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Uhm, I would rather say the opposit

Uhm, I would rather say the opposit

Posted Nov 13, 2012 11:23 UTC (Tue) by simlo (guest, #10866)
Parent article: Phipps: Stop patent mischief by curbing patent enforcement

1) I don't consider patents on algorithms as a bad idea. Real inventions solving real problems should be patentable no matter if they are expressed as mechanics or software.

2) But patents on key parts in standards are really bad as they will give a menopoly beyond the invention itself.

The problem in the patent system are
1) Way too many lousy patents, not at all being new enough.
2) Functional patents describing function rather than method.
3) Way too high risk for litigation. Even if you win you have taken a lot of damage to your business meanwhile. The bar for litigation should be so high that only those obviously copying should be worried.
4) Only the esssential technology in a given product should be covered. If a mobile phone contains 250000 patents it is redicolous. Each patent must be strong enough to differentiate a whole product from another. A product should essentially not be covered by more than one patent!


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Uhm, I would rather say the opposit

Posted Nov 13, 2012 17:59 UTC (Tue) by pboddie (guest, #50784) [Link]

You don't consider monopolies on algorithms as being a bad idea? Or you don't consider rewards of some kind (not necessarily the granting of monopoly privileges) for discovering interesting algorithms as being a bad idea? There is a distinction between these two things.

Uhm, I would rather say the opposit

Posted Nov 14, 2012 6:54 UTC (Wed) by simlo (guest, #10866) [Link]

Monopolies are a bad idea. The whole patent system is based on it. BUT I see no difference in monopolies on algorithms - with a specific purpose - than monopolies on chemical substances or mechanical constructions.

I really don't think the community should fight software patents, but rather the bad patent system as such.

I remember working for a wind turbine company. It could not sell it's best wind turbines in USA and Canada because of a patent on using converter technology in wind turbines. It is a patent of the kind "use known technology X in field Y." There is no invention in that, but a patent is granted anyway. I can see a patent on "use known technology X in field Y by method Z", if Z is a real invention. And then the patent is really given for method Z.

why software is different

Posted Nov 14, 2012 12:03 UTC (Wed) by coriordan (guest, #7544) [Link]

Monopolies on chemicals and mechanical products are industrial regulations. Changes in those industrial regulations only have to take into account the effects of those regulations on how well the industry serves the public (does it produce enough, is the price right, etc.).

(Hobbyists do exist in those domains, but they don't do mass scale production and patent holders usually don't both with litigation against hobbyists who aren't affecting their profits, so the social harms are minimal.)

Monopolies on software (or on writing books or music) affect the general public as well as an industry. The whole free software movement was (and is) built on people like you and me writing some code - just as the books and music that are available exist because some people who can write/compose well decided to do so.

(Patents also happen to make the software industry perform poorly but the bigger point is that analysis of software patents can't be narrowed to economic analysis.)

http://en.swpat.org/wiki/Why_software_is_different

why software is different

Posted Nov 14, 2012 13:38 UTC (Wed) by Cyberax (✭ supporter ✭, #52523) [Link]

Hobbyists in biochem exist, but they are utterly _dependent_ on patents. That's because producing a novel drug requires many hundreds of millions for clinical trials.

I know that people sometimes do initial steps of drug discovery in small labs and then sell it to larger companies. But that's about it.

For non-biochem it's obviously different, but it's not a very large area nowadays.

why software is different

Posted Nov 14, 2012 15:22 UTC (Wed) by pboddie (guest, #50784) [Link]

My point was that the terms "patent", "incentive" and "reward" are used interchangeably when the first one actually has many other connotations associated with it.

It's perverse that the first thing that is done when someone supposedly opens up a new realm of opportunities is to appoint them as the gatekeeper to that realm, especially when several other people probably also opened up that realm independently, various others were obviously involved in helping the "inventor" over the line of discovery, and where the system through its own inefficiency even seems to allow multiple gatekeepers who all want to extort an entry fee. (And this doesn't even touch upon speculative claims to things which can't yet be done and where someone is just sticking an "I thought of this first" note on it because they don't really know how it can be done, either.)

The patent system just lets people hold society to ransom: it's the opposite extreme to the person who refuses to disclose how they did something and who takes that knowledge to the grave. We need to find (or rediscover) other incentives that help society to progress as rapidly as possible without needless duplication of effort and without needlessly obstructing access to humanity's shared knowledge.

why software is different

Posted Nov 14, 2012 15:30 UTC (Wed) by Cyberax (✭ supporter ✭, #52523) [Link]

Most patent owners are not interested in gatekeeping, they are more interested in patent licensing.

And patents allows a small company in pharma/biotech/biochem to earn money. In almost 100% of cases it's the only way they can do it.

Obviously, situation is different in 'mechanical' patents and completely different in software patents.

why software is different

Posted Nov 15, 2012 0:31 UTC (Thu) by pboddie (guest, #50784) [Link]

Most patent owners are not interested in gatekeeping, they are more interested in patent licensing.

That may be true, but it doesn't change the fact that they are by default appointed as gatekeepers. You can get into compulsory licensing situations, which touches somewhat on matters related to the original article, but then you have to assess whether patents have any real, distinct purpose at that point: why not give contributors to a standard or "essential" solution a prize and leave it at that?

Also patents related to pharmaceuticals are not exactly a panacea, even though they may indeed encourage risk-taking amongst smaller businesses. For example, there is a degree of interest in "generic" medicines for purposes other than those for which they were originally intended, including even withdrawn medicines, although I suppose one can argue that this is of niche interest, that the bulk of new treatments come from new discoveries protected by patents, and that the interest in medicines covered by expired patents has only been rekindled by improved technology and techniques to better understand their action.

But still, I feel that a specific justification of patents, along with the privileges they afford, is missing. They may not encourage innovation more than various alternatives for all we know, and I also suspect that the mass issuing of patents is perhaps a way of delegating responsibility for progress in technical domains to a growing circulation of paper bills and is thus reminiscent of the way that a lot of issues are "solved" by policy-makers who do not wish to concern themselves too greatly with the mechanisms involved and their subsequent effects.

why software is different

Posted Nov 15, 2012 6:08 UTC (Thu) by Cyberax (✭ supporter ✭, #52523) [Link]

> although I suppose one can argue that this is of niche interest, that the bulk of new treatments come from new discoveries protected by patents, and that the interest in medicines covered by expired patents has only been rekindled by improved technology and techniques to better understand their action.

That's actually a problem because you can patent a new treatment based on an old medicine. Several companies did exactly that, unfortunately. But yes, it's rare.

>But still, I feel that a specific justification of patents, along with the privileges they afford, is missing.
It's simple - no-one in industry would be doing drug research without possibility to get at least some profit. And right now it's simply not possible without patents.

why software is different

Posted Nov 15, 2012 13:00 UTC (Thu) by pboddie (guest, #50784) [Link]

A *specific* justification. In other words, are they the only thing that would reward people doing the work? Might there not be better ways of rewarding that work instead?

why software is different

Posted Nov 15, 2012 19:44 UTC (Thu) by dlang (subscriber, #313) [Link]

> Might there not be better ways of rewarding that work instead?

sure there could be, but no matter what solution you come up with to any problem, there's always a possibility that there is a better solution out there that nobody has thought of yet.

In the case of pharmaceutical research, there does not seem to be a lot of option.

either you decide that all research should be government funded

In this case, the government bureaucrats are the ones who decide what research gets done. This is something many people see as a bad choice.

or you want to have the private sector do the research

In this case you need some way for the companies doing the research to get their cost of research back, plus a profit. Including the cost of research for the drugs that fail.

Patents work in this field in that they allow for this profit to be generated.

