EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

05.14.17

Professor Lisa Larrimore Ouellette Questions Whether Patents Work When Patent Scope is Too Broad

Posted in America, Patents at 3:08 am by Dr. Roy Schestowitz

Patent systems don’t exist in a vacuum…

Lisa Larrimore Ouellette

Summary: Citing MIT economist (and MacArthur “genius”) Heidi Williams, Professor Lisa Larrimore Ouellette from Stanford challenges old myths and quotes: “we still have essentially no credible empirical evidence on the seemingly simple question of whether stronger patent rights—either longer patent terms or broader patent rights—encourage research investments.”

TODAY we intend to publish a lot of articles about the USPTO and some of these will be relatively long. As usual, we are going to focus on software patents. After that, for at least a fortnight, I’ll be away on holiday and won’t be able to cover much.

“In the case of software, for instance, pace of innovation is high, code can count as prior art, code can be modified, forked, reused etc. and there are many programming languages with copyright assigned to underlying implementations.”Last week an article titled “Do Patents Work?” was published by Lisa Larrimore Ouellette, Assistant Professor of Law at Stanford. Our position is that patents work, but not when everything under the sun is patentable. One must not lose sight of the collaterals/externalities; Always check economic impact in said domains. In the case of software, for instance, pace of innovation is high, code can count as prior art, code can be modified, forked, reused etc. and there are many programming languages with copyright assigned to underlying implementations. There is thus not much evidence that patents on software “work” or are even needed in the first place.

Here is what this Yale Law School graduate wrote in her analysis, which focuses on pharmaceutical and chemical industries:

As everyone who has taken a patent law course knows, the reason we have patents is to increase private incentives for knowledge production. But do patents actually work? Based on her review of the existing evidence, MIT economist (and MacArthur “genius”) Heidi Williams isn’t sure; she concludes that “we still have essentially no credible empirical evidence on the seemingly simple question of whether stronger patent rights—either longer patent terms or broader patent rights—encourage research investments.”

This bottom line will not be a surprise to those who have followed the empirical literature, but Williams’s careful identification and modeling of the relevant empirical parameters and her discussion of the most relevant evidence on each point makes her review a must-read for anyone interested in patent policy.

[...]

On the second question, the ex ante incentive effect of stronger patent rights, there is again survey evidence, though it is useful primarily for indicating that the pharmaceutical and chemical industries value patent protection much more than other industries. To empirically estimate the relationship between patent strength and research investments, some researchers have looked at the impact of national patent law changes and found little effect. But one would expect such studies to understate patents’ impact: increasing protection in a small economy will not noticeably increase innovation in that economy if domestic firms were already innovating for the global market.

[...]

In the biomedical context, evidence from survey results and some clever instrumental variables studies of patent applications on human genes and patents invalidated in court have suggested that upstream patents have little effective (positive or negative) on the quantity of downstream innovation. But invalidation of patents in fields such as computing and electronics appears to increase the number of innovators subsequently citing that patent.

[...]

The bottom line is that despite the vast number of empirical patent studies—Williams notes the 3000 citations to a foundational patent-citation paper—very few studies have convincingly tackled the causal link between patent policy and research investments.

That point about “research investments” is often being exploited by pharmaceutical giants that ‘invest’ (funnel) massive profits not in research but instead give that money to shareholders. They just tell the public (and public officials) that those massive profits somehow “save lives”, by latching onto the “R&D” mythology.

“They just tell the public (and public officials) that those massive profits somehow “save lives”, by latching onto the “R&D” mythology.”What we are seeing in the news this month is the ITC weaponising patents for embargo, e.g. of drugs that are about to save lives. See this news report which says “practitioners suggest that pharmaceutical companies are beginning to look to the International Trade Commission (ITC) as an appealing alternate venue for patent litigation.”

People and firms go to the ITC when they want embargo (or injunction).

“Firms that stand to profit from the UPC are not credible when commenting on the prospects of the UPC.”Injunctions, incidentally, are what makes the UPC very dangerous to Europe. The UPC is largely backed by pharmaceutical giants; this has long been known.

