Yes, fix the patent system

Posted Apr 25, 2011 21:59 UTC (Mon) by david.a.wheeler (subscriber, #72896)
In reply to: A victory for the trolls by shapr
Parent article: A victory for the trolls

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.

to post comments

Yes, fix the patent system

Posted Apr 25, 2011 23:04 UTC (Mon) by boog (subscriber, #30882) [Link]

I'd tend to agree that things aren't so hopeless in the longer term. Let's see where this case leads. Certainly Oracle and the smartphone bun fight are also beginning to focus a few minds. I think if you grouped Linux users, including android people, they would be able to wield some serious political clout. The conditions imposed on the purchase of Novell's patents were a clear sign.

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.

Yes, fix the patent system

Posted Apr 25, 2011 23:08 UTC (Mon) by butlerm (subscriber, #13312) [Link] (23 responses)

A more realistic fix is: Eliminate the patent system. Reforming it is a fool's errand. There is not a lot than can be done.

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.

Yes, fix the patent system

Posted Apr 26, 2011 1:48 UTC (Tue) by tterribe (guest, #66972) [Link] (15 responses)

And how many of those drugs being tested were developed using government-provided research funding? I believe that something like 30-40% of all medical research in the US is federally funded. That seems like a much more productive way to redress that particular burden.

Yes, fix the patent system

Posted Apr 26, 2011 8:28 UTC (Tue) by drag (guest, #31333) [Link] (11 responses)

>And how many of those drugs being tested were developed using government-provided research funding? I believe that something like 30-40% of all medical research in the US is federally funded. That seems like a much more productive way to redress that particular burden.

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.

Yup...

Posted Apr 26, 2011 8:54 UTC (Tue) by khim (subscriber, #9252) [Link]

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.

Yes, fix the patent system

Posted Apr 26, 2011 10:07 UTC (Tue) by dpc (guest, #74012) [Link] (5 responses)

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.

Yes, fix the patent system

Posted Apr 26, 2011 11:45 UTC (Tue) by sorpigal (subscriber, #36106) [Link] (4 responses)

People are rarely so forward thinking as to fund research that isn't likely to be complete before they succumb to their own illness, much less to do so proactively on the chance that they will develop a given disease.

"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).

Yes, fix the patent system

Posted Apr 26, 2011 13:16 UTC (Tue) by drag (guest, #31333) [Link]

> People are rarely so forward thinking as to fund research that isn't likely to be complete before they succumb to their own illness, much less to do so proactively on the chance that they will develop a given disease.

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.

Yes, fix the patent system

Posted Apr 26, 2011 21:57 UTC (Tue) by rahvin (guest, #16953) [Link]

<blockquote>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).</blockquote>

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.

Yes, fix the patent system

Posted Apr 28, 2011 9:14 UTC (Thu) by dgm (subscriber, #49227) [Link] (1 responses)

> "Why should I fund cancer research? I don't have cancer!" -- young, cancer-free person.

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.

Yes, fix the patent system

Posted Apr 29, 2011 6:19 UTC (Fri) by rahvin (guest, #16953) [Link]

Open Source Drugs? Are you serious? This isn't a simple field, that's like suggesting that people should engage in nuclear or particle physics research in their basement including full blown experiments that could lead to catastrophic consequences. There are several ways to help drug research, the protein folding distributed computing application is one, although some professionals doubt it will ever lead to a single drug.

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.

Yes, fix the patent system

Posted Apr 26, 2011 19:20 UTC (Tue) by b7j0c (guest, #27559) [Link]

i love it how people trot out this argument as a patent defense, as if disease would wipe out humanity without patent law

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.

Yes, fix the patent system

Posted Apr 26, 2011 19:53 UTC (Tue) by Kluge (subscriber, #2881) [Link]

>But really, no, the government is hugely terrible at doing any sort of real research or producing products.

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.

Yes, fix the patent system

Posted Apr 27, 2011 20:47 UTC (Wed) by tzafrir (subscriber, #11501) [Link] (1 responses)

If the only issue were the FDA regulations in the US, I would expect to see some off-shoring of the medical research. Indian people are cheap due to their permissive regulations, so drugs could be developed there first and only re-developed later in the US (to satisfy the FDA requirements) once they have proven themselves useful.

This has happens with?

Yes, fix the patent system

Posted May 5, 2011 4:47 UTC (Thu) by Hausvib6 (guest, #70606) [Link]

A highly advanced country with lots of resource use a developing country as drug testing subject, nice...

Yes, fix the patent system

Posted Apr 26, 2011 15:32 UTC (Tue) by cowsandmilk (guest, #55475) [Link] (2 responses)

Universities (where most of this "federal funding" occurs) only originate 24% of pharmaceuticals, and trust me, the amount they're spending pales in comparison to what drug companies spend. See http://pipeline.corante.com/archives/2010/11/04/where_dru... for a pointer to where drugs come from.

