New Patent Treaty 104
Alan Cox was kind enough to inform us of a new patent treaty proposed by the World Trade Organization. This Channel 4 news story shows the indirect effect on the cocoa industry. The agreement, Trade Related Intellectual Property Rights (TRIPS), the text of which can be read here, allows virtually anything, including genes to be patented. The possible ramifications of this are huge, and it raises plenty of questions about concepts of "intellectual property".
humans as patent infringments?! (Score:1)
This is scaryyyy stuff.
NilStar*
HR 1907 passed with no debate allowed (Score:1)
I just read a trobling article on the same issue in December "Analog, Science Fiction and Fact", "The Patent Wars" by John D Trudel. He talks a lot from his book "Engines of Prosperity" and has a view I don't agree with. He does make a good case for the way this issue is getting influenced, foreign goverments, lobbyists, short term goals. Japan has been a force.
The current attempt to bring TRIPS to law passed the House under a "suspension of the rules" that barred debate and forced yes/no. Trudel made the point that few members were able to even read the bill, let alone poll constituents.
Voting on a bill you can't read first? Some provisions seem to include a kind of 'privatizing' the PTO and taking it out of the authority of Congress and GAO.
http:/thomas.loc.gov/ for the text of HR1907.
Some link at authors page:http://www.trudelgroup.com
IP laws ill-suited for non-commercial activities (Score:1)
"You can't patent what's already happening in nature." Correct; you can't. I doubt anybody is doing it. They are, however, patenting the use of biological processes for commercial or industrial purposes, including the processes of DNA replication and protein production. You can't simply patent the existance of some genetically engineered bacteria just because you made it; you rather patent the use of said bacteria for some purpose, say processing of chemical waste, a highly industrial activity. I have no problem with this, whether legal or moral.
The important point here is that "just any" purpose doesn't count. The method must be commercially useful, in that it helps you to perform your task in a cheaper or otherwise better way than would be possible without the invention. This assumes that the purpose must be of commercial interest in the first place. The cleaning of toxic waste certainly has a business potential. Human reproduction hasn't, at least not until we have legalized slavery or cannibalism (so that there would be a commercial incentive for someone to produce more or bigger humans). Therefore, you shouldn't worry that some big corporation is going to take away your freedom to reproduce, just because they have patented the use of some miniscule part of the human genome for an entirely different purpose, say transplant engineering. A patent in this field is supposed to prevent one company from using the industrial method developed by another, without contributing to the development costs. It doesn't prevent nature from doing more or less the same thing, since Mother Nature isn't a legal subject.
There are valid concerns against big corporations using the patent system to interfere with the freedom of farmers to continue producing the same crops they have produced for years without any thoughts on patents, but the fact that the patents relate to biotechnology is irrelevant to those concerns.
"You can't patent mere information." Correct again. Who said you could?
"It's illegal to publish source code implementing patented methods." Well, I'd say that's at least debatable. I know there are cases of lawyers bullying people to stop distributing software "infringing" on some patents, but has any of those cases been tested in court? As long as there is no clear verdict on the issue, I don't think it's a good idea to help the IP lawyers promote what may be nothing but a legal myth.
By analogy with earlier patents, the monopoly granted by a software patent should apply to the use of said software in a commercial application, say a business web server, and not to the mere distribution of the software itself, i.e. a particular technical description of the patent. As long as I don't run the code myself, but merely write it for others to run, how can I be found guilty of infringement if I can't even tell whether the code will be used commercially? If it's used on a solely non-commercial basis, what grounds are there to claim infringement by anybody?
That said, I still think software patents are a bad idea, because the patent system seems to be incompatible with the way the software industry works (which is not the way software industry lawyers believe it works). I just don't want software patents to infringe upon my right to free speech in non-commercial contexts, should they ever be accepted.
As usual, IANAL.
Re: patent lifetime (Score:1)
20 years is already too long for ANY patent. I think 10 years is probably right for most. Software patents should get more like 2 or 3 years. Having differing lengths of time for different types of patents would be good.
Re:Life Patenting (Score:1)
Excellent links.
The whole concept of patenting genetic algorythms (and chemical structures) seems highly suspect to me, but I imagine that the forces that support them are extremely well connected and well funded.
I'm pretty much for in favor of the WTO keeping a hands off approach to issues that touch Environmental or Social issues directly, but I don't see a way around this when it comes to patents. The whole TIPS thing seems very problematic, and I'm glad it came across slashdot.
Re:Nope. (Score:1)
Absolutely. That was what I was trying to say. (Like I said, there are probably people who are WAY better at constitutional interpretation than me, but I have not been corrected to date). =)
Thus a Treaty overrides state law, but not the US Constitution.
Sorry to be ambiguous, I'm a bad communicator. =(
Re:History is repleat: Patents stifle development (Score:1)
Please don't take this wrong, since I side with "the other guy", but I'm going to take this on in hopes you can educate me. :)
The fact is that the nations without a good patent system have no significant home developed technologies.
Are you suggesting that the countries listed have no significant (homegrown) "technologies"? I would think that the innovation in countries such as this would be of a more incremental nature (since they can just rip off the truely technological leaping advancements), but I see incremental innovation as an important kind of innovation to society as a whole. I guess I would like to say that these countries would effectively specialize in incremental innovation, giving them some efficiency gains in that area which could be realized as other countries copied the ideas back.
True enough - BUT the DEVELOPMENT of new products is usually colored by the issue of patentability. XYZ Inc. is NOT going to sink $500 million in R&D...[snip]...Without patents industrial R&D spending would decline in the US to 20% of it's current levels.
Can you give me some sources for these numbers? I have been looking for evidence to support my arguments against patents and have been unable to find good economic sources on either side of the issue. I think the core of this is that the measurability of innovation is limited to secondary evidences. But again, I have gone looking for any evidence, and so far come up empty handed.
[Discussion on Reverse Engineering]
A couple of things. It isn't clear to me that the legal limitations against reverse engineering are enforceable contract clauses (at least until we passed laws that validated them). I'm sure its arguable on both sides, so I'll leave that alone for now. Also, the concept of trade secret is still valid in the "no patent" world, and to the extent that one can be maintained, the monopolistic gain can be collected. I think the fundamental question is : Do patents speed up technological developement enough justify their social cost?
