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Patent Trolls In Biotechnology

timothy posted more than 2 years ago | from the just-wait-'til-they-patent-mitosis dept.

Biotech 50

GNUman writes "A news story in this week's Nature Journal talks about patent trolls attacking biotech companies. They cite a case in which the U.S. federal court of appeals upheld 'a patent that covered the idea of trying to link infant vaccination with later immune disorders.' The news story also references an interesting article from researchers at Boston University School of Law (Bessen, James E. et al, 2011, 'The Private and Social Costs of Patent Trolls'), in which they analyze the effect of litigation on the wealth of the defendants via their stock's value before and after litigation, and given that such loss minimally translates into an increment in the wealth of the inventor, they determine that patent litigation harms society and removes incentives for innovation."

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Tell me it ain't so... (1)

Genda (560240) | more than 2 years ago | (#37557910)

Patent litigator harm society and remove incentive for innovation?!!! That goes against everything I've ever heard about the patent process!!! Why would our government allow such a thing to be?

Re:Tell me it ain't so... (1)

jc42 (318812) | more than 2 years ago | (#37562322)

Patent litigator harm society and remove incentive for innovation?!!! That goes against everything I've ever heard about the patent process!!! Why would our government allow such a thing to be?

Well, now; it appears that you fell for that old bit of social propaganda.

Anyone who has actually read any of the many histories about patent (and copyright) law understands quite well that the intent from the start has been to block any profits that might be gained from innovation. Or even better, divert the profits to lawyers and government agencies.

Where did people ever get the silly idea that patents encourage innovation? Why would anyone believe such a claim, when all our experience is the opposite? Patent is a legal concept. That's all you need to know, to figure out who it's intended to benefit.

Patents are unnecesary (0)

Anonymous Coward | more than 2 years ago | (#37557936)

Get rid of them.

Re:Patents are unnecesary (1)

Ironchew (1069966) | more than 2 years ago | (#37558198)

Patents are supposed to incentivize inventors to release documentation of their invention to the public domain. Yes, the patent system is horribly broken and in desperate need of real reform, but public knowledge would suffer a severe setback if patents disappeared entirely (replaced by trade secrets, no doubt).

Re:Patents are unnecesary (3, Interesting)

JesseMcDonald (536341) | more than 2 years ago | (#37558286)

Trade secrets would be preferable. At least then you could use whatever you can learn from reverse-engineering.

Very few trade secrets have ever been kept successfully for long. Some inventions might be locked up indefinitely, but most would probably be re-discovered or reverse-engineered long before a hypothetical patent would have expired.

Re:Patents are unnecesary (2)

sourcerror (1718066) | more than 2 years ago | (#37559540)

So companies wouldn't get sued for patent infringement, but invidual engineers for causing loss of profits by leaking secrets. Expect to see even worse NDA and noncompete clauses in employeed contracts.

Re:Patents are unnecesary (1)

JesseMcDonald (536341) | more than 2 years ago | (#37561164)

I never said anything about "leaking" trade secrets. Even if everyone adheres to their NDAs, it is still likely that the invention will be rediscovered independently or reverse-engineered by someone with no privileged inside information.

Anyway, NDAs and non-compete clauses are standard even with patents. No one puts all the details in the patent application if they can avoid it.

Re:Patents are unnecesary (1)

Runaway1956 (1322357) | more than 2 years ago | (#37561974)

No, trade secrets would not be preferable. If I must reverse engineer something before I can understand it, then I must first acquire one or more samples of the item I wish to reverse engineer. That may not be much of an obstacle in the case of trinkets and toys - but it could be a severe obstacle if I'm trying to design a better automotive engine, or a better suspension system. And, aviation? I can't afford a single jet engine, let alone an aircraft.

Patents are great - as they existed in the first half of the twentieth century. By the 1960's, things had started downhill, and by the 90's patent law was in the toilet. Today, the toilet is stopped up, and can't even be flushed.

Re:Patents are unnecesary (1)

JesseMcDonald (536341) | more than 2 years ago | (#37562580)

Anyone designing something expensive, as in your examples, will need the resources to construct prototypes (probably many prototypes) for testing, if the design is to advance beyond the theoretical stage. If you can afford to have prototypes built you can probably afford a model already in production as well. Anyway, it's not like you have to keep the model after you're done studying it—buy it used, and sell it afterward in essentially the same condition.

