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Killing Spurious Patents Before They Kill Us

Posted in Europe, Microsoft, Patents at 6:25 am by Dr. Roy Schestowitz


Summary: Another roundup of patent news serves as an alarm to Free software defenders

THE LAST time we wrote about patents that kill people was 4 days ago. There is another major new case which takes to task this dangerous trend of patenting:

i. Cancer Patients Challenge the Patenting of a Gene

When Genae Girard received a diagnosis of breast cancer in 2006, she knew she would be facing medical challenges and high expenses. But she did not expect to run into patent problems.

ii. ACLU sues over patents on breast cancer genes

Myriad Genetics, a Utah-based company, vowed Wednesday to “vigorously defend” itself against a legal challenge to its patents on two human genes linked to breast and ovarian cancers, its attorney told CNN.

iii. ACLU, Cancer Patients Sue Over Patenting Of Genes

The ACLU has organized a group of cancer patients who have had treatments and medical analysis limited due to gene patents held by the company Myriad Genetics, and brought the issue to court. This is a big deal… and while the case and the resulting appeals will certainly take many years, this is going to be a case well worth watching.

For those who think that such patents are unethical, consider pharmaceuticals more broadly [1, 2]. Better ways do exist for development of drugs.

Here is a new essay about patent thickets and their relationship to antitrust:

In my next (and final) post on the sewing machine patent thicket, I will raise an issue that is not yet discussed in my paper — antitrust. The impact of antitrust doctrine on how patent-owners contract with other patent-owners may create significant variances between the nineteenth century and today on how patent-owners may resolve patent thickets. I am still researching the relationship between patent pools and antitrust, and so I am especially keen on receiving feedback from the readers of this series.

In light of the Intel ruling in Europe (or elsewhere), Glyn Moody raises again the same question about patents and antitrust:

This might have interesting implications for the netbook market, where Microsoft is desperately trying to keep manufacturers from offering cheaper GNU/Linux models. How it does that could well come under scrutiny by the European Commission if there’s any hint it is apply pressure unfairly.

But beyond that, there’s a more subtle point. These fines arise, after all, from the abuse of monopoly power. And there are no greater abuses than those associated with intellectual monopolies – patents and copyrights. The more that the European Commission punishes such monopolies, the sooner, it seems to me, it will be forced to confront the worst monopolies – those actually backed by its constituent governments. If it wants to make the European markets truly fair, and to promote competition, it should not just be hitting big, bad companies that bully competitors, but the big, bad system that has such bullying at its heart.

Moody also writes about the (probably false because Microsoft denies it) speculation that Microsoft will buy a top lobbyist for software patents in Europe:

Rumour: Microsoft to Buy SAP?


Irrespective of rumours, Microsoft would be the perfect suitor for SAP since the latter is one of the last major bastions of proprietary software in Europe, and favours software patents.

That’s no surprise, since Enterprise Resource Planning – SAP’s heartland – is one of the few software sectors where open source has failed to make significant headway yet, and software patent monopolies are a great way to lock out up-and-coming free alternatives to high-priced closed-source solutions.

As we have been stressing a lot recently, there is a strong new attempt to legalise software patents in Europe and Roberto Galoppini warns about it, adding that:

Carlo Cappato has been fighting software patents since 2003, and I’m not surprised he just signed the free software pact, the initiative mentioned earlier this week. Now he asks for help, if you like what he did on digital freedoms for years it is time to help him to get elected.

The FFII has pulled old quotes that highlight the severity of the situation.

Hartmut Pilch, founder of the FFII, had the right vision in 2007 about the EU-EPLA project. Here is what he said about the future specialized patent court in Europe.

As this new article from Law.com indicates, when it comes to software, only large companies benefit, so it’s not a one-size-fits-all situation, certainly not from an economic perspective, let alone a moral one.

Congress has spent the past five years in an ongoing effort to reform the patent system. Reform proposals have come and gone; the debates between proponents and opponents of various amendments have been fierce and protracted.


These disagreements demonstrate the conflicting needs of different industries in the patent system. The incentives necessary to promote innovation in the pharmaceutical industry are not necessarily those for software or to semiconductors. The incentives necessary to innovation by small entities may differ from those needed by large entities.

Despite all this, Bill Gates seeks to justify what he does by publicly equating software to drugs (April 2008). Privately he sings another tune altogether. Some years ago, said Bill Gates (in private): “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”

And again, despite all of that we know, Gates is being trained to recite words like “innovation” or “R&D” when it fact it’s all marketing and it’s supposed to instill confidence in the minds of Microsoft clients and shareholders. As one person put it in a new article about “Microsoft Research”:

Microsoft Research…why make the effort?


What research is for, in cases like Microsoft, is status. It’s a very tax efficient, with many valuable and wonderful side effects that occasionally benefit the company, but its primary task is marketing. It’s proof, even in these most distressingly modern of times, that patronage works.

This marketing stunt is also being used to pass new laws that block competition. Why else would they go out of their way to organise a lobbying event called "Innovation Day", which is a recent example of the Microsoft circus for software patents in the EU? There are other examples like Pi Day, usually all leading back to the same Microsoft lobbyists.

“The genesis of this idea was when I was at Microsoft. We had a problem with patent liability. All these people were coming to sue us or demand payment. And Bill (Gates) asked me to think about if there was a solution.” —Nathan Myhrvold, WSJ: Transcript: Myhrvold of Intellectual Ventures

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