I guess my big issue is this: All sides of this debate like to talk about things like "300 year records of [ success || failure ]", but I don't see anyone throwing out data, and it seems to me that the anectdotal evidence kinda swings both ways. (My opinion is against patents, but my opinion doesn't count for much- Yet. =) ).
Good posts from both of you...
Re:Exactly (Score:1)
OK, This is probably shitpicking since I think you know what you are talking about, but...
Technically, when you amend the constitution, it counteracts previous content. For example, income taxation was specificly non-constitutional until it was amended into law as a way to pay back our war debts. A treaty, while considered "The Law of The Land" doesn't invalidate limitations explicitely listed in the constitution. Again an example, if the rules against reverse engineering in the Waus* agreement (whatever that thing was called) were found to violate the first amendment, the treaty would be rendered unenforceable within the US.
Again, I think you know this, and I think we are just crossing meanings on "ammend".
Wrong line of work (Score:1)
I should put down that "Linux Unleashed" book, and pick up "IP Law for Dummies" - because it's the lawyers who are going to make all the money in "the new economy".
I wish I had a nickel for every time someone said "Information wants to be free".
In a funny way... (Score:1)
Just a thought...
Re: patent lifetime (Score:1)
also for software (as toofani pointed out) and maybe other areas even 20 years are too much.
Who cares about their profits? Not I. (Score:1)
Its basically allowed to continue because some nifty meme-management by these parasites has convinced people they are honest businessmen desiring protection of their inventions, instead of pirates raiding what has been up 'til now common property.
TRIPS is not new (Score:1)
The US were supposed to comply to it long ago.
Re:Why .. (Score:1)
Replace the bourgeoisie with America in the following:
The bourgeoisie has, through its exploitation of the world market, given a cosmopolitan character to production and consumption in every country. To the great chagrin of reactionaries, it has drawn from under the feet of industry the national ground on which it stood. All old-established national industries have been destroyed or are daily being destroyed. They are dislodged by new industries, whose introduction becomes a life and death question for all civilized nations, by industries that no longer work up indigenous raw material, but raw material drawn from the remotest zones; industries whose products are consumed, not only at home, but in every quarter of the globe. In place of the old wants, satisfied by the production of the country, we find new wants, requiring for their satisfaction the products of distant lands and climes. In place of the old local and national seclusion and self-sufficiency, we have intercourse in every direction, universal inter-dependence of nations. And as in material, so also in intellectual production. The intellectual creations of individual nations become common property. National one-sidedness and narrow-mindedness become more and more impossible, and from the numerous national and local literatures, there arises a world literature.
The bourgeoisie, by the rapid improvement of all instruments of production, by the immensely facilitated means of communication, draws all, even the most barbarian, nations into civilization. The cheap prices of commodities are the heavy artillery with which it forces the barbarians' intensely obstinate hatred of foreigners to capitulate. It compels all nations, on pain of extinction, to adopt the bourgeois mode of production; it compels them to introduce what it calls civilization into their midst, i.e., to become bourgeois themselves. In one word, it creates a world after its own image.
That's why we have the WTO, and why the world is a "global market", or asylum, as you put it so well. Pretty insightful for something written 151 years ago (you know by whom).
Re:Life Patenting (Score:1)
As well as the moral question, there is also the question of 'prior art'.
Re:Life Patenting (Score:1)
Non-obviousness. (Score:1)
More Info (Score:1)
Anyways, realaudio, good listen, usually updated early afternoon on the site.
http://www.webactive.com/pacifica/demnow/
& this is their first day online:
http://www.democracynow.org/
Re:Maybe this is going to far...? (Score:1)
Re:Hello?! Who's patenting *MY* DNA?!?!?!?!?!?! (Score:1)
Motivation to Improve (Score:1)
Re:humans as patent infringments?! (Score:1)
And twiddling one gene is hardly original research, any more than changing a line of code in a C program. Anyone with sufficient knowledge in the field can do it. This is not patent material. Copyrightable, sure, but not patentable.
Patents do not allow someone to reap the monetary rewards from funding a project, they simply prevent others who have also funded research into similar things a chance to reap the fair monetary rewards of _their_ investment. Copyright is ok, but preventing others from doing the same research and reaping the rewards is not good.
Re:Non-obviousness. (Score:1)
The description says non-obvious to someone familiar with the art, not non-obvious to Joe Public.
What consitutes an invention worthy of a patent is a grey area. This thread originally started with a debate about whether or not gene sequences should be patented. A strong argument against this is that gene sequences are not an invention, but fundamentally exist. A similar argument is made against patenting algorithms, or mathematical truths. What would have been the consequences of Isaac Newton patenting F=ma? This has little to do with non-obviousness.
Obviousness is an issue with several software patents. Like the XOR patent(#4,197,590), or the one that covers saving to a buffer the portion of the screen that is being used to display another window(#4,555,775). RMS' seminal paper Against Software Patents [mit.edu] says pretty much everything about this subject.
Then there is the issue of piracy - with companies trying to patent varieties of seeds, plants, medicinal use of natural plants, or, in a particularly egregious case - trying to patent curry [rediff.com].
Re:Life Patenting (Score:1)
The letter of the law(section 102 of the US Constitution) says that patents cannot be granted for ``inventions'' that have US or foreign patents, or appear in the US or foreign publications. In practice, who is going to do a comprehensive check of foreign publications? Is there some mechanism by which patents are put up for scrutiny before they are granted? (I don't know). If the validity of a patent is contested, does it remain in effect till the courts decide to quash it? And if so, does the US(since most multinational companies seem to be US-based) decide to ram it down third-world nations'(those without the clout to fight back) throats through the WTO?
Consider the case of the patents on seeds. Farmers for generations have been keeping aside a portion of their crops for sowing the next year. This may become illegal with the new patent regime. What if some country chooses not to recognise such patents? The WTO rules would not allow that.
