Our right to challenge junk patents is under threat
eff.org
eff.org
1) EFF has only filed one IPR ever, (linked in the post), against Personal Audio, to invalidate a patent asserted against podcasting. This was crowd-funded by hundreds of people. It required years of litigation beyond the IPR process itself.
2) Patent challenges should be open to all. There's nothing wrong with a "for profit" org challenging a government monopoly - it's a public benefit. A good patent will often hold up (many do), a wrongly granted one will usually go down.
Please read the examples in the post of (very) small businesses, individuals, and nonprofits (Wikimedia) who were protected because another organization, often a for-profit, filed a successful IPR.
It's truly upside down world when USPTO is concerned its very limited monopoly-challenging services are being overused by "for-profits" that file "serial" petitions. In my career I have analyzed hundreds of shell companies that have (each!) sent out dozens or hundreds of threat letters and lawsuits demanding patent royalty payments (patent trolls). Guess what? They're ALL for-profit. They ALL file serial petitions with the hopes of a fast payout.
We have limited means to challenge this extortionate business model, and now USPTO is trying to drastically limit one of the best options. I hope they reconsider, and we ask for your support.
Thanks to all and I appreciate the discussion here.
I am very sympathetic to the argument that Unified Patents and other folks who offer "IPR insurance" now can't fight bad patents, but hopefully if the rules pass they will be able to convert to either a non-profit or a financing model that allows them to sidestep this rule.
Also, are you aware of the argument in favor of this change? In a recent case, a patent troll used an IPR claim to attempt to extort a patent owner when that patent was going through active litigation. Limiting IPRs from for-profit entities not practicing in the field (also a requirement in the rule change) when small companies are actively suing someone else honestly sounds reasonable in light of this. See: https://www.uspto.gov/sites/default/files/documents/ipr2021-...
I have no idea who or what OpenSky is, and I don't weigh in on huge corporate cases like VLSI v. Intel where everyone has plenty of money for their own representation.
But it's really wild to me that this alleged "abuse" (that could lead to the loss of... a patent) immediately got the attention of officials, who are taking rapid action. Yet there are thousands of victims of patent troll extortion every year. These extortions are real, and documented, and hurt businesses that are much much smaller than VLSI. (and operate actual businesses, which AFAIK VLSI does not).
But here's the value proposition: It's just not wrong to challenge a government subsidy or monopoly. Period. Especially on computer software and hardware, because they're often wrongly granted.
Even if you accept that the OpenSky situation is the moral equivalent of patent trolling (I absolutely do not), it's happened to patent owners ONE time. (Maybe a few others, but it's a count-on-your-fingers thing). I wish people extorted by patent trolls for real money got 1/100th the attention of the tiny numbers of patent owners who lost (or almost lost) their patent monopolies.
I see where you're coming from, but I would suggest that this is pretty much an extremist point of view on intellectual property protections. It's easy to say that the online shopping cart is a dumb patent (because it is, and the Supreme Court generally agrees with you), but I think you would be hard pressed to argue against the societal value of patents on integrated circuit technologies, which can take $billions to develop, provide tremendous societal value, and have strategic implications.
Still, that does clarify the viewpoint of the piece to some degree - it suggests that you and the EFF are in favor of "patent accelerationism": make the system so shitty for participants that they abandon it entirely. The system is definitely shitty now, but I don't really see anyone abandoning it.
By the way, VLSI is the remains of a real technology company that went out of business... because its IP was blatantly copied. They had no choice but to sell out to a patent troll.
Ding ding ding - people don't seem to understand how the business model actually works... real inventors have to sell out, because unless they sell their stake in a litigation to a financier, they outright cannot afford to litigate an infringement case against one of the big companies that infringed their products and then refused to license
All this talk of "small, inventor-led businesses" is bullcrap because no small business can afford to enforce a patent.
I'd like to hear more about this. Wikipedia seems to say that VLSI Technology was an original investor in ARM Ltd. (which seems like it should have been worth something), was acquired by Philips in 1999, and continues to operate as part of Philips spinoff NXP Semiconductors.
Is this VLSI a different company?
Of the lawyers, by the lawyers, for the lawyers.
https://caseymuratori.com/blog_0027
Patents are out of control, and they’re hurting innovation
https://www.learnliberty.org/blog/patents-are-out-of-control...
Economic and Game Theory Against Intellectual Monopoly
https://web.archive.org/web/20120121014753/https://levine.ss...
PATENTS AND INNOVATION IN ECONOMIC HISTORY
https://gwern.net/doc/economics/2016-moser.pdf
Historical record shows how intellectual property systematically slowed down innovation
https://web.archive.org/web/20140306012646/http://blog.p2pfo...
Criticism of patents
I’m not saying drop the fight. Just to show a modicum of strategy. Turning an IPR fight into a patent debate lets those looking to quash IPR win while doing nothing for the broader debate.
What is smart, tactically, is doing exactly this when you oppose something: overscope so people disengage or get distracted in a juicier discussion while forgetting to send the relevant message to their elected or regulator.
The problem arises when systems are intentionally set up to fail (e.g. USPS pensions, gutting education), because those who set them on a doom course usually do so to offer a privatized "alternative" to pocket the profits.
Nothing in this context is "allowing things to fail." It's simply strengthening rightsholders' hands.
The point is if you want people to act, they need to first feel the pain of inaction. If the status quo is tolerable, there is less incentive to put in the great effort necessary for reform.
Patents are abominations and should not exist. I don't see how informing the public about their negatives benefits patent trolls.
Once you're at the table. If you're trying to get people in the room, a radical faction drives them away. In this context, consider how many people didn't bother clicking through to respond to the patent office. And consider how many tuned out the discussion because we've seen it before. That's the power of radical over scoping.
Oh but it does. That’s in part how we ended slavery and gave women full human rights and citizenship. If anything radical ideas shift the Overton window into making progress actually happen.
The second point is that the only correct position here is the radical one: as far as I can tell, the truth here is that (i) patents do far more harm than good, and (ii) they cannot be fixed into more good than harm. Therefore, they should be abolished, plain and simple.
