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Yes, fix the patent system
Posted Apr 25, 2011 21:59 UTC (Mon) by david.a.wheeler (guest, #72896)
Yes, it's called "fix the patent system". The current system seems to be designed to extract rent from the innocent. In particular, the notion that prior art (in the VERY SAME CODE) is automatically ignored shows how broken the system is.
I don't think it's as hopeless as some think. There are now enough organizations with deep pockets that are vulnerable that they can start to cause changes.
Ideally, it'd get rid of software patents, but if not, making them less dangerous would be a start.
Posted Apr 25, 2011 23:04 UTC (Mon) by boog (subscriber, #30882)
That said and speaking as a *complete* non-expert, I'd really expect this decision to be overturned, if only for the screaming defence of the code not having changed since before the patent. But also it seems that inventions that aren't linked to specific machines (rather than a general purpose computer) may be in trouble after Bilski.
Posted Apr 25, 2011 23:08 UTC (Mon) by butlerm (subscriber, #13312)
We would all be better off in the long run if patents didn't exist. The only possible exception I can see is pharmaceuticals, where a patent is perhaps a reasonable tradeoff for years of government required tests.
Posted Apr 26, 2011 1:48 UTC (Tue) by tterribe (✭ supporter ✭, #66972)
Posted Apr 26, 2011 8:28 UTC (Tue) by drag (subscriber, #31333)
That may be true in terms of % of money spent, but that does not mean that it's actually produced anything of value. But really, no, the government is hugely terrible at doing any sort of real research or producing products.
I can go into the economics behind it and how the lack of profit motivation and the ability to do proper accounting makes it impossible to accurately gauge the demand and usefulness of products, but most people would have no clue what I am talking about. It's not 'government is teh suxor', but simply a result of a facet of human nature.
One of the major problems we have in the USA is that the FDA is making it increasingly impossible to bring new drugs and procedures to market. The amount of red tape and regulatory burden is extreme. It's beyond belief for most people.
I had to have a operation done a couple years ago. In order to get it done I had to sign up to it as a 'research project'.
Why? Because due to our regulatory system it makes innovation almost impossible. The FDA never approved the operation I needed and the medical devices that were being used in the operation. Even though this operation has been successfully done on numerous people for a decade (and the basis for the procedure has been around for decades longer, this is a improvement to a established practice and nothing radical) and millions of dollars was pored into the research and development of the medical devices.
Right now we exist in a society with a medical system and regulatory environment that would rather see people die from cancer and other diseases then let them have access to life saving drugs and operations because those drugs and operations are deemed too new and too risky by mindless bureaucratic government processes. Then to make up for the fact that it takes millions of dollars to simply deal with government red tape, beyond just developing the products in the first place, we compensate corporations through the patent system which further restricts access and keeps medical advances outside the ability for most people to afford it.
Posted Apr 26, 2011 8:54 UTC (Tue) by khim (subscriber, #9252)
Well, if you studied the problem you've seen that FDA regulations are the problem patents are supposed to solve.
More then 90% of funds needed to "develop" new drug are spend in FDA-mandated tests. If you eliminate that part patents are suddenly not needed. Do you propose to abolish testing? Of course not! But this is mandated testing - in can be paid different ways, there are no need to issue patents to support it. It's artificial "problem", it can be solved using many different approaches, I doubt patents are the most effective approach anyway.
Posted Apr 26, 2011 10:07 UTC (Tue) by dpc (guest, #74012)
I can understand economy well. I understand what you mean. However I disagree. The pharmacy does not have to be post-paid.
Sick people (their friends, families and foundations around them) are vitally interested in paying for the fact of researching. They would pay companies with good previous record of drag researching and publishing solutions for the promise that when the cure is found it would be "open-sourced"/"more or less free for anybody to produce", etc.
If selling medicine after successful research would be impossible (due to lack of patents), these companies would have to switch to a model which is more or less Open Source in medicine. Companies would be run for profit (selfish motivation, good!), would compete between them-selfs (good!) and once something is discovered everyone can benefit instantly (think about poor countries) and other drugs can be researched without licensing and patenting issues.
I see no reason why this model would be anyhow less efficient than current post-paying. But I'm opened for discussion.
