Category: Patent

Why Species Patents Suck, Part Gazillion

No Comments

Stuck in the middle of an article about the Middle East Respiratory Syndrome coronavirus (MERS) is this tidbit about how a lab is claiming all rights to its genome, impeding research on the illness:

But impeding an effective response is a dispute over rights to develop a treatment for the virus. The case brings to the fore a growing debate over International Health Regulations, interpretations of patent rights, and the free exchange of scientific samples and information. Meanwhile, the epidemic has already caused forty-nine cases in seven countries, killing twenty-seven of them.

At the center of the dispute is a Dutch laboratory that claims all rights to the genetic sequence of the Middle East Respiratory Syndrome coronavirus [MERS-CoV]. Saudi Arabia’s deputy health minister, Ziad Memish, told the WHO meeting that “someone”–a reference to Egyptian virologist Ali Zaki–mailed a sample of the new SARS-like virus out of his country without government consent in June 2012, giving it to Dutch virologist Ron Fouchier of Erasmus Medical Center in Rotterdam.

“The virus was sent out of the country and it was patented, contracts were signed with vaccine companies and anti-viral drug companies, and that’s why they have a MTA [Material Transfer Agreement] to be signed by anybody who can utilize that virus, and that should not happen,” Memish said.

Though Memish referred to a “patent,” the Dutch team has not patented the viral genetic sequence but has placed it under an MTA, which requires sample recipients to contractually agree not to develop products or share the sample without the permission of Erasmus and the Fouchier laboratory. Memish said that the Dutch MTA was preventing Saudi Arabia from stopping the MERS-CoV outbreak, which appears to have started eleven months ago in the Eastern part of his country. The Dutch team denies the MTA is slowing work on the outbreak, saying it has given virus samples to any lab that has requested it.

If you thought that the idea of patenting software was bad, patenting genes and species is a whole new level of f%$#ed up.

In today’s world, when we are in the middle of a potential epidemic, our first priority is to make the world safe for scumbag profiteers.

Call Your Congress Critter

No Comments

The SHIELD act has been proposed to to rein in patent trolls:

Shell companies that threaten legal action over patent infringement without actually producing anything themselves could be driven out of business if the newly proposed and risibly backronymed Saving High-tech Innovators from Egregious Legal Disputes (SHIELD) Act becomes law.

In an all-too-rare display of US congressional bipartisanship, representatives Peter DeFazio (D-OR) and Jason Chaffetz (R-UT) announced the legislation, which would make the infringement accuser liable for both sides’ legal fees should they lose. Universities and companies that actually produce an end-product to sue about are exempt.

“These trolls are hampering innovation, slowing companies down and locking them up in lawsuits,” said Chaffetz at a press conference.

Basically, it requires the trolls to cover the other side’s court costs unless they can show that their suit had a reasonable chance of success, which means that fighting the trolls becomes a lot cheaper.

BTW, much like the banking system, much of the dysfunction in the banking system goes back to the Clinton administration”

In 1994, Bill Clinton broke the long-standing and utterly sensible tradition that an actual patent lawyer should be Commissioner of the United States Patent and Trademark Office, and instead appointed Bruce Lehman, who was at the time the chief lobbyist for the Software Publishing Industry.

Under Lehman’s leadership, the USPTO changed the rules to allow much broader patents to be issued, often spanning completely different technological areas. These types of patents are the troll’s weapon of choice, with some so broad they could cover pretty much anything on the internet, for example. At the same time the amount of patents issued by the office began to increase.

Lehman was also one of the main authors of the widely reviled Digital Millennium Copyright Act, and helped negotiate the Trade-Related Aspects of Intellectual Property Rights trade agreement. In 2006, he was inducted into the first International IP Hall of Fame by Intellectual Asset Management (IAM) magazine.

One of the distressing characteristics of the Clinton administration was its embrace of rent seeking as an economic model, whether it be banksters or patent trolls.

I Hope So

No Comments

Ars Technica asks, “Will the Supreme Court end human gene patents after three decades?“

I think that it likely that they role back patent protections.

These days, they only seem to take patent cases when the United States Court of Customs and Patent Appeals goes too far with patents.  (Which it does with mind-numbing regularity):

Since the 1980s, patent lawyers have been claiming pieces of humanity’s genetic code. The United States Patent and Trademark Office has granted thousands of gene patents. The Federal Circuit, the court that hears all patent appeals, has consistently ruled such patents are legal.

But the judicial winds have been shifting. The Supreme Court has never ruled on the legality of gene patents. And recently, the Supreme Court has grown increasingly skeptical of the Federal Circuit’s patent-friendly jurisprudence.

Meanwhile, a growing number of researchers, health care providers, and public interest groups have raised concerns about the harms of gene patents. The American Civil Liberties Union estimates that more than 40 percent of genes are now patented. Those patents have created “patent thickets” that make it difficult for scientists to do genetic research and commercialize their results. Monopolies on genetic testing have raised prices and reduced patient options.

On Monday, the high court will hear arguments about whether to invalidate a Utah company’s patents on two genes associated with breast cancer. But the legal challenge, spearheaded by the American Civil Liberties Union and the Public Patent Foundation, could have much broader implications. A decision could invalidate thousands of patents and free medical researchers and clinicians to practice medicine without interference from the patent system.

It’s very clear that a gene is a discovery, not an invention, but the patent court believes that you can patent a rainy day (I mean this literally: They approved a patent on weather derivatives in Bilski v. Kappos, which was later overturned by the Supreme Court. This court also allowed for patenting of tax deductions)

India Rejects Evergreening Pharmaceuticals

No Comments

The Indian Supreme Court has rejected a patent for a slightly modified drug, on the basis that it was not a significant change.

The drug companies do this all the time, in order to extend their patents on drugs nearly indefinitely:

People in developing countries worldwide will continue to have access to low-cost copycat versions of drugs for diseases like H.I.V. and cancer, at least for a while.

Production of the generic drugs in India, the world’s biggest provider of cheap medicines, was ensured on Monday in a ruling by the Indian Supreme Court.

The debate over global drug pricing is one of the most contentious issues between developed countries and the developing world. While poorer nations maintain they have a moral obligation to make cheaper, generic drugs available to their populations — by limiting patents in some cases — the brand name pharmaceutical companies contend the profits they reap are essential to their ability to develop and manufacture innovative medicines.

Specifically, the decision allows Indian makers of generic drugs to continue making copycat versions of the drug Gleevec, which is made by Novartis. It is spelled Glivec in Europe and elsewhere. The drug provides such effective treatment for some forms of leukemia that the Food and Drug Administration approved the medicine in the United States in 2001 in record time. The ruling will also help India maintain its role as the world’s most important provider of inexpensive medicines, which is critical in the global fight against deadly diseases. Gleevec, for example, can cost as much as $70,000 a year, while Indian generic versions cost about $2,500 a year.

The ruling comes at a challenging time for the pharmaceutical industry, which is increasingly looking to emerging markets to compensate for lackluster drug sales in the United States and Europe. At the same time, it is facing other challenges to its patent protections in countries like Argentina, the Philippines, Thailand and Brazil.

“I think other countries will now be looking at India and saying, ‘Well, hold on a minute — India stuck to its guns,’ ” said Tahir Amin, a director of the Initiative for Medicines, Access and Knowledge, a group based in New York that works on patent cases to foster access to drugs.

………

In Monday’s decision, India’s Supreme Court ruled that the patent that Novartis sought for Gleevec did not represent a true invention. The ruling is something of an anomaly. Passed under international pressure, India’s 2005 patent law for the first time allowed for patents on medicines, but only for drugs discovered after 1995. In 1993, Novartis patented a version of Gleevec that it later abandoned in development, but the Indian judges ruled that the early and later versions were not different enough for the later one to merit a separate patent.

Leena Menghaney, a patient advocate at Doctors Without Borders, said that the ruling was a reprieve from more expensive medicines, but only for a while.

“The great thing about this ruling is that we don’t have to worry about the drugs we’re currently using,” Ms. Menghaney said. “But the million-dollar question is what is going to happen for new drugs that have not yet come out.”

Others decried the ruling, saying it was further evidence that India does not respect the intellectual property rights of pharmaceutical companies. Last year, India granted what is known as a compulsory license to a generic drug manufacturer to begin making copies of Bayer’s cancer drug Nexavar, and revoked Pfizer’s patent for another cancer drug, Sutent. Both companies have appealed the decisions.

First, evergreening does not serve to create new products, it encourages minor, non-functional, changes to existing products to maintain a monopoly.

Second, compulsory licensing is specifically allowed for under all major international IP and trade regimes.

Unfortunately, when you look at intellectual protections (IP) as property it means that the holder of that monopoly has a God given right to extract unreasonable rents forever.

There is no place where our patent system is more broken than in the evergreening of pharmceuticals, and that is saying a lot.

Here’s Hoping that The Farmer Wins

No Comments

An Indiana soybean farmer, bought seeds from the local elevator and replanted them, and was promptly sued by the axis of evil Monsanto, and the Supreme Court has agreed to hear the case:

As David versus Goliath battles go it is hard to imagine a more uneven fight than the one about to play out in front of the US supreme court between Vernon Hugh Bowman and Monsanto.

On the one side is Bowman, a single 75-year-old Indiana soybean farmer who is still tending the same acres of land as his father before him in rural south-western Indiana. On the other is a gigantic multibillion dollar agricultural business famed for its zealous protection of its commercial rights.

Not that Bowman sees it that way. “I really don’t consider it as David and Goliath. I don’t think of it in those terms. I think of it in terms of right and wrong,” Bowman told The Guardian in an interview.

Either way, in the next few weeks Bowman and Monsanto’s opposing legal teams will face off in front of America’s most powerful legal body, weighing in on a case that deals with one of the most fundamental questions of modern industrial farming: who controls the rights to the seeds planted in the ground.

………

As David versus Goliath battles go it is hard to imagine a more uneven fight than the one about to play out in front of the US supreme court between Vernon Hugh Bowman and Monsanto.

On the one side is Bowman, a single 75-year-old Indiana soybean farmer who is still tending the same acres of land as his father before him in rural south-western Indiana. On the other is a gigantic multibillion dollar agricultural business famed for its zealous protection of its commercial rights.

Not that Bowman sees it that way. “I really don’t consider it as David and Goliath. I don’t think of it in those terms. I think of it in terms of right and wrong,” Bowman told The Guardian in an interview.

Either way, in the next few weeks Bowman and Monsanto’s opposing legal teams will face off in front of America’s most powerful legal body, weighing in on a case that deals with one of the most fundamental questions of modern industrial farming: who controls the rights to the seeds planted in the ground.

I really, really, hope that Bowman cleans their clock in the Supreme Court.

The idea that the right of farmers to replant seeds, a right that is literally thousands of years old, and this right should not be, to paraphrase William Jennings Bryan, “Crucified on a cross of patent law.”

My guess is that it is likely that Bowman will prevail, as Monsanto prevailed at the district court, and then at the patent court, and these days, the Supreme Court only takes these cases when it wants to throw a brush back pitch at the patent court being nuts.

The case is Vernon Hugh Bowman v. Monsanto.

Patent Troll Loses Big

No Comments

Newegg has prevailed against a patent troll claiming patents on an online shopping court:

Anyone who visited Soverain Software’s website could be forgiven for believing it’s a real company. There are separate pages for “products,” “services,” and “solutions.” There’s the “About Us” page. There are phone numbers and e-mail addresses for sales and tech support. There’s even a login page for customers.

It’s all a sham. Court records show Soverain hasn’t made a sale—ever. The various voice mailboxes were all set up by Katherine Wolanyk, the former Latham & Watkins attorney who is a co-founder and partial owner of Soverain. And the impressive list of big corporate customers on its webpage? Those are deals struck with another company, more than a decade ago. That was OpenMarket, a software company that created these patents before going out of business in 2001. It sold its assets to a venture capital fund called divine interVentures, which in turn sold the OpenMarket patents to Soverain Software in 2003.

………

Soverain isn’t in the e-commerce business; it’s in the higher-margin business of filing patent lawsuits against e-commerce companies. And it has been quite successful until now. The company’s plan to extract a patent tax of about one percent of revenue from a huge swath of online retailers was snuffed out last week by Newegg and its lawyers, who won an appeal ruling [PDF] that invalidates the three patents Soverain used to spark a vast patent war.

………

For Newegg’s Chief Legal Officer Lee Cheng, it’s a huge validation of the strategy the company decided to pursue back in 2007: not to settle with patent trolls. Ever.

“We basically took a look at this situation and said, ‘This is bullsh%$,'” (%$ mine) said Cheng in an interview with Ars. “We saw that if we paid off this patent holder, we’d have to pay off every patent holder this same amount. This is the first case we took all the way to trial. And now, nobody has to pay Soverain jack squat for these patents.”

………

Soverain’s plans were always bigger than Amazon and Newegg. It wanted nothing less than to extract a patent tax from the entire retail sector, using three patents it claimed covered pretty much any use of “shopping cart” technology.

Just saying “do it on the Internet” isn’t a novel invention, the appeals court ruled [PDF]. The three-judge panel found that all of the “shopping cart” patent claims were rendered obvious in light of the CompuServe Mall.

I think that in the future, I’ll Newegg will be at the top of my list for shopping.

More IP Insanity

No Comments

In the latest case, we have patent trolls trying to extort money from small businesses for using scanners:

When Steven Vicinanza got a letter in the mail earlier this year informing him that he needed to pay $1,000 per employee for a license to some “distributed computer architecture” patents, he didn’t quite believe it at first. The letter seemed to be saying anyone using a modern office scanner to scan documents to e-mail would have to pay—which is to say, just about any business, period.

If he’d paid up, the IT services provider that Vicinanza founded, BlueWave Computing, would have owed $130,000.

………

“[Hill] was very cordial and very nice,” he told Ars. “He said, if you hook up a scanner and e-mail a PDF document—we have a patent that covers that as a process.”

t didn’t seem credible that Hill was demanding money for just using basic office equipment exactly the way it was intended to be used. So Vicinanza clarified:

“So you’re claiming anyone on a network with a scanner owes you a license?” asked Vicinanza. “He said, ‘Yes, that’s correct.’ And at that point, I just lost it.”

The kicker is that the these folks were using newspapers’ “best places to work” lists to send out dunning letters.

Seriously, we need to just stop issuing patents until the system is fixed.

H/t Kevin Drum.

Why We Need to Destroy Big Pharma

1 Comment

Well, the first answer is a utilitarian answer, we do not need them.

If the government spends 5 out of every 6 dollars spent on medical research, then there is no reason to pay the excessive monopoly rents that they extract from out economy.

But there is also a moral argument, and it is that the large pharmaceutical firms are ineluctably evil.

We have yet another example of this when we discover that they colluded with the government of East Germany to turn their citizenry into unwilling Guinea Pigs:

Major Western pharmaceutical companies carried out tests of medications in the 1980s on patients in communist East Germany, in some cases without the subjects’ knowledge, a media report said Friday.

 “We have documents showing there were contracts between Western drug companies and East German institutions for medical tests,” a staff member at the German national archive told AFP, partially confirming a report in the daily Der Tagesspiegel.

 The newspaper, which examined the documents, reported that more than 50 Western firms had contracts with East Germany’s Health Ministry to carry out a total of 165 medical tests between 1983 and 1989.

 In exchange, the communist authorities were paid up to 860,000 deutschmarks (around 430,000 euros today or $567,000), according to the report, at a time when East Germany was desperate for hard currency.

 Der Tagesspiegel said the companies involved included Bayer, Schering, Hoechst (now Sanofi), Boehringer Ingelheim and Goedecke (today owned by Pfizer).

 It said the test subjects often were not informed, citing seven specific cases in which patients said later they had been unaware they were involved in testing. The national archive said it could not confirm this.

The taxpayers front ⅚ of the money to do the research, but out of some sort of need to “set the free market loose, we give away the property rights so that they can extract monopoly rents.

Enough.

This is an industry that exists only through the grant of exclusive rights by the government.  This is not free enterprise.

We need to make sure that if the taxpayers pay for the research, then the taxpayers own the research.

Jack Klugman Did the Wrong Thing for the Right Reasons

No Comments

When actor Jack Klugman died recently, much was said about his career, but special note was given to his role in the passage of the Orphan Drug Act of 1983.

There can be no doubt here that his motives were good.  He wanted to see that diseases for which there was a limited number of sufferers, and hence limited profit, had drugs developed and produced.

Unfortunately, what seemed like a wonderful idea, subsidies and exclusivity granted to pharma, which had the added allure of providing a free market aura, has made things worse.

About ⅚ of the money spent on medical research is government money.  When one considers the subsidies present under the Orphan Drug Act, that number undoubtedly tops ⁹⁄₁₀ of the funds being from the taxpayers.

BTW, some of the Orphan drugs in question are such “blockbusters” as, “Abilify, Provigil, Vioxx, Botox, and Cialis.”

You see a similar effect with the Drug Price Competition and Patent Term Restoration Act and Colcicine, where a drug that had been in use for 3500 years (no that number is not a typo, the first documented use of the drug is from ≈1500 BCE) went from 9¢ to $4.85 a pill, a 5200+% increase.

The underlying flaw here is the idea that private business is an unalloyed good, so if there is something it will not do, the solution is to subsidize private businesses to do it, even when all indications are that having the government provide this function would provide the most benefit.

This is wrong, and we have seen nearly 40 years of this philosophy, it really became mainstream during the Carter years, has harmed society as a whole.

I Don’t Know Whether to Feel Schadenfreude, or to be Appalled

No Comments

I’m not q big fan the USPTO’s tendency to grant a patent to everything these days, and I’m even less of a fan of Apples use of its patent portfolio as an alternative new ideas, but the folks at Cuppertino just got hit with a completely bogus patent claim:

An apparent shell company has filed a $3 million patent infringement lawsuit against Apple for including headphones with its iPhones.

 A company called Intelligent Smart Phones Concepts sued Apple last week in U.S. District Court for the Northern District of California, alleging that Apple infringed on U.S. Patent No. 7,373,182. The abstract for “Wireless Mobile Phone Including a Headset” describes an interface that allows a removable headset “to receive at least telephony audio signals from the phone, and to provide audio signals to the phone.”

Seriously, keep patent examiners away from toilet paper, because they will sign off on anything.

A Good Primer on Why the US Patent System is F%$#ed Up

No Comments

Over at Ars Technica, Timothy Lee has a couple of very good articles on what was wrong with our patent system.

The first is about how the Federal Circuit Appeals Court, which set up to be the sole appellate court for patent matters, and how is has gone completely off the rails ). He calls it a rogue court:

“It is not common in the life of the law in America for a lower court and a major segment of its bar to take on the nation’s highest court, effectively reversing some major precedents or at least substantially mitigating their impact,” notes Steven Flanders in a recent history of the patent court. “Yet this was done.”

 The Federal Circuit, he said, also took on “the quieter and subtler effort to re-educate trial judges throughout the judiciary, to make them friendlier to patent-holders (or at least to the system of patents) as well.” (Flanders, it should be noted, is an avowed supporter of the Federal Circuit and its efforts to reshape patent law).

 This dismissive attitude toward Supreme Court precedents apparently survives to this day among patent lawyers. In the wake of this year’s decision limiting patents on the practice of medicine, patent attorney Gene Quinn wondered, “How long will it take the Federal Circuit to overrule this inexplicable nonsense?” Obviously, the Federal Circuit can’t “overrule” a Supreme Court decision. But with enough persistence, it can, and often does, subvert the principles enunciated by the nation’s highest court. And when it does so, it almost always works in the direction of making patents easier to obtain and enforce.

It’s a good description of how and why our patent system has gone nuts. 

He gives a good summary of how we got there, and why the Supreme court is increasingly willing (perhaps eager) to bitch slap this court.

My only complaint is that he did not cover the seminal patent trolling case, NTP v. RIM (Blackberry), which was crucial in making both SCOTUS, and increasingly larger segments of the “Very Serious People”.  (You are seeing this in legislation about patents floating around Congress)

As some background, when NTP got an injunction against RIM, they asked RIM to cut off all commercial and residential users in the United States, and RIM’s response was that this wasn’t possible, so they would cut off all their users, including the government.

This would mean is that people like Congressmen, their aides, and Supreme Court Justices and their clerks would lose access to their “Crackberries”.

As a result, the consequences of patent trolling suddenly got real for them, and they realized that the Federal Circuit Appeals Court is full of a bunch of extremist nutcases.  (I’m sure that there is an obscure legal term for this in Latin, but I’m an engineer, not a lawyer, dammit.*)

I emailed him about this and he noted that he had included a number of injunctions from patent trolls, including the Blackberry case, but ended up on the cutting room floor.

Additionally, he writes a good article on the International Trade Commission, which routinely prevents products from being imported on the basis of (frequently bogus) patent claims:

If you follow the smartphone patent wars, you’ve probably heard of the International Trade Commission (ITC), which seems to get dragged into every high-profile patent dispute over the devices. Just this month, Motorola asked the ITC to ban various Apple products from the US, and the ITC separately ruled that Apple doesn’t infringe some Samsung patents. But how did this obscure Washington bureaucracy become a major front in the patent wars?

The ITC has the authority to police “unfair methods of competition” by importers, a phrase interpreted to include patent infringement. Because virtually all mobile devices are manufactured overseas, getting the ITC to ban the importation of a device can be just as effective as getting an injunction from a regular court.

A new study from the Cato Institute, a libertarian think tank, suggests that the ITC’s patent-enforcement process is tilted in favor of patent holders—and especially patent trolls. The author, K. William Watson, argues that the inherently discriminatory nature of ITC patent enforcement—ITC cases can only be brought against imported products, not domestically produced ones—violates America’s obligations under World Trade Organization rules not to discriminate against foreign products. He says Congress should eliminate the provision of trade law, known as Section 337, that gives the ITC authority over patent issues.

Go read both articles.

*I LOVE IT when I get to go all Doctor McCoy!!!

Google Agrees With Me

No Comments

They think that software patents suck wet farts from dead pigeons too:

Google suggested today that it might be time for the U.S. to ditch software patents.

“One thing that we are very seriously taking a look at is the question of software patents, and whether in fact the patent system as it currently exists is the right system to incent innovation and really promote consumer-friendly policies,” said Pablo Chavez, Google’s public policy director.

Chavez’s remarks at the Technology Policy Institute’s conference here this morning come as the Mountain View, Calif. company is enmeshed in a series of legal actions involving software patents, including Oracle (which Google won at trial) and Apple (which is still pending).

Software patents have become increasingly controversial in technology circles, in part because of the rise of what are derisively called “patent trolls,” and in part because of the mixed quality of the patents that the U.S. government has granted. In April, Twitter announced a kind of Hippocratic Oath for tech companies, saying its patents would only be used for defensive purposes — not to block rivals from innovating.

How about throwing some money towards the whores in Congress investing in some lobbying to change the laws.

IP as currently administrated in the United States are a major impediment to innovation, not the incentive to innovation it is supposed to be.

How to Know When You’ve Pissed off a Judge

No Comments

One hint is when he asks if you are smoking crack:

Tempers boiled over in court this morning, with the judge in the case between Apple and Samsung flat out yelling at Apple for trying to book too many witnesses in its last few hours.

“I am not going to be running around trying to get 75 pages of briefings for people who are not going to be testifying,” U.S. District Judge Lucy Koh told Apple’s lawyer Bill Lee.

“I mean come on. 75 pages! 75 pages! You want me to do an order on 75 pages, (and) unless you’re smoking crack, you know these witnesses aren’t going to be called when you have less than four hours,” Koh said.

“Your honor, I can assure you, I’m not smoking crack,” Lee replied matter-of-factly.

It’s never good to piss off a judge, but the fact that it’s Apple playing bullsh%$ patent bully does infuse in me a bit of Schadenfreude.

An Interesting Insight into the Role of IP in Developing Societies

No Comments

http://www.spiegel.de/international/zeitgeist/no-copyright-law-the-real-reason-for-germany-s-industrial-expansion-a-710976.html:

Indeed, only 1,000 new works appeared annually in England at that time — 10 times fewer than in Germany — and this was not without consequences. Höffner believes it was the chronically weak book market that caused England, the colonial power, to fritter away its head start within the span of a century, while the underdeveloped agrarian state of Germany caught up rapidly, becoming an equally developed industrial nation by 1900.

Even more startling is the factor Höffner believes caused this development — in his view, it was none other than copyright law, which was established early in Great Britain, in 1710, that crippled the world of knowledge in the United Kingdom.

Germany, on the other hand, didn’t bother with the concept of copyright for a long time. Prussia, then by far Germany’s biggest state, introduced a copyright law in 1837, but Germany’s continued division into small states meant that it was hardly possible to enforce the law throughout the empire.

Höffner’s diligent research is the first academic work to examine the effects of the copyright over a comparatively long period of time and based on a direct comparison between two countries, and his findings have caused a stir among academics. Until now, copyright was seen as a great achievement and a guarantee for a flourishing book market. Authors are only motivated to write, runs the conventional belief, if they know their rights will be protected.

Yet a historical comparison, at least, reaches a different conclusion. Publishers in England exploited their monopoly shamelessly. New discoveries were generally published in limited editions of at most 750 copies and sold at a price that often exceeded the weekly salary of an educated worker.

London’s most prominent publishers made very good money with this system, some driving around the city in gilt carriages. Their customers were the wealthy and the nobility, and their books regarded as pure luxury goods. In the few libraries that did exist, the valuable volumes were chained to the shelves to protect them from potential thieves.

In Germany during the same period, publishers had plagiarizers — who could reprint each new publication and sell it cheaply without fear of punishment — breathing down their necks. Successful publishers were the ones who took a sophisticated approach in reaction to these copycats and devised a form of publication still common today, issuing fancy editions for their wealthy customers and low-priced paperbacks for the masses.

This is an intriguing though.

I think that the current IP regime, both copyright and patent has become excessive, and serves to hinder innovation and creativity, rather than enhancing it.

But, I am still surprised that even the relatively modest protections in the 18th and 19th century,* appeared to be a major impediment to development.

I guess that those economist say about rent seeking behavior is truer than I thought.

*You had to explicitly file for copyright, and the term was only 14 years, and copyright infractions were a private tort, not a criminal infraction with the threat of years in jail.

China Mandates Compulsory Licensing of Pharmaceuticals

No Comments

China has proposed compulsory licensing of drugs:

China has overhauled parts of its intellectual property laws to allow its drug makers to make cheap copies of medicines still under patent protection in an initiative likely to unnerve foreign pharmaceutical companies.

The Chinese move, outlined in documents posted on its patent law office website, comes within months of a similar move by India to effectively end the monopoly on an expensive cancer drug made by Bayer AG by issuing its first so-called “compulsory license”.

The action by China will ring alarm bells in Big Pharma, since the country is a vital growth market at a time when sales in Western countries are flagging.

The amended Chinese patent law allows Beijing to issue compulsory licenses to eligible companies to produce generic versions of patented drugs during state emergencies, or unusual circumstances, or in the interests of the public.

For “reasons of public health”, eligible drug makers can also ask to export these medicines to other countries, including members of the World Trade Organisation.

Compulsory licenses are available to nations to issue under WTO rules in certain cases where life-saving treatments are unaffordable.

“The revised version of Measures for the Compulsory Licensing for Patent Implementation came into effect from May 1, 2012,” China’s State Intellectual Property Office said in a faxed statement to Reuters.

The changes can be found on the website of China’s State Intellectual Property Office at http://link.reuters.com/tus68s

Here is the Google Translate link.

Number one on the compulsory licensing hit parade will apparently be the AIDS anti-viral tenofovir.

One significant part of this is that compulsory licensing is not covered by the ban on drug re-importation, because they weren’t exported from the US.

WTO rules would seem to indicate that, absent an extension of the law to cover compulsory licenses, that they would be legal in the US.

Then again, the phrase, “Drugs made in China,” gives me less confidence than, for example, French manners or British cooking,.

H/t Naked Capitalism.

They Will Be Back

No Comments

Small farmers in Mexico have managed to block a law to legalize Monsanto’s seed monopolies:

Progressive small farmer organizations in Mexico scored a victory over transnational corporations that seek to monopolize seed and food patents. When the corporations pushed their bill to modify the Federal Law on Plant Varieties through the Committee on Agriculture and Livestock of the Mexican Chamber of Deputies on March 14, organizations of farmers from across the country sounded the alarm. By organizing quickly, they joined together to pressure legislators and achieved an agreement with the legislative committee to remove the bill from the floor.

What’s at stake is free and open access to plant biodiversity in agriculture. The proposed modifications promote a privatizing model that uses patents and “Plant Breeders’ Rights” (PBR) to deprive farmers of the labor of centuries in developing seed. The small farmers who worked to create this foundation of modern agriculture never charged royalties for its use.

Although the current law, in effect since 1996, pays little heed to the rights of small farmers, the new law would be far worse. Present law tends to benefit private-sector plant breeders, allowing monopolies to obtain exclusive profits from the sale of seeds and other plant material for up to 15 years, or 18 in the case of perennial ornamental, forest, or orchard plants–even when the plants they used to develop the new varieties are in the public domain.

The legislative reform would extend exclusive rights from the sale of reproductive material to 25 years. Further, it seeks to restrict the rights of farmers to store or use for their own consumption any part of the harvest obtained from seeds or breeding material purchased from holders of PBRs.

The bill wasn’t defeated, it just didn’t pass, so this is a temporary victory.

Monsanto and its ilk will come back again … and again … and again until they get their bill.

Google Did Not Infringe Java Patents

No Comments

The jury has ruled that Oracle’s patents were not infringed by Android:

Google on Wednesday was cleared of charges that it had infringed Oracle’s Java patents, ending the second major phase of the trial.

“Today’s jury verdict that Android does not infringe Oracle’s patents was a victory not just for Google but the entire Android ecosystem,” a Google spokesperson said in an emailed statement.

Oracle, however, did not concede defeat. “Oracle presented overwhelming evidence at trial that Google knew it would fragment and damage Java,” an Oracle spokesperson said via email. “We plan to continue to defend and uphold Java’s core write once run anywhere principle and ensure it is protected for the nine million Java developers and the community that depend on Java compatibility.”

