06.04.10

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Patent Promiscuity is Failure, Patent Selectively is Success

Posted in America, Asia, Law, Microsoft, Patents at 10:00 am by Dr. Roy Schestowitz

Mazes

Summary: For the patent office, “less” should be “more” (“less is more” is a phrase from the 1855 poem “Andrea del Sarto”) as the broadening scope makes the patent maze far more confusing and intimidating to scientists, comprising life in the process

MICROSOFT relies heavily on a patent system that allows software patents. We explained this point and supported this claim with the example of the USPTO versus EPO. In order to promote its cause, the USPTO has begun a self-serving propaganda rally about the number of monopolies it authorises. It’s bad news for science and good news for those who work in litigation (also known as “law”). Here is one new example:

“I can say with some confidence that the bulk of the increase in the number of patents being issued is associated with technology- and software-related patents rather than patents associated with biochemistry or pharmaceuticals,” Crouch said in an interview with TMCnet today.

This is not an indication of success. Science is an attempt to remove barriers and to explain the unknown. What the USPTO is doing here can be described as creation of many new barriers. How would that help? By “help” we mean help science, not help the bottom line of large companies and their shareholders/lawyers.

Anyway, here is the latest barrage of USPTO propaganda (found and collected this morning):

The U.S. Patent and Trademark Office Thursday unveiled a new initiative aimed at giving patent applicants more control over how quickly their applications will be processed.

The USPO could address the backlog issue by simply readjusting the scope of patentability. But of course it would not do that. The USPTO is in the business of manufacturing more monopolies (patents). The more, the merrier (more income). In its own special way, Google is supporting the USPTO rather than challenging it. One key problem is that this culture of software patents sometimes spreads overseas. In Europe, for example, there are loopholes that allow some companies to gather software patents and the following new lawyer’s tip shows that the same type of loopholes are being used in Thailand:

Fabrice Mattei and Prasit Siricheepchaiyan of Rouse review trends in drafting, filing and prosecuting patents in Thailand

[...]

One way of getting around the medical method claims issue is to rewrite them as Swiss claims such as “use of substance X in the manufacture of a medicament for the treatment of condition Y”. It is permissible under the current Thai patent practice so long as the method of treatment is not a pure treatment method, for instance the method of using a scalpel during surgery.

* iii) Computer software. While it is not possible to obtain a patent on software per se, patents may be granted for inventions requiring the use of software to achieve their purpose. This, however, is conditional on the software having a technical effect when the programme is run. Such effect may, for example, be found in the control of an industrial process or in the internal functioning of the computer itself.
* iv) The Thai Patent Act does not explicitly exclude business methods from patentability and it is debatable whether business methods are patentable under the Thai Patent Act. Arguably, Thai patents for pure business methods would not be granted because they cannot satisfy the meaning of invention under the Patent Act. According to Section 3 of the Patent Act, invention means any innovation or invention, which creates a new product or process, or any improvement of a known product or process. Furthermore, the Patent Act defines process as “any method, art or process of producing, maintaining or improving the quality of a product, including the application of such process”. A pure business method is neither a product nor a process of producing, maintaining, or improving the quality of a product under the meaning of Section 3.

Glyn Moody names the story of Nortel as a cautionary tale about the harms of patents (Novell is mentioned too).

These cases show yet again why patents just don’t do what they are supposed to – encourage innovation – but act as very serious threats to other companies that *are* innovating. As more and more of these software stars die, so the number of patent black holes will increase, and with them the unworkability of the patent system. Time to reboot that particular universe…

How about those patents which prevent doctors from saving lives? Are these really necessary? Here is an explanation of why these patents are not necessary, either (despite lobbying for them from the Gates Foundation).

Publicly-funded science, on the other hand, devoid of the conflict of interest generated by the corporate need for profits, works. The work on the breast cancer vaccine is showing just how. I could find no patent, either, registered for the work on the vaccine. Perhaps, like Jonas Salk, Dr. Vincent Tuohy would view such a patent as the equivalent of patenting the sun. Let’s hope. Meanwhile, this story illustrates how science can work, and why the arguments regarding the necessity of patents to fuel medical breakthroughs is bunk.

Those who refuse to publicly fund such research will eventually pay the high price anyway, due to overpriced drugs which were developed in inefficient, exclusionary ways. Here is another new example of patents going wrong:

Ablaise Ltd. can no longer demand that Dow Jones & Co. pay for its patented technology for personalizing content on websites, the 9th Circuit ruled.

How can that be patented? There are equally ridiculous patents (and worse) in the USPTO database.

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