Posted Apr 26, 2011 11:45 UTC (Tue) by sorpigal (subscriber, #36106)
"Why should I fund cancer research? I don't have cancer!" -- young, cancer-free person.
I'm not saying that it couldn't work, I'm just doubting whether voluntary funding like this would be sufficient to raise the necessary cash. That's the advantage of government funding; governments are more suited to long term investments and rewards.
I've often thought that it would be great to crowd-source funds for e.g. a TV show or a movie, but it really is very difficult to raise that kind of money on the promise that the donators will like the result. Medical research is the same kind of problem (only more expensive).
Posted Apr 26, 2011 13:16 UTC (Tue) by drag (subscriber, #31333)
That's what entrepreneurs are for. They search out new opportunities and seek to fulfill society's needs with the least amount of resources used (and, as a result, highest profits)
> governments are more suited to long term investments and rewards.
The bad thing about governments is that they are insulated against failures, have a poor ability to properly account expenses and lack a feedback mechanism that can properly assess society needs (democratic politics are proven to not be effective). All this means is that they are wasteful with resources and that expenditures are governed by politics and not needs.
Posted Apr 26, 2011 21:57 UTC (Tue) by rahvin (subscriber, #16953)
Showtime, HBO and others are examples of what you seek. They survive on subscriber funds, they produce new and innovative entertainment and IMO the best shows on television now. They do so without commercials (and the interference they bring) and without (AFAIK) government intervention or assistance. So you shouldn't need to wonder as it already exists, but costs considerably more than commercial television.
Posted Apr 28, 2011 9:14 UTC (Thu) by dgm (subscriber, #49227)
Quite true. Healthy people tend to behave like that, but what about ill people? Most behave just the other way around, funding research and creating foundations, generally trying to help. Paradoxical, isn't it? One may say that for ill-free people, having to chose between one or other cause finally leads to helping nobody. All that changes once life pushes you in certain direction. Human nature, I guess.
This is very similar to what happens with OSS, indeed. What makes anybody start collaborating with a project? And why do people start projects? Often they have a need to fulfill, or someone with that need is paying them.
So, the problem with Open Source Drugs is not people. It's a economical (and thus technological) problem. Such a project needs to be started by one person alone, or an small group, with very little funding. What's needed is not ways to raise more cash, but mechanisms to lower that need of cash, so many small projects can be started -and continued- by the people with the skills and interest. That and knowledge about the "Open Source" way of doing development, of course.
Posted Apr 29, 2011 6:19 UTC (Fri) by rahvin (subscriber, #16953)
You don't just create a drug and start testing on people. Drugs go through computer models, animal research and many other steps before a single human takes the chemical. This is a highly specific field requiring controls and methods that are going to be economically beyond all but the most advanced and they are already working in the field. Please consider that if you start making drugs and someone dies you will end up in jail for a very long time. There is a reason government highly regulates this stuff, it's an area where even with full safety measures and a lot of experience people can still be killed by drugs that have previously proven safe.
I work in a profession that requires a professional license to work in it, I like to think that gives me perspective that some things just aren't meant for amateurs to work on because of the potential for fatalities. Maybe there are areas where ordinary people can help in the research but I just don't see it.
Posted Apr 26, 2011 19:20 UTC (Tue) by b7j0c (subscriber, #27559)
really? i see an unending stream of mood pills, pills to grow your hair back, pills to provide boners for 90 year old men, pills to make women horny, pills to deal with life threatening issues like yellow toenails...and lets not even talk about the number of pills out there to address poor nutritional choices
the biotech industry has increasingly relied on feel-good, lifestyle drugs, while actually dropping many product lines that deal with actual illness since they just aren't profitable enough
i'm done with "too big to fail" reasoning. get rid of patents and let the chips fall where they may.
Posted Apr 26, 2011 19:53 UTC (Tue) by Kluge (guest, #2881)
Really? My impression is that government funded research is quite good at producing the basic knowledge upon which applied research can be based. And applied research is essentially what the pharmaceutical/biotech sector is supposed to do. We can disagree with why they haven't, over all, been doing a very good job of it lately. Certainly complying with FDA regulations does cost time and money, but it's hard to see how we can do without some regulation of drugs. Recent history is replete with examples of selective publication of data, mismarketing of drugs, etc by pharma.