Not to mention, of course, that people tend not to design improvements for things they've only read about in patent applications. They mostly enhance what they already have access to.

Patents are unjust to the core, and always have been. Inherent to the concept of the patent is the application of physical coercion via the law to punish someone for using what knowledge they have, whether independently discovered, taught, or leaved through reverse-engineering. So far as I am concerned, the use of physical coercion for any cause short of a response to deliberate harm is clearly wrong, however noble the intent.

Re:Patents are unnecesary (1)

cduffy (652) | more than 2 years ago | (#37568480)

If I must reverse engineer something before I can understand it, then I must first acquire one or more samples of the item I wish to reverse engineer.

Have you ever actually been part of a company with something you think is unique and valuable and are trying to protect from reverse engineering?

A much bigger concern than a competitor buying your unit directly is one of your legitimate customers being on friendly terms with a competitor and giving them access to borrow the device for a weekend or send some engineers by to prod at it. If you're intending to be in the $FOO industry, you'd best have a network of contacts there, after all, or how would you expect to sell your device or get customer feedback even if you built it?

Re:Patents are unnecesary (1)

Runaway1956 (1322357) | more than 2 years ago | (#37569406)

Yes, and no. Every production document that I've ever handled says "confidential" on it. We're not supposed to take pictures at work. There are a lot of "secrets" involved in our production. But - our items are sold across the nation - actually around the world. China actually produces some of our stuff, other things have been produced there, and pulled from there, back to the states. Other items have been produced in Europe, before being sent to us for production.

Whatever "trade secrets" we have, have been passed around like the most popular girl in slut school. Not very "secret" at all, really.

As for reverse engineering our stuff - anyone with a good camera and CAD setup could do it. The most expensive part of the job would be producing the molds, with which to produce the various parts we make. Assembly is nothing, of course - the market is flooded with semi-skilled labor.

Re:Patents are unnecesary (2)

sjames (1099) | more than 2 years ago | (#37558830)

That implies that trivia reverse engineering should be added to the list of disqualifications on patents. Why should society pay such a hefty price for readily available information. It's like buying gourmet tap water.

Re:Patents are unnecesary (1)

Runaway1956 (1322357) | more than 2 years ago | (#37561994)

LMAO - as a nation, we DO pay for gourmet tap water! Take a serious look at all the bottles of water sitting on your grocer's shelves, and at the convenience stores. Many of them come from city water supplies.

And, of those bottlers that actually have a spring(s) or an aquifer or whatever, many of those are in no way superior to common well water.

Damn, you just pointed out how stupid Americans really are!

Re:Patents are unnecesary (1)

bbtom (581232) | more than 2 years ago | (#37564306)

They have one major advantage to tap water: they are often available in places where you can't get tap water. If I'm rushing for a train, I can hop into a shop, grab a bottle of water and get on the train. Sadly, my local friendly city authorities have decided that publicly usable taps == evil socialist communism.

Re:Patents are unnecesary (0)

Anonymous Coward | more than 2 years ago | (#37561808)

I need help to know If I understand this correctly: Under this patent, if adverse events associated with drug interactions, and potential steps that may be taken to avoid said events, are published without paying a license fee to Dr. John B. Classen of Classen Immunotherapies, the publisher is infringing and is liable for damages?

Would this not imply that my own life, or that of a loved one is at much greater risk, as these warnings and/or information regarding alternative treatment regimens are withheld as a result of litigation by Dr. Classen? Have I misinterpreted what I have read at the bottom of patenting adverse events [vaccines.net] ?

If this is truly the case, a line far beyond others in this category has been crossed.

Sociopathic parasites of this extreme have been tolerated for far too long. It is time for a change.

And right above this story... (0)

Anonymous Coward | more than 2 years ago | (#37558026)

...I see this ad:

Japanese Patent Attorney
patent law firm in Japan provides Intellectual Property services

OH TEH IRONY.

Re:And right above this story... (1)

gilleain (1310105) | more than 2 years ago | (#37558472)

Well, "OH THE COINCIDENCE!", really.

Except, ads are targeted, so "OH THE CORRELATION!" is more like it.

Can someone please tell me... (1)

Splitterside (1983872) | more than 2 years ago | (#37558048)

why we are letting the government allow patent trolls to exist? They are a leech to the tech and innovation world. Here's a thought, you can only have claim in court to a patent infringement if you currently have or have significant evidence of working on a product that uses that patent. This would get rid of patent trolls that just sit on patents to sue people and companies.

Re:Can someone please tell me... (1)

watermark (913726) | more than 2 years ago | (#37558132)

What about universities that do research? Many widely used technologies came from university R&D and most of them have no intention of actually implementing what they're researching. I think the issue is more with what can be patented and how long items can be patented.

Re:Can someone please tell me... (1)

Splitterside (1983872) | more than 2 years ago | (#37558186)

I meant my comment to pertain more to the private sector and not the public sector like schools and government agencies like NASA.

Re:Can someone please tell me... (1)

0123456 (636235) | more than 2 years ago | (#37558396)

What about universities that do research? Many widely used technologies came from university R&D and most of them have no intention of actually implementing what they're researching.

The question then is, would that research otherwise have been done by a company which _was_ intending to make use of it?

Re:Can someone please tell me... (0)

Anonymous Coward | more than 2 years ago | (#37558512)

Universities are paid for with public tax money. Everything a university does should be in the public domain.

Re:Can someone please tell me... (0)

Anonymous Coward | more than 2 years ago | (#37559212)

Fine with me...provided you relentlessly hound your state representative, senators, and governor with demands that your taxes be raised to adequately fund your state universities. Until then, patents provide universities with badly needed cash. Or do you want tuition to rise even higher and faster?

Re:Can someone please tell me... (0)

Anonymous Coward | more than 2 years ago | (#37560076)

But contrary to patent trolls the universities that hold patents generally at least did the R&D behind the patent.

So, Splitterside's proposal can easily be modified to accommodate the universities as well:

"... you can only have claim in court to a patent infringement if you currently have or have significant evidence of working on a product that uses that patent OR if the claimant is the original assignee of the patent..." (text after the 'OR' was added to the original proposal)

The 'original assignee' typically is either the inventor, or the organization that paid the inventors salary or which paid for the research.

I think this should cover patent trolls?

Re:Can someone please tell me... (1)

sjames (1099) | more than 2 years ago | (#37560862)

Quite commonly they become significant stockholders in a new or existing venture to further develop and put the patent into production, so they aren't non-practicing.

Re:Can someone please tell me... (1)

Runaway1956 (1322357) | more than 2 years ago | (#37562012)

Aren't most college and university R&D discoveries released to the public? I always thought that state funded schools discoveries became the property of the people who fund those schools, ie, the taxpayer. Am I living in a dream world, or what?

Re:Can someone please tell me... (2)

Hatta (162192) | more than 2 years ago | (#37559700)

Because large corporations are less vulnerable to patent trolls than small organizations. This creates a barrier to entry for that market, entrenching the large corporation. Since our government is wholly owned by large corporations we get the kind of law that benefits large corporations.

Patenting the concept of research.. (1)

RightSaidFred99 (874576) | more than 2 years ago | (#37558108)

I wonder if all those polling companies (Gallup, Rasmussen, etc...) have their ducks in a row, because I'm about to go medieval on their asses.

"Process for the use of inquiry to determine prevailing public opinion on a manner of issues relevant to the interests of various media interests including but not limited to advertisers, news agencies, and political organizations."

Pay up, bitches.

Re:Patenting the concept of research.. (1)

jd2112 (1535857) | more than 2 years ago | (#37558774)

I wonder if all those polling companies (Gallup, Rasmussen, etc...) have their ducks in a row, because I'm about to go medieval on their asses.

"Process for the use of inquiry to determine prevailing public opinion on a manner of issues relevant to the interests of various media interests including but not limited to advertisers, news agencies, and political organizations."

Pay up, bitches.

There is prior art for that. Better add "using a communication netwok" or "using a mobile device" to your patent application.

*facedesk* (2)

JustAnotherIdiot (1980292) | more than 2 years ago | (#37558112)

You know, it's one thing to troll companies and other entities who's sole purpose is to make money off the backs of customers, but this is just...ugh...

Re:*facedesk* (1)

FunPika (1551249) | more than 2 years ago | (#37558630)

Meh, no one will bother to do anything until someone influential actually dies due to patents hindering the innovations needed to save their life. Yeah that will take awhile, in the mean time Congress will do nothing when the more likely event of some random person who is lower/middle class dies due to patents.

Re:*facedesk* (0)

Anonymous Coward | more than 2 years ago | (#37559404)

Personally, I think this is wonderful. Once big pharma gets bitten in the ass a few times by this sort of behavior then we will see some real changes in the system. I am sure it will not be a change that will guarantee the benefits to the big guys at the expense of others. Surely our representatives in DC would not do that....

Monsanto anyone? (2, Insightful)

maxwellmath (2453528) | more than 2 years ago | (#37558182)

I believe that monsanto might be considered under the category of biotechnology. They are the biggest patent troll I know of; holding patents on life its self.

Re:Monsanto anyone? (3, Informative)

dkleinsc (563838) | more than 2 years ago | (#37558522)

Most notably, Monsanto has sued farmers because their crops (which were not Monsanto seeds) reproduced with pollen blown in from the neighbor's farm. Apparently, patent law trumps laws of nature, at least when it comes to assessing damages, because Monsanto has won those cases.

This despite the farmer's counterpoint that Monsanto's terminator gene was contaminating their crop, quite against the will of the farmer.

Re:Monsanto anyone? (0)

Anonymous Coward | more than 2 years ago | (#37559050)

While I agree that Monsanto is about as evil as a corporation can get, in every one of these cases the farmer knowingly selected for Monsanto's genes. In on of the most famous cases, the farmer sprayed his seed crop with RoundUp. The courts have found these are not innocent accidents.

Re:Monsanto anyone? (2)

sjames (1099) | more than 2 years ago | (#37561046)

The farmer knowingly selected a desirable trait. Since they did no genetic analysis (and had no ability to do so), they didn't necessarily know it was from Monsanto GM crops (Monsanto did not create the gene from scratch, they just crammed it into the genomes of several food plants). It's noteworthy that the farmers were following all of the laws applying to proprietary hybrid seeds. That is, they are permitted to enjoy the benefit of such hybrids cross pollinating with their own strains (if the hybrid isn't sterile, of course).

Monsanto used big legal teams and abuse of patents to turn centuries of agricultural law on it's ear.

The waters are even muddier now that Monsanto canola has passed it's roundup readiness on to closely related wild plants in several states AND researchers have successfully bred roundup resistant plants without resorting to recombinant DNA techniques. Can they really lay claim to a gene in it's wild form?

Re:Monsanto anyone? (0)

Anonymous Coward | more than 2 years ago | (#37560520)

This despite the farmer's counterpoint that Monsanto's terminator gene was contaminating their crop

If it was the terminator gene, then they wouldn't have that problem, would they? If that gene were used, when pollen drifts it would block those seeds from germinating. In theory, everyone's happen, but in practice, the anti-GMO nutters go apeshit about some corporate conspiracy (and since most people know bugger all about agriculture, it sticks). Besides, no one has been sued for that; they were sued for intentionally selecting for the gene. It would be like if you could record music from another person's radio (in high quality) then put ti on a CD and sell it. Is that a case of patent law trumping sound waves? We can talk about patents all day long, but those occurrences were not accidental, including the most famous one concerning one Percy Schmeiser, who coveted GMO seed, didn't want to pay for it, got caught, then took the opportunity to play victim and become the darling of the anti-GMO movement (so now he gets to go all over and give pretty little speeches about how the thing he got caught trying to get is so bad). IIRC these cases are caught because they were buying loads of the herbicide the GMOs were resistant to).

Re:Monsanto anyone? (1)

sjames (1099) | more than 2 years ago | (#37561066)

The terminator gene creates a far more insidious problem. It causes a farmer's crop to mysteriously fail the next year.

Re:Monsanto anyone? (0)

Anonymous Coward | more than 2 years ago | (#37568494)

You mean like hybrid seed tends to do after the first generation? The seed that almost everyone uses, that all GMO seed is sold as? The seed you'd find on the outskirts of your field anyway, GMO or not, if you don't take measures to prevent cross pollination if you plan on saving your seed?