Less radical positions may look reasonable, be more politically acceptable… but the only reality they’d be based on would be the flaws of our human minds and the existing power structures of our society. Because of those I indeed only have the faintest hope about patents being abolished in the foreseeable future. At best I’m hoping for some narrowing down: in scope, duration, or a strengthening of due process (mostly prior art).
But I have yet to be convinced that the best course of action isn’t the complete and utter abolition of the entire patent system. Now one could argue that that patents are a useful tool in our exploitation of the South, and losing it might weaken our position and ultimately make us a tad poorer as the South emancipates. That might even be true, see what happened for the COVID vaccines. But I don’t think this argument would win any votes around here.
I see. The solution here is simple: let the private labs go bankrupt, hire their researchers in public facilities. You’ll get your innovation back. As for the costs, well, sure you need to pay those researchers, but you get most of that back in the form of much cheaper medication.
I mean, why keep capitalism in the areas where it is so obviously failing? I want effective roads, schools, energy, water, hospitals, mass transportation… along with health insurance, retirement plans, unemployment insurance… and for all of those, the best way I know of is to make them public.
And while we’re at it I’d like some democratically run media that aren’t owned by a bunch of ludicrously rich people, so I don’t get automatic propaganda about why making the above public doesn’t work. Because it does. I’m living in France, I’ve seen it work.
> People complain about patents endlessly without offering a realistic solve for this problem
I think I just did. But you have to accept that it means reducing the scope of Capitalism, if not outright ending it. If you don’t, well… explain to me how Capitalism will somehow not burn our planet to a crisp and depletes its resources. Because as far as I can tell the "only system that works" will not work for long. It cannot. Because Physics. Thus it will end, one way or another, and it’d be nice if it didn’t take the world along with it.
IP disputes tend to be B or C stories in the public eye-- either super-technical where they only really interest people in very narrow verticals, or containing unsavoury and unmediagenic characters that are easy to demonize.
Give the IP lobby everything it wants, and we create a world of "here's an adorable 6-year-old girl who will die a very painful and public death because of patents" and "we had to burn down the pre-school because Mrs Crumble photocopied some worksheets with Donald Duck printed on them". With any luck, the backlash would be so massive that nobody would dare speak the word "patent" or "copyright" in Congress for three or four centuries.
What is and isn't technical is largely down to convention and can't be readily reasoned over IME. In the UK you only need to be familiar with about a half-dozen pieces of caselaw to be able to make a pretty good guess.
It's established caselaw that compression is a mathematical method (not patentable); but you can implement that as a computer program (probably not patentable); but you can apply that to image compression (probably patentable, see Vicom).
Any opinions here are my own and do not relate to my employment. This is not legal advice.
Since the Supreme Court’s Alice decision in 2013, which tightened the longstanding exclusion to patentability for “abstract ideas,” it’s probably slightly harder to get (or keep) a software patent in the US than in the EU. Just because US courts are more willing to look past hardware aspects of an invention to see if the “gist” of the invention is an abstract idea implemented in software.
Now the firmware is a kind of software, so patent should not apply, right? Heck one could even argue that the configuration of the FPGA should not count either, only the FPGA itself may count. There’s a problem though: the keys are locked.
They kinda have to be to deliver their security promises, and prevent the secret key in the device from leaking, either by accident or by adversarial extraction. But then what do I have? A hardened piece of… hardware actually. And all the patents that didn’t apply "because software", now do.
Or maybe they do not, I’m not a lawyer. I just wanted to highlight how fuzzy the frontier could be.
I'm thinking of the 'sawstop' and 'festool domino' woodworking tools here. Which are important innovations that were probably motivated by patents, but whose patents have run long.
The inventor reached out to several saw makers to license his new invention. None of them took it seriously. So he went and started a company with his new patent and became successful. Then other companies (Bosch specifically) tried to rip his tech off after they saw how effective it is, and he got to sue them and win.
Also, their patents are about to or have already expired (https://www.reddit.com/r/Tools/comments/p6bhhb/so_are_the_sa...)
Sounds like the 20 years gave him just enough time to:
1. Attempt to license the product and fail 2. Create a company 3. Market the company / product effectively 4. Exit ( https://www.sawstop.com/news/sawstop-to-be-acquired-by-tts-t... )
And now competition will begin to roll out their similar saws. I think 5 years would've been far too short for him. He would've been squashed. There would've been no motivation for companies to license his tech or buy out his company. They would've just waited 5 measly years and then stomped him.
Now. If this was software, this whole thing would've played out in what? 5 years? 10 tops? So 20 years, to me, seems to be about right for some things. but absolutely TERRIBLE for others.
And the lawsuit over it: https://generalpatent.com/professor-s-company-wins-1-6-milli...
> November 26, 2012 - Innovention Toys LLC, a company headed by a Colorado professor named Michael Larson, won its patent infringement lawsuit against MGA, Wal-Mart Stores and Toys "R" Us. A federal jury in New Orleans found that the defendants had infringed Innovention's patent on a strategy board game using lasers and mirrors.
---
Back in the days of http://www.gamecabinet.com being one of the primary sources for board games on the web you'll note a search on it: http://www.gamecabinet.com/info/PatentSearch.html
One of the things this let people do is find games that were patented, but never published.
Sid Sackson wrote in A Gamut of Games:
> The files of patents that have been granted are a fruitful hunting ground for forgotten games, although going through these files, as anyone who has ever been involved in a patent search well knows, is a time consuming job. Often the patented games are downright silly, such as a set of dominos made of rubber so that they can double as ink erasers (No. 729,489) or a sliding block puzzle with edible pieces so that a player who despairs of a solution can find collation in gratifying his stomach (No. 1,274,294). Often the patents are repetitious: There are over a thousand different baseball games.
The publishing of a patent maintains the ideas - even if they never got anywhere. If you know how to look, its an archive of decades of board games rules... written in patentease.
Note that despite the above, don't buy a tool without those safety features. Better to spend more now and live than get your heirs a pile of money.