If you have a point to a more detailed discussion of your position, I'd love to see it.
Posted Apr 27, 2011 20:47 UTC (Wed) by tzafrir (subscriber, #11501)
This has happens with?
Posted May 5, 2011 4:47 UTC (Thu) by Hausvib6 (guest, #70606)
Posted Apr 26, 2011 15:32 UTC (Tue) by cowsandmilk (guest, #55475)
Posted Apr 26, 2011 19:22 UTC (Tue) by b7j0c (subscriber, #27559)
the biotech industry pushes more mood altering/lifestyle pills than that guy on the corner
Posted Apr 26, 2011 22:10 UTC (Tue) by rahvin (subscriber, #16953)
In addition the primary driver of Cancer research (the #2 killer) and Heart/BP/Circulatory (Heart disease is the #1) research is in the private sector. Entire companies like Myriad Genetics spend their entire research budget on Cancer research from identifying the cause and genes responsible to developing treatments including one-off genetic treatments that cost $50K a pop and they will never make money on.
You make serious light of depression in your post, something I have a serious problem with as it is a very serious disease that results in death far too often and something one of my loved ones suffers from. You might not think depression or ED is a serious problem but that doesn't give you the right to belittle the problem and decide that no money should be spent on it until whatever pet cause you have is cured.
Posted Apr 28, 2011 8:09 UTC (Thu) by ekj (guest, #1524)
But software is not such a field. It's expensive to produce software, true. But copyright already gives -more- than adequate protection for the result. (indeed even that probably gives too much as in you could give significantly less protection and NOT see a significant release in development-effort)
Posted Apr 29, 2011 3:35 UTC (Fri) by jtc (subscriber, #6246)
That's pretty damn ambitious. Less ambitious (and, IMO, more practical) would be to eliminate patents for software. That's hard enough. Eliminating all patents, it seems to me, is almost as hard as eliminating world poverty.
Posted May 3, 2011 19:44 UTC (Tue) by vonbrand (subscriber, #4458)
Sorry, but abolishing patents isn't realistic at all. First of all, it would have to be world-wide to be of any use (good luck with that!). And then it would mean that suddenly IBM, say, would be worth a bunch of billions of dollars less. The result could make the dotcom crash look tame...
Posted May 5, 2011 18:47 UTC (Thu) by chad.netzer (✭ supporter ✭, #4257)
I tend to agree that software patents won't ever be a abolished; I'd be content to see them reduced to a term of 5-7 years. In this field, it's insane to give someone a monopoly on *anything* for two decades.
Posted May 7, 2011 3:13 UTC (Sat) by CycoJ (guest, #70454)
The pharmaceutical industry is probably so "evil" patent trolls pale in comparison.
1. Pretty much all Pharma companies have significantly higher marketing than R&D budgets (that's not evil, but still proves a point).
2. They are also one of the most profitable industries, so doesn't seem like they really need patents.
3. They research is mainly on the "diseases" of the rich. For example the amount of money they invest into researching a cure for Malaria pales compared to the research into something like diet pills
4. They have been the main companies behind the push to extend patentability, who do you think are the main industry who are pushing ACTA?
5. They are also the companies who are the main drivers behind the US government pushing draconian trade agreements, onto developing nations. Which often leaves the poor in these countries without access to cheap generics.
6. They are extensively abusing the patent system, by creating perpetual patents, i.e. when a patent expires they apply for a new patent where some compound is slightly changed, the trick is you can't make the old patented medicine, without violating the new patent.
7. They have been caught multiple times paying for favourable publications/studies.
8. Their patents actually only start after FDA approval, so they possibly get 20+x years of patent time. Even worse, as part of TRIPS (I think it was), this applies again to other countries. So they have FDA approval in the US, but they think country X (usually a developing nation) is not wealthy enough, so they don't apply for approval there. Now at a later state country X has become wealthier and they apply for approval, they get 20 years of patent. So even if the patent has expired in the US, they people in country X cannot get the cheap generics, because in their country the patent is still valid.
If you start reading up on what BigPharma is doing, it just makes you sick.
Yes, fix the patent system, but also your argumentation :-)
Posted May 7, 2011 7:42 UTC (Sat) by spaetz (subscriber, #32870)
> 1. Pretty much all Pharma companies have significantly higher marketing than R&D budgets (that's not evil, but still proves a point).