Are there other ways that this could be done? Probably, but I haven't heard anyone suggest anything that sounded plausable to me. Let alone pointing at something that has been tried anywhere in the world that has worked better.

why software is different

Posted Nov 15, 2012 20:44 UTC (Thu) by anselm (subscriber, #2796) [Link]

In this case, the government bureaucrats are the ones who decide what research gets done. This is something many people see as a bad choice. or you want to have the private sector do the research

… which may turn out to be an even worse choice for various reasons.

One is that private pharmaceutical companies tend to concentrate their efforts on potential big money-makers, such as drugs targeting the chronic diseases of affluent Westerners. There are lots of diseases which could use a lot more research effort (tuberculosis comes to mind) but are not as interesting to pharmaceutical companies because they afflict poor people in out-of-the-way places.

The other problem is that pharmaceutical companies are often extremely sloppy when it comes to reporting the results of clinical trials, especially if the results are not as positive as they are supposed to be.

why software is different

Posted Nov 15, 2012 21:02 UTC (Thu) by dlang (subscriber, #313) [Link]

please show me anyplace that has eliminated private research and then done well.

supporting private sector research does not prohibit government funded research, it just means that you aren't at the mercy of the bureaucrats and their decisions.

is there anyone who thinks that the type of people who make up the DMV and the IRS are the ones you want making these sorts of decisions?

why software is different

Posted Nov 15, 2012 23:21 UTC (Thu) by pboddie (guest, #50784) [Link]

I think you're mixing up a few things here: who decides what gets funded, who does the work, who actually pays for the work, and who gets the reward, along with whether the work generates more revenue than it cost, and whether the preceding factors encourage more or less progress in the field concerned.

You can have various public/private combinations of these things, some being more controversial than others, such as the public paying for the work and then the specific employees concerned profiting from patents that have been filed. You can have policy delegated to the market, albeit with government-backed guarantees for revenue generation, which is what patents effectively are. You can have policy determined by both public agencies and private institutions; the quality of policy decided by the former need not be worse than that of the latter (contrary to the ideology of certain political schools).

Nobody is advocating the elimination of private research, and I think it is worth entertaining the idea of incentives for such research that don't involve monopolies for entire classes of endeavour, which is what patents have proven to be at least in software. Meanwhile, an analogous situation to pharmaceutical patents might be that of the granting of exploration rights to various oil and gas companies.

Certainly, a difference between oil exploration and software is that the rights granted to participants are clearly delimited in the former case, whereas only copyright provides a similar level of clarity in the latter case. If oil exploration rights were handed out like software patents, everyone would be drilling the same oilfields and spending a lot more time in court.

why software is different

Posted Nov 15, 2012 23:46 UTC (Thu) by dlang (subscriber, #313) [Link]

please point out ANYWHERE that I have said that patents are a good idea for software?

The conversation above was about drug research, where patents tend to be fairly narrow ('use of this compound', frequently further limited with 'for this purpose')

I think that the 'public pays, private patents earn rewards' is fundamental abuse of the system, and all public grants should include a clause stating that the results of the research should be publicly available at no cost (I would say cost of replication, but in today's world that's so close to zero that it's better to just say 'no cost' rather than leaving the door open for abuse)

People are not advocating the end of private research, but they are advocating the end to the way that private research pays off. Unless other reward mechanisms are created, that's effectively the same thing.

why software is different

Posted Nov 16, 2012 0:54 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link]

>I think that the 'public pays, private patents earn rewards' is fundamental abuse of the system, and all public grants should include a clause stating that the results of the research should be publicly available at no cost
That's actually exactly the case with the NIH grants.

The problem is, the distance from a promising drug candidate (a typical academical result) to a working drug is a couple of billions of dollars and 10 years of work.

why software is different

Posted Nov 16, 2012 1:10 UTC (Fri) by dlang (subscriber, #313) [Link]

In that case, the drug company should reimburse the government for the research costs when they decide to take on the rest of the process.