It's frustrating because I'd much rather have a proper European sliding table saw like the Robland CZ-300 II, but I don't want to give up the safety of a Sawstop system.
The bosch system was significantly different. Notably having the advantage of not destroying the blade when triggered. The sawstop patent removed this major innovation from the market. A clear example of stifled innovation.
Moreover, sawstop doesn't sell in Europe, nor license. Which leaves me with no option to make use of this great innovation. Not quite stiffling innovation, but still making the world worse.
With a 5 year patent, sawstop would still have been profitable I believe. But we would have safer tablesaws around the world, we would have systems that don't ruin blades when triggered, and probably have many other innovations on top of that.
Everyone wins: the inventor gets a payday even if he can't deliver directly, consumers don't have to choose between "brand I trust" and "patent-exclusive feature I need", and manufacturers stay out of the courts.
You get the payday, whether it's your one man startup or a massive industrial that actually delivers the product to market.
Random resellers on China have no reason to care about US patents.
There's a balance to how much IP protection actually encourages innovation, and we're far on one side of it.
I think patents are okay, but the maximum duration should be 5 years and there needs to be some proof of utilization of the patent to sue for damages.
20 year patents are ridiculous, and it seems like even in the 1800's that should have been considered a bit extreme.
The term you want is "prosecute" not "litigate."
A JHU study found median costs for clinical trials of $19 million.
That's expensive relative to software. If I piled HIPAA, payments processing, and whatever telcos might require for hooking up to SS7 in one app (call it "X") I doubt I could get halfway to $19 million.
But $19 million is peanuts compared to pharma revenue. I stand by the assertion that pharma gets undeserved sympathy for long patent terms.
Sure. That's an assertion that's easy to stand by because it's so easy for it to be true because it's so open ended and unbounded.
I think most people believe the pharma companies are playing it up some and getting some undue sympathy, but 10x the sympathy and 10% more sympathy are vastly different situations and your assertion is "true" for both. It's less a question of whether that assertion is true, and more about to what degree, because that's what really matters in a discussion like this.
A statement about the median cost of a single study across an industry compared to pharma revenue (across an industry, across all studies done, whether resulting in a successful product that can make it to market and earn revenue), is not something we can make useful assertions from, whether or not I believe your assertion to be true (I do). It's just throwing disjointed numbers around and using implications instead of data to link them, which isn't a useful way to convince people who want to understand what's going on.
It could also be that there's lots of low cost trials around $20 million, but slightly less than half of the trials that are done are very expensive, and 4-5 times the cost. This would be more obvious if there were values for bot mean and median, instead of just median.
The looser the data, the less you can actually infer. Any time someone tells me the median cost for something across an entire industry, my immediate reaction is to wonder what that means, not assume I actually know what it means, because it's far too little data to really know. How many trials are done in a year on average? How many a year do companies average based on revenue? Or simple, what's the actual amount spent on trials compared to revenue, and over how many years are those trials run? Is yearly cost of a trial really a good indicator, if trials take 5-10 years to run, so a failed one results in not just loss of money spent but opportunity cost over many years?
Note: If you provided a reference for that median number I would have actually looked it up to see if it made sense to me, or if I had additional questions about how they went about their measurements. Instead, all I have a questions about what the numbers mean because I have no context.
You will like some of the numbers on that site even less than the $19 million median cost for a trial.
The study was published in JAMA, link on the JHU page. I hope this does not sound like an appeal to authority, but good luck discrediting the numbers.
> You will like some of the numbers on that site even less than the $19 million median cost for a trial.
> good luck discrediting the numbers.
I'm not sure why you would think I wouldn't like the numbers. I'm not pro-pharma, I'm just pro-informed reasoning.
That said, the article you reference is a bit more nuanced than your take. By the studies they're citing, while the trials for drugs that were approved have a median cost of $19 million, they are clear to outline that it does cost a lot to develop a new drug:
The $19 million median figure represents less than one percent of the average total cost of developing a new drug, which in recent years has been estimated at between $2 to $3 billion.
“The cost of generating this fundamental scientific information is surprisingly low given the total cost of drug development and the high price tags on many drugs,” says study senior author G. Caleb Alexander, MD, MS, associate professor of epidemiology and medicine at the Bloomberg School.
So, while studies may not be a large cost center for new drug development, they state that new drugs are very costly to develop. Or maybe studies are costly, and it's just that it takes very many of them until one shows success. Ten concurrent studies on ten variations of a drug to look for something promising would cost ten times the amount, and there's still no guarantee that any one study will end in a positive outcome.
If we're talking about the justification for patents for pharma companies, it seems like we should focus on the "total cost to develop a new drug is estimated at $2 to $3 billion" part and not the "$19 million median cost to run a study" part[1], which as I noted is lacked enough context to know exactly how much it relates to drug development cost.
That said, I'm not sure the total cost number referenced above is accurate (to my taste) either. How much of that is advertising? How much of that is kickbacks and trips and drug rep lunches and free samples to doctors? I'm not sure because I don't have access to the full paper, so I'm not sure what their methodology includes. It wouldn't surprise me to learn that a few "blockbuster" drugs had 80% of the cost in massive advertising and good-will pushes to seed the public consciousness about them so they could make more money in the end, so I'm really skeptical that $2 to $3 billion is an accurate indication of drug development cost just as much as I'm skeptical that a $19 million median trial cost equates directly to the drug development cost in a way that's obvious from that number alone.
1: Referenced and linked in JLU article, but here's the link as well: https://www.sciencedirect.com/science/article/abs/pii/S01676...
We have. Public funded (also via universities) and donation based research.
But investment money is kind of big and if it would suddenly disappear, it will hurt current research as most (?) of it is dependant on it. But all that money would not necessarily disappear, when patents suddelny gets abolished, as there is also the option of increased secrecy.
Meaning they make effective pills, and work with regulators to test them - but share little about the manufacturing process. I believe that is already happening to some extent, but would likely increase a lot.
Not sure the increased secrecy would help all that much. Is drug manufacturing that complicated that a motivated company could not reverse engineer a new drug solely from its off-the-shelf product, without too much trouble?