It's not evil, but I fail to see which point it proves. That pharma firms do a lot of marketing compared to R&D is related to patents how? The same is probably true for many other industries.
> 2. They are also one of the most profitable industries, so doesn't seem like they really need patents.
Their profitability "is a clear sign that patents work", would a proponent of patents claim. If there were none, they would be not profitable because copied, so no incentives to innovate, blabla. We don't know what would happen in such a case, so there is no point to make here without further justification.
> 3. They research is mainly on the "diseases" of the rich. For example the amount of money they invest into researching a cure for Malaria pales compared to the research into something like diet pills
Again, this is true but I fail to see how this is related with patents. Do you think, that pharma firms would suddenly all become very altruistic and start researching Malaria and other "fringe" (sorry) diseases when you abolish patents?
> 4. They have been the main companies behind the push to extend patentability, who do you think are the main industry who are pushing ACTA?
Yes, but what point does it make? That the (big) firms in the industry believe that patents work? How does it make patents bad? You'll need more arguments to support your logic.
> 5. They are also the companies who are the main drivers behind the US government pushing draconian trade agreements, onto developing nations. Which often leaves the poor in these countries without access to cheap generics.
This shows rather that pharma firms go ruthlessly after money wherever they can, not that patents are bad.
> 6. They are extensively abusing the patent system, by creating perpetual patents, i.e. when a patent expires they apply for a new patent where some compound is slightly changed, the trick is you can't make the old patented medicine, without violating the new patent.
Right, but companies abusing the patent system does not necessarily imply that patents are bad in general, merely that the system needs some loopholes fixed.
> 7. They have been caught multiple times paying for favourable publications/studies.
So has the tobacco industry, the wine industry, the coffee industry, and the candy industry. It is related to patents how?
> 8. Their patents actually only start after FDA approval, so they possibly get 20+x years of patent time.[...]
Well, those firms would tell you that they get to use the patented drug for 20 years on the market, and not longer. After all, if the FDA takes 20 years to approve a drug, the patent would have been worthless. So, I can see why that was implemented. The problem with other countries filing later (and therefore prolonging protection) would be solved by "global patents" by a patent proponent, I guess.
I am not saying you are wrong, but these arguments did not convince me.
Posted May 7, 2011 20:44 UTC (Sat) by njs (guest, #40338)
For this to be an effective/efficient solution, we want the drug company's incentives to line up *well* with the public good. But it isn't at all clear that they do. Some of the arguments being cited here are evidence that they don't.
For example: The massive marketing budgets are presumably paid for by increased profits from people buying the drug in question as a result of the marketing -- but those new sales are probably mostly from people who otherwise would have been happy with a generic, or nothing at all. So we could say oh well, sucks for the people who end up paying too much; they should have been smarter. But first, it strikes me as horribly immoral to expect every member of the public to be more educated about the state of the art in medical care than the professionals who are trying to fool them into spending too much. And secondly, since health care costs are spread out over everyone (by insurance premiums, by prices set on the assumption that assume some people won't pay, by public health coverage), those people who pay too much are hurting everyone. (Indeed, part of that marketing budget now goes to these clever rebate schemes for new drugs, whose whole purpose is to re-create the "moral hazard" that American insurance companies try to avoid by having higher co-pays on brand name drugs versus generics. The result is that my wife's *brand name* drugs are *cheaper* -- for us, out of pocket -- than generics would be. But the insurance company is still paying full price and getting screwed, which eventually comes out in everyone's premiums.) So here the patent-based develop-drugs-to-make-money system doesn't serve the public interest.
Basically the same thing is happening every time the drug companies do some profit-driven horrible thing (denying drug availability to dying poor people, declining to research important but less profitable conditions -- malaria was mentioned, and apparently in the UK the drug companies have just said eh, screw it, and fired all their neuroscience researchers, etc., etc.).
So while profit-driven free-market enterprise is a very efficient way to get certain things done, it's far from clear that it's actually the best way to develop drugs. Other systems -- like, say, taking the same amount of money from taxes and giving it to non-profit research institutions -- obviously would have their own problems, but not these ones, and these ones are pretty horrible.