Oracle filed its lawsuit against Google last August and the trial began in mid-April. Oracle initially talked about $6 billion in damages. At the moment, it appears Oracle is unlikely to win enough to cover its legal costs.

All that’s left is the whether or not Java’s API, basically the standards for interoperability, are copyrightable.

The jury didn’t rule on this, they could not come to a conclusion on fair use, and they were instructed by the judge to assume that the API is copyrightable. The judge will decide these matters of law, the jury was to rule on matters of fact.)

It appears from the Slashdot discussions that the judge actually made an effort to understand the technical issues, so his ruling should be interesting.

The Supreme Court Pushes Back on Patents Again

No Comments

They just struck down two patents on a drug dosage calibration method:

The U.S. Supreme Court delivered a unanimous blow to Prometheus Laboratories by saying that its methods of dosage calibration for thiopurine drugs for gastrointestinal and nongastrointestinal autoimmune diseases are ineligible for patenting. In a decision written by Justice Stephen G. Breyer, the high court overturned the decision by the Court of Appeals for the Federal Circuit last December. The Federal Circuit had upheld the two diagnostic method patents, which covered the methods designed to take into account the context of a treatment regime based on the individual patient’s metabolism.

“To transform an unpatentable law of nature into a patent­ eligible application of such a law, a patent must do more than simply state the law of nature while adding the words ‘apply it,’” the court stated. “It must limit its reach to a particular, inventive application of the law.”

Prometheus’ patents failed that test, according to the court: “We conclude that the patent claims at issue here effectively claim the underlying laws of nature themselves. The claims are consequently invalid.”

Through the ruling, Breyer answered the question he posed to attorneys for both sides during oral arguments in December: “What has to be added to a law of nature to make it a patentable process?”

Basically the “method” was to measure the metabolite levels of a drug in order to determine appropriate dosages.

Yeah, that’s something that a medical intern has learned in his first year, or in med school, for the past 50+ years, but they took out a patent.

Prometheus claimed that the human body was the machine conducted the transformation.

It’s another in a streak of brush-backs to the U.S. Circuit Court for the Federal Circuit, aka the Patent Court, which expanded the reach of patents since its creation over the past 30 years.

The patent system long ago went from a system to encourage innovation to one that strangles it.

Kind of a Working Sunday

No Comments

I’m looking up a number of patents.

I’ve been checking out some patents in a matter completely uninvolved  to my day job.  (I’m trying to see if I possess the expertise to qualify as an expert witness)

Here’s another good idea for patent reform:  How about requiring that they not be written in the most obtuse manner possible?

Hoocoodanode? Monsanto Edition

No Comments

It turns out that what Montsanto thought was a win-win, it use of genes to create Roundup resistant crops, allowing it to make money on both the crops, and on the increased sales of its popular herbicide has had a not-unexpected side effect.

It seems that with Roundup Ready® ready crops, farmers soak their fields in the herbicide, and so now we are seeing an explosion of herbicide resistant weeds:“Superweeds” are plaguing high-tech Monsanto crops in southern US states, driving farmers to use more herbicides, return to conventional crops or even abandon their farms.

How has this happened? Farmers over-relied on Monsanto’s revolutionary and controversial combination of a single “round up” herbicide and a high-tech seed with a built-in resistance to glyphosate, scientists say.

Today, 100,000 acres in Georgia are severely infested with pigweed and 29 counties have now confirmed resistance to glyphosate, according to weed specialist Stanley Culpepper from the University of Georgia.

“Farmers are taking this threat very seriously. It took us two years to make them understand how serious it was. But once they understood, they started taking a very aggressive approach to the weed,” Culpepper told FRANCE 24.

“Just to illustrate how aggressive we are, last year we hand-weeded 45% of our severely infested fields,” said Culpepper, adding that the fight involved “spending a lot of money.”

In 2007, 10,000 acres of land were abandoned in Macon country, the epicentre of the superweed explosion, North Carolina State University’s Alan York told local media.

Imagine that.  It’s so bad, that farmers are abandoning land.

The problem here is that the rulings changing the patent laws over the past few decades, which allow the patenting of genes and species, have made the seed business so lucrative that companies like Monsanto are inclined to skip appropriate testing in the rush to market.

The solution is, in addition to stricter regulation, is to remove the IP protections to genes and species, which will remove much of the incentive to cheat.