are literally thousands of years old.  (For example Colchicine has been in use for at least 3500 years, and when the company got exclusivity, it raised the price by a factor of 50)

The problem with drug prices, as well other medical prices, is that we have structures in place that allow corporations, which are by their very nature designed to function as sociopaths to extort excessive rents.

And we are exporting this model to the rest of the world through out trade deals like the TPP and TTIP, which will put the health of citizens in the signatory nations at the same sort of risk that exists here.

The Latest in Patent Abuse

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Colgate just filed a patent on Indian herbal recipes that have existed for thousands of years:

India has successfully blocked two patent claims of US consumer goods major Colgate-Palmolive, which wanted intellectual property right (IPR) cover on two oral compositions made from Indian spices and other herbs.

One patent battle took almost seven years, after the New York-based company filed a claim at the European Patent Register on September 29, 2008, for a composition containing botanical extracts from three herbs, including cinnamon, a common kitchen spice across India, known here as “dalchini”.

India opposed the claim using the traditional knowledge digital library (TKDL) database, created in the last decade to fight biopiracy.

The database, maintained by the Council of Scientific and Industrial Research (CSIR), submitted its plea in May 2011, and the European patent office ruled in India’s favour last month.

Two years after filing the first patent claim, Colgate-Palmolive moved another application in 2010 before the European patent office, seeking protection for another oral composition containing nutmeg, ginger, “Bakul” tree, camphor, cinnamon, turmeric, Indian banyan, black pepper, long pepper, Neem and clove. The solution is for treating oral cavity diseases.

………

The digital database, containing Ayurveda, Unani and Siddha formulations, and known medicinal properties of Indian herbs, was created following India’s successful IPR battles on haldi (turmeric), neem and Basmati rice.

The Union Commerce Ministry spent Rs 7.61 crore in 2000 as legal fee to reverse a patent examiner’s decision on basmati rice. “Going by that standard, the TKDL has saved upwards of Rs 500 crore so far, and more to come. In the next step, the government should not only add many more ancient books to the TKDL database but also incorporate knowledge from manuscripts,” said Gupta, who retired in 2013.

There needs to be some sort penalty when firms file fraudulent, because this sort of crap is endemic.

We May Be Seeing the Beginning of the First Pandemic Caused by Patents

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We are seeing a major Middle East Respiratory Syndrome outbreak in Korea:

Two men have died of Middle East respiratory syndrome in South Korea, officials said Thursday. Theirs were the third and fourth confirmed deaths in what has become the largest outbreak of the virus outside the Middle East.

 As fear spread, the government of President Park Geun-hye was accused of not doing enough to contain the outbreak and of endangering the public by withholding information about it.

 At a news conference on Thursday, the influential mayor of Seoul, Park Won-soon, castigated the national authorities for not disclosing that a doctor at a Seoul hospital who was quarantined on Sunday with symptoms of the syndrome, known as MERS, had attended a gathering of more than 1,500 people in the southern part of the city only the day before.

 More than 1,160 schools and kindergartens in South Korea have been shut down temporarily, and many Koreans are wearing surgical masks in public.

It has a fairly high mortality rate (about 40%, down from earlier estimates of over 50%), largely due to “co-morbitities” (Things like diabetes, heart disease, asthma, COPD, etc.).  The mechanism seems to involve a phenomenon known as HLH, which is one of the cytokine storm syndromes (the immune system going haywire), which causes edema in the lungs, and things like secondary pneumonia.

Historical note:  The lethality of Spanish Influenza was also largely caused this cytokine storm/pneumonia mechanism.  (Got your attention now?)

Note also that the cytokine storm tends to effect young adults more than the rest of the population. (I definitely have your attention now.)

One problem with dealing with what is (at this time) a small problem, is that, using purloined samples, the Erasmus Medical Center in Rotterdam sequenced the virus, and filed a patent on the genome, preventing timely research on things like vaccines and antiviral medications:

In the ongoing investigation of the MERS virus, a team from Erasmus Medical Center in Rotterdam received two patient samples from Dr. Ali Mohamed Zaki, an Egyptian scientist working in Jeddah, Saudi Arabia. After sequencing the MERS DNA, EMC claimed ownership of the samples. EMC now requires scientists hoping to work on the MERS problem to sign legal agreements with Erasmus. The U.S. Centers for Disease Control and Prevention (CDC) is still waiting to receive samples of MERS for testing that were collected in October 2012 because the legal teams from the CDC and Erasmus cannot negotiate agreeable terms for a material transfer agreement. As a result of these legal delays during a disease outbreak, Margaret Chan, director-general of the World Health Organization, publicly criticized Erasmus for putting patent laws ahead of protecting “your people.”

I have covered these issues here.

Labs cannot do research because the Erasmus Medical Center has this tied up in patents, even though it is an discovery, and invention which is what has traditionally been required for patents.

Right now, MERS, a coronavirus,  is not that contagious because, unlike some of its near relatives in that viral family like the common cold, because, unlike the cold, it lurks deep in the lungs, as opposed to the nose and sinuses, so coughing and sneezing out virus is far less likely.

At least, it’s not that contagious right now. 

I don’t know about you, but I’d like to see a vaccine, and perhaps some antiviral drugs, before it develops an affinity for sinus tissue, and starts behaving more like measles.

That cannot happen, because of our current insane patent regime.

That Sound You Hear is the Revolving Door Spinning Fast Enough to Generate a Sonic Boom

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US District Judge Leonard Davis, presiding judge of the Eastern District of Texas, the favorite venue for patent trolls, has retired from the bench and joined the largest IP law firm in the nation:

US District Judge Leonard Davis said this week he’s going to leave the bench to join Fish & Richardson, a large law firm focused on intellectual property.

Davis, who has presided in the Eastern District of Texas since 2002, has one of the most active patent dockets in the nation and has presided over some of the biggest technology lawsuits of the past decade. Corporate Counsel magazine reported this week that he has handled more than 1,700 individual IP cases as a judge. Before becoming a judge, he worked for 23 years in private practice.

Statistics for 2013 showed 263 new patent cases being assigned to Davis, about one-sixth of the 1,700 patent cases that were filed in the district, the busiest in the nation. Only four other judges, three in Delaware and one in East Texas, had more patent cases assigned to them.

It was Davis and another former East Texas judge, T. John Ward III, who oversaw the Eastern District as it became a hotspot for patent lawsuits—especially Tyler, where Davis’ courtroom is, and Marshall, where Ward sat.

………

Davis will be the third federal judge in the Eastern District to leave the bench for private patent practice in recent years. Former Judge T. John Ward, the grandfather of the Eastern District patent practice, was a judge from 1999 until 2011 before leaving for private practice. A third federal judge, Chard Everingham, is now a partner in Akin & Gump’s Longview office. Everingham was a US magistrate judge in Marshall, where he often oversaw full patent trials due to the court’s heavy load and was Ward’s permanent law clerk for seven years before that.

Both Davis and Ward also have sons who are attorneys with patent-focused legal practices. T. John “Johnny” Ward Jr. founded the small firm of Ward & Smith, which his father joined. Bo Davis, Judge Davis’ son, is a solo practitioner in Longview.

I understand the justification for IP law.

Basically, it comes down to allow rent seeking behavior to, “To promote the Progress of Science and useful Arts.”

Unfortunately, rent seeking is an inherently corrupting activity, because it gives people the ability to get money for nothing.

Thus we see judges joining IP firms, and judges’ kids joining lucrative IP law firms.

It’s destroying our economy, and it needs to stop.

It Looks Like the Blowback from Patent Overreach Continues………

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We are now seeing venture capitalists and other movers and shakers coming down hard on patent trolls:

What’s the biggest difference between the letter about patent trolls that prominent VCs sent to Congress in 2013 and the letter (PDF) they sent out today? Four times as many names.

In total, 140 investors in startup companies have signed a letter to Congress asking them to implement changes to patent laws that have been debated for more than two years now. The move looks to keep one important fact front-and-center: “patent trolls,” companies in the business of suing over patents, aren’t just a plague for tech giants—they are a huge problem for medium- and small-sized companies as well.

“When a troll sues, or even threatens, a small startup, the results can be disastrous,” the letter states. “Many of us have seen young companies fail in the face of such threats.”

Among venture capital investors, 70 percent say their portfolio companies have been hit with patent threats, mostly from trolls. It’s a situation which the letter calls “not sustainable.” The letter continues:

Our Constitution favored a patent system to incentivize innovation and benefit all Americans. Unfortunately that system has been hijacked by some intent on exploiting Patent Office weakness, and all too frequently it now hinders innovation and chills investment, harming the new companies it was designed to foster and imposing a patent troll tax on new technologies.

The letter asks for patent reform legislation that includes provisions for easier fee-shifting, protections for end users of technology, limits on the scope of discovery, and increased transparency requirements. Under such circumstances, the group hopes patent owners would have to include more information in any lawsuits or demand letters they might send.