Either fix the patent system or allow the US economy to suffer
Posted Apr 26, 2011 9:50 UTC (Tue) by copsewood (subscriber, #199)
Posted Apr 26, 2011 10:51 UTC (Tue) by drag (subscriber, #31333)
The court system is it's own system with law based on precedent. It's independent from any sort of democratic influence. It would require a major legislative effort to change this and that is not going to happen any time soon.
What is really required is that if you have a project or a company that wants to be innovative or produce competitive products then the best thing that can be accomplished is to not base it in the USA.
Posted Apr 29, 2011 3:42 UTC (Fri) by jtc (subscriber, #6246)
Is the US really that much worse than other developed nations? I thought the EU, for example, also had problems with software patents. Is their system much less problematic than ours (US)? I'm asking because I'm really not very familiar with the situation outside of the US.
Posted Apr 29, 2011 8:56 UTC (Fri) by copsewood (subscriber, #199)
Posted May 5, 2011 21:47 UTC (Thu) by Wol (guest, #4433)
So unless they can get round it by claiming it's "not a pure software patent", then any software patent has been illegally issued. That doesn't stop them, though :-(
A victory for the trolls
Posted Apr 25, 2011 21:59 UTC (Mon) by MisterIO (guest, #36192)
Why do you think it's "troll post"?
Posted Apr 25, 2011 22:57 UTC (Mon) by khim (subscriber, #9252)
To me it looks like quite logical and real solution. Compare with "hot new industry of XIX century": chemistry. By the 1862 British firms controlled 50% of the market and and French firms controlled 40%. They had quite good patent protection. It was so good in fact that in 11 years time they lost most of the market (German companies had 50%). Later Germans were convinced to enact limited patent law so process slowed down: by 1913 they only had 80% of the market. More information here.
It'll be interesting to see how fast software development will be moved out of US - and what exactly will be moved first.
Posted Apr 26, 2011 0:16 UTC (Tue) by klbrun (subscriber, #45083)
Russia is similarly authoritarian, Africa lacks in infrastructure, Latin America has various nationalisms that are coming to the fore, Canada lacks the population. People have predicted software would leave the US for India for over 30 years; hasn't happened yet.
There is a reason things are the way they are. Changes would be against inertia.
Posted Apr 26, 2011 1:04 UTC (Tue) by Cyberax (✭ supporter ✭, #52523)
Posted Apr 26, 2011 4:45 UTC (Tue) by FlorianMueller (guest, #32048)
You are wrong about the European situation: there are large numbers of software patents in Europe (many tens of thousands, if not hundreds of thousands), the courts uphold them, and there's also some litigation going on, such as Apple suing Nokia in the UK and in Germany over 9 European software patents.
Also, more fundamentally, patents regulate target markets, not countries of origin. If a company is based in a no-software-patents jurisdiction, it is still affected by them once it tries to serve markets that have software patents.
Posted Apr 26, 2011 2:50 UTC (Tue) by njs (guest, #40338)
Posted Apr 26, 2011 1:13 UTC (Tue) by lakeland (subscriber, #1157)
Where the software is made is irrelevant - you would have to go one step further and stop selling software in the US. Given the exceedingly broad definition of selling, I would suspect you would have to - at least on paper - ban distribution in the US entirely.
Posted Apr 26, 2011 7:31 UTC (Tue) by jengelh (subscriber, #33263)
That reminds me of the following wording in Microsoft-style EULAs: "The Software is licensed, not sold."
And a license could be bought over Internet, i.e. buying in another country and importing it yourself.
Sure, but this is minor issue
Posted Apr 26, 2011 12:08 UTC (Tue) by khim (subscriber, #9252)
You can sign a deal with someone who'll sell your programs in US. Since only proven-good software will be sold there expenses will be slimmer. Since you still will amass US patents to cripple efforts of US competitors they will feel the full impact.
Basically the threshold is the point where it's pointless to even try to create new startup for it will be destroyed by overseas competitors before it'll reach the stage where it can be IPOd.
This will require few more years and some more high-profile defeats (like the one under discussion today).
P.S. This why I said China and not India: you need strong internal market for the effect to take hold. If the YouTube and/or Facebook are illegal there... well it just means that development in these directions will still be concentrated in US and will lag behind other developments.
Yes, solution is underway...