I thought that should be obvious: The Ghanaian farmers would lose access to international markets. The Ghana government may decide that the patent does not apply within their country. But what if they tried to sell their products in, say, Europe? Mars would move aggressively to defend their patent. I came across the term biopiracy that so aptly describes this situation.
Re:Life Patenting (Score:1)
Re:Life Patenting (Score:1)
Genes, plants, end products etc. should not be able to be patented, only the specific method of producing said items.
Re:Corporate American Greed (Score:1)
My opinion: If you want to have stupid patents in your country, go ahead, but don't impose your stupidity on the rest of the planet.
Maybe I should just move to China, where I won't have to put up with problems like these. In 10 years I'll have no more rights here than there anyway.
--------
"I already have all the latest software."
Patents - just my view (Score:1)
//rdj
Yes - they can own your whole body! (Score:1)
Yes it does. Not only that, but companies can use patent genes, proteins and other compounds derived from your own body.
I remember a recent case of a guy in the US who appeared to be immune to a rather common disease. A biotech company purchased his blood samples from the doc who reported the case, cloned the antibodies, patented them and made millions and millions of $.
When the guy found out he sued for invasion of privacy and damages. He lost.
Re:First line... (Score:1)
Moderate this down, citizen.
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Re:Life Patenting (Score:1)
You mean sticking them in the ground and throwing water on them? ;>
While the USPTO might grant that patent, I think it would be eventually overturned based on prior art :-)
This will help protect us! (Score:1)
Re:Life Patenting (Score:1)
You'd be hard pressed to find any natural varieties in cash crops. Cross breading is little different from genetic engineering...
But that's it precisely...
With the comparison of cross-breading and genetic engineering, yes there is little difference, but that little difference is important: I can, with little if any equipment or training, cross-bread two plants, it's unlikely that I'll ever be able to do any genetic engineering in my back yard.
Another thing, if I do cross bread I have no idea what genes I'm messing with. I could produce a new type of, say, strawberry I bread it to be sweater and cope with dry conditions, now unbeknownst to me some bio-tech company owns patents on some new combination I bread into my plant. I get hit with a patent infringement suit. Surely that must indicate re-invention, I can't have stolen their ideas if I've never sequenced a gene or seen one of their engineered plants.
I have no problem, in principle, with genetic engineering, however I do have a problem with the licensing lock-in factor. You buy a crop resistant to a particular herbicide, you get locked in to the herbicide, you may not be able to keep seed from year to year you have to keep paying the licence. In non-first world countries this added expense has got to be hurting, to say nothing about what it's doing for bio-diversity. About patents in general.
It seems to me that the whole patent idea is based on industries that develop very slowly. In tech and biotech things move so quickly that 20 years is a joke. OK at the moment the biotech side of things is a bit slower, however I remember an article (sorry can't remember where) that talked of replacing a lab with a bio-chip reducing the required space from tens of square meters to a few square cm allowing work to develop in parallel.
The other side is the current population (6 billion) compared to (1.5 billion) in the late 19th century, so many more people to do the independent invention.
Sometimes I think the only hope is for the whole patent system to collapse under it's own absurdity.
Patents On Genes (Score:1)
Re:Patenting of Genes (Score:1)
Now lets think of this in terms of genetics and biology. All one must do is be the first to come out with the miracle cure for the cold or hiv or anything. Once this miracle drug or gene has been produced that will counteract these ailments, the patent owner can not only charge anything he wants for this treatment, but can prevent any further research based on patent.
Lets say I went out and put a patent on apples. Now you cant make an apple pie, because the patent I own prohibits you from using my apple to make a product based on my product.
LW
Patenting of Genes (Score:1)
Patenting of genes isn't any different then a standard copyright. You create x gene that does x usefull thing and you patent it. Thats no different then someone writing x computer program that does x usefull thing.
However this isn't true when you try to patent a gene that you just found in an organism. For instance the idea of patenting part of the human genome is just abserd. Those genes don't belong to the first person that finds them. They are public domain. The same applies to anyone trying to patent any other living creature that the patente didn't create.
So in all every gene on this planet that exists in any living creature should be public domain. Any other gene thats created by a company in the process of doing business, such as the many treatments in medicine or the many geneticly engineered foods, is something that can be patented so long as the rest of the patent rules apply.
Hello?! Who's patenting *MY* DNA?!?!?!?!?!?! (Score:1)
<satire>This is ludicrous. I am the sole owner of my DNA, and I inherited from my ancestors the exclusive rights to duplicate it in my children. You are infringing my biological property if you try to patent my DNA. You cannot steal my biological property and make it into your intellectual property!!!</satire>
Re:In a funny way... (Score:1)
Patents exist to protect our intellectual property. Naturally, you should not be able to patent almost snything, because that would then broaden and obfuscate (the already obfuscated) debate about what constitutes intellectual property. If you invent something new, you have the right to claim that technology so nobody else can "steal" your intellectual property, in much the same way that you can copyright written text. In either case, if someone copied you, they have stolen your property. In the US, at least, patents wear out after some time to prevent monopolies from forming, but guaranteeing the inventor a reasonable return on investment.
So, no, I don't think the entire idea of patents needs to be rethought at all; the system has been quite successful so far. What needs to be thought is this treaty - specifically what can and cannot be considered new technology that is patent-worthy.
Re:But you can't patent (just) anything! (Score:1)
I once worked at Mars, and have seen their internal guidelines on what they will and won't apply for patents for.
They will apply for patents to protect their intellectual property if there is a chance that the information will enter the public domain by other means. Obviously they invest a significant amount of time and effort in getting this information, why not protect it by any means.
As far as cocoa goes, Mars takes it as a matter of pride that they use solely natural ingredients where available. They would not be using this knowledge unless they were unable to get enough cocoa of good enough quality.
By the way, I don't work for them any more. This is my personal opinion only.
Maybe this is going to far...? (Score:1)
Re:Nope. (Score:1)
Magic of patents (Score:1)
Patent Provisions (Score:1)
I'd say this leaves the patenting of genes to the discretion of the patent office (god help us all...)