But the typical case of 'public funding, private patents' is not in the drug field, it's in other fields where the researchers doing the research get the patent in their name and then sell it.

whoever funds the research should get the patent, they can then sell or license it to industry for implementation.

why software is different

Posted Nov 16, 2012 1:14 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link]

Why? That's the task of academia - producing new results. You can download NIH result papers and go on creating your own drug in a garage. It's not uncommon that several companies might try to use a lead from the same paper.

And the final drugs rarely look anything like the first version of drug.

why software is different

Posted Nov 16, 2012 11:29 UTC (Fri) by pboddie (guest, #50784) [Link]

On the topic of different incentive structures, I came across this explanation of the division of financial responsibilities for oil exploration in the Norwegian sector of the North Sea. Again, it's not exactly analogous to either software or drug development, but there are parallels (and a lot of money involved).

why software is different

Posted Nov 16, 2012 11:08 UTC (Fri) by pboddie (guest, #50784) [Link]

please point out ANYWHERE that I have said that patents are a good idea for software?

I didn't think I claimed that you did.

People are not advocating the end of private research, but they are advocating the end to the way that private research pays off. Unless other reward mechanisms are created, that's effectively the same thing.

I was just saying that there might be something other than patents that also rewards people and even works better than patents. This is worth exploring because even if we eliminate patents on software right now, we'll end up having a discussion in a few years about why software isn't subject to patents, and then we're back where we started. By widening the discussion to the general topic of rewards for discovering things, we can acknowledge that patents do not themselves have a monopoly in this field, either.

why software is different

Posted Nov 14, 2012 19:18 UTC (Wed) by dlang (subscriber, #313) [Link]

> The patent system just lets people hold society to ransom: it's the opposite extreme to the person who refuses to disclose how they did something and who takes that knowledge to the grave. We need to find (or rediscover) other incentives that help society to progress as rapidly as possible without needless duplication of effort and without needlessly obstructing access to humanity's shared knowledge.

The question is how high is the probability that someone else would invent the same thing.

If it's a very high probability, then patents are bad (the "hold society to ransom" part)

If it's a very low probability, then it's the "takes that knowledge to the grave" issue and patents are a very good deal for society. The knowledge is available, just after a 'short' timeframe.

In the drug industry, the investment to get a drug approved is very high, chances success for any individual drug are low, so it's arguable that companies will not go through all this expense if they don't have some way to be confident that when they _do_ find something that works, they can earn the money back.

In the software field, the cost of inventing something is _very_ low, and it's almost always done as part of a project that has other benefits to the inventor. As a result, the invention would be done with, or without, a patent at the end of it.

why software is different

Posted Nov 15, 2012 8:37 UTC (Thu) by simlo (guest, #10866) [Link]

The current problems with software patents are:

1) They are granted on small, low cost inventions, where others "invent" the same thing. The later should indicate that they are simply not novel and inventive enough to be patentable.

2) Tons of them are hidden inside a product, so you don't stand a chance of knowing what is patented and what is not.

3) Software patents are simply not needed to drive the software business: Without patents the products are copyrighted and that is incentive enough to keep producing software. There is no need to have a patent market around software as opposed to the drugs industry.

But what strikes me as a difference is that a in the drug industry a product more or less corresponds to one patent. That patent will only block copying of that single product - a specific treatment - not a lot of other product which happens to use the same technology.

Are we back a demanding a more or less one-to-one relation between products and patents? In software the small incremental inventions can not carry a product and shall therefore not be a patentable. In the drug industry a discovered drug is product and therefore patentable. But if one invents some algorithm of say making picture manipulation, and can make a business case around selling it as say plugings for Photoshop or Gimp, why should he not get the same patent protection as the drug company?

why software is different

Posted Nov 25, 2012 2:08 UTC (Sun) by steffen780 (guest, #68142) [Link]

> But what strikes me as a difference is that a in the drug industry a product more or less corresponds to one patent. That patent will only block copying of that single product - a specific treatment - not a lot of other product which happens to use the same technology.