Re:Monsanto anyone? (2)

Rich0 (548339) | more than 2 years ago | (#37558566)

They're not really a patent troll - they actually make the stuff they patent.

A patent troll is somebody whose main business model is collecting license fees from things that OTHERS do, largely because they filed a patent on something that is easy to put into words and hard to put into practice.

You don't have to agree with Terminator Genes and all that stuff, but the fact is that they actually do make that stuff and you can buy it from them if you want it.

No, a patent troll is the guy who sues you for playing video on your cell phone, when they've never made a phone, media player application, or video format in their life.

Re:Monsanto anyone? (1)

sjames (1099) | more than 2 years ago | (#37561088)

Monsanto isn't a troll, but they have a number of troll like trait such as laying claim to seeds they didn't produce and that weren't produced through GM techniques.

Otherwise, their brand of evil has other names.

Immune Disorders (1)

medv4380 (1604309) | more than 2 years ago | (#37558490)

Is he claiming to have caused Immune Disorder diseases like Rheumatoid Arthritis? If not I say we give him credit for creating them for getting such an absurd patent.

As someone who at 27 was sued for my patents (0)

Anonymous Coward | more than 2 years ago | (#37558764)

And lost.

And is still trying to recover from the debt and stress.

I completely agree. I will never research or innovate in this country again. My wife regularly encourages me to pursue ideas but frankly, why should I? The legal system favors lawyers and bullies. I'd rather just collect my paycheck and move away when I'm done. I can't innovate.

Maybe I'm cynical, broken or a quitter. Don't judge me unless you've been sued and bullied out of your life's work then made to pay the bills to someone with 1/4th the talent, 1/10000th the creativity, 1-millionth the intelligence but 5000 times the cash on hand.

So yeah. Screw the system. Its not designed for you. Its designed for them to keep them in power.

Re:As someone who at 27 was sued for my patents (1)

chronoglass (1353185) | more than 2 years ago | (#37560430)

you read these stories all the time, but never see it slap ya in the face like that.. I'm sorry. that just really sucks.

I hereby patent (1)

Gripp (1969738) | more than 2 years ago | (#37559254)

I'm going to patent the concept of patenting vague things that can't be possibly invented yet, much less by my company and/or self. this way i will get loyalties every time one of these trolls files such a patent. further, the patent will include the concept of sueing those who actually manage to create the concept so that i get to skim a little of the top of each lawsuit :)

True, but false (1)

inviolet (797804) | more than 2 years ago | (#37559560)

The news story also references an interesting article from researchers at Boston University School of Law (Bessen, James E. et al, 2011, 'The Private and Social Costs of Patent Trolls'), in which they analyze the effect of litigation on the wealth of the defendants via their stock's value before and after litigation, and given that such loss minimally translates into an increment in the wealth of the inventor, they determine that patent litigation harms society and removes incentives for innovation."

They find that litigation is a net financial loss, but they aren't including the attorney's fees, which probably balance it out to a net zero. However, an analysis of the movements of money is not sociologically interesting.

What is more interesting, is an analysis of the movements of wealth. First there is the matter of squandered wealth on the court proceeding itself, because that is a lot of manhours spent in producing useless arrangements of words on paper. And then there is the more serious question of who is using the wealth-behind-the-money more effectively... i.e. what was the defendent spending the money on versus what does the plaintiff end up spending the money on? Do plaintiffs invest their settlements into something comparably productive?

Remember, money is not wealth. Money is control of wealth. Moving money from wise hands into profligate hands is usually a net social loss.

Also, the article's implication is a non-sequitur. While it is true that patent trolling is a financial drag on the system, it does not follow that removing patents is a win. Without patents there would be problems with espionage, and the useless dissipation of wealth in protecting trade secrets. However, the implication does not follow; it is NOT true that ending patents would

Federal Circuit case mentioned in TFS (1)

Dachannien (617929) | more than 2 years ago | (#37561276)

It should be noted that the CAFC case mentioned above was narrowly confined to the issue of patentable subject matter under 35 USC 101. The case was remanded to the district court for further proceedings concerning enforceability relative to prior art (among other things). The defendant was hoping for a quick and cheap resolution, but it looks like that won't happen in this case.

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