Nope. (Score:2)
US Constitution: Article VI, Section 2: (retyped, forgive typos)
This Consitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Consitution or Laws of any State to the Contrary notwistanding.
The relative phrase is "...Constitution or Laws of any State..."
That is state constitution, or state laws.
If I'm wrong: Smack me down, but I think this is a common misconception. Treaties do not override the Federal Constitution.
Actually... (Score:2)
Scene at WTO meeting:
"Hey, man, have you tried this new joint we've bio-engineered? It gives you a different trip in each hemisphere. It's to promote our new patent scheme, TRIPS."
Seriously, the more the rest of society moves away from Intellectual Property and towards free exchange of ideas, the more the multinationals are determined to grab what money they can.
Those who complain about Big Government should stop and think for a moment. Politicians are just plebs, like the rest of us, and at least they can be voted out. There's no ballot box in any of the megacorps, no maximum term of office and no real accountability. (They're accountable to shareholders, sure, but shareholders profit from dodgy, unethical or blatantly illegal practices. You think they're going to complain too loudly?)
Summary (Score:2)
The Mars corporation identified and patented the genes responsible for the flavour and design a process to produce the flavour industrially, independent of growing cocoa.
The result of course is that people will stop buying cocoa from Ghana and instead buy the Ghanaian cocoa flavouring from Mars. So the Ghanaians who spent generations developing the best cocoa in the world are screwed, and the Mars corp makes a packet. And TRIPS means that Ghana HAS to honour the Mars corps patent.
Nick
Patents and time limits (Score:2)
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Protest (Score:2)
My questions -- where's the geek contingent? Since patents are the bane of free software, we should be out there with our own supporting contingent too.
For people in the Seattle area, there's going to be some forums on this TRIPs agreement. I know Ralph Nader's going to be in town for a WTO debate, and I believe he'll be speaking at one of these forums too.
Here's the scoop on this forum series:
No Patents on Life: A Workshop on Biotechnology, Intellectual Property and the Global Economy
Wed, Dec 1, 9:00am-5:00pm Plymouth Congregational Church, 6th and University
Phone: (206) 543-9037
And, of course, come out for the protest! Remember, Tuesday is General Strike day in Seattle. Call in sick, or better yet, have your boss call in Sick too!
Event info is in both of the weeklies (Stranger and Seattle Weekly). You can also stop by the DAN headquarters on the corner of Denny and Olive to get involved with the fun contingent (puppets, civil disobedience, and the like).
The big rally starts tomorrow (Tues) at 10am at Memorial Stadium, with the big march afterwards to the Convention Center at 12:30pm. There's also lots of contingents meeting earlier (eg the DAN contingent is meeting at 7am -- too early for me
Geeks of the world unite! The only we have to lose is our IP and NDA's.
Organisms' Genomes are NOT Intelectual Property (Score:2)
Although, if a company does come up with a new and truly unique gene sequence, not found in nature, then it would be a creation of the mind. This would qualify as intelectual property, and could then be patented. I don't know of any cases of this yet. So far all genetic information comes from the genomes of organisms, we don't have a sophisticated enough understanding of genetic information systems to generate new and usedful genetic sequences.
Andrew N.
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Publish or perish? (Score:2)
Where is the incentive to improve on a published, patented idea/technique? You can gain no monetary income since it is patented by another. In fact, your impovement will be added onto thier own for thier profit.
I really do want to know where is the incentive to improve on a published, patented idea/technique?
Evil megacorp? Check out JUSCANZ (Score:2)
There is a stealthy organisation called JUSCANZ (Japan, US, Canada, Australia, New Zealand) which lobbies for rich businesses against the environment whenever they can. If you haven't heard about them, you are not the only one. Check out this URL for more information.
http://www.igc.org/climate/1.c1.juscanz.html
************************************************ ***
Re:Life Patenting (Score:2)
Consciousness is not what it thinks it is
Thought exists only as an abstraction
Re:Life Patenting (Score:2)
If that's true, then surely US Patents can have no legal validity whatsoever outside the US, with or without the WTO. But then, how can a patent on a cocoa gene taken out by a US company be used against farmers in Ghana?
Either I'm missing something important or else there is a massive inconsistency here. It ought to be a simple matter for each national government to make its own decision about whether to accept or refuse the legal validity of US patents. I had thought these were only recognised when there was some sort of reciprocal arrangement. But the situation you describe doesn't look very reciprocal.
Consciousness is not what it thinks it is
Thought exists only as an abstraction
Re:Life Patenting (Score:2)
But that's it precisely. Would mankind ever have risen out of a nomadic lifestyle if we had been prevented from developing arable crops and domesticated animals? Agriculture would have been impossible and as a result we would never have become civilised; we would still be grubbing about in the dirt for roots, worms and bugs.
If this agreement would take away the right of millions of people to continue a natural, traditional and sustainable means of feeding themselves which they have practised for thousands of years, then it is hideously, unjustifiably wrong no matter who else stands to gain.
And if, in addition, it is deemed essential only to protect the biotechnology industry (which hasn't been around for long and doesn't affect all that many people), then the biotechnology industry is clearly unsustainable and should be abandoned.
This nonsense must be stopped now. I'm sorry, I'm just too choked up about this, there don't seem to be any adequate words to describe my fury.
If this goes through I'll buy no more products from Mars. I don't want to eat genetically modified food anyway, and especially if doing so takes business away from subsistence farmers in poor countries.
Of course the Ghanaian farmer quoted in the article is obviously not a subsistence farmer; he's in the report because he's royalty, he's educated and articulate in English. But cocoa accounts for a major portion of Ghana's exports and many poor farmers grow it. If they lose control of their own plant stock it will be an unmitigated disaster.
BTW I've known a few Ghanaians (all Ashante) and I have the utmost respect for them. They are a truly decent and honourable people (I know it's non-PC to say things like that but then...I'm a non-PC kind of guy). However this isn't just about Ghana. Greedy corporations are attempting to pull the same trick all over the third world.