We do have problems elsewhere in the system, though:
1) Drug ads. They should be pretty much nuked from orbit. Drugs are a medical decision, any promotion activities should be directed at doctors, not patients. I would make an exception for drugs that radically improve treatment for something patients might have considered something they just have to live with and not told their doctors about. (I have Viagra in mind here--and that's the only one that comes to mind.) In such a case I would only permit "there is a new treatment for X, talk to your doctor", no names of either the drug or the company.
2) Dodgy approval decisions. The recent Alzheimer's drug comes to mind.
3) Drug companies should not be able to find out what doctors prescribe. That creates a conflict of interest.
4) I question whether drug makers should even be allowed to do the phase III testing at all. That puts the researchers in a position where a no decision could be bad for them down the road.
On the flip side, I think we could benefit from having an appears-to-work type of approval. It would require extensive real-world use data (either from foreign use or like what we have seen with marijuana being widely used for chemotherapy nausea) but not the usual approval process. Obviously, no patents, but all companies selling it would be required to put some specified percent of sales into a pool used to fund more research. (And I wouldn't mind doing something like that for all drugs, albeit at a lower percentage. Every drug has say a 5% tax that goes into a FDA account for that drug. When there's enough money in the account to fund useful research about it the FDA does so. Common off-label uses would be prime candidates for such studies.)
...because it's an argument in bad faith? I too don't see why drug patents are "obvious" or clear case that it is helpful enough to be in the public interest to maintain drug patents. Is there any evidence that drug patents can actually enter the public domain productively at their end of their expiration period?
I mean, if James Collip and Charles Best sold the insulin patent to the University of Toronto for a mere $1 each, "so that everyone could have it" and we still don't have universal low-cost insulin over 100 years later, and prices continue to skyrocket, I'm more inclined to believe that for-profit medicine is just evil.
https://publichealth.jhu.edu/2023/eli-lilly-lowers-insulin-p...
> “Even though they're dropping their list price by 70% and capping their cost to patients at $35, it’s important for us to make this very, very clear—the company is still making a profit,”
...
> During a 2019 congressional hearing, insulin makers admitted that there’s pressure to keep list prices high so that PBMs can also profit.
> PBMs favor the drugs that will yield them higher profits. By lowering prices, Lilly runs the risk of being excluded from formularies, meaning the insurance companies will no longer cover the product for their patients.
Practically all generic drugs are available because the original drug is off-patent. You picked one (insulin) and ignored all the others:
https://www.healthgrades.com/right-care/patient-advocate/dru...
From the page you linked:
> While these drugs are nearing the end of their patent term, the release of generics may be delayed due to litigation, acquisitions, or other exclusivities. As a result, some expected generics from previous years may still be in progress.
The point about the PBMs is that apparently, drugs have to be profitable or they are not made anymore. So even the generic companies need to position themselves in a way where their products are profitable, not only for them but for the insurance (or they will be dropped by formularies, and nobody's insurance will cover it.)
If patents are the only way for firms to protect the profitability of their drugs then we are doomed.
I picked one, sure, and you provided a list as counter-example. But the FDA also ships its own list... of off-patent approved drugs without an approved generic (and the current publication is a full 16 pages of drug names):
https://www.fda.gov/drugs/abbreviated-new-drug-application-a...
If the pharma companies can make a change to the formula so that the new formula of a drug is no longer covered by the original patent, they can get a new patent. I'm not an expert, but this is how I've understood the problem through reading about it. Yes, we have generics, but what doctor will prescribe "worse-pirin" when there's a better aspirin on the market now? What insurance company will cover it?
So, with 20 years of head start and a deep war chest, the companies you mentioned can all iterate, stop research on the previous drug, put up legal roadblocks in the way of their competition, put out a new drug which cannot be copied, while it costs a lot of money (and time) for competition to get their generic form of the drug tested and approved. It's not as automatic as the term "patent cliff" might suggest.
I'm just saying that the intent of patents in general is for innovations to enter the public domain after the period of exclusivity on the idea that enables their creators to enjoy profitability and a legally protected (temporary) monopoly on the idea. It seems like a fair question to ask, is that really what's happening? (What percent of time does it happen like that, what percent of time does it go down some other way?)
I never said they did. However, there are giant companies that do almost nothing but generics, like Teva, so obviously lots of generics exist:
https://www.tevapharm.com/our-company/teva-facts-figures/
As for "what doctor will prescribe "worse-pirin" when there's a better aspirin on the market now? What insurance company will cover it?"
nearly all insurance companies require a generic to be used unless there's a very strong reason to use the branded product. In your example, if the new drug genuinely is better, then the patients deserve to have it. If it's a trivial improvement then it won't get approved.
This is an extremely disingenuous reading of our conversation. I made a specific statement about a particular instance (which you dismissed as cherry-picking), and I asked a question at the same time. Which you reduced overall to a "general statement" while dismissing the specific example that was really important to the context of what point I was trying to make:
> James Collip and Charles Best [donated] the insulin patent "so that everyone could have it" and we still don't have universal low-cost insulin over 100 years later, and prices continue to skyrocket
> Is there any evidence that drug patents can actually enter the public domain productively at their end of their expiration period?
There's an impedance mismatch between "nearly all insurance companies require a generic to be used" and "drug patents should be clearly in the public interest" when "drugs have to be profitable or they are not made by companies anymore."
Why not engage a bit more directly with the original example, if you're going to accuse me of generalizing now? Let's talk about insulin, I'm sure I picked it for a reason.
Is there a generic insulin that is chemically identical to a name brand insulin with the same efficacy? No, there apparently is not [1] – I won't claim to be fully informed on these issues, but it seems pretty clear from reading that the issue cannot simply be reduced to "lots of generics exist, so you are mistaken."
Why can't we have low cost insulin from an entity that operates like the post office, that exists as a public benefit corporation without any profit motive?
