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| Authored by: Tkilgore on Sunday, September 02 2012 @ 05:31 PM EDT |
> Coming up with a similar test to determine the patient's allele is
relatively
trivial. Therefore, unless the IDEA of using the alleles of this particular gene
to
discriminate colon cancer risk is protected, there is no way to recoup
investment costs. With no way to get return on investment, no reasonable
company is going to put R&D effort into looking for associations between
genes and diseases. This, in the long run, would clearly be bad for everyone.
Well, first of all the problem of identifying a gene is not software. Second, as
I recall there are some limitations on this issue, too. Cf. the recent case Mayo
v. Prometheus which went all the way to the Supreme Court.
> I think a similar situation exists in software.
On this, I think that many would disagree with you.
> The companies that put a large
amount of R&D into developing software and come up with novel ideas that
are non-obvious should (in my view) have some intellectual property
protection for those ideas so they can recoup their investments.
This is a very abstract proposition. Can you actually cite any case histories of
companies which have "put a large amount of R&D into developing
software" and have
1. done so without hiring bloated staffs which are split up into feuding
subgroups each trying to shoot each other down? Read the histories of what has
happened at IBM a few years ago and, more recently, at Microsoft and you can
understand what I mean. Does a company which wastes money and effort and human
resources like that really deserve to get patents on their
"innovations" which if issued will prevent anyone else from doing
similar things at negligible cost?
2. have clearly come up with "novel ideas which are non-obvious" even
after spending all that money? And thus actually deserving of the idea of a
patent?
One of the problems, here, is that (as pointed out many times by others who
frequent this site) a computer is a very powerful general purpose device, and
all that one needs to know how to do is to program it. Thus, the inventions to
which you would presumably point were all implicit in the invention of a
computer, which does everything by cyclic repetition of the CPU cycle, with
minor changes possible at each step due to the fact that the CPU can reach for
input for the next step. Thus, patenting "novel ideas which are
non-obvious" becomes a matter of patenting thoughts -- a line which the
patent system is clearly never supposed to cross.
> There is no
doubt that the current climate has become a bit ridiculous and patents are
being awarded for obvious ideas (one-click ordering, for example)
An inevitable consequence of allowing _thinking_ to be patented, isn't it?
> or that
companies are using these patents in an anticompetitive way (e.g. the
touchscreen heuristics patent that Apple has asserted without which a
touchscreen phone is essentially useless).
That is after all what patents are for, in a way. It is left up to the patent
holder to license openly , not to license at the same rates for some as opposed
to others, not to license at all, or whatever.
> But I think the notion that ideas
that are derived from substantial R&D shouldn't be protected
Again, one is not supposed to be able to patent "ideas" which amounts
to patenting the human brain doing its presumably normal business. Patenting in
more traditional industries was supposed to be the patenting of techniques,
processes, and methodologies for doing something tangible, such as producing a
new metal alloy which is has nice properties if well made, but is difficult to
make because of the physical and chemical attributes of the constituent metals,
that kind of thing. But then the patent is not for an idea, is it?
Moreover, what examples can anybody bring forth of "ideas
that are derived from substantial R&D"? I can't think of a single one.
Your medical example hardly qualifies. You put the idea down in black and white
in the post to which I am replying. I fully agree with the opinion that a
_method_ for isolating a particular gene or for testing for its presence or
absence could be patentable. But so could another method, too. That is however a
different thing from patenting the _idea_ of testing for that particular gene. A
patent on such would preclude anyone else from developing another, possibly
superior test for the presence of said gene. Clearly a bad result. As I recall
this was more or less the situation with the Prometheus patent, too, and it was
one of the reasons why it got struck down.
> is only going to
lead to one outcome...iterative cloning of existing products where
manufacturers race to the lowest profit margins (ala Dell). This may seem like
it benefits consumers but I believe in the long run it does not.
I don't see any evidence of your nightmare scenario coming to pass, in spite of
the fact that it is what Apple was claiming would happen in the recent case.
Apple for example has historically been a brand which had a lot of positive
image, for producing artistic and aesthetically pleasing products. Many liked
them for that. Recently, their products have become quite popular, too, in spite
of the fact that some others are really upset by the "walled garden"
which the company has created, and a few years ago the term
"jailbreak" became applied to some of their products. I suspect that
their positive image has been tarnished in many quarters, in spite of the fact
that they "won" in this case. But they could have continued to do very
well on their older reputation for producing "wonderful" products
without fighting this case. Now, they appear to many people to have gamed a
broken patent system in order to steal a march on a competitor, and not everyone
appreciates that.
> Perhaps it just comes down to the fact that I am leaning towards the side
that
ideas that are non-obvious and are the product of significant R&D effort
should be worthy of protection and FOSS advocates do not feel the same way.
A very good reason why most FOSS advocates do not agree with you is, very
simply, where do you draw the line between "non-obvious" and
"product of significant R&D effort" on one side, and the lack of
these qualities on the other. A very poor job indeed has been done with that,
and we all have to live with the bad consequences.
Another even better reason is that, again, as I said several times above,
patents are not supposed to be for "ideas" but for actual products.
You seem to conflate "ideas" with patentability, which is not
correct.
As a contrasting example to a lot of what you are saying, let us consider
Edison's "invention" of the light bulb and some of the subsequent
history of the light bulb industry.
First of all, Edison did not "invent the light bulb" and for certain
he did not invent the "idea" or the "concept" of a light
bulb. Moreover, to give him full credit he never said that he did either of
those two things. The light bulb already existed when he filed his patent, and
his application mentions prior art. The Edison patent for the light bulb was for
a particular *method* for making a light bulb and the materials to make it out
of, which had a reasonable duration of performance, before it burned out. His
patent was for an *improvement* to the light bulb and had nothing to do with
ideas, only with claimed performance. The very title of his patent has the word
"improvement" in it. By its nature, his patent did not preclude
research in how to make a better light bulb than he did, especially not if it
was to be a light bulb made out of other materials, such as one having a metal
filament instead of the carbon filament which his patent presented as an
improvement. How different is the result of that from a patent on an
"idea" especially an "idea" as developed in a computer
program? The difference is like night and day, isn't it?
Perhaps also, since you describe a scenario of a race downward to mediocrity, we
ought to look some more at light bulbs. There have been a lot of expenditures of
R&D on light bulbs. Some of those expenditures have led to patents, as for
example with Edison. But in recent years it is quite clear that most of the
R&D efforts have been in the direction of how to make a light bulb cheaper
and cheaper and worse and worse, to the point that the average life expectancy
in hours even which is printed on the cardboard box is not as big as what Edison
considered to be the minimum acceptable to satisfy the potential market. It even
happens all too often that one buys a light bulb and installs it, and it goes
"pfft" when one hits the power switch for the very first time. And
note that all of this "progress" to the bottom has happened in spite
of the fact that nobody would have trouble getting a patent on a light bulb. [ Reply to This | Parent | # ]
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