IP in general, and patents in particular, are a rent seeking behavior that we as a society approve of because of the the effect, as defined by the Constitution, “To promote the Progress of Science and useful Arts,” is considered to be a societal benefit.

This makes IP law public interest law, and until we reevaluate our copyright and patent regimes through this lens, we are going to end up with parasites like NTP and Intellectual Ventures sapping innovation and vitality ad infinitum.

1000 Words on Big Pharma Research Spending

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9 Out Of 10 Big Pharma Companies Spent More On Marketing Than On R&D

I would also note that 84% of the basic R&D funding is by the taxpayers.

What I am talking about is the research that discovers the basic science that leads to drugs.

I would argue that if we were to repeal the Bayh-Dole act, and once again require that federally funded inventions be assigned to the federal government, we would get more innovation, because universities would not be acting like private companies regarding their (our) inventions, and it would save enormous amounts of money, particularly with regard to pharmaceuticals.

The Washington consensus, which is that no matter how badly the private entities loot the rest of society, we must privatize everything, because ……… Capitalism!

It’s why we have hepatitis C drugs that are costing over $1,000.00 a pill.

As an alternative, have the government fund taking basic research to a marketable drug, and then allow drug manufacturers to bid for the right to manufacture those medications.

H/t The Big Picture.

Muck Fyhrvold

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Intellectual Ventures, the patent troll founded Nathan Myhrvold, has won its first patent suit, but it appears to be a Pyrrhic victory, with a small award, and a denial of ongoing royalty payments:

More than four years after it launched its first waves of lawsuits, the world’s biggest “patent troll” has won its first victory in a jury trial.

Late Friday, a Delaware jury ordered Symantec to pay $17 million to Intellectual Ventures, the Washington-based “invention marketplace” created by ex-Microsoft CTO Nathan Myhrvold, which boasts more than 30,000 patent assets.

In its verdict [PDF], the jury found that Symantec had infringed two US patents, numbered 5,987,610 and 6,073,142. A third patent, 6,460,050, was found to be not infringed.

The complaint [PDF], filed in 2010, accuses Symantec’s Brightmail Gateway and Web Gateway of infringing the ‘142 patent. That patent was filed in 1997 by Utah’s Park City Group and essentially describes a system for distributing e-mail according to a set of predetermined “business rules.”

The ‘610 patent originated with Ameritech, later bought by AT&T. The ‘050 patent was filed in 1999 by two columnists for computer magazine InfoWorld, Brooks Talley and Mark Pace.

While jurors sided with Intellectual Ventures, they awarded the patent holder less than six percent of the $299 million its lawyers sought, according to a Symantec spokesperson. The verdict form indicates the company was also asking for ongoing royalty payments, which the jury rejected.

“We are pleased the verdict came back for substantially less than the amount that Intellectual Ventures was seeking, and are considering our options to reduce the damages even further,” the spokesperson said via e-mail.

In a statement, IV expressed gratitude to the jury for upholding the patents’ validity. “We remain committed to defending inventor rights and protecting the interests of our investors and customers,” said IV’s head of litigation, Melissa Finocchio.

Admittedly, it was Symantec that won, and I really hate their software, I always felt that their Norton AV was worse than the viruses that it was protecting against, but this is clearly a victory, albeit not a complete one, against the patent trolls.

Unfortunately, on appeal, it goes to the Patent Court (the United States Court of Appeals for the Federal Circuit) who would slap a patent on a rainy day, (in fact that court literally did allow for a patent on a rainy day) and my guess would be that they would not be a friendly venue for Symantec.

Am I a Bad Person to Experience Unalloyed Glee at the Misfortune of Others?

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That’s Gotta Hurt!

Well, let me clarify:

I am talking about one entity specifically………

I’m talking about one entity who was caught trying to deceive regulators specifically………

I’m talking about one entity who was caught trying to deceive regulators and defraud the public specifically………

I’m talking about one entity who was caught trying to deceive regulators and defraud the public specifically whose business model is primarily rent seeking………

OK, spoiler alert, it’s Monsanto, who just had a fraudulent patent revoked:

Patent EP1812575 held by Monsanto has been revoked by the European Patent Office (EPO) after the international coalition No Patents on Seeds! filed an opposition in May 2014.

A further opposition was filed by Nunhems / Bayer CropScience. In November 2014, Monsanto requested that the patent be revoked in its entirety and the EPO complied with this request.
The patent covered conventionally bred tomatoes with a natural resistance to a fungal disease called botrytis, which were claimed as an invention. The original tomatoes used for this patent were accessed via the international gene bank in Gatersleben, Germany, and it was already known that these plants had the desired resistance. Monsanto produced a cleverly worded patent in order to create the impression that genetic engineering had been used to produce the tomatoes and to make it look ‘inventive’.