Does it really make sense that people who have insurance that is not "top tier" will not have access to the better (still patented) drugs, if they are really better? Are they better, or are they really just "evergreening" patents? If insurance typically only covers generics, then it's really problematic that there is no generic form of this lifesaving drug, and the monopoly persists more than 80 years after the patent should have expired on the original invention!
The deal was supposed to be 20 years. What went wrong, does it "go wrong" a lot, and does it "go wrong" more or less frequently when human lives are at stake? These aren't unfair questions, and if Teva (or any company other than Eli Lilly) made a generic form of Humalog insulin then I probably would not ask them at all. But only Eli Lilly does, only Eli Lilly can.
The same company apparently makes the so-called "generic" insulin that also makes the top-tier patented "Humalog" so maybe there are too many regulatory hurdles or something else is wrong. (I thought that the generics were supposed to represent the competition, that comes to save the day after patents expire...)
If we're central planning, wouldn't we want to promote a resource arrangement such that the best drugs with the most promise and the greatest life-saving properties will go to the most people? Is it really so off-base to conjecture that a resource arrangement that actively does something else is "really evil?"
[1]: https://www.healthline.com/diabetesmine/why-is-there-no-gene...
How is it "disingenuous" to quote that? I'm not "accusing you of generalizing" -- you did it.
I don't care to engage with you about insulin or indeed drug patents in general. Just say what you actually mean.
I put the context back there together literally in the comment right above this one (and it was there in my top comment, too) because that was the context that I felt was most important, but now you've cut it right back out again. Are you sure?
Humalog as we know it today was first released in the 90's and it's still patented (or, at least Eli Lilly is the only company that can produce it, the specific "it" that we mean when we say Humalog and not "biosimilar to Humalog".) What are the actual enhancements that have been released in 2018-2019 to warrant the granting of a new patent for Eli Lilly's Humalog? Or is it out of patent? What's a biosimilar?
(Why can't anyone make Humalog other than companies that own patents on insulin, if Humalog has been out of patent since the mid 2010's?)
"...because it's an argument in bad faith? I too don't see why drug patents are "obvious" or clear case that it is helpful enough to be in the public interest to maintain drug patents. Is there any evidence that ALL drug patents actually enter the public domain productively at their end of their expiration period?" [note the ALL]
Since you refuse to just admit you were wrong, we are done here. Go ahead and have the last word if that's important to you. I won't be replying any more.
I'd love to see more of this.
Historically, before the homogenization of IP law, pharmaceuticals had different patent protection in different countries, ranging from very strong (the US), to weak (most of Europe) to excluded (Switzerland). The most successful and innovative pharma companies who were outspending everyone else on R&D were from Switzerland. Patentability of pharmaceuticals suddenly gave US companies a big boost and was really a lobbying success, so they managed to gain strong market positions without much innovation.
I’m trying to workout why Swiss companies would outspend the rest, is it that patents incentivise sitting on your laurels? And did drugs require the huge testing they need now?
If patents were abolished, the FDA could instead be authorized to blanket grant such exclusivity to genuinely new drugs, with pretty much the same effect as patents.
https://www.patentlyapple.com/2020/08/apple-has-been-granted...
The funniest hypocrisy of Silicon Valley/tech culture is that it’s full of people who think the rules and laws don’t apply to them but they vote every year for more and more regulations, that they then brazenly flout and act all indignant that the government has failed to do the things they voted for (and thus we need more government) but then refuse to actually follow.
On one had, we shouldn't feed the flames but on the other hand - we may need a foundation of patents for defensive measure or to reaslitically compete against the likes of IBM who have a gajillion patents.
And I'm aware of at least one government grant programs that requires patents apart of their application process. From what I can asertain this is otherwise money on the table, after meeting that prerequsite.
Are you suggesting we walk away from technology grants and just wing it with regards to what may happen when IBM legal team (or other patent troll) comes knocking ?
The VC, instead of nurturing the inventive process, largely contributed to the crafting of a patent application. The objective was to design it in such a way that it was cryptic and as widely applicable as possible. Despite its questionable practices, the patent was approved, leading to the subsequent funding of the startup.
However, the market didn't respond well to the idea, necessitating a pivot. Meanwhile, there were other companies independently pursuing similar ideas. They could have invested significant time and resources, unaware that they were infringing on an existing patent. It's a speculative guess, but I can't help but wonder if the VC fund is vigilantly searching for successful implementations of the patented idea, ready to initiate lawsuits for patent infringement. This illustrates the potential misuse of patents, which, rather than fostering innovation, sometimes stifle it.
You don't have to advocate for it, and you can advocate against it. But you may not have much a choice on playing.
Anyway, defending a patent requires some deep pockets, and if you don't defend them, they are just cost with no benefit.
Besides, the IBM legal team will come knocking, won't tell you anything that can let you understand why, and you will have no other option but to comply. How many patents you have, or if they actually have one that you are infringing isn't really relevant.
> Anyway, defending a patent requires some deep pockets, and if you don't defend them, they are just cost with no benefit.
unless you just need them for gov't grants that require them - in this case it's an investment into a pre-requisite and if the net capital from the grant is higher than the cost of the patent you got then hypothetically you are ahead; unless there are recurring/other expenses involved in 'maintaining' the patent that I'm not aware of.
Require is a strong word, it's just a strategy they recognize as valid.
Any examples? Interesting, first time hearing about this
Turn your invention into prior art. Publish it, in detail, publicly. Then, if someone else tries to patent it, it's much easier to contest the patent application.
For example, someone "invented" a circuit that lets you control an analogue filter parameters in a certain way. Then also was granted patent for a software that mimics behaviour of such circuit. As if someone found a loophole to patent mathematical formulas.
Either people that grant patents are dumb or I don't know.
Y’all will love decentralization next summer again.
To this day I have yet to see to a useful software patent.
I worked in video coding back in the day, I can assure you that there are stuff in the HEVC codec that are pretty far from obvious.
AlphaGo is pretty high up there too if you ask me.
Whether patenting software is useful or not is a different debate...