Vote with your pocket. Buy all the African and Asian produce you can, but buy it raw, not prepackaged by the big multinational corporations. Now I'm off to write a vitriolic email to Mars corp.
Consciousness is not what it thinks it is
Thought exists only as an abstraction
Re:New? (Score:2)
In any event, the TRIPS agreement, what it represents, and what it will do to innovation, is deserving of a tremendous uproar, whatever the underly catalyst.
One hopes that resistance hasn't become futile because of its belatedness.
One also wonders how one mounts effective resistence to international bodies of power with absolutely no democratic accountability and such tremendous authority, backed by the armed might of entire international alliances.
fairly predictable slant (Score:2)
The most obvious deviation that I see is that it requires compilation/database copyrights, something that raises serious concerns for science and other public areas of discourse. It also seems quite unrelated to free trade issues and far beyond the scope of the WTO.
As I read the summary, TRIPS allows the exclusion of many kinds of life forms from patentability. Although this is to be welcomed, it should give us pause to think that the document seems to assume that the WTO, in fact, has the authority to make sweeping decisions in this area.
TRIPS does seem to write into stone a 20 year minimum for patent protection, making any discussions of shortening patent protection for software moot.
I think even thought TRIPS is less serious than it could have been, it pretty clearly goes into a direction that is desired primarily by large multinational corporations, even though many of its provisions are not desired and have actually failed passage in WTO member countries. As such, it is another indication that WTO is far removed from the democratic accountabilities and decision processes by which we set social and economic policies.
TRIPS also looks like an attempt to bring developing countries into line that, so far, have had valid concerns about adopting and enforcing the IP laws of developed countries wholesale.
The WTO looks like a gigantic social and political experiment to me; free trade and global uniformity of regulations has never been tried on that kind of scale. I think slowing down and making the organization more accountable would be good.
Re:humans as patent infringments?! (Score:2)
Continuing, what would be so terribly wrong about letting companies and/or individuals patent their MODIFICATIONS to DNA structures. That way, the naturally occuring version would always be "free", and the modified version would always "cost" in a sense.
I'll go on the record as saying I'm all for patents and other IP protections, but I do think that the current system is (a tad bit
Re:Trading Exponential Progress for Short Term Pro (Score:2)
The alternative to patents is for corporate entities or individuals to keep all of their internal research as secret as possible to prevent competitor's copying their work.
True, but this has nothing to do with the current topic.
The reality of the situation is that we're going farther and farther overboard. The USPTO is issuing overbroad patents by the thousand. It's quickly reaching the point where it's impossible to do anything without a (large) team of patent lawyers continuously sifting through the stream of shit^H^H^H^Hpatents that flows down from the government to see which of them apply to whatever it is that you're trying to do (or have been doing for years).
In many ways, a return to the 18th century, pre-patent concept of trade secrets would be a welcome change. At least if something's "merely" a trade secret instead of a government-enforced patented idea, you can still use it! If you happen to invent something that's a trade secret of GM or Monsanto, then you get to use it in your own products. If you happen to invent something that's patented, though, you get a nasty lawsuit regardless of whether you even knew there was such a patent.
Activism (or: Don't Just Sit There!) (Score:2)
Analysis on Slashdot will do little to change anything, unless there's a bit of activism to go along with it.
There are a number of organizations in existence who apparently work on some aspect or another of intellectual property rights. An incomplete list (with links) can be found here [he.net]. A cursory look makes me think that Union for the Public Domain [public-domain.org] is promising (though moving slowly) as an organization moving the right direction.
Anyone know of any others? Or, should another one be necessary? There needs to be someway to focus resources on this matter...
First line... (Score:2)
This is the very first line of the WTO's definition of intellectual property. It's also inconsistent with every attempt to patent, for example, cocoa chemicals.
Re:Publish or perish? (Score:2)
Hmmm. Even after I gave you a concrete example of a drug that in fact I take every day that was the real result of one of these publications.
The fact is that I am very experienced in industrial R&D, having worked in such environments for over 20 years. The events I listed IN FACT are REAL and occur in industrial situations on a routine basis. If you don't believe me, look up the topics of chiral and controlled release phramceutical research and development.
A large part of the existing IP/patent law problem are lawyers who think they know how IP works but actually have no idea. Lawyers really should talk to IP creators more, whether they be scientists, hobbiests or inventors.
Hmmm. Since I am an inventor with 10 issued patents I should then have a pretty good idea of what motivates inventors, right? Well, I can tell you from my experience the reason that most inventors want patents is because if they don't produce either in an industrial or academic environment they will be out on their ear and have to feed their family by flipping burgers. The number of practicing inventors that have any hope of achieving anything approaching 'glory' is a miniscule and irrelevant percentage of the total.
Re:Publish or perish? (Score:2)
Well, firstly a patent is not like a copyright, the patent holder has no right to derivate works i.e. improvements. You can in fact develop improvements and sell them back to the original patent holder, or perhaps cross-license them. It's quite common to do this actually. If you make an improvement it DOES NOT become part of the original patent.
What benefits are there from publication? Several actually.
1). The original patent holder knows that his invention is 'out there' and the clock is ticking. If he wants to keep his business advantage he had better invent improvements. A drug I take every day is in fact the result of such an improvement.
2). Competitors who want to remain in the hunt have to develop alternatives to the published technology. By publishing you avoid wasted R&D like reverse engineering (reinventing the wheel) or reinvention of the same technology from scratch. You end up with multiple competing technologies from which the market can pick the best.
3). Once the patent expires there is no restraint on practicing improvements you develop. The expired fully published patent becomes the basis for the new technological wave. One key thing to remember is that patents have a very finite life, while the publication is irrevocable.
4). On publication academic R&D has something to work from. Quite often developments in science follow a technological invention; i.e. how DOES high temperature superconductivity work anyway? With the publication, the researcher is free to examine the technology - patents cover only commercial use; research does not infringe on the patent. It also does not follow at all that an improved high temperature superconducter arising from science triggered by the orignal invention will be covered at all by the technology disclosed in the first patent.
5). The author of the patent, now that his invention is protected and publish has incentive to further publish results (i.e. to enhance his scientific standing etc.) free of commercial concerns. These additional publications further add to the technological corpus.
I am sure there are others as well; these are just the ones that occurred to me as I am typing.
Re:History is repleat: Patents stifle development (Score:2)
The inventor of the intermittant windshield wiper is now a very rich man. It took a while, but he was successful in pursuing his case. This example, in fact is a good argument in favor of the patent system.
Another example is any industry in countries which have a, shall we say, less than optimal (in the West's eyes) enforcement policy of patents. Those industries produce and improve upon products, despite the fact that their improvements will also be "stolen" and copied by others. Odd, that these industries thrive so well without any significant "protection" through patents, isn't it?
Yes, let's look at these nations. Malaysia. Indonesia. Pakistan. China. They way these countries improve their internal technologies is by sending their best and brightest to western graduate schools and by reading western literature or hiring western experts as consultants. It is clearly in their interest to ignore patents because they in fact have nothing to lose and much to gain through importing technologies from the west. No single nation with a strong technology infrastructure is without a good patent system. The fact is that the nations without a good patent system have no significant home developed technologies.
you are very incorrect to imply that the patenting system actually encourages technological development, and that it would not occur without it.
Where did I say that innovation would not occur without patents? It clearly would. However without patents the innovation would be kept secret either by legal means or by obfuscation rather than be published. THIS PUBLICATION IS THE KEY TO INCREASING SPEED OF TECHNOLOGY PROGRESS. Without the patent system this publication would not take place.
Whether or not a patent is issued, a company will produce a product if it feels it can make a profit on it. It will do so, even knowing that foreign competitors will copy and sell the product,
True enough - BUT the DEVELOPMENT of new products is usually colored by the issue of patentability. XYZ Inc. is NOT going to sink $500 million in R&D into an improved Frammis if it thought that it would be quickly copied and give no advantage in the market. Product profitability in fact is what drives many R&D efforts, and without the assurance of exclusivity the profits necessary to justify the development costs are just not there. Without patents industrial R&D spending would decline in the US to 20% of it's current levels. It would be in fact a total unmitigated disaster to technological progress any this country that abandoned patents.
With modern reverse engineering techniques
Modern reverse engineering techniques do not prevent companies from maintaining secrets in a number of ways. For example, in the chemical and the software industries many products are sold accompanied by licenses that prevent the buyer from applying these techniques to the product they purchase. The is in fact kept secret by these legal mechanisms.
In addition modern reverse engineering techniques are far from omniscient. They do not determine the manufacturing process, only the end result. A large percentage of the most valuable patents cover such processes, which are often key to achieving high purity or low cost. This process are in fact easy to keep secret because they are practiced only by the manufacturer. Trying to reconstruct the process used from an analysis of the final material can be essentially impossible.
In order to obtain a patent you must disclose the best way known to implement your invention. Consider how much R&D effort would be wasted in reverse engineering and re-invention of technology without this publication of these results within the patent framework.
No, the FACT of the matter is that patent systems have a 300 year long record of success in stimulating technological development. You can argue all you want, but what you are proposing is counter to all historical evidence and would lead to a near-total evisceration of all industrial technological research and development.
Re:Trading Exponential Progress for Short Term Pro (Score:2)
Nicely worded, but completely wrong. The alternative to patents is for corporate entities or individuals to keep all of their internal research as secret as possible to prevent competitor's copying their work. This practice of keeping everything possible a close secret is in fact what patent law was designed to abolish in the early 18th century. The key thing to remember about patents is that a patent is a contract between the inventor and the government; the government grants an exclusive right to practice an invention for a limited period of time in exchange for the full and public disclosure of the invention.
In addition to the disclosure requirements patent laws have specific exemptions allowing the subject matter inventions to be used for research purposes free of infringement. Thus patents STIMULATE new research by encouraging the free flow of information. In addition requirements that patents be applied for in a 'timely' fashion results in relatively QUICK publication of the invention.
Patents were in fact devised for the purpose of enabling research and development through the free flow of information that would otherwise be kept secret for commercial reasons. In fact Research and Development is aided tremendously by the existence of a good patent system by both insuring publication of the technology, and by insuring the inventor (or the organization funding the inventor) obtains economic benefits from the development of new technologies.
Combination with WTO is new (Score:2)
The WTO's power lies in imposing punitive tariffs on countries that flaunt its rules. No country can afford to stand up to them for long.
So, do I think that governments should be able to flaunt treaties that they've signed? I'd like to be able to say "Yes, if the treaties suck", but that's the easy way out. The real question is, who interprets the treaties, and in the last resort, who decides if the treaty has come into conflict with some right more fundamental than it. If you understand your local justice system, you know who's making those choices when treaties are enforced by the governments that sign them.
With the WTO, you might imagine that there's some impartial body adhering to the letter and spirit of the treaty, in this case TRIPS. No way. WTO decisions are made in secret by 3-judge panels. The panelists have almost universally been corporate lawyers at some point in their past. The panel absolutely refuses to hear testimony from anyone but corporations and governments, as you can read about in this leaked ruling [google.com]. The results are predictable: not once has the WTO ruled in favor of a local law. When you look at it like this, you see the WTO for what it is: not just a way of enforcing treaties, but an unprecedented power-grab by corporations.
So when you read TRIPS, don't read it as a neutral document that will be judiciously enforced. Try reading between the lines, stretching every phrase to its ultimate limit in favor of the big guys. Imagine, at the very least, a whole new set of legal fees to keep the individual patent-holder (or any future "GNU free-patent" organization) out of the game entirely. Then decide what you think of this latest news.
Re:What a clever way to ward off regulation (Score:2)
Exactly (Score:2)
I didn't say it "overrode" the Constitution, I said it "amended" it.
By standardizing things like IP law in international treaties you can dismiss that whole "public good" idea. You also miss things like "media attention" and "public outrage." How many people know Disney lobbied Congress to change the law directly to serve their interests?