Barker Brettell LLP, already mentioned here in relation to the UPC earlier this year and last year, wrote another article about the UPC (actually promotional piece in its corporate Web site) and it is noted as saying: “Irrespective of Brexit, the unitary patent (UP) agreement may come into force by early next year” (not a statement that the general public agrees with). Firms that stand to profit from the UPC are not credible when commenting on the prospects of the UPC. They just try to attract business. We certainly hope that more people now understand that patent maximalism is quite a disease; believing that the more patents we grant the better off we will be is misguided, especially when more radical measures such as embargoes are introduced. Later today we are going to show examples of software patents utilised for software embargoes (impacting small companies in Europe).

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

Leave a Comment

You must be logged in to post a comment.

What Else is New


  1. Great News: While IBM et al Try to Undermine Patent Reform the Supreme Court Deepens the Reform in TC Heartland Case

    In a unanimous decision, with the court ruling 8-0 against TC Heartland, the monkey business in East Texas (beneficial to patent trolls and large businesses that leverage software patents) may have just come to an end



  2. Speculations About Battistelli's End of Term, Campinos at EUIPO, and Failed UPC Ambitions

    Rumours and speculations surrounding the fate of the EPO's leadership now that the UPC gravy train is stuck again and Battistelli's protector, Jesper Kongstad, is about to leave



  3. Martijn van Dam is Wrong to Believe That Battistelli's Abuses Are Somehow Acceptable or Tolerable Because His Term is Possibly Ending

    Coverage of Martijn van Dam’s stance (he is the Dutch State Secretary for Economic Affairs) reveals that economic gain trumps ethics and justice, irrespective of what the law says



  4. Media and Staff Association Elections at EPO and WIPO Are Compromised

    A campaign of abuse (legal bullying) and gifting to the media, combined with a wide-ranging assault on critics who represent the interests of staff, have led WIPO and EPO down the route to totality



  5. New Documents Help Demonstrate That ILO Delivers Institutional Injustice to EPO Employees and Cushions Team Battistelli

    The International Labour Organisation Administrative Tribunal (ILOAT) delivers not justice but merely the illusion of justice, probably in defiance of Article 6 of the European Convention on Human Rights (ECHR)



  6. Leaked: 2017 European Inventor Award Finalists, or Stooges Whom the Tyrant Battistelli Exploits for PR Purposes and Media Manipulation

    The stupidest ceremony in Europe (turning serious science into something sketchy such as Eurovision) is disliked among EPO staff and is exploited by the person who destroys the EPO (Benoît Battistelli) to pretend all is fine and dandy, at huge expense to the Office (as extraordinary as about 5 million Euros for a ~2-hour show)



  7. EPO: Can the Staff Union of the European Patent Office (SUEPO) Still Save It?

    Genuine concerns about the slow process at the European Court of Human Rights (ECHR) and the lack of progress at ILO, which coincide with weakening of the unions and threat to jobs of patent examiners (leaving ordinary Europeans more vulnerable to meritless patent lawsuits)



  8. Links 21/5/2017: Linux 3.18.53, Tizen 4.0

    Links for the day



  9. Cloudflare's Enemy is Software Patents, Not Just One Software Patent or One Patent Troll

    With a bounty of $50,000, which is likely less than the cost of legal defense, Cloudflare looks for help with its own case rather than the underlying issues that need tackling worldwide



  10. Patent Laws -- and Especially Eligibility of Software Patents -- Are Being Hijacked by Large Corporations and Their Front Groups

    Intervention by large multinational corporations and their lawyers, front groups, etc. (like the classic lobbying model) gives room for concern in multiple continents where most software development is done



  11. Links 18/5/2017: Catching Up With the Past Three Days

    Links for the day



  12. The US Supreme Court Consults USPTO Director Michelle Lee Regarding the Patent Trial and Appeal Board (PTAB) Which is Invalidating Software Patents With CAFC's Approval

    Software patents continue to get knocked out by the Leahy-Smith America Invents Act (AIA) whose introduction of PTAB gave a helping hand to companies that are susceptible to abusive litigation (with bogus patents)



  13. IBM and Its Revolving Doors Lobby Are Plotting to Undermine Supreme Court Rulings to Restore Patentability of Software

    IBM has become so evil that it is now trying to steal democracy, label programmers "thieves", and basically attack the rule of law by extra-judicially overturning a Supreme Court decision