Patents should be contrasted with trade secrets as that is their main "competitor". Is it useful to the general public to be shown the details of a new technology, but have it's use restricted for 20 years? Or is it more useful to prevent blocking of technology but these are going to be kept as trade secrets instead?
From my point of view patents are probably harmful here. Having people be inspired and come up with alternative (or rediscover the same) implementations is probably going to lead to much better for the public than actually learning exactly how the original company did it in exchange for 20y of exclusivity (and all of the pain that enforcing the exclusivity brings).
Remember that unlike copyright patents are not about encouraging the creation of work or innovation. They are a trade of information to the public for a period of exclusivity. For software that tradeoff seems far to far in the inventors favor.
What about AlphaGo? The Reinforcement Learning methods? The Monte Carlo tree search? The Deep Learning?
DeepMind didn't invent any of these things but applied them in a novel way. If everything was software patented, AlphaGo may not have existed.
Just answering the original question.
Did AlphaGo bring anything new to the table? Hell yeah.
It is incredible software and deserves the Turning Prize, no question. But what new patentable tech did they invent?
I asked twice what specific patentable tech they invented and you declined to answer.
It is a straw man to suggest I was arguing against about any specific thing being patentable.
That guy:
https://patents.google.com/patent/EP3459018A1/en?oq=EP345901...
Small but significant correction: software patent that was not obvious to someone skilled in the field AS OF THE FILING DATE (or priority date).
First, most of them are math related, except you get the computer to do the math. You can't (or shouldn't) be able to own or outlaw math.
The last link is a Support Vector Machine as far as I can tell. Those were discovered in like 1964 according to Wikipedia. And then it was patented in 199x? That's absolutely wild
Nope. At least not for any reasonably sane definition that would not apply to all software.
> Those were discovered in like 1964 according to Wikipedia. And then it was patented in 199x?
Maybe before whining about how Vapnik got an unfair patent for something someone else did in 1964, try learning something about SVMs and their history. It's quite insulting.
I agree these are novel and not something immediately obvious. I think what's happening (what always happens) is that people overreact and have a hard time finding nuance when they are upset.
Amazon's one-click patent was ridiculous. Is Google's PageRank? Maybe. Is the RSA algorithm or how to train neural networks? I don't know. Encouraging the development of these by granting limited time monopolies on them seems like it would encourage people to develop them, but if there was a different way to reward the inventors I would be interested in the details (i.e. less blanket statements that it would be as good, but reasoned thought at a minimum and data if we are so lucky as to have some).
Sometimes the problem is not the idea but the implementation. Maybe that's the case with some types of patents.
> I think what's happening (what always happens) is that people overreact and have a hard time finding nuance when they are upset.
Yup. I agree that software patents, in the US at least, are a bit of a cluster-fuck, but it's evidently not true that nothing non-trivial was ever patented.
An application of Bayes' Theorem (1763) and heavily related to Markov chains (1906). Build a Markov chain of simulated users clicking around the internet and build its weights with Bayes' Theorem and you basically have PageRank. It's clever, but no more clever than what thousands of software engineers invent every day.
https://en.wikipedia.org/wiki/Bayes%27_theorem
https://en.wikipedia.org/wiki/Markov_chain
-- RSA
A pretty strong example, but largely based on Diffie-Hellman key exchange published a year before and known since 1969. At least this one was granted to its actual inventors.
https://en.wikipedia.org/wiki/Diffie–Hellman_key_exchange#Cr...
-- Support vector machine
"The original SVM algorithm was invented by Vladimir N. Vapnik and Alexey Ya. Chervonenkis in 1964. In 1992, Bernhard Boser, Isabelle Guyon and Vladimir Vapnik suggested a way to create nonlinear classifiers by applying the kernel trick to maximum-margin hyperplanes. The "soft margin" incarnation, as is commonly used in software packages, was proposed by Corinna Cortes and Vapnik in 1993 and published in 1995."
https://en.wikipedia.org/wiki/Support_vector_machine#History
Patent issued in 2004 to none of the above people. Fail. Patent has FORTY YEARS of prior art. Should never have been issued. I personally remember SVMs being considered "old school" AI in my college AI class in 2005.
> but largely based on Diffie-Hellman key exchange published
Novel applications are patentable.
If they're non-obvious. Remember, the challenge was: show me the strongest, most defensible examples of software patents you can. GP did a great job coming up with 3 very strong examples of patents (taking his word that the SVM patent he meant to show is much stronger). And yet even in those top examples, there are (IMO) reasonable arguments that they still do not deserve protection. I'm not convinced either way, but there are arguments.
My point is that "novel applications" are most of what software engineers do, every day. I contend that there are 10,000+ ideas equally as novel as PageRank invented every day. Senior software engineers probably come up with one every few weeks. This strongly challenges the idea that these are "non-obvious".
Whether or not software patents are a good thing is an entirely separate question (one on which I suspect we agree, in fact) but software patents can and do contain actual non-obvious inventions.
It simply seems like a multi-tier cache (which it is, after all, it's 4 LRU duct taped together in a useful way).
And, maybe there's nothing wrong with the 20 years, the problem is how hard much it costs to license it, how much the whole discovery process costs to the whole industry.
The Wright brothers had a patent on the flight control mechanism that they used to stifle innovation [1]. This problem was so bad that when the US entered the First World War, they were completely unable to produce any aircraft and had to buy them from the French. This ultimately led to Congress intervening to form a patent pool for aircraft patents, a system that persists til now.
In the early days of the Internet (ie Napster and Limewire era) there was a lot of hand-wringing about "stealing" music and how it hurt artists. Almost no artist makes sufficient income from music royalties. Only the very top do. The rest make a living from perfrmances and music IP doesn't impact that. But it does help record companies to explit artists, which is the main point.
The pharmaceutical industry claims patents are necessary for drugs. Thing is, most drug research is undertaken by government funding and then basically just handed over to Big Pharma, who spend most of their money on marketing not R&D. What R&D they do is largely to game the patent system to extend patents without minor but irrelevant changes.