WTO Protest in Seattle (Score:2)
Anthony
^X^X
Segmentation fault (core dumped)
Seriously old news . . . (Score:2)
As with most trade agreements, there can be found within it some good and some bad. But whatever else can be said about TRIPS, the issues raised there are not new ones. Moreover, to the extent that we have been signed on since the mid-90's, its sort of a done deal.
Re:WTO Patent Treaty (Score:2)
Your first point - worldwide agreement on what consitutes a patentable(sic) invention - is the most important issue.
Patents being more of an issue in software because things are developed more quickly is irrelevant. If things are developed more quickly, the original patent should soon become redundant. Its validity for an extended time period would be meaningless. A catalogue of ridiculous software patents [mit.edu] is available at the LPF site. Many of these are quite old and still causing untold harm. [mit.edu]
This could kill small co and open-source software (Score:2)
This really is one for your political representative. If this gets to stand, all open source software (and all small software companies) are dead.
But you can't patent anything! (Score:2)
2. Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.
3. Members may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.
It seems like the main priniciple behind it is to allow the patent of plant life that has been genetically engineered... which I don't see a problem with, although I do agree with a previous poster that the method should be patentable but not the gene.
That is the way it works with computer programs, you can patent the method but not the result, although you can place a copyright on the code itself.
There are also obvious exemptions for medical technology which, as long as they remain in place, are a good thing.
WTO is evil, mega-corp serving monster (Score:2)
http://www.greenpeace.org/politics/wto/index.ht
http://www.agp.org/agp/index.html
http://www.tradewatch.org/gattwto/gatthome.html
http://www.uaw.org/breaktime/news_to_you/news2u
http://www.etan.ca/news/etanott.5.19.98.html
The WTO is against trade sanctions that protect democracy, the environment, and apartate. They use psudo-science from the labs of corp funded research, blah, blah, blah, I am not an expert on it, but I've noticed it popping up again and again in news about the environment, freedom of speach, and on and on and on...
Life Patenting (Score:2)
Re:In a funny way... (Score:2)
Patents exist to protect our intellectual property. Naturally, you should not be able to patent almost snything, because that would then broaden and obfuscate (the already obfuscated) debate about what constitutes intellectual property. If you invent something new, you have the right to claim that technology so nobody else can "steal" your intellectual property, in much the same way that you can copyright written text.
The problem with using patents with genetics is that no one can claim to have 'invented' the gene for chocolatiness (my term - I'm sure Nature wouldn't accept it). Mars (in this case) isolated a gene that is a fluke of evolution - its not the same thing at all.
If patents are to be granted on life forms it could freeze the developing nations of the World out of the market for their own biodiversity. Most of the World's lifeforms are found in the Tropics where many of the poorest countries are sited. We're already seeing Western biotech companies patenting genes and therapies based on plants and animals found in developing nations. none of the money goes back to these countries or even to protecting their environment.
It's time the patenting of organisms and their genes was banned. The biotech companeis got into the market without the protection of patents, let's see them survive without them. As the UK government used to say when it was selling us something we already owned 'The values of your shares may go down as well as up'. Besides, if it means that companies as corrupt and arrogant as Monsanto and Novartis go to the wall all the better.
More immediately on the cocoa issue, the WTO should immediately review its policies on the export of cocoa products. At the Uruguay Round of talks, the tarriffs on raw cocoa were dropped to almost nothing (not a problem for the West which doesn't produce cocoa), but those on processed cocoa were kept at a high level. As a result, the producing countries have to pay high tarriffs when exporting chocolate and chocolate products to the Western markets; their products can't compete and the cocoa producers can't get a share of these high-value markets for chocolate.
Best wishes,
Mike.
New? (Score:3)
The topics are something we should be concerned about, but we should not get in an uproar because this is something new, because it's not.
...phil
What a clever way to ward off regulation (Score:3)
of patents on DNA being made impossible by
legislation, cleverly decide to get the WTO to
start up talk about new patent rules explicitly
allowing genetic patents, so the US would look
backward (or like a loose cannon) if it were to
ban genetic patents. Pretty clever, and certainly
not in our best interests..
Re:In a funny way... (Score:3)
Patents exist to protect our intellectual property.
No. Patents (and copyrights) exist to promote the progress of science and useful arts [house.gov] (clause 8) (non-Americans may substitute their own national references).
What needs to be thought is this treaty - specifically what can and cannot be considered new technology that is patent-worthy.
Yes. That's definitely something that needs to be revised.
But I'm also concerned about what this treaty means in other ways. If I understand this correctly, the treaty basically aims to force every nation to recognize patents from other nations.
If this were to happen, it would spell disaster for a lot of free software, and for the economies of many third-world countries. Consider the example of RSA encryption -- since the RSA algorithm is patented in the United States, American cryptographers cannot write code using that algorithm (unless they obtain a "license"). So anybody who wants to sell an RSA-based product has to base their business in Australia or some other country -- and even then they probably still can't sell to the United States. The situation is even worse for free software, because while a commercial organization may be able to pay the "license fees" to use the patented algorithm, no free software project will be able to do that.
So, what happens if Australia is forced to honor the American patent on RSA? All of the RSA development that moved to Australia to escape the patent is screwed. And if every country honors the patent, then the project is essentially terminated, because there will be no escape from the IP police.
Also think about what this means to Australia (or any other country) -- the commercial organizations who moved their business to Australia probably gave a nice little boost to the local econonmy. If they can't continue their business, then Australia's economy takes a hit.
I think this proposed treaty is a bad idea.
Why .. (Score:3)
As for WTO, I'm quickly developing a chronic dislike for it. It only serves the interests of the big players - countries, companies.. Who cares what happens to the rest.
WTO Patent Treaty (Score:3)
Of course the stuff about genes is dubious public policy, but I think that patenting genes in the long run isn't going to make much difference. It is going to take a long time to go from a gene to a product based on that gene, and patents have a 20 year lifetime. After the patent is up, it's all back in the public domain.
Patent terms are much more of an issue in software where things are developed much more quickly than in biotech.