“Revoking this patent is an important success. It was more or less based on a combination of fraud, abuse of patent law and biopiracy. The patent could have been used to monopolise important genetic resources. Now breeders, growers and consumers have a chance of benefiting from a greater diversity of tomatoes improved by further breeding”, says Christoph Then, a coordinator of No Patents on Seeds!. “The intended resistance is based on complex genetic conditions, which are not known in detail. So genetic engineering is clearly not an option in this case.”

It would be nice if patent law were changed to invalidate gene and species patents, but it’s a start.

Not What I Would Expect from the Koch Suckers at the Cato Institute

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Considering their background, that of an Ayn Rand inspired think tank, I would think that their attitude toward IP, copyright and patents, would be one of absolute support, but here is an article where describes our current regime as regressive rent seeking:

………

All three of these critical national problems derive from the same source. We often talk about the last third of a century as an era of deregulation and the expansions of markets. And in certain areas that is certainly true. But the most important market rigidities that have been eliminated have been those that protected those from the middle class on down. In fact, the great paradox of the last third of a century is that we have actually had an explosion of regulation in this “supposedly deregulatory” era — but regulation that has the effect of redistributing, sometimes dramatically, upward.

A few examples will suffice to make the point. Intellectual property protections, especially patents and copyright, have been expanded dramatically over this period, both in time (through patent and copyright extensions for existing IP) and across space (by using trade agreements to push American IP principles into foreign law). While there is an argument that this expansion has actually reduced innovation, there is no doubt that it has allowed existing firms to use the force of law (rather than the market) to enrich themselves by reaching further into the pockets of consumers.

………

The article is actually fairly tepid in its conclusions, but considering that this is coming from the Cato institute, it does indicatge that the push-back against the American model of over aggressive IP protections is becoming more broadly accepted across the ideological spectrum.

It’s the First Monday of October………

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Which means that the Supreme Court has begun its new session.

Rather unsurprisingly, the court punted on gay marriage, declining to hear any of the appeals of the recent ruling striking down gay marriage bans.

This has the effect of massively expanding gay marriage, or the recognition of gay marriage:

With not a single dependable hint of its own constitutional view of same-sex marriage, the Supreme Court in one fell swoop on Monday cleared the way for gays and lesbians to wed in a batch of new states — starting first in five more states, and probably adding six more in the coming weeks. If that happens in all eleven, it will mean that same-sex marriages would then be legal in thirty states and Washington, D.C.

 In seven one-line orders, released without explanation and with no report on how any Justice voted, the Court surprisingly refused to review any same-sex marriage case now before it and, in the process, prepared to lift a series of orders that had delayed such marriages while the issue remained in the Court. Almost no one had expected that to happen.

 It may take a few weeks for the Court’s action to take effect in real-world terms, in the geographic areas where federal appeals courts have struck down bans in five states — the decisions that the Justices have now left intact. Because those appeals court rulings are binding on all federal courts in their regions, those decisions almost certainly dictate the outcome in six more states.

As Maddow noted, it only takes 4 judges to put a case up for review, and the 4 right wing judges voted to support DOMA in US v. Windsor, it means that at least one judge (My money is on Roberts) who voted against gay rights voted against reviewing the cases.

It is either an acknowledgement by one of the conservative justices that society has changed, or it it a tactical decision, hoping that the next justice will be appointed by a Republican to replace Ginsbert.

In addition, we have a very interesting 4th amendment case,  where the question of whether a search is legal if the stop is is based on a misunderstanding of the law.

We also have a patent case, Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., where the court is going to review whether the United States Court of Appeals for the Federal Circuit (Patent Court) can review the facts presented in the district court on appeal, or only address matters of law or “clear error.”  (Interestingly enough, the Patent Court ruled against the patent, and the district judge ruled for the patent.)

The fact that the Supreme Court is taking it implies to me that at least 4 justices are looking to slap down the Patent Court yet again, which has for a while engaged in a de novo review of patents when it heard appeals.

I’m also interested in Tibble v. Edison International, where workers sued their employer, because their retirement plans were high fee plans, because Edison was getting kickbacks from the plan manager.

It’s actually a statute of limitations case, since the investment choices were initially made more than 6 years before the suit was filed, but the plan was maintained for long enough that the last day was within the statute of limitations.

More on other cases here.