Copyright law is repeatedly extended (in the US) largely to stop Mickey Mouse entering the public domain. At this point I'd be happier with a carve-out specifically for the stupid mouse and let everything else fall into public domain
We do not need intellectual property. For atistic works, 10 years. Max.
[1]: https://en.wikipedia.org/wiki/Wright_brothers_patent_war
Without IP the owners of the core hubs of network effects could take all intellectual products, monopolize them, and rent them back to us. We would be unable to resist because network effects are more powerful than we are as individuals.
Because you need to either be severely incompetent to a point of by far not being qualified to do your job or corrupt to come up with that.
If you do a bit research into the patent system it becomes clear that if anything challenging being to difficult and expensive is a problem not the other way around.
Seriously, Google needed insider information at Sonos to infringe on their multi-room audio patent. Go read it and see if you could implement a working system from it https://patentimages.storage.googleapis.com/07/ef/fb/ac27ac8...
https://www.jdsupra.com/legalnews/blackmail-at-the-uspto-dir...
The EFF isn't a for-profit entity, so if they have problems with this rule, it might mean that they are so closely connected to one or more for-profit companies that they are treated as for-profit. That honestly makes the EFF sound suspect. I am assuming this comes from their ideological anti-IP stance rather than corruption, but either way it doesn't come off as an honest take on the new rules.
I mean, I don't want to be rude here, but it feels like "I've read the changes, I don't think they apply to EFF, so I guess the only explanation is that EFF is corrupt", seems a bit of a jump, compared to the simpler explanation that EFF does believe its process to be affected, as argued by the OP link.
(Due disclosure: I used to work for EFF. The fight for a reasonable way to overturn bad patents has been, IIRC, a multi-decade uphill battle, against an industry of patent troll adversaries, who did everything from trying to subpoena EFF's membership rolls[1], to suing in Australia to have an EFF blog post taken down[2]. I guess we could have been being paid off by Big Don't Patent Dumb Things, but I defy you to find any of the patents that the EFF has either exposed or organizationally fought that should, in fact, have stayed patentable [3])
[1] https://www.eff.org/deeplinks/2014/01/eff-fights-patent-trol...
[2] https://www.eff.org/deeplinks/2017/11/court-rules-effs-stupi...
I am expressing doubt about whether the EFF actually has a stake in these rule changes, as they very clearly state several times. The article here isn't about generic third parties. It's about the EFF. This rule change also came after someone essentially tried to use an IPR to extort VLSI technology and Intel. The lack of recognition of that extortion and the corresponding limitations on these rules suggests to me that the EFF is not being entirely forthright here.
> I mean, I don't want to be rude here, but it feels like "I've read the changes, I don't think they apply to EFF, so I guess the only explanation is that EFF is corrupt", seems a bit of a jump, compared to the simpler explanation that EFF does believe its process to be affected, as argued by the OP link.
Holy strawman batman. Read the second paragraph.
Also, the rule change is in English. You can actually read the rule change and you will realize that it's a lot more narrow than the EFF is suggesting. In particular, the new rules only limit IPRs for (a) for-profit companies (b) not currently engaged in litigation on patents that are in litigation (c) where said for-profit company is not in that field. All 3 of those have to be satisfied for your IPR to be tossed under those rules. Since the EFF is a non-profit, they should really have no problem with this.
If we were to take the EFF's words at face value that this rule change applies specifically to the EFF's ability to fight bad patents, the only real conclusion we can draw is that some of the EFF's funding comes from for-profit companies who want specific patents struck down (invalidating (a) above) or want the EFF to hurt their competitors, which would, in fact, be suggestive of corruption. The other conditions certainly don't apply to the EFF.
So that leaves us with one of two alternatives:
1. The EFF actually has no dog in the fight but just doesn't want to have an effective patent system; or
2. The EFF takes money from companies with the purpose of hurting their competitors.
the IPR process exists in part to combat patent trolling, which is worse than that, and happens more frequently than that, to greater harm than that -- unfortunately for the victims there, they usually aren't rich, politically-connected companies like Intel
> the new rules only limit IPRs for (a) for-profit companies (b) not currently engaged in litigation on patents that are in litigation (c) where said for-profit company is not in that field. All 3 of those have to be satisfied for your IPR to be tossed under those rules. Since the EFF is a non-profit, they should really have no problem with this.
(1) those limitations sound bad, when I want a for-profit company who is not currently litigating a patent to be able to challenge arbitrary patent trolls' IP via IPR without court costs being a barrier
(2) 'these limitations don't directly affect X, therefore X shouldn't have a problem with it' is only true if X cares about nobody but themselves, which obviously isn't true here, given EFF's track record
Your entire perspective presupposes that you are correct. I'm surprised people fall for the EFF's shtick so easily - it's so heavily worded in a pointed fashion, that any other kind of writing of this style, is regularly rejected in places like this because of how biased it is. Oh wait... you used work for the EFF!
What's unreasonable about fighting patents in district court? EFF is trying to have its cake and eat it too. Pretending that it's all big bad companies AND patent trolls. but both of those entities are on the opposite sides of each other. The reality is that what the EFF is advocating for will absolutely benefit the big bad companies that the EFF attempts to disavow any commonality with it.
Of course the EFF describes anyone opposed to it as a patent troll, but that's totally unfair imo and pretty much an outright lie. any inventor that isn't one of the big tech co's stands to benefit from this proposed rule change.
And your point about the patents that the EFF fights is completely besides the point, because the EFF isn't the only entity involved in patents, so who cares whether the EFF has challenged valid patents or otherwise, that's exactly what district court is for...
Don't allow the initiator to _drop_ the request once started.
Initiator pays all costs (I think this is already done?).
Then any extortion has to happen up front, and it becomes much more obviously extortion.
"The USPTO is a demand-driven, fee funded, performance-based organization with a commitment to delivering reliable IP protection and information to its various stakeholders; including serving inventors, entrepreneurs, and businesses in the U.S. and around the world." [1]https://www.uspto.gov/sites/default/files/documents/fy21pbr....
I assumed "Take Action" was a simple form, and I didn't want to do that until I read what I was taking action about.