Posted Apr 25, 2011 22:40 UTC (Mon) by khim (subscriber, #9252)
Yup. It's not even hard, really - in fact the process is well underway. Move the software development to countries like China where software patents are largely ignored and only buy patents from other companies for the products which must be exported to US.
Of course it's hard problem (you should first make sure US is forbidden from just printing money) but it goes along quite well. If nothing changes then I think in about 15-20 years time software development in US will be history and software patents will not bother anyone.
Of course there are small probability that US congress will see the forest for the trees, but the probability is small indeed: while patents are crippling for the industry then are actually beneficent for individual companies.
Posted Apr 25, 2011 23:14 UTC (Mon) by butlerm (subscriber, #13312)
It is sad that such arguments carry sway. One might equally say while crime is crippling for society, theft is beneficial for actual thieves.
Posted Apr 26, 2011 0:20 UTC (Tue) by Trelane (subscriber, #56877)
China has lots of software patents, too
Posted Apr 26, 2011 4:50 UTC (Tue) by FlorianMueller (guest, #32048)
Posted Apr 29, 2011 4:00 UTC (Fri) by jtc (subscriber, #6246)
I'm not convinced that this is true overall. If you weight the benefits vs. the drawbacks with respect to the patent system for each company, where the result is > 0 if there are more benefits than drawbacks and < 0 if more drawbacks, and then you average this value out for each company, will you get a positive or a negative value? I suspect the odds are good that it will be negative, or positive but so close to 0 as to not make much difference.
If that's so and if you then add the obvious negative consequences to FOSS developers and users, I think you could have a strong argument that software patents, like legalized slavery, are detrimental to society and should be abolished. (Yes, the degree is less than that of slavery, but the harm may still be demonstrable.)
Well, it's more complex...
Posted Apr 29, 2011 9:06 UTC (Fri) by khim (subscriber, #9252)
If you weight the benefits vs. the drawbacks with respect to the patent system for each company, where the result is > 0 if there are more benefits than drawbacks and < 0 if more drawbacks, and then you average this value out for each company, will you get a positive or a negative value?
Of course it's negative! But it does not matter one jot. You see: patents are net negative and long copyright extensions are net negative (because they stimulate ever-increased harassment of "copyright violators" by authors who did nothing interesting in last 10-20-30 years and not creation of new interesting works) but they are net positive for the people who can actually pay for congressmen campaigns!
If that's so and if you then add the obvious negative consequences to FOSS developers and users, I think you could have a strong argument that software patents, like legalized slavery, are detrimental to society and should be abolished.
You have an argument, but you have noone to even voice it, let alone fight for it. If you are small startup then usually you don't have money and time to fight patents. Most startups fail (and it'll be true with or without patents), but some survive and grow large and rich. At that stage they have both money and power to fight patents - but why should they? Patents are net positive for large behemots.
Slavery was abolished not because it was "morally right to do", but because there was powerful lobby which wanted to abolish it. Industrial North needed consumers - and slaves are poor consumers. It was "morally wrong" for centuries, but it was only abolished when powerful interests needed to abolish it.
I don't see powerful forces which need to abolish patents today so even if it's net drag on the economy they'll remain and they'll straighten over time.
Posted Apr 26, 2011 4:58 UTC (Tue) by b7j0c (subscriber, #27559)
Posted Apr 28, 2011 8:16 UTC (Thu) by ekj (guest, #1524)
There's so many so trivial patents on obvious software-techniques today that it's virtually guaranteed that any software above a certain complexity-treshold will infringe on a number of them.
There is precisely no way at all to write a non-trivial program, and be reasonably sure that you can legally sell it, without infringing any patent.
Thus the best thing you can do about it is either not to write programs, or to do so while ignoring patents alltogether and hoping for the best.
Posted Apr 27, 2011 10:21 UTC (Wed) by wookey (subscriber, #5501)
The advantage of this idea is that it seems plausible to make happen (as opposed to totally dismantling the patent system, which would be better, but seems a pretty remote prospect still). I know some people have high hopes that one outcome of the massive smartphone patent war going on at the moment would be some recognition that damages are ludicrously out of proportion to patent value.
We shall see.
Challenge the business model
Posted Apr 27, 2011 19:29 UTC (Wed) by thomas.poulsen (subscriber, #22480)
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