Completely inaccurate, and in any case I don't see the relevance. Coming up with the treatments isn't even the issue in a lot of cases - delivering the treatment without killing the patient (or causing other unacceptable damage to him/her) is. Why should copyright on treatments not be sufficient?
And whilst arguing for drug patents keep in mind that drug companies are more than just notorious. It is standard procedure for them to publish only successful trials, but not the unsuccessful ones; I won't even start on pure BS like "restless leg syndrome". They spend (much) more on marketing than on R&D - and they don't get patents on marketing, why should they get patents on a much smaller cost factor?

why software is different

Posted Nov 25, 2012 2:11 UTC (Sun) by steffen780 (guest, #68142) [Link]

Just a small addendum, I am actually in favour of concentrating on software patents. There the ratio of damage compared to the virtually complete lack of any benefit appears to be highest. But patents are a terrible idea in general.

why software is different

Posted Nov 25, 2012 2:23 UTC (Sun) by Cyberax (✭ supporter ✭, #52523) [Link]

> Completely inaccurate, and in any case I don't see the relevance. Coming up with the treatments isn't even the issue in a lot of cases - delivering the treatment without killing the patient (or causing other unacceptable damage to him/her) is. Why should copyright on treatments not be sufficient?
What is the difference between a 'drug' and a 'treatment'?

>It is standard procedure for them to publish only successful trials, but not the unsuccessful ones
Pure BS.

Every drug before being granted an FDA approval must pass through public trials. Their results are, well, public ( http://clinicaltrials.gov/ ).

Companies are free to do their own post-approval trials for their own purposes, and they are not forced to publish their results. But so what?

why software is different

Posted Nov 25, 2012 4:35 UTC (Sun) by viro (subscriber, #7872) [Link]

That's one hell of a serious accusation. Selectively publishing only successful trials is an outright fraud, and very likely a literally deadly one, at that. Do you have specific examples? Details, please - not on the "everyone knows" or "such and such quack webshite says" level. This is not to say that fraud doesn't happen or that it's effectively punished (hell, Andy Wakefield is still out of jail - the bastard has gotten away with merely losing his UK license and this fraud has lead to hundreds of dead bodies), but if some company has been caught at what you describe, I'd rather be aware of that. To stay away from any stuff they'd developed, if nothing else. Verifiable proof, please.

why software is different

Posted Nov 25, 2012 11:35 UTC (Sun) by dark (guest, #8483) [Link]

Bad Science has a couple of summary articles with links to the data: http://www.badscience.net/category/hiding-data/

He's looking primarily at the UK regulatory situation but the problem is worldwide. I'm afraid it's systemic, not just "some company".

why software is different

Posted Nov 25, 2012 11:53 UTC (Sun) by Cyberax (✭ supporter ✭, #52523) [Link]

That's a bit different. Companies may creatively bend post-approval trials (for new drug uses) and/or not be sufficiently transparent.

But that can happen only _after_ the drug approval. FDA takes a very dim view on any data manipulation in approval trials. In fact, that's the reason these trials cost hundreds of millions of dollars.

And FDA (unlike USPTO) is decidedly NOT a "rubber-stamping" agency. FDA delights in denying approval for drugs on which companies could have spent billions of dollars.

why software is different

Posted Nov 26, 2012 15:10 UTC (Mon) by etienne (guest, #25256) [Link]

I do not know anything about this subject, but have seen not long ago on a BBC TV documentary some strange practices to approve drugs in India, and if I remember well it was not only for drugs to be sold inside India.
Only links I can find right now:
http://www.bbc.co.uk/news/magazine-20136654
http://www.reuters.com/article/2012/05/10/drugs-india-bri...
http://www.bbc.co.uk/news/world-asia-india-18018158

why software is different

Posted Nov 26, 2012 17:25 UTC (Mon) by bronson (subscriber, #4806) [Link]

Here's a good article showing how data manipulation isn't even needed. The companies stage the tests so the desired results are just significant and any heart problems or complications are hidden in the noise.

http://www.washingtonpost.com/business/economy/as-drug-in...