"The changes under consideration would make clear that the Board would discretionarily deny any petition for IPR or PGR filed by an entity that: (1) is a for-profit entity; (2) has not been sued on the challenged patent or has not been threatened with infringement of the challenged patent in a manner sufficient to give rise to declaratory judgment standing; (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market; and (4) does not have a substantial relationship with an entity that falls outside the scope of elements (1)–(3)."
This would have a chilling effect on the challenge of bogus patents, which is bad for creativity and innovation, and therefore against the EFF's mission.
No they don't. The allow the USPTO to prevent initiation of proceedings by denying petitions for IPR/PGR. The proposed discretionary denial criteria do not require that there is other ongoing litigation.
Contrived scenario:
- My company makes spoons, but I'm toying with the idea of pivoting into making keyboards.
- PatentTrollCo. is granted a patent on "a button that is connected electronically to a computing device."
- My company files for a petition for PGR on the grounds that this is not novel.
- The petition is denied: it meets all the criteria for discretionary denial listed in the comment above [1].
It is a direct quote from the Federal Register notice published by the USPTO. The quote, with a bit more context:
> The changes under consideration would make clear that the Board would discretionarily deny any petition for IPR or PGR filed by an entity that: (1) is a for-profit entity; (2) has not been sued on the challenged patent or has not been threatened with infringement of the challenged patent in a manner sufficient to give rise to declaratory judgment standing; (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market; and (4) does not have a substantial relationship with an entity that falls outside the scope of elements (1)–(3).
This seems pretty clear.
> The rules clearly state that there has to be ongoing litigation on the patent.
Can you direct me to the part of the new rules that state there has to be ongoing litigation? There are entire sections regarding parallel petitions and parallel litigation, but they are clearly presented as sufficient cause for discretionary denial on their own, and not as requirements for discretionary denial based on the other criteria referenced.
Unless you're saying this rule will only apply to petitions where there are both parallel petitions AND parallel litigation (they are listed and discussed separately) AND the other mentioned criteria are referenced.
> Otherwise, basically nobody could IPR anything until they get sued.
Or demonstrate that the petitioner does not satisfy point 3) above:
> (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market
This is why the EFF is worried.
"The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world."
"The Board should first determine whether a petitioner meets the first three criteria—standing, intent to commercialize and privy/real party in interest—before moving to the compelling merits analysis."
[1] https://en.wikipedia.org/wiki/Banner_blindness
[2] https://ux.stackexchange.com/questions/120541/why-do-people-...
Although there are examples in this article of clearly scam patents being thrown out, please remember that there are likely examples of the opposite where clearly valid patents get thrown out without a court case, and more where it was unclear which way the patent office should go.
Overall, this alternative system to challenge patents weakens patents as it is indented to. Especially in software patents this is may be a good thing to many, but it is clear to see that this system has probably resulted in some valid patents not being filed as their inventors lack faith that a patent will prevent uncompensated ip theft, and it gets hidden instead.
Besides @myshpa's references below, I've published several things myself, and one of them made the front page of HN:
https://albertcory50.substack.com/p/lets-vote-on-it
https://albertcory50.substack.com/p/no-source-code-no-patent (front page)
It's not inconceivable that Congress, even one as dysfunctional as this one, could eventually agree that software is not patentable subject matter. That's Ripley's "nuke it from orbit" solution.
Democrats: because software patents are a tool of rich tech companies to maintain their dominance.
Republicans: because they hate the trial lawyers, and some R's are libertarian-leaning as well. And because they hate the tech giants, too.
Write your congressman & senators. Or pick some other active form of political participation.
Is there a way to make them stop?
I remember when I realized why software patents are not going away any time soon; it was the same thought that I had when I tried to consider the quantity (amount) of dollars represented as 'valuable assets' in IBM's finances; assets which are just software patents.
This is the reason why most times patents are not fought until someone gets sued even through at that point more things are at risk, like temporary restricted sales, so normally a precaution patent invalidation should be preferred by the company starting to sell products where they know someone is patent trolling. But it isn't, as it's too expensive.
There probably had been cases of big companies using a "try to drown small company in lawsuits even if they are spurious" approach, but IMHO this is the wrong way to limit such power abuse (the right way is painful panelties and reparation if they are found to do so and reasonable fast court actions to stop this abuse until courts are settled).
Through then most consumer applications don't necessary need/profit much from the wider memory bandwidth as more bandwidth is harder to use then faster memory speed.
And more channels in a "motherboard not on-die" setup is much more costly for everyone (motherboards + CPUs + end user) then for on die. So maybe new CPUs with some on-die memory with their own channels + 2 classical channels is more likely. But then more on-die L3 or L4 cache (e.g. X3D) is probably more useful then on-die RAM. Hm, it's fun how in some way apples CPUs mismatch most of the consumer marked, but then Apple PRO models don't sell to most of the consumer marked.
the push to cashless USD is here and won't be going away
but what does the cashless evolution mean for wage based economy? I'm still thinking through this, but the future is catching up and it seems I will only have to wait some more before circumstances of life and the world force this upon the public; so I don't think I have to actually think through what this means... this will become the brave new society in which I'll die (assuming I survive the transition)
also, let's keep in mind the dollars like the ones you refer too, which "wont' be going away" were re-invented around the 70s, during the nixon administration, when gold was thrown out of the equation completely. but this ain't about metallic elements
Once a revenue source is generated, there are now 'persons (corporations)' with very loud 'speech (money for lobbying)' that start attempting to influence law.
Governments are a collection of people that are hopefully optimizing toward the benefit of the people. I don't see how patent trolls benefit anyone that doesn't draw a paycheck directly from it.
So then you look at things like, 'well has this patent protected the innovation to get it to market during its lifetime?' Maybe it should be re-evaluated every year to determine if the patent is serving its purpose, or simply protecting no marketable product.
Maybe we should look at the value of the product being created and once that product has earned x-wealth the patent is ended?
I will admit I'm in the camp of "patents are bad -> period", but I was surprised to see your submission at the bottom here. I don't think you're far off.