Re:Life Patenting (Score:3)
They are already doing so. A Texas company called RiceTec was granted a patent for Basmati rice. Basmati is a kind of rice that grows only in the foothills of the Himalayas in India and Pakistan. Like how the label ``Champagne'' may be used only for products from a particular place. Read an analysis of the patent and its consequences [bildungswerkstatt.at].
For centuries in India, turmeric has been used as a home-remedy and traditional medicine for wounds. In March 1995, a patent was granted to the University of Mississipi Medical Centre for precisely this use. What made this a particularly disgusting case was that the patent was in the name of two Indian researchers at the university. The US Patent Office did uphold a challenge to this patent and it was revoked [schule.de]. There are many such patents that need to be cancelled.
Cancelling these patents is the first step in stopping biopiracy [twnside.org.sg]. The author of this piece reiterates that patents must be granted on the basis of Novelty, Non-obviousness, and Utility.
In the US, foreign knowledge, use and invention are all excluded when ``prior art'' is considered in relation to a US patent application. This helps US companies in the short run and hence the government is unlikely to try and change this.Software patents are not the only area in which patent laws are hopelessly out of sync with reality. The two-fold problem is:
Re:Life Patenting (Score:3)
You mean sticking them in the ground and throwing water on them?
Radio frequencies (Score:4)
The point is, the issue that needs to be resolved here is not whether there should exist a worldwide patenting office, but what the new, techno-savvy definition of intellectual property should be. That would make a far more interesting debate, I think
History is repleat: Patents stifle development (Score:5)
Actually, history offers much stronger support of my contention than it does of yours (recall, for example, the inventor of the intermittent windshield wiper, the numerous inventors who had their ideas. and rights to said ideas, stolen by Thomas Edisson, etc. etc. etc.).
While you are correct in that the original purpose of patent law was to insure that new ideas be published and thereby the knowledge not lost, you are very incorrect to imply that the patenting system actually encourages technological development, and that it would not occur without it.
Whether or not a patent is issued, a company will produce a product if it feels it can make a profit on it. It will do so, even knowing that foreign competitors will copy and sell the product, though of course it will cry foul at the prospect (who wouldn't). A good example of this is the software industry, which thrived in the US without patents for quite some time and thrives outside the US in places without software patents, despite the ease with which not only their ideas, but their very products, can and are copied by others. Not only have patents proven to be unnecessary to the prosperity of the software industry, they have been very destructive to progress in the industry in recent years. Worse, they have had absolutely no effect on limiting the kind of copying (of ideas, algorithms, or even product) which they purport to protect the "inventor" against.
Another example is any industry in countries which have a, shall we say, less than optimal (in the West's eyes) enforcement policy of patents. Those industries produce and improve upon products, despite the fact that their improvements will also be "stolen" and copied by others. Odd, that these industries thrive so well without any significant "protection" through patents, isn't it?
Similarly negative effects on innovation and related problems to those suffered by the software industry arise in other fields such a biotechnology and even traditionally patent-friendly fields such as automotive engineering. The negative ramifications are merely less evident to the casual observer, though if you give it some thought, you'll think of numerous examples where either the technology itself was stifled or even suppressed (e.g. hydrogen burning motors, etc.) or the inventor was not only not protected, but actually victimized by the patenting system (intermittent windshield wipers, etc). Even in areas where few of us question the concept of patents one can, with only a little observation, see the active and ongoing harm that the patenting system has on the industry and the stifling effect it has on technological innovation.
With modern reverse engineering techniques (which until very recently were legal in the US, and still are legal most other places) the actual publishing of patented information is much less of an issue than the stifling effect a government sanctioned monopoly on ideas has. By expanding this to software, genetics, mathetmatics, and numerous other fields of scientific endeavor this negative impact will become greater. As past progress in these areas shows, patents are not only not needed, but detrimental.
Trading Exponential Progress for Short Term Profit (Score:5)
I can only see three possible outcomes of this, one of which is unthinkable, one merely bad, and only one good.
(The Good News First)
1) This could wake people up, and perhaps lead to reform in the entire patenting process (extremely unlikely IMHO)
2) There could be some resisitence, resulting in compromises which result in worldwide patents extending to broader areas than are currently permitted, but not "everything." This would be bad -- things are bad enough now, but if there is no where in the world for progress to be made when absurd patents are, say, granted by the US Patent Office, then the stifling effect of patents will become far more acute and immediate. Still, things could be much worse
3) The proposal could go through largely unchanged, resulting in a draconian, world-wide net of patent law which stifles and ultimately kills most innovation, except that by large corporate entities which can afford licensing fees or leverage their existing patent portfolios. The result would almost certainly be a dramatic slow-down of technological progress on nearly every front, as any promising research idea or direction is fenced off by numerous patent applications, most of which, given the recent history of the US Patent Office, would probably be granted.
More insidiously, the individual would be cut off from taking any significant part in any technological developments, except as an employee or lackey of some large firm. This could result in the very best minds simply losing interest in persuing any field of endeavor where their ability to invent and achieve has been so severely limited before the fact, resulting in a shrinking intellectual pool of (active) talent from which even the largest and best financed corporations could benefit. The potential damage to Universities and other open scientific forums for research doesn't bear thinking about.
Current IP laws are ill suited for the 21st centur (Score:5)
Now however, we extend this to genes, enzymes and who knows what else. So all of a sudden, it may be possible for an enterprise to own what may be basic building blocks of life or gene sequences that (may or may not) determine your intelligence, (at least partially) your character and all sorts of fancy stuff. This IMNSHO is just not acceptible. Each of us (and just about every living thing may) carry this stuff around with us and have been doing so since long before we ever heard the words IP lawyer ... I don't think any company ought to be able to own this kind of stuff ... this should be released to the public domain so anybody who cares to has access to it; sort of like electricity ...
What happens 20 years down the road if someone actually finds (and patents) a gene sequence which improves intelligence? Would I, as a reasonably intelligent guy, own them royalties?? You know eventually business will try to do this. For many kinds on patents the proper (wishful) thinking may just be that old proverb (that already failed once miserably): Just Say No!
Of course you are free to sayt "Just say no", but who's gonna listen to you?? And what about the other 5billion+ people who just don't know or care?