Yes, fix the patent system

Posted Apr 26, 2011 19:22 UTC (Tue) by b7j0c (guest, #27559) [Link] (1 responses)

that is because universities don't fund drugs to give old people boners or make sad housewives more interested in smiling.

the biotech industry pushes more mood altering/lifestyle pills than that guy on the corner

Yes, fix the patent system

Posted Apr 26, 2011 22:10 UTC (Tue) by rahvin (guest, #16953) [Link]

Drug companies also push a significant amount of research into very serious conditions that rob people of their lives. Government does very little research into arthritis (and it's many variants including Rheumatoid) compared to the private sector. The major drug companies are spending billions every year trying to discover the cause and treatment for these conditions because they are extremely lucrative due to the damage they reap on a persons life. People will literally sell their own mothers to gain access to drugs that will reverse the course of these conditions. The proof of this is the shear number of snake oil (herbal) treatments for the same.

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.

Yes, fix the patent system

Posted Apr 28, 2011 8:09 UTC (Thu) by ekj (guest, #1524) [Link]

That's throwing out the baby with the bathwater. There's some fields where patents, or something similar to it, seem needed. Namely fields where there's high research-costs, and *low* copy-costs. Nobody would shoulder the research-costs, if upon completion their competitors immediately just copy the results.

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)

Yes, fix the patent system

Posted Apr 29, 2011 3:35 UTC (Fri) by jtc (guest, #6246) [Link]

"A more realistic fix is: Eliminate the patent system."

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.

Yes, fix the patent system

Posted May 3, 2011 19:44 UTC (Tue) by vonbrand (subscriber, #4458) [Link] (1 responses)

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...

Yes, fix the patent system

Posted May 5, 2011 18:47 UTC (Thu) by chad.netzer (subscriber, #4257) [Link]

Presumably "abolish" would (hypothetically) be a "phase out". Existing patents would expire at the same time (unless invalidated), but new ones would have new terms.

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.

Yes, fix the patent system

Posted May 7, 2011 3:13 UTC (Sat) by CycoJ (guest, #70454) [Link] (2 responses)

Can we please stop the myth that pharmaceutical patents are the great example for justification of patents.

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 (guest, #32870) [Link] (1 responses)

Not that I like Pharma very much or want to defend patents pretty much, but this argumentation is pretty bad:

> 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.

Yes, fix the patent system, but also your argumentation :-)

Posted May 7, 2011 20:44 UTC (Sat) by njs (subscriber, #40338) [Link]

One can imagine a number of different ways for the public to fund drug development, and one of those is the current patent system. The idea is that by granting companies temporary monopolies which they can exploit to make money, the company's incentive to create profit will as a side-effect produce a public benefit (the availability of new drugs that save people's lives, etc.).

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) [Link] (4 responses)

Allowing software development and use to become more expensive in the US will be the price you have to pay if you don't fix your patent system. From this side of the Atlantic we have our own threats to counter in relation to preventing development of a similar patent regime in Europe, and the worse it gets in the US the more the campaign against poor quality patents in Europe is strengthened. From this side of the pond, US specific patent problems can seem a somewhat localised issue, especially given that the litigation can occur parochially in the state jurisdiction with the most patent friendly courts. I can't begin to imagine why trade throughout the US relating to the patent in dispute should be dictated by the outcome in a state court in any case.

Either fix the patent system or allow the US economy to suffer

Posted Apr 26, 2011 10:51 UTC (Tue) by drag (guest, #31333) [Link] (3 responses)

It's not up to us. If it was then it would be a solved problem.

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.

Either fix the patent system or allow the US economy to suffer

Posted Apr 29, 2011 3:42 UTC (Fri) by jtc (guest, #6246) [Link] (2 responses)

"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."

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.

Either fix the patent system or allow the US economy to suffer

Posted Apr 29, 2011 8:56 UTC (Fri) by copsewood (subscriber, #199) [Link] (1 responses)

There are efforts to introduce software patents into Europe. In some cases inventions are patentable due to a combination of software and hardware. I'm sure patent officers and lawyers would love to have a similar software patent regime in Europe to the US. But by and large, software patents have been resisted in Europe, with the EU parliament opposing introduction of software patents the last time this was voted on, with the commission (which tends to be more professional lobbyist influenced) having tried to open the way for software patents.

Either fix the patent system or allow the US economy to suffer

Posted May 5, 2011 21:47 UTC (Thu) by Wol (subscriber, #4433) [Link]

Software patents are actually EXplicitly FORBIDDEN by the European Patent Treaty.

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 :-(

Cheers,
Wol