And it very much happens pre-approval.

why software is different

Posted Nov 26, 2012 17:45 UTC (Mon) by Cyberax (✭ supporter ✭, #52523) [Link]

Link doesn't work. But I very much doubt that wishful thinking of drug companies makes much difference in FDA approval. More likely, they just tend to overlook drug complications and exaggerate efficacy.

There were even a couple cases where the company was amazed that drug don't work after the controlled first or second phases of trials.

why software is different

Posted Nov 26, 2012 20:30 UTC (Mon) by bronson (subscriber, #4806) [Link]

Another attempt: http://www.washingtonpost.com/business/economy/as-drug-in... Definitely worth a read.

And if that link doesn't, work, the Washington Post might as well put all its content behind a paywall because I sure can't figure it out. Maybe they need a "Send a free link" button...?

why software is different

Posted Nov 27, 2012 0:45 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link]

Avandia is a very well known case. Media portrays it as if underhanded executives in GSK overlooked possible risks during its development.

But in reality similar risks are inherent in most of drug development, and there simply won't be any new drugs on the market if ALL risks were required to be zero. The additional risk of avandia is significant, but not really that great compared to risks of alternative medications (they are really not good enough), that's why the FDA let it remain on the market.

If you follow the drug industry then there are much more hilarious stories. Like finding out that your drug actually makes things worse for patients after the Phase II of clinical trials (at first company executives thought that the control group and the treatment group were mixed up).

Drug development is HARD.

why software is different

Posted Nov 27, 2012 11:03 UTC (Tue) by hummassa (subscriber, #307) [Link]

> But in reality similar risks are inherent in most of drug development, and there simply won't be any new drugs on the market if ALL risks were required to be zero.

Yes! and let's not forget that "no new drugs on the market" incurs in a casualty penalty also... Even if a new drug kills or maims 1% of the patients, if it also saves the lives of 10% of them, what should be the decision?

why software is different

Posted Nov 27, 2012 15:11 UTC (Tue) by mathstuf (subscriber, #69389) [Link]

It means that it's useless for 89.1% of the patients. The target of the drug better have a high fatality rate (to justify the 1% "bad stuff" rate) and low false positive (to justify the 9.9% efficacy plus the cost) to justify its use. Numbers should always be taken in context :) .

why software is different

Posted Dec 12, 2012 10:50 UTC (Wed) by hummassa (subscriber, #307) [Link]

A useless drug (as opposed to a killing drug) is a good drug.

if you have 1000 patients, half of them sick and the other half misdiagnosed:

* with the "useless" drug: 10 of them will die (because of the side effects of the drug, will kill 1% of the patients).

* without the "useless" drug: 50 of them will die (because the drug would have saved 10% of the really sick patients).

why software is different

Posted Dec 12, 2012 10:58 UTC (Wed) by hummassa (subscriber, #307) [Link]

I should go without saying that I mean "N people will die" DURING the treatment. All of them will die, of course.

why software is different

Posted Dec 12, 2012 10:59 UTC (Wed) by hummassa (subscriber, #307) [Link]

Again: IT should go without saying...

why software is different

Posted Dec 12, 2012 11:59 UTC (Wed) by mpr22 (subscriber, #60784) [Link]

We haven't in this example been told what the disease's fatality rate under the current standard-of-care treatment is, or even if there is a current standard-of-care treatment other than "nutrients, fluids, painkillers, and rest".

why software is different

Posted Nov 25, 2012 13:55 UTC (Sun) by paulj (subscriber, #341) [Link]

Someone else pointed at Ben Goldacre's "Bad Science" page. Note he has a book "Bad Pharma", a large chunk of which is about selective publication practices of the pharmaceutical industry. Well worth reading.


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