  14. 3 Years After the Alice Case at the Supreme Court the Plague of Software Patents is Easier to Cope With

    Litigation figures are down, rejection rates of software patents remain high, and only spin (e.g. cherry-picking) or constant lobbying can save those who used to profit from software patents



  15. The Attacks of Patent Trolls as Outlined in the Media This Past Week

    An outline of some of the latest troll cases to be aware of and their consequences too (e.g. software patents being used to literally shut down entire programs)



  16. Links 14/5/2017: Linux 4.12 RC1 and KDE Frameworks 5.34.0

    Links for the day



  17. Industry Giants Challenge Qualcomm's Patent Practices While the Federal Trade Commission (FTC) Closely Examines Such Behavior

    Scrutiny of Qualcomm's patent aggression and coercion -- scrutiny that can profoundly change the way software patents, SEPs and FRAND are viewed -- as seen in various amicus briefs (amici) from industry giants that are affected



  18. Professor Lisa Larrimore Ouellette Questions Whether Patents Work When Patent Scope is Too Broad

    Citing MIT economist (and MacArthur “genius”) Heidi Williams, Professor Lisa Larrimore Ouellette from Stanford challenges old myths and quotes: “we still have essentially no credible empirical evidence on the seemingly simple question of whether stronger patent rights—either longer patent terms or broader patent rights—encourage research investments.”



  19. OIN is Still a Distraction Unless We Want GNU/Linux to Coexist With Software Patents (Rather Than Eliminate Those)

    Another wave of media coverage by/for the Open Invention Network (OIN) necessitates a reminder of what OIN stands for and why it is not tackling the biggest problems which Free/Open Source software (FOSS) faces



  20. Links 13/5/2017: Neptune Plasma 5 ISO, a Shift to Free (FOSS) Databases

    Links for the day



  21. Countries With a Dozen European Patents Are an Easy Photo-Op 'Sell' for Battistelli While the EPO's Demise is Largely Ignored by the Patent Microcosm

    Behind the façade of legitimacy, the EPO suffers from an incompetent, insecure and delusional boss, whose actions will almost certainly lead to the collapse of both the Office and the entire Organisation (whose founding document he routinely shreds to pieces)



  22. Our Assessment: Unitary Patent (UPC) Will Crumble Along With Battistelli's Regime at the EPO

    A reflection and an opinion on where the EPO stands and what it means for the UPC, which doesn't seem to be going anywhere (it's all talk and lobbying)



  23. The European Patent Office Has a Long History/Track Record of 'Screwing' Contractors

    The European Patent Office (EPO) appears to have quite an extensive track record/reputation for ‘screwing’ contractors and then misusing immunity to get away with it



  24. Links 12/5/2017: Wine 2.8, Kdenlive 17.04.1, NHS Windows Syndrome

    Links for the day



  25. Links 11/5/2017: New OpenShot, GIMP, and GNOME (3.24.2)

    Links for the day



  26. The Sickness of the EPO – Part IX: Using Confidential Medical Records as a Weapon Against Staff

    In defiance/violation of labour laws and medical oaths etc. the EPO is passing around medical information, either for dismissal pretexts or a sort of blackmail -- a serious abuse in its own right



  27. The EPO is in Disarray and Additional Complaints to the European Court of Human Rights (ECHR) May Be Imminent

    Team Battistelli reaps what it has sown, as complaints are being made to a court with “47 member states [that] are contracting parties to the Convention,” (European Convention on Human Rights) according to Wikipedia



  28. By Promoting the UPC, in Defiance of Public Will, the EPO Has Become Patent Trolls' Best Friend

    The patent–industrial complex, aided by the EPO under Battistelli's iron-fisted reign, is trying to convince us that the UPC is coming soon and that it is desirable (it's neither of those things)



  29. Links 10/5/2017: Mesa 17.1, Git 2.13, Qt Creator 4.3 RC1, MINIX 3.4 RC6

    Links for the day



  30. Team UPC Still Twists and Fabricates Statements to Make It Seem Like Unitary Patent is Happening Soon

    The Unified Patent Court (UPC), a terrible system which was envisioned and covertly constructed by those who stand to benefit/profit from injunctions and trolling, is not going anywhere, but media which is dominated by Team UPC would have us believe otherwise


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts