tag:theconversation.com,2011:/id/topics/patenting-453/articlesPatenting – The Conversation2022-09-25T20:03:19Ztag:theconversation.com,2011:article/1886002022-09-25T20:03:19Z2022-09-25T20:03:19ZWe studied 309,544 patent applications – and found inventing is still a man’s world<figure><img src="https://images.theconversation.com/files/485752/original/file-20220921-27-1wjkec.jpeg?ixlib=rb-1.1.0&rect=37%2C68%2C5015%2C3295&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Are women as successful as men in securing a patent for their invention? </p>
<p>We set out to investigate gender bias in patent outcomes at IP Australia – the government agency responsible for administering intellectual property rights.</p>
<p>To do so, we <a href="https://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2022/09/04-Huang-Patrick-Finch.pdf">analysed</a> 309,544 patent applications from across a 15-year period (2001-2015), and categorised close to one million inventors’ names based on whether they sounded male or female.</p>
<p>We found that having a male-sounding first name increases the odds of securing a patent. This gender bias can have serious implications for women’s health, female career progression and equity policies in STEM. But what’s causing it?</p>
<h2>Women are increasingly applying for patents</h2>
<p>Patents provide a 20-year monopoly over a new invention and are a well-known measure of the output from STEM-based industries. </p>
<p>Global studies show the number of patent applications from female inventors (while still lower than the number from men) has grown significantly over the past 20 years. What has been less clear is whether these applications convert to granted patents. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/484502/original/file-20220914-23-zvcpay.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/484502/original/file-20220914-23-zvcpay.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/484502/original/file-20220914-23-zvcpay.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=360&fit=crop&dpr=1 600w, https://images.theconversation.com/files/484502/original/file-20220914-23-zvcpay.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=360&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/484502/original/file-20220914-23-zvcpay.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=360&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/484502/original/file-20220914-23-zvcpay.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=452&fit=crop&dpr=1 754w, https://images.theconversation.com/files/484502/original/file-20220914-23-zvcpay.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=452&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/484502/original/file-20220914-23-zvcpay.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=452&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The proportion of female inventors associated with patent applications worldwide has grown from 1915 to 2017.</span>
<span class="attribution"><span class="source">Intellectual Property Office UK, Gender Profiles in Worldwide Patenting: An Analysis of Female Inventorship (2019 edition)</span></span>
</figcaption>
</figure>
<p><a href="https://www.nature.com/articles/nbt.4120">Studies</a> of data from the United States Patent and Trademark Office unfortunately reveal inventors with a female-sounding first name are less successful at having their patent granted than those with a male-sounding first name. </p>
<p>This is irrespective of the technical field and the gender of the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3828216#:%7E:text=We%20find%20evidence%20that%20the,the%20examiner%20of%20the%20application.">patent examiner</a>, and despite evidence that female inventor patents are <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1508287">just as good</a> as male inventor patents. </p>
<p>We wanted to investigate whether a similar gender bias exists for patents filed at IP Australia, where most applications come from non-residents. Inventors who plan to operate internationally will often file in multiple jurisdictions, including filing in Australia. </p>
<p>So unlike studies of the US Patent and Trademark Office, where the majority of patents come from US residents, a study of patents at IP Australia reflects more worldwide applications.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/484494/original/file-20220914-22-1qjanc.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/484494/original/file-20220914-22-1qjanc.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/484494/original/file-20220914-22-1qjanc.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=248&fit=crop&dpr=1 600w, https://images.theconversation.com/files/484494/original/file-20220914-22-1qjanc.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=248&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/484494/original/file-20220914-22-1qjanc.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=248&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/484494/original/file-20220914-22-1qjanc.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=312&fit=crop&dpr=1 754w, https://images.theconversation.com/files/484494/original/file-20220914-22-1qjanc.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=312&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/484494/original/file-20220914-22-1qjanc.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=312&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A profile of 2020 patent applications to IP Australia.</span>
<span class="attribution"><span class="source">IP Australia</span></span>
</figcaption>
</figure>
<h2>A gender gap persists</h2>
<p>Our analysis of 309,544 patent applications submitted over 15 years found 90% of applications had at least one male inventor. Just 24% had at least one female inventor (typically as part of a mixed-gender team).</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/484509/original/file-20220914-13-oa7x6k.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/484509/original/file-20220914-13-oa7x6k.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/484509/original/file-20220914-13-oa7x6k.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/484509/original/file-20220914-13-oa7x6k.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/484509/original/file-20220914-13-oa7x6k.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/484509/original/file-20220914-13-oa7x6k.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/484509/original/file-20220914-13-oa7x6k.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/484509/original/file-20220914-13-oa7x6k.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The percentage of applications per year, per team composition (male, female, ambiguous, unidentified).</span>
</figcaption>
</figure>
<p>We then examined whether these applications converted into a successful patent grant. We found inventors with a female-sounding first name had slightly lower odds of having their patent granted.</p>
<p>Also, as the number of males on a team increased, so did the odds of the team being granted a patent – whereas adding a female had a negligible impact. In other words, bigger teams of inventors had more patent success, unless the additional inventors had female-sounding names.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/484511/original/file-20220914-12-2u0kw6.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/484511/original/file-20220914-12-2u0kw6.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/484511/original/file-20220914-12-2u0kw6.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/484511/original/file-20220914-12-2u0kw6.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/484511/original/file-20220914-12-2u0kw6.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/484511/original/file-20220914-12-2u0kw6.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/484511/original/file-20220914-12-2u0kw6.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/484511/original/file-20220914-12-2u0kw6.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">This graph shows the pattern that emerges when you vary the composition of a single-gender team. You can see more men increases chances of success, whereas more women does not.</span>
<span class="attribution"><span class="source">Author provided</span></span>
</figcaption>
</figure>
<h2>But why is it like this?</h2>
<p>One question for us was whether this gender disparity could be explained by the types of fields patents were being granted in, and whether women simply work in less “patentable” fields such as life sciences.</p>
<p>We found more than 60% of female inventors were clustered in just four of 35 technical fields (the 35 science categories recognised in patents). These were all in the life sciences: chemistry, biotechnology, pharmaceuticals and medical technology. </p>
<p>We also found patents in three of these fields had a lower-than-average success rate. In other words, it’s generally harder to get a patent in these fields, regardless of whether you’re a woman or man.</p>
<p>Nevertheless, even after we statistically controlled for the effect of participating in a less successful field, we still found a gender disparity – male-named inventors did better than female-named inventors. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/485489/original/file-20220920-12-awunyy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An old-timey depiction of a male inventor in black and white." src="https://images.theconversation.com/files/485489/original/file-20220920-12-awunyy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/485489/original/file-20220920-12-awunyy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=409&fit=crop&dpr=1 600w, https://images.theconversation.com/files/485489/original/file-20220920-12-awunyy.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=409&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/485489/original/file-20220920-12-awunyy.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=409&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/485489/original/file-20220920-12-awunyy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=514&fit=crop&dpr=1 754w, https://images.theconversation.com/files/485489/original/file-20220920-12-awunyy.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=514&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/485489/original/file-20220920-12-awunyy.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=514&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Women are responsible for some of the greatest inventions, yet inventorship remains a male-dominated field. We’ll have to fight historical biases against women if this is to change.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>Women in STEM must be supported</h2>
<p>The implications of women falling out of the patent system are significant for a number of reasons. For one, patents with female inventors are more likely to focus <a href="https://theconversation.com/too-few-women-get-to-invent-thats-a-problem-for-womens-health-162576">on female diseases</a>. </p>
<p>Also, getting a patent can be important for career progression and for securing investment capital. And <a href="https://theconversation.com/how-talented-kids-from-low-income-families-become-americas-lost-einsteins-89126">research has</a> shown a lack of female inventors today impacts the rate at which girls aspire to be the inventors of tomorrow. </p>
<p>The next step in our research is to find out why there is a gender gap in successful patent applications. </p>
<p>We don’t believe it’s a simple case of gender bias at the patent office. We suspect the issues are complex, and related to the systemic and institutional biases that hold back women’s progress in STEM more generally. </p>
<p>Country and cultural differences may also be at play, particularly since more than 90% of patent applications received by IP Australia come from non-Australian inventors (and overwhelmingly from the United States). </p>
<p>We want to look deeper into our results to figure out what’s driving the gender disparity, and what we can do to support female inventors. </p>
<p>The first step in fixing a problem is acknowledging it exists. We hope our research starts a conversation that prompts people to reflect on their own biases. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/caring-or-killing-harmful-gender-stereotypes-kick-in-early-and-may-be-keeping-girls-away-from-stem-169742">Caring or killing: harmful gender stereotypes kick in early — and may be keeping girls away from STEM</a>
</strong>
</em>
</p>
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<img src="https://counter.theconversation.com/content/188600/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Although female inventorship has grown over the years, 15 years’ worth of patent outcomes from IP Australia suggests inventing is still a luxury for women.Vicki Huang, Senior Lecturer, Intellectual Property, Deakin UniversityCameron Patrick, Statistical Consultant, The University of MelbourneSue Finch, Statistical Consultant, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1732982022-02-14T18:13:29Z2022-02-14T18:13:29ZHow the intellectual property monopoly has impeded an effective response to Covid-19<p>In an interconnected world, a pandemic can be overcome only when it is overcome everywhere – no one is safe until everyone is safe. Vaccination delays and supply shortages in protective equipment and treatments increase the possibility of the virus mutating. This undermines our ability to control the pandemic, even in highly vaccinated countries. And yet two years into the pandemic, vaccine doses are highly concentrated in rich countries.</p>
<p>As of <a href="https://webassets.oxfamamerica.org/media/documents/A_Dose_of_Reality-Briefing_Note_kOW1yUs.pdf">October 2021</a>, only 0.7% of all manufactured vaccine doses had gone to low-income countries. Manufacturers had delivered 47 times as many doses to high-income countries as they had to low-income countries.</p>
<p>Since its inception, <a href="https://www.who.int/initiatives/act-accelerator/covax">COVAX</a>, the UN-backed initiative dedicated to promoting access to Covid vaccines, has struggled to obtain doses. It recently passed the <a href="https://www.reuters.com/world/global-vaccine-sharing-programme-reaches-milestone-1-billion-doses-2022-01-15/">1 billion doses delivered</a> – half way to its goal of delivering 2 billion doses by the end of 2021. Indeed, AstraZeneca, Pfizer/BioNTech, Moderna, and Johnson & Johnson <a href="https://webassets.oxfamamerica.org/media/documents/A_Dose_of_Reality-Briefing_Note_kOW1yUs.pdf">have delivered</a> between 0% and 39% of their already inadequate commitments to COVAX in 2021.</p>
<p>The <a href="https://globalcommissionforpostpandemicpolicy.org/home/vaccine-countdown/">Global Commission for Post-Pandemic Policy</a>, meanwhile, estimates that while Asia and Europe will be able to fully vaccinate 80% of their populations by March 2022 and North America by May 2022, Africa will not reach 80% at current rates until April 2025.</p>
<h2>Intellectual monopoly capitalism</h2>
<p>The unequal distribution of vaccines is partly due to insufficient production. This <a href="https://www.project-syndicate.org/onpoint/big-pharma-blocking-wto-waiver-to-produce-more-covid-vaccines-by-joseph-e-stiglitz-and-lori-wallach-2021-05">scarcity of supply</a> is due to intellectual property rights, which give pharmaceutical companies a monopoly on production and exclusive rights to license their technology to other companies.</p>
<p>India and South Africa, co-sponsored by more than 100 other countries, initiated a campaign in the World Trade Organization to <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True">waive intellectual property rights</a> to ensure the necessary production of vaccines, PPE, diagnostics, ventilators and medication. A waiver would ensure necessary production by allowing companies to produce Covid-related products.</p>
<p>Six months later, the United States surprisingly <a href="https://www.nature.com/articles/d41586-021-01224-3">supported the waiver for vaccines</a>, but not for other medical materials as advanced by the patent waiver initiative. Yet to date, Washington has not employed its political clout to apply the waiver globally, and Europe has refused the initiative.</p>
<p>Curiously, Brussels <a href="https://trade.ec.europa.eu/doclib/docs/2021/june/tradoc_159606.pdf">proposes</a> to use the very flexibilities of Trade-Related Aspects of Intellectual Property Rights agreement (<a href="https://en.wikipedia.org/wiki/TRIPS_Agreement">TRIPS</a>), that it resisted and even undermined through its trade agreements. As Nobel Prize–winning economist Joseph Stiglitz <a href="https://www.project-syndicate.org/onpoint/big-pharma-blocking-wto-waiver-to-produce-more-covid-vaccines-by-joseph-e-stiglitz-and-lori-wallach-2021-05">argues</a> these flexibilities are not helpful.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Map showing the share of people who received at least one dose of Covid-19 vaccine, Jan 18, 2022" src="https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=424&fit=crop&dpr=1 600w, https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=424&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=424&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=532&fit=crop&dpr=1 754w, https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=532&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/441560/original/file-20220119-27-100zcjl.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=532&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption"></span>
<span class="attribution"><a class="source" href="https://ourworldindata.org/covid-vaccinations">Our World in Data</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<p>Intellectual property rights are political creature as they profit specific social interests and were <a href="https://books.google.fr/books?id=B81qmONSs9cC&lpg=PR10">lobbied</a> for by them, especially the pharmaceutical, agrochemical, entertainment and media industries.</p>
<p>The signature of what is known as the TRIPS agreement at the World Trade Organization in 1994 was a <a href="https://www.tandfonline.com/doi/abs/10.1080/14649880120067293">historic turning point</a> for intellectual property rights, and is today exacerbated by more stringent <a href="https://ageconsearch.umn.edu/record/15577?ln=en">US</a> and <a href="https://link.springer.com/chapter/10.1007/978-3-642-39097-5_13">EU</a> bilateral trade agreements.</p>
<p>These were key steps in the enforcement of <a href="https://academic.oup.com/cje/article-abstract/38/6/1409/2875367?redirectedFrom=fulltext">“intellectual monopoly capitalism”</a> which has transformed a world mainly based on open science into a world of closed science, and led to the concentration of knowledge into a few hands to an unprecedented degree.</p>
<p>The legal monopoly over knowledge, which extends well beyond national boundaries, enables owners of intellectual property rights (IPR) to exclude others from using new inventions, reduce competitive supply and increase prices. The control of IPRs is a central element in <a href="https://www.tandfonline.com/doi/abs/10.1080/00213624.2017.1320916">transnational corporation strategies</a> of accumulating intangible assets to extract absolute rents.</p>
<p>In an increasingly <a href="https://www.sciencedirect.com/science/article/abs/pii/S0277953620303154">financialised health sector</a>, where the priority is to increase profits for creditors and shareholders, the accumulation of a portfolio of intellectual property rights <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/1758-5899.12911">allows</a> for the extraction of monopoly profits.</p>
<p>In 2019, investment management corporations such as BlackRock, Vanguard, and State Street were the <a href="https://www.sciencedirect.com/science/article/abs/pii/S0277953620303154">majority shareholders</a> in firms involved in vaccine development including Pfizer (75.1%) and Johnson & Johnson (68.1%). This is problematic, as research shows that a key determinant of innovation in the health sector could become <a href="https://academic.oup.com/spp/article-abstract/43/3/375/2363402">generating returns on investment</a>, not protecting health.</p>
<p>Therefore, some economist argues that the global economic system is <a href="https://www.tandfonline.com/doi/full/10.1080/09692290.2019.1659842">“structurally pathogenic”</a>, with negative rather than positive impacts on human health.</p>
<h2>The public pays twice</h2>
<p>A <a href="https://webassets.oxfamamerica.org/media/documents/The_Great_Vaccine_Robbery_Policy_Brief.pdf">July 2021 analysis</a> by the <a href="https://peoplesvaccine.org/">People’s Vaccine Alliance</a> shows that
Pfizer/BioNTech and Moderna are charging governments as much as 41 billion US dollars above the estimated cost of production for vaccines. The EU, meanwhile, may have paid 31 billion euros more than the estimated cost for its mRNA doses.</p>
<p>The same analysis shows that countries are generally paying between 4 and 24 times more than they could be for Covid-19 vaccines. But a recent <a href="https://www.citizen.org/article/how-to-make-enough-vaccine-for-the-world-in-one-year/">report</a> by the consumer advocacy group Public Citizen suggests that setting up regional hubs to manufacture 8 billion doses in one year would cost about $23 billion for the Moderna vaccine, and $9.4 billion for the Pfizer/BioNTech vaccine.</p>
<p>Put simply, without intellectual property monopolies, the money already spent by COVAX would have been enough to fully vaccinate the entire population of low-income and middle-income countries.</p>
<p>Moreover, citizens are paying the pharmaceutical industry twice: first because they are paying monopoly profit, and second because vaccines were developed with <a href="https://www.theindiaforum.in/article/political-economy-covid-19-vaccines">public funding</a> through large subsidies for research and development, and through public pre-orders of vaccines.</p>
<h2>Adverse effects of IPR on innovation</h2>
<p>The proponents of tight intellectual property rights argue that in their absence, inventions would be accessible to third parties without ensuring enough compensation for inventors, thus discouraging investment in innovation. But Joseph Stiglitz argues that there is <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199660759.001.0001/acprof-9780199660759-chapter-1">no evidence supporting this mainstream view</a>.</p>
<p>Indeed, intellectual property rights establish distorted incentives to create market power. Monopolists use their power to block innovators who endanger their dominant position, and try to maintain their position by getting only a little bit ahead of their rivals – which has an adverse effect on innovation.</p>
<p>This became clear during the Covid-19 pandemic. <em>The New York Times</em> <a href="https://www.nytimes.com/2020/03/29/business/coronavirus-us-ventilator-shortage.html">reported</a> suspicions that one company, Covidien, had acquired another, Newport, to “prevent it from building cheaper products that would undermine Covidien’s profits from its existing ventilator business”, despite the fact that the Newport ventilator was developed with <a href="https://www.ineteconomics.org/uploads/papers/WP_127-Lazonick-and-Hopkins.pdf">public funding</a>.</p>
<p>As knowledge has been subdivided into separate property claims, we have seen the rise of <a href="https://www.nber.org/system/files/chapters/c10778/c10778.pdf">patent thickets</a> – dense webs of overlapping intellectual property rights claims that a company must use to actually commercialise a new invention. In this context, greater intellectual property rights lead to <a href="https://www.science.org/doi/10.1126/science.280.5364.698">fewer useful health products</a>.</p>
<p>A <a href="https://www.nature.com/articles/s41587-021-00912-9">recent article</a> showed that while key technological advancements for mRNA vaccines were invented in several academic labs or small biotech companies and then licensed to larger companies, the intellectual property rights owned by or assigned to those larger companies may impede future development of the technology.</p>
<h2>Intellectual property capitalism, growth and social polarisation</h2>
<p>Tight intellectual property rights are also counterproductive from a broader economic perspective. Several economists argue that intellectual monopoly capitalism <a href="https://academic.oup.com/cje/article-abstract/38/6/1409/2875367?redirectedFrom=fulltext">produces economic crisis</a> and stagnation. American scholar <a href="https://www.tandfonline.com/doi/abs/10.1080/09692290.2021.1918745?journalCode=rrip20">H Mark Schwartz</a> has demonstrated that firms based on intellectual property rights have a lower marginal propensity to invest.</p>
<p>The monopolisation of socially produced knowledge by intellectual property rights produces hierarchical relations among firms and between capital and labour, <a href="https://journals.sagepub.com/doi/abs/10.1177/1024529420968221">exacerbating</a> inequality and creating a situation where a handful of firms capture the lion’s share of global profits.</p>
<p>It should be noted that IPRs have exacerbated structural global polarisation. While production takes place in the South in exchange for poor wages and accompanied by environmental degradation, transnational corporations whose headquarters are mostly in the North (or in tax havens) <a href="https://www.tandfonline.com/doi/abs/10.1080/00213624.2017.1320916">extract monopoly rent</a> through IPRs out of value-added that is created in the South. What is <a href="https://unctad.org/system/files/official-document/tdr2018ch3_en.pdf">new</a> this time is that some historically technologically-advanced Western European countries have been locked out of the “fourth industrial revolution” – advancing information and communication technologies – partially due to IPRs.</p>
<p>Finally, there exists <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199698547.001.0001/acprof-9780199698547-chapter-10">other mechanisms, including prizes and government supported research</a>, that reward invention and disseminate knowledge while avoiding the creation of monopoly power.</p><img src="https://counter.theconversation.com/content/173298/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Salam Alshareef ne travaille pas, ne conseille pas, ne possède pas de parts, ne reçoit pas de fonds d'une organisation qui pourrait tirer profit de cet article, et n'a déclaré aucune autre affiliation que son organisme de recherche.</span></em></p>From vaccines to treatments and even medical equipment, intellectual property rights have hampered the world’s efforts to fight the pandemic.Salam Alshareef, Enseignant-chercheur postdoctoral - Chaire Paix Economique, Grenoble École de Management (GEM)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1453722020-12-08T13:14:58Z2020-12-08T13:14:58ZThe iconic American inventor is still a white male – and that’s an obstacle to race and gender inclusion<figure><img src="https://images.theconversation.com/files/372362/original/file-20201201-19-rbhm6a.jpg?ixlib=rb-1.1.0&rect=0%2C1%2C1024%2C818&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Thomas Edison remains the poster child of American invention 89 years after his death.</span> <span class="attribution"><a class="source" href="https://www.loc.gov/resource/cph.3c10811/">Underwood & Underwood via the Library of Congress</a></span></figcaption></figure><p>When President Barack Obama <a href="https://www.uspto.gov/learning-and-resources/newsletter/inventors-eye/president-obama-signs-america-invents-act">signed the America Invents Act</a> in 2011, he was surrounded by a group of people of diverse ages, genders and races. The speech he delivered about the legislation, which changed the technical requirements for filing a patent, highlighted this diversity by emphasizing that today anyone can become an inventor in the United States.</p>
<p>Despite Obama’s optimism about women and people of color inventing and patenting the nation’s new and innovative technologies, both groups still lag considerably behind their white male counterparts in <a href="https://www.bbc.com/news/technology-49843990">being recognized as inventors</a> and <a href="https://iwpr.org/publications/equity-in-innovation-women-inventors-and-patents/">owning patents</a>, in the U.S. and globally. Women and people of color possess the same intellectual capacities as their white male counterparts. Yet <a href="https://doi.org/10.1111/ablj.12159">empirical studies</a> consistently show that patent law overwhelmingly rewards white men for their labor and skill. </p>
<p>This is in part because <a href="https://ngcproject.org/statistics">women</a> and <a href="https://www.pewsocialtrends.org/2018/01/09/blacks-in-stem-jobs-are-especially-concerned-about-diversity-and-discrimination-in-the-workplace/">people of color</a> join science, technology, engineering and math (STEM) fields in much lower numbers than white men. In 2017, women made up over half of the workforce, but held only <a href="https://www.catalyst.org/research/women-in-science-technology-engineering-and-mathematics-stem/">29% of STEM jobs</a>. But even women and people of color who go into STEM fields invent and patent far less often than their white male counterparts. </p>
<p>The question is why. </p>
<p>As a researcher who <a href="https://scholar.google.com/citations?user=ugCKmdMAAAAJ&hl=en">studies race, rhetoric and intellectual property law</a>, I can say that the U.S.’s race and gender invention and patent gap results partly from a failure of imagination. The stories that people tell about invention in the U.S. continue to focus on white men – the Benjamin Franklins, Thomas Edisons and Elon Musks – without affording women and people of color the same larger-than-life status. </p>
<p>National myths about inventorship and political barriers to patenting set up women and people of color for failure by normalizing <a href="https://www.pewsocialtrends.org/2018/01/09/women-and-men-in-stem-often-at-odds-over-workplace-equity/">entrenched discrimination</a> even when they join STEM fields.</p>
<h2>The stories we tell about inventors</h2>
<p><a href="https://www.britannica.com/topic/critical-race-theory">Critical race theorists</a> show how legal terms and everyday narratives can look as if they create a level playing field while allowing implicit bias to thrive. In my new book, “<a href="https://www.sup.org/books/title/?id=27831">The Color of Creatorship</a>,” I look at how intellectual property law has evolved racially over 200 years. </p>
<p>Black and brown people are no longer legally prohibited from owning patents and copyrights, as they were in the 1700s and 1800s. However, seemingly colorblind patent and copyright laws continue to practically favor white male inventors and creators by using legal definitions and tests that protect inventions and creations that tend to match Western conceptions and expectations of, for instance, <a href="https://doi.org/10.1038/d41586-020-03056-z">expertise</a> and <a href="https://www.theatlantic.com/entertainment/archive/2010/03/how-to-make-a-documentary-about-sampling-legally/38189/">creativity</a>. </p>
<p>From the now cliché “think outside the box” to Apple’s slogan “<a href="http://www.thecrazyones.it/spot-en.html">think different</a>,” innovation, a central component of invention, is associated with breaking limits. Yet Americans have largely failed to change the ways that they think and talk about invention itself. </p>
<p>Even Obama’s speech about the America Invents Act begins by explaining how Thomas Jefferson epitomized the nation’s mythic spirit of invention and innovation. Yet Jefferson held the racist view that Black people <a href="https://www.washingtonpost.com/archive/lifestyle/2002/03/26/henry-louis-gates-a-wheatley-reader/e7a097ac-8d42-4432-abf0-8366e5ea4528/">lacked the capacity to be truly imaginative creators</a>, let alone citizens of the nation. Breaking limits, it turns out, is most often <a href="https://www.theatlantic.com/business/archive/2013/08/entrepreneurship-the-ultimate-white-privilege/278727/">a privilege afforded to white people</a>. </p>
<p>The current historical moment, in which facts are negotiable, white nationalism is on the rise and the nation is weathering a pandemic, is an important time to redefine American mythologies of invention. Celebrating the inventive capacity of women and people of color matters. Recognizing their innovative genius, in films like “<a href="https://www.newyorker.com/culture/richard-brody/hidden-figures-is-a-subtle-and-powerful-work-of-counter-history">Hidden Figures</a>,” helps transform what had been marginalized stories into narratives that are central to history. </p>
<p>Obama’s reference to Jefferson reinforced powerful, limiting conventional wisdom about invention and innovation. Popular cultural narratives frequently invoke the contributions of white men while erasing those of women and people of color. For example, the History Channel’s <a href="https://www.realclearhistory.com/articles/2012/11/09/who_are_the_men_who_built_america_40.html">The Men Who Built America</a> focuses on the inventions and innovations of Cornelius Vanderbilt, John D. Rockefeller, Andrew Carnegie and Henry Ford, business titans who achieved tremendous success via dubious ethics. </p>
<p>The show’s use of the Great Man theory of inventorship and entrepreneurship leaves out the many women and people of color, including Thomas Jennings, Elijah McCoy, Miriam E. Benjamin and Sarah E. Goode who, as legal scholar Shontavia Johnson shows, not only <a href="https://theconversation.com/americas-always-had-black-inventors-even-when-the-patent-system-explicitly-excluded-them-72619">invented and patented during the same period</a> but, as legal scholar Kara Swanson shows, used their work to <a href="https://www.cambridge.org/core/journals/journal-of-the-gilded-age-and-progressive-era/article/inventing-the-woman-voter-suffrage-ability-and-patents/B698232F40C9E4AF0E817097CA4F1987">lobby for suffrage rights for women and people of color.</a> </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/gQo1cZtEpgY?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">A brief listing of notable Black American inventors.</span></figcaption>
</figure>
<h2>Attacking Asian innovation</h2>
<p>America’s white-male-centered imaginings of inventorship and patenting extend beyond the nation’s borders, in xenophobic pronouncements frequently directed at Asian nations. Apple co-founder Steve Wozniak <a href="https://economictimes.indiatimes.com/opinion/interviews/success-in-india-is-based-on-studying-having-a-job-wheres-the-creativity/articleshow/63065361.cms?from=mdr">recently proclaimed</a>: “Success in India is based on studying, having a job … where’s the creativity?” </p>
<p>Similarly, President Trump claimed to be “<a href="https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-protecting-america-chinas-efforts-steal-technology-intellectual-property/">protecting the innovations, creations, and inventions that power our country</a>” from Chinese graduate students, who are part of a racial group that has long <a href="https://asiasociety.org/blog/asia/how-asian-graduates-and-executives-boost-us-economy">boosted America’s economy</a>, <a href="https://www.forbes.com/sites/johnmauldin/2018/09/19/china-is-building-the-worlds-largest-innovation-economy/#76f52ae66fd4">fueled global innovation</a> and <a href="https://www.reuters.com/article/us-health-coronavirus-usa-hcq/trump-thanks-india-for-decision-on-anti-malaria-drug-idUSKCN21Q2ZC">offered pandemic assistance</a>. </p>
<p>Refusal to recognize diversity in inventorship is a bipartisan affair. Then-presidential candidate and current President-elect <a href="https://www.bloomberg.com/news/articles/2014-05-29/biden-makes-a-habit-of-dissing-chinese-innovation">Joseph Biden made a shocking assertion</a> about innovation in China: “I challenge you, name me one innovative project, one innovative change, one innovative product that has come out of China.” </p>
<h2>Inventing new ways to talk about invention</h2>
<p>Racist, sexist and xenophobic inventorship and patenting norms are not immutable facts. They are practices built on exclusionary stories and feelings, transformed into familiar myths, including that of the American dream. These exclusionary stories frequently function as <a href="https://www.chicagoreporter.com/dog-whistle-politics-is-gops-longtime-political-weapon-of-choice/">dog whistles</a> that have long been used to fuel white anxieties about people of color and men’s anxieties about women. They make it difficult for women and people of color to prove they have the expertise needed to invent and patent.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>However, as films like “Hidden Figures” emphatically show, it’s possible to tell inclusionary stories. I argue that telling them is an ethical act because it ensures that society recognizes the genius of people of all identities – race, gender, nationality, religion, ability, age – in contributing to invention and innovation, current and historical.</p>
<p>Rhetoricians frequently proclaim that “words mean things.” This is certainly true when imagining who has the capacity to perform certain tasks, such as inventing and patenting. At a moment in which the U.S. faces threats to democracy, environment and economy, it is more important than ever to invent new ways of talking about invention. People of all identities deserve the opportunities to create and own their innovative solutions for solving the world’s most pressing problems. More importantly, they deserve to be treated as full citizens in the realm of intellectual property and innovation.</p><img src="https://counter.theconversation.com/content/145372/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anjali Vats is affiliated with Microsoft Research New England's Social Media Collective. </span></em></p>The story of invention in America typically features larger-than-life caricatures of white men like Thomas Edison while largely ignoring the contributions of women and people of color.Anjali Vats, Associate Professor of Communication and African and African Diaspora Studies and Associate Professor of Law (By Courtesy), Boston CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1401352020-07-09T12:16:59Z2020-07-09T12:16:59ZWhen states pass social liberalization laws, they create regional advantages for innovation<figure><img src="https://images.theconversation.com/files/346212/original/file-20200707-194427-3370sk.jpg?ixlib=rb-1.1.0&rect=166%2C58%2C2755%2C1895&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Marriage equality supporters in 2006 probably had no idea the law they advocated would spur innovation.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/proponents-of-gay-marriage-hold-signs-outside-the-news-photo/71424729">Darren McCollester/Getty Images News via Getty Images</a></span></figcaption></figure><p>What conditions lead to world-changing innovation? It’s an important question for business and government leaders.</p>
<p>Contrary to the <a href="https://theconversation.com/myth-of-the-genius-solitary-scientist-is-dangerous-87835">traditional notion of the solitary scientist</a>, new products, services and technologies are rarely conceived by a single person. Instead, they’re developed and refined through feedback from colleagues, end users and collaborators. So it’s not surprising that characteristics of the social context can influence innovation. </p>
<p>But how can you create the social context that facilitates innovation?</p>
<p><a href="https://scholar.google.com/citations?user=5JSGP1sAAAAJ&hl=en&oi=sra">My collaborator</a> <a href="https://scholar.google.com/citations?user=jMB68cgAAAAJ&hl=en&oi=sra">and I</a> zeroed in on the idea of looking at social liberalization policies – laws like those that prohibit discrimination based on sexual orientation, for instance – as a measure for a more open and diverse social environment. We found that states that implemented socially liberal laws <a href="https://doi.org/10.1002/smj.2778">significantly increased patenting</a> – and anti-liberalization policies reduced it.</p>
<h2>Measuring the effect of social context</h2>
<p>As a proxy for openness to diversity and different ideas, my colleague and I focused on two policies: legalization of same-sex civil unions and legalization of medicinal marijuana. We also looked at one type of policy we termed “anti-liberalization”: abortion restrictions. The staggered implementation of these laws state by state between 1994 and 2006 let us examine their effects on the rate and direction of innovation.</p>
<p>When policymakers at the regional and national level enact these kinds of policies, it’s often with the goal of influencing the social and political environment. Michigan, for example, is reviewing the impact of <a href="https://mibiz.com/sections/economic-development/michigan-s-push-to-expand-lgbtq-civil-rights-comes-amid-key-federal-lawsuits">civil rights laws on economic productivity</a>. They may be unaware, though, of the potential impact on innovation, an aspect that’s largely been left out of the discussion.</p>
<p><a href="https://doi.org/10.1002/smj.2778">We found that</a> the legalization of same-sex civil unions and domestic partnerships increased state-level patenting by 6%. The legalization of medical marijuana increased patenting by 7%.</p>
<p>In contrast, the passing of each additional abortion restriction reduced patenting by about 1%.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/346213/original/file-20200707-194405-hufwma.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/346213/original/file-20200707-194405-hufwma.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/346213/original/file-20200707-194405-hufwma.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/346213/original/file-20200707-194405-hufwma.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/346213/original/file-20200707-194405-hufwma.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/346213/original/file-20200707-194405-hufwma.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=511&fit=crop&dpr=1 754w, https://images.theconversation.com/files/346213/original/file-20200707-194405-hufwma.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=511&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/346213/original/file-20200707-194405-hufwma.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=511&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Marchers calling for restrictions on abortion rights in 1995 likely wouldn’t anticipate the impact on innovation.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/view-of-anti-abortion-demonstrators-many-with-signs-behind-news-photo/675653610">Mark Reinstein/Corbis Historical via Getty Images</a></span>
</figcaption>
</figure>
<p>There are a couple of thorny challenges when it comes to assessing the relationship between the policies and innovation. For instance, could the same factor be behind both the passage of the law and also the changes we observed in patenting? The staggered implementation of these laws state by state allowed us to compare states with different levels of openness to diversity while controlling for time-varying state-level factors that may separately influence innovation, like <a href="https://doi.org/10.1353/urb.2004.0005">education</a>, <a href="https://doi.org/10.1016/S0169-7218(10)02008-3">R&D spending</a> and other economic conditions and political orientation. </p>
<p>The possibility of reverse causality is another concern. Were states with higher patenting rates more likely to implement socially liberal policies in the first place? Are we simply capturing a continuation of trends that started before these laws were passed? We ruled this option out because when we looked at state-level patenting rates before and after policy changes, we found no evidence of increased patenting before the implementation of the two socially liberal policies.</p>
<p>Along with other statistical tests we performed on the data, these factors gave us confidence that it’s the policies themselves driving changes in sentiment, which are reflected in increased innovation.</p>
<p>Understanding the underlying mechanisms that drive these findings is important for both executives and policymakers who want to tap into the benefits of innovation to facilitate regional growth. We explored three potential explanations of why innovation increases with social liberalization. </p>
<h2>Mobility, entrepreneurship and attitude</h2>
<p>Maybe socially liberal regions tend to attract more inventors. The <a href="https://creativeclass.com/rfcgdb/articles/4%20Cities%20and%20the%20Creative%20Class.pdf">creative class theory</a> argues that inventors prefer to work and live in regions with more tolerance and openness to diversity. As a result of this theory, states like Michigan have developed “<a href="https://web.archive.org/web/20110611112140/http:/www.coolcities.com/mission.html">Cool Cities Initiatives</a>” that aim to revitalize neighborhoods through more green spaces and community gathering venues to attract well-educated individuals and creative types.</p>
<p>But based on the net flow of inventors in and out of states that implemented socially liberal policies, we found no evidence that these laws attract top inventors to a region. </p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>The second possibility is that socially liberal policies can lead more people to take a shot at entrepreneurship by promoting more diverse social interactions and better access to resources. Given that entrepreneurship requires assembling resources and talent, it’s not surprising that <a href="https://www.entrepreneur.com/article/68840">building diverse networks</a> could be vital for starting a business.</p>
<p>Using the number of new firms patenting as a proxy for entrepreneurship, we found preliminary evidence suggesting that liberalization policies are indeed associated with more entry into entrepreneurship.</p>
<p>We found the strongest support, though, for a third mechanism, which draws on the idea that social liberalization policies can influence individuals’ attitudes toward openness and diversity. In turn, this leads to more diverse interactions, including collaborations among inventors. <a href="https://www.forbes.com/sites/sianbeilock/2019/04/04/how-diversity-leads-to-better-outcomes/#1566f71365ce">More diverse teams tend to produce better outcomes</a> as a result of more creative problem-solving.</p>
<p>Inventors living in states with liberalized policies had greater collaboration diversity; they tended to form more new collaborative ties, and their collaborators had wider and more diverse knowledge bases. The patents that resulted from these more diverse collaborations were more novel. And they were of measurably higher impact, as they are more likely to be among the top 10% of most highly cited patents.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/346210/original/file-20200707-194423-ioilvh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/346210/original/file-20200707-194423-ioilvh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/346210/original/file-20200707-194423-ioilvh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/346210/original/file-20200707-194423-ioilvh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/346210/original/file-20200707-194423-ioilvh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/346210/original/file-20200707-194423-ioilvh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/346210/original/file-20200707-194423-ioilvh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/346210/original/file-20200707-194423-ioilvh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Diversity of perspectives around the table is a valuable ingredient for innovation.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/business-colleagues-in-meeting-with-female-amputee-royalty-free-image/1084168538">10'000 Hours/DigitalVision via Getty Images</a></span>
</figcaption>
</figure>
<h2>Innovation springs from the social context</h2>
<p>The big takeaway for firms is that the social context can shape inventive collaborations, and thus influence innovation outcomes.</p>
<p>While firms traditionally make location decisions based on the human capital in a region, they should also consider a region’s social environment. Indeed, the <a href="https://www.wsj.com/articles/to-get-anything-done-georgia-politicians-say-do-it-for-amazon-1517308201">broader social context</a> is rumored to have been a factor in <a href="https://atlanta.curbed.com/2018/11/12/18087396/atlanta-gulch-downtown-amazon-hq2-jeff-bezos">why Georgia did not score Amazon’s HQ2 location</a>.</p>
<p>In addition, our research suggests that corporate social responsibility practices that promote diversity and inclusion in the workplace help set the stage for greater innovative productivity. Managers who want to create competitive advantages for businesses should keep these policies in mind.</p><img src="https://counter.theconversation.com/content/140135/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laurina Zhang receives funding from the Kauffman Foundation. </span></em></p>Inventors in states with more socially liberal laws on the books end up with more diverse collaborators – and more higher-impact patents.Laurina Zhang, Assistant Professor of Strategy & Innovation, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1000872018-09-26T10:21:44Z2018-09-26T10:21:44ZHiring highly educated immigrants leads to more innovation and better products<figure><img src="https://images.theconversation.com/files/237971/original/file-20180925-149955-1s1pcp1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Apple’s Tim Cook believes access to high-skill immigrants is a key source of American innovation.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-and-Tech/6469b7c6658f4fa5bba788d8e59a7a99/3/0">AP Photo/Marcio Jose Sanchez</a></span></figcaption></figure><p>Much of the current debate over <a href="https://theconversation.com/us/topics/economics-of-immigration-36174">immigration</a> is about what kind of impact immigrants have on <a href="https://www.nytimes.com/2017/08/03/us/politics/legal-immigration-jobs-economy.html">jobs</a> and <a href="https://academic.oup.com/qje/article-abstract/118/4/1335/1925108">wages</a> for workers born in the United States.</p>
<p>Seldom does anyone talk about how immigration leads to a wider variety of better products for the American consumer. We recently conducted a <a href="http://www.nber.org/papers/w24824">study</a> to shine more light on the matter.</p>
<p>We are economists with a keen interest in <a href="https://scholar.google.com/citations?user=YF8_D9gAAAAJ&hl=en">growth and innovation</a> and <a href="https://scholar.google.com/citations?user=gj0MRQ0AAAAJ&hl=en">how immigration affects the economy</a>.</p>
<p>What we found is that the more companies hire certain highly skilled and mostly college-educated foreign workers, the more those businesses create new products. In fact, we found that hiring high-skill immigrants has a stronger association with innovation than spending money on research and development. </p>
<p>In other words, more highly educated immigrant workers means more and better products – such as more efficient laptops, TVs and other electronics – on the American marketplace.</p>
<h2>The creation of newer, better products</h2>
<p>We discovered this by taking a closer look at “<a href="https://www.sciencedirect.com/science/article/pii/S0304393217301319****">product reallocation</a>.”</p>
<p>Economists have long regarded product reallocation as a primary indicator of <a href="http://www.nber.org/papers/w18824">how innovation affects economic growth</a>. Product reallocation is simply the entry of newer products and exit of older products. For instance, innovation will lead to incremental changes to electronic products like laptops and TVs, which will make them more efficient. When these changes are made, a new model of the product is introduced in the market, and the older, obsolete model is phased out. The Austrian economist Joseph Schumpeter referred to this type of innovation as “<a href="https://economics.mit.edu/files/1785">creative destruction</a>.”</p>
<p>Creative destruction, like other forms of innovation, drives companies to grow and increases the productivity of the economy as a whole. In addition, <a href="http://www.nber.org/papers/w15768">other work</a> has shown that immigration is also <a href="https://doi.org/10.1257/mac.2.2.31">strongly associated</a> with <a href="https://doi.org/10.1257/aer.104.10.3222">patenting</a>.</p>
<p>While patenting is a useful measure of innovation, it captures a very specific type of innovation. This is because some industries are more likely to get their innovations patented than others, depending on changes that may take place as a result of court rulings, new policies and the tax code. Consequently, many important innovations never get patented, and many things that get patented rarely get used. </p>
<p>The advantage of product reallocation – our measure of innovation – is that it captures incremental innovations that are usually not patented and thereby missed by previous research on the impact of immigration.</p>
<h2>The connection between migration and production</h2>
<p>There happens to be a good way to figure out which firms are hiring high-skill foreign workers. </p>
<p>To hire such a worker, companies must file a labor certification application to obtain an <a href="https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2019-cap-season">H-1B visa</a> for the employee. H-1B visas allow U.S. companies to temporarily hire foreign workers in jobs that require the “theoretical and practical application of a body of <a href="https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2019-cap-season">highly specialized knowledge and a bachelor’s degree or higher</a> in the specific specialty, or its equivalent,” according to the federal agency that oversees the program.</p>
<p>We obtained data on all labor certification applications for every company that filed at least one from 2001 to 2015. This data shows the employer name and location, details about the work start and end dates, the occupation and job title.</p>
<p>We combined this dataset with product details by looking at barcodes generated from point-of-sale systems, like the cash registers or payment terminals, from about 35,000 stores across the country. The first few digits of a barcode on products actually identify which company produced these products. This allows us to create measures of product entry and exit – that is, reallocation – at the company level.</p>
<p>Our research looks at level of innovation, or reallocation rates, by four different types of business: those that hire H-1B workers, those that don’t, those that spend a lot on research and development and those that have different combinations of both.</p>
<p>If anything is clear from our study, it is that companies that hire more H-1B workers, regardless of how much they spend on research and development, have higher rates of product reallocation. </p>
<p>One of the main reasons we’re confident in our conclusion is the timing of the effects. Hiring an H-1B employee today was clearly associated with innovation gains in subsequent years. Specifically, a 10 percent increase in the share of H-1B workers is associated with a 2 percent increase in product reallocation – a rather meaningful increase in innovation.</p>
<p>In short, H-1B hiring seems to have a stronger association with reallocation rates than research and development, often seen as a wellspring for innovation.</p>
<p><iframe id="dY9kt" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/dY9kt/5/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Economic growth and consumer welfare</h2>
<p>The U.S. has the advantage of being a profitable hub of innovation and entrepreneurship. It can attract the best and the brightest minds from around the world, offering not just commensurate compensation but also the chance to interact with other innovators and entrepreneurs. </p>
<p>Given the rapidly <a href="http://www.nber.org/papers/w20505">increasing number of college graduates</a> from populous countries like India and China, especially those specializing in science and engineering degrees, there is a growing pool of potential workers that U.S. employers can choose from. </p>
<p>An added perk: Foreign workers may bring a slightly different set of skills, which in combination with the skill-set of U.S.-born workers, can help produce new and more efficient products. As faster laptops, more effective pharmaceuticals, better cellphones and other higher quality electronics are introduced into the market, we reap their benefits as consumers.</p>
<p>Innovation also helps drive growth and raises productivity across sectors of the economy. For instance, many industries – from car manufacturers to bankers – use software and electronics in their production processes. </p>
<p>To that end, more efficient electronics not only benefit consumers, but also raise the productivity of <a href="https://doi.org/10.1257/aer.104.10.3222">all sectors that use such products</a>, fueling growth for the economy as a whole.</p><img src="https://counter.theconversation.com/content/100087/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gaurav Khanna has received funding from the National Bureau of Economic Research (NBER), the National Science Foundation (NSF), and the Center for Global Transformation (UCSD). He is a Non-resident Fellow at the Center for Global Development, Washington DC.</span></em></p><p class="fine-print"><em><span>Munseob Lee receives funding from the Center for Global Transformation (UCSD). </span></em></p>New research shows recruiting high-skilled immigrants leads to a ‘meaningful’ increase in innovation – and even more than spending money on research and development.Gaurav Khanna, Assistant Professor of Economics, University of California, San DiegoMunseob Lee, Assistant Professor of Economics, University of California, San DiegoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/726192017-02-15T02:02:43Z2017-02-15T02:02:43ZAmerica’s always had black inventors – even when the patent system explicitly excluded them<figure><img src="https://images.theconversation.com/files/157436/original/image-20170219-10209-10w0f9l.gif?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A New York Times article from 1910 describes founding of Mound Bayou, a town founded on the wealth of a steamboat patent.</span> <span class="attribution"><a class="source" href="http://www.sundaymagazine.org/wp-content/uploads/19100612-4-ex.pdf">SundayMagazine.org</a></span></figcaption></figure><p>America has long been the land of innovation. More than 13,000 years ago, the Clovis people created what many call the “<a href="http://www.thirteen.org/programs/first-peoples/the-clovis-point--the-first-american-invention_clip/">first American invention</a>” – a stone tool used primarily to <a href="http://www.uwyo.edu/surovell/pdfs/qi%202008.pdf">hunt large game</a>. This spirit of American creativity has persisted through the millennia, through the <a href="http://cambridge.dlconsulting.com/cgi-bin/cambridge?a=d&d=Sentinel19420926-01.2.46">first American patent granted</a> in 1641 and on to <a href="http://www.usnews.com/opinion/economic-intelligence/articles/2016-01-08/5-reasons-the-us-is-great-for-innovation">today</a>.</p>
<p>One group of prolific innovators, however, has been largely ignored by history: black inventors born or forced into American slavery. Though U.S. patent law was created with color-blind language to foster innovation, the patent system consistently excluded these inventors from recognition.</p>
<p>As a law professor and a licensed patent attorney, I understand both the importance of protecting inventions and the negative impact of being unable to use the law to do so. But despite patents being largely out of reach to them throughout early U.S. history, both slaves and free African-Americans did invent and innovate.</p>
<h2>Why patents matter</h2>
<p>In many countries around the world, innovation is fostered through a patent system. Patents give inventors a monopoly over their invention for a limited time period, allowing them, if they wish, to make money through things like sales and licensing.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/156704/original/image-20170214-25992-15ubfe4.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/156704/original/image-20170214-25992-15ubfe4.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/156704/original/image-20170214-25992-15ubfe4.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=838&fit=crop&dpr=1 600w, https://images.theconversation.com/files/156704/original/image-20170214-25992-15ubfe4.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=838&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/156704/original/image-20170214-25992-15ubfe4.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=838&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/156704/original/image-20170214-25992-15ubfe4.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1053&fit=crop&dpr=1 754w, https://images.theconversation.com/files/156704/original/image-20170214-25992-15ubfe4.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1053&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/156704/original/image-20170214-25992-15ubfe4.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1053&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Patent Office relief on the Herbert C. Hoover Building.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Patent_Office_relief_on_the_Herbert_C._Hoover_Building.JPG">Neutrality</a></span>
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<p>The patent system <a href="http://dx.doi.org/10.1287/mnsc.32.2.173">has long been the heart</a> of America’s innovation policy. As a way to recoup costs, patents provide strong incentives for inventors, who can spend millions of dollars and a significant amount of time developing a invention.</p>
<p>The history of patents in America is <a href="https://ssrn.com/abstract=2473390">older than the U.S. Constitution</a>, with several colonies granting patents years before the Constitution was created. In 1787, however, members of the Constitutional Convention opened the patent process up to people nationwide <a href="https://ssrn.com/abstract=559145">by drafting</a> what has come to be known as the Patent and Copyright Clause of the Constitution. It allows Congress:</p>
<blockquote>
<p>“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”</p>
</blockquote>
<p>This language gives inventors exclusive rights to their inventions. It forms the foundation for today’s nationwide, federal patent system, which no longer allows states to grant patents.</p>
<p>Though the language itself was race-neutral, like many of the rights set forth in the Constitution, the patent system didn’t apply for black Americans born into slavery. Slaves were not considered American citizens and laws at the time prevented them <a href="https://lawreview.law.ucdavis.edu/issues/40/3/distributive-justice-and-ip/DavisVol40No3_Aoki.pdf">from applying for or holding property</a>, including patents. In 1857, the U.S. commissioner of patents officially ruled that slave inventions <a href="https://www.bloomberg.com/view/articles/2013-02-08/how-the-patent-office-helped-to-end-slavery">couldn’t be patented</a>.</p>
<h2>Slaves’ inventions exploited by owners</h2>
<p>During the 17th and 18th centuries, America <a href="http://www.history1700s.com/index.php/articles/14-guest-authors/1084-the-inventions-of-18th-century-which-transformed-agriculture.html">was experiencing rapid economic growth</a>. Black inventors were major contributors during this era – even though most <a href="http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1040&context=jgspl">did not obtain any of the benefits associated with their inventions</a> since they could not receive patent protection.</p>
<p>Slave owners often took credit for their slaves’ inventions. In one well-documented case, a <a href="http://atlantablackstar.com/2014/02/11/5-inventions-by-enslaved-black-men-blocked-by-us-patent-office/4/">black inventor named Ned</a> invented an effective, innovative cotton scraper. His slave master, Oscar Stewart, attempted to patent the invention. Because Stewart was not the actual inventor, and because the actual inventor was born into slavery, <a href="https://books.google.com/books?id=Wz-DTSXeLRYC&pg=PA31&lpg=PA31&dq=Oscar+Stewart+Ned+patent&source=bl&ots=4AuokDOGVw&sig=p_jIR4bYZPFDk0tnNh74gSae-mI&hl=en&sa=X&ved=0ahUKEwi3i-vq5oHSAhUD5YMKHXoeDVQ4ChDoAQgxMAg#v=onepage">the application was rejected</a>. </p>
<p>Stewart ultimately began selling the cotton scraper without the benefit of patent protection and made <a href="http://www.uh.edu/engines/epi1076.htm">a significant amount of money</a> doing so. In his advertisements, he openly touted that the product was “the invention of a Negro slave – thus giving the lie to the abolition cry that slavery dwarfs the mind of the Negro. When did a free Negro ever invent anything?” </p>
<h2>Reaping benefits of own inventions</h2>
<p>The answer to this question is that black people – both free and enslaved – <a href="http://www.infoplease.com/spot/bhmscientists1.html">invented many things</a> during that time period.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/156702/original/image-20170214-25987-q65aeh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/156702/original/image-20170214-25987-q65aeh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/156702/original/image-20170214-25987-q65aeh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1059&fit=crop&dpr=1 600w, https://images.theconversation.com/files/156702/original/image-20170214-25987-q65aeh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1059&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/156702/original/image-20170214-25987-q65aeh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1059&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/156702/original/image-20170214-25987-q65aeh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1331&fit=crop&dpr=1 754w, https://images.theconversation.com/files/156702/original/image-20170214-25987-q65aeh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1331&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/156702/original/image-20170214-25987-q65aeh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1331&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption"></span>
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<p>One such innovator was <a href="http://nkaa.uky.edu/record.php?note_id=648">Henry Boyd</a>, who was born into slavery in Kentucky in 1802. After <a href="https://www.arcadiapublishing.com/Products/9781467111560">purchasing his own freedom</a> in 1826, Boyd invented a corded bed created with wooden rails connected to the headboard and footboard. </p>
<p>The “Boyd Bedstead” was so popular that historian Carter G. Woodson <a href="https://books.google.com/books?id=zF6J8Zge4XgC&pg=PA119&lpg=PA119&dq=Henry+Boyd+corded+bed&source=bl&ots=3U6YlDDtfB&sig=aDbhOuxCX_KQdUdXuiqVB2PQzbY&hl=en&sa=X&ved=0ahUKEwiU-ZHT1IHSAhXl7YMKHfBRAB0Q6AEIOTAG#v=onepage&q=Henry%20Boyd%20corded%20bed&f=false">profiled his success</a> in the iconic book “The Mis-education of the Negro,” noting that Boyd’s business ultimately employed 25 white and black employees. </p>
<p>Though Boyd had recently purchased his freedom and should have been allowed a patent for his invention, the racist realities of the time apparently led him to believe that he wouldn’t be able to patent his invention. He ultimately decided to <a href="https://books.google.com/books?id=qjWDoxwT6fIC&pg=PA11&lpg=PA11&dq=Henry+Boyd+patent&source=bl&ots=BRUsY-wjc_&sig=u-q8LbCuHm4pvav2ExPRJj3kvYg&hl=en&sa=X&ved=0ahUKEwiAkcn-04HSAhUJ5oMKHSz8AygQ6AEIOTAI#v=onepage&q=Henry%20Boyd%20patent&f=false">partner with a white craftsman</a>, allowing his partner to apply for and receive a patent for the bed.</p>
<p>Some black inventors achieved financial success but no patent protection, direct or indirect. Benjamin Montgomery, who was born into slavery in 1819, <a href="http://theblackhistorychannel.com/2013/benjamin-montgomery-slave-inventor/">invented a steamboat propeller designed for shallow waters</a> in the 1850s. This invention was of particular value because, during that time, steamboats delivered food and other necessities through often-shallow waterways connecting settlements. If the boats got stuck, life-sustaining supplies would be <a href="http://blackinventor.com/benjamin-montgomery/">delayed for days or weeks</a>. </p>
<p>Montgomery <a href="https://en.wikipedia.org/wiki/Ben_Montgomery">tried to apply for a patent</a>. The application was rejected due to his status as a slave. Montgomery’s owners tried to take credit for the propeller invention and patent it themselves, but the patent office also rejected their application because they were not the true inventors. </p>
<p>Even without patent protection, Montgomery amassed significant wealth and become one of the <a href="http://www.maricopa-az.gov/web/featured-contributors/1963-benjamin-montgomery-inventor-of-the-steam-operated-propeller">wealthiest planters</a> in Mississippi after the Civil War ended. Eventually his son, Isaiah, was able to purchase more than 800 acres of land and found the town of Mound Bayou, Mississippi after his father’s death.</p>
<h2>A legacy of black innovators</h2>
<p>The patent system was ostensibly open to free black people. From Thomas Jennings, the first black patent holder, who <a href="http://www.reunionblackfamily.com/apps/blog/show/40925874-thomas-l-jennings-was-the-first-black-man-to-receive-a-patent-the-patent-awarded-on-march-3-1821">invented dry cleaning</a> in 1821, to Norbert Rillieux, a free man who invented a revolutionary <a href="http://blackinventor.com/norbert-rillieux/">sugar-refining process</a> in the 1840s, to Elijah McCoy, who obtained <a href="http://www.historychannel.com.au/this-day-in-history/the-real-mccoy-patents-ironing-board/">57 patents</a> over his lifetime, those with access to the patent system invented items that still touch the lives of people today.</p>
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<p>This legacy extends through the 21st century. Lonnie Johnson generated more than <a href="http://finance.yahoo.com/blogs/the-exchange/bulls-eye---super-soaker-inventor-scores-huge-payday-232255648.html">US$1 billion in sales</a> with his Super Soaker water gun invention, which has consistently been among the <a href="http://www.biography.com/people/lonnie-g-johnson-17112946#synopsis">world’s top 20 best-selling toys</a> each year since 1991. Johnson now owns more than 80 patents and has since developed different <a href="https://www.vice.com/en_us/article/the-super-soakers-unlikely-role-in-the-green-energy-revolution">green technologies</a>.</p>
<p>Bishop Curry V, a 10-year-old black inventor from Texas, has already applied for a patent for his invention, which he says <a href="http://www.theroot.com/10-year-old-texas-boy-invents-device-to-stop-hot-car-de-1791880974">will stop accidental deaths of children in hot cars</a>. </p>
<p>Black women are also furthering the legacy of black inventors. <a href="http://www.blackenterprise.com/event/inventor-lisa-ascolese-talks-creating-invention/">Lisa Ascolese</a>, known as “The Inventress,” has received multiple patents and founded the <a href="http://www.aowie.com/about-aowie">Association for Women Inventors and Entrepreneurs</a>. <a href="http://inventors.about.com/od/blackinventors/a/bashen.htm">Janet Emerson Bashen</a> became the first black woman to receive a patent for a software invention in 2006. And <a href="http://nytlive.nytimes.com/womenintheworld/2016/01/09/black-female-physicist-pioneers-technology-that-kills-cancer-cells-with-lasers/">Dr. Hadiyah Green</a> recently won a $1 million grant related to an invention that may help treat cancer. </p>
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<p>True to the legacy of American innovation, today’s black inventors are following in the footsteps of those who came before them. Now patent law doesn’t actively exclude them from protecting their inventions – and fully contributing to American progress.</p>
<p><em>This article was updated on Feb. 19, 2017 to replace a photo that incorrectly identified Thomas Jennings.</em></p><img src="https://counter.theconversation.com/content/72619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shontavia Johnson owns and consults for Jackson Johnson LLC, a business and innovation consulting firm.</span></em></p>American slaves couldn’t hold property – including patents on their own inventions. But that didn’t stop black Americans from innovating since the beginning of the country’s history.Shontavia Johnson, Associate Vice President for Academic Partnerships and Innovation, Clemson UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/452592015-09-16T10:32:35Z2015-09-16T10:32:35ZHow innovation-killing trolls toppled the patent process<figure><img src="https://images.theconversation.com/files/94912/original/image-20150915-29639-1yg4t3u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It's a visual metaphor...</span> <span class="attribution"><a class="source" href="http://www.stockmonkeys.com">StockMonkeys.com</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Nearly everyone who isn’t a lawyer agrees: intellectual property law is a mess. And the monopolies granted by patent and copyright law have begun to hamper the very innovation they were designed to encourage. </p>
<p>The <a href="http://www.uspto.gov">US Patent and Trademark Office</a> (PTO) provides a limited monopoly for a patent holder, allowing them to exclusively benefit from their invention for a given period of time. This creates the incentive for others to create and innovate, instead of simply copying. However, today it seems patents don’t benefit innovators but instead only lawyers. The same is increasingly true for expressions protected under copyright, which often acts as a barrier for small artists and as a bludgeon wielded by big content companies.</p>
<p>Securing a patent isn’t easy or cheap, and since the mid-1960s only <a href="http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm">half of applicants</a> have had their patents granted. Last year the total number of US patents granted was 326,033. Of these an estimated 3%-5% will be profitable, since a hypothetical monopoly on a market that doesn’t exist isn’t worth anything. </p>
<p>Leave it to lawyers, however, to find a way to make money from nothing: witness the rise of the “patent troll.”</p>
<h2>Money for old paper</h2>
<p>The PTO collects its fees whether or not a patented invention succeeds, and other lawyers get paid in the process. The 300,000 patents granted in the US in 2014 that are expected to never profit the inventor have generated around US$300 million in fees – money that’s part of what I call the intellectual property-industrial complex. </p>
<p>Patents are now not an asset to innovation and industry so much as they have become an industry in themselves.</p>
<p>Patents without a market to exploit are little more than worthless pieces of paper. But given a suitably large and broad collection of nonprofitable patents, at some point someone else will succeed by developing a similar idea to one of these patents. By buying and bundling together a <a href="http://www.cnet.com/news/inside-intellectual-ventures-the-most-hated-company-in-tech">patent portfolio</a> and arming oneself with lawyers threatening to sue for patent infringement, such a portfolio becomes a formidable tool. </p>
<p>There are companies, such as <a href="http://arstechnica.com/tech-policy/2011/10/worlds-leading-patent-troll-sues-motorola/">Intellectual Ventures</a> and <a href="http://www.slate.com/articles/business/the_dismal_science/2012/04/patent_trolls_how_they_stifle_innovation_.html">Acacia Research</a>, that accumulate patents, build large portfolios, and then wait and seek out those they can accuse of infringing “their” patents. Who wins? Who profits? Not innovation.</p>
<h2>Trolls under the bridge</h2>
<p>Armed with such a portfolio, patent trolls can use the threat of legal action and the ability to extract settlements from patent “infringers,” stifling innovators in the process. They are the troll under the bridge, charging those who wish to cross. Recent government studies revealed firms spend a staggering <a href="https://hbr.org/2014/07/the-evidence-is-in-patent-trolls-do-hurt-innovation">$30 billion</a> defending cases brought by trolls, which disproportionately affect smaller, more innovative firms. </p>
<p>A notable example among thousands was the attempt by notorious patent troll Lodsys to extract <a href="https://gigaom.com/2013/09/25/patent-troll-lodsys-demands-5000-from-martha-stewart-that-was-a-bad-idea/">$5,000 from Martha Stewart</a> for allegedly infringing a patent that was part of its portfolio involving e-magazine software. Having enraged a media mogul, Lodsys has since had to defended itself from countersuits challenging the validity of their patents. </p>
<p>Such patents have at times been so vague as to claim a monopoly over all processes involving “in-app purchasing,” the process of <a href="http://blogmaverick.com/2014/01/28/so-i-got-sued-by-a-patent-troll-who-thinks-they-own-downloading-movies-only-before-they-are-released-in-theaters-over-cellular/">downloading movies on a phone</a> via the internet, or Amazon’s notorious <a href="http://worldwide.espacenet.com/publicationDetails/biblio?CC=US&NR=5960411&KC=&FT=E&locale=en_EP">patent</a> for <a href="http://www.theregister.co.uk/2011/07/07/european_patent_office_says_amazon_oneclick_payment_too_obvious_to_patent/">one-click-ordering</a> – dismissed in the UK as “too obvious to patent.”</p>
<h2>Aesthetic expression suffers</h2>
<p>Copyright has also become mostly of benefit to large businesses and copyright lawyers. Copyright is relatively easy and cheap to assert, but for most artists they are not the primary, nor a reliable, source of revenue. For authors who manage to find a publisher for their book, the returns for all but the most famous are <a href="http://www.huffingtonpost.com/bj-gallagher/book-publishing_b_1394159.html">scant</a>. Publishers keep most of the money, and content is traded much like dead patents, which may reap rewards for content providers in the future but yield small returns for non-blockbuster authors in the near term. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/91041/original/image-20150806-5236-yl154d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/91041/original/image-20150806-5236-yl154d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=498&fit=crop&dpr=1 600w, https://images.theconversation.com/files/91041/original/image-20150806-5236-yl154d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=498&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/91041/original/image-20150806-5236-yl154d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=498&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/91041/original/image-20150806-5236-yl154d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=625&fit=crop&dpr=1 754w, https://images.theconversation.com/files/91041/original/image-20150806-5236-yl154d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=625&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/91041/original/image-20150806-5236-yl154d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=625&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">By avoiding costly legal monopolies, some artists work outside the copyright system.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/coldstorage/3168759426/">ColdStorage/flickr</a></span>
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<p>Artists and authors are beginning to realize the scam and, liberated by new technologies, are taking matters into their own hands by becoming their own marketers and producers. <a href="http://www.hughhowey.com/the-state-of-self-publishing/">Hugh Howey</a>, Mark Dawson and others have successfully self-published bestselling novels and taken home most of their own profits. The low price points for their works (because they can cut out middlemen) also mean more people can afford to buy them. </p>
<p>Publishers and producers are fighting to hold onto their old systems, vigorously pursuing <a href="http://artlawjournal.com/mickey-mouse-keeps-changing-copyright-law/">more draconian</a> copyright laws and terms. The current negotiations about the <a href="https://www.eff.org/issues/tpp">Trans-Pacific Partnership</a> are an example, and show how the big content delivery corporations, and not artists, have the ears of policymakers. These corporations are eager to extend monopolies over aesthetic expressions throughout the world. None of this will <a href="https://theconversation.com/why-cash-and-copyright-are-bad-news-for-creativity-34696">increase creativity</a>.</p>
<h2>Give innovators a break</h2>
<p>Along with copyright, there is growing <a href="http://creativecommons.org/weblog/entry/18426">evidence</a> that patent practices are undermining the very purpose of the intellectual property laws and <a href="https://hbr.org/2014/07/the-evidence-is-in-patent-trolls-do-hurt-innovation">costing the economy</a> hundreds of millions of dollars. This <a href="http://www.fool.com/investing/general/2015/08/12/the-companies-sued-the-most-over-patents-in-2015.aspx">past year</a> may be the <a href="http://unifiedpatents.com/1st-half-2015-patent-dispute-report/">worst yet for the costs of patent trolls</a>.</p>
<p>Without <a href="https://theconversation.com/a-quick-fix-solution-for-patent-trolls-probably-wont-work-18819">significant reform</a> to our intellectual property laws, money that ought to be going into innovation and creativity will be hoarded to defend against potential lawsuits, and capital that ought to go to inventors and artists will be siphoned off to litigators and trolls. </p>
<p>The intellectual property-industrial complex is lobbying hard against reform. The proposed reforms currently stalled in the US Congress are quite mild and mostly involve fee-shifting, so that there would be less of an incentive to use patent suits to harass smaller organizations. </p>
<p>To truly fix this problem, we need to take a step back and tackle the environment that allows trolls to prosper off the truly creative and innovative among us.</p><img src="https://counter.theconversation.com/content/45259/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Koepsell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Intellectual property laws, 19th-century legislation struggling for relevance in the 21st century, are well overdue for reform.David Koepsell, Adjunct Associate Professor, University at BuffaloLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/448632015-08-04T11:04:54Z2015-08-04T11:04:54ZLouis le Prince shot the first film – but did he invent movies?<figure><img src="https://images.theconversation.com/files/90745/original/image-20150804-12023-1laoxg9.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Louis Le Prince's 1888 frames of Leeds Bridge.</span> </figcaption></figure><p>The spookiest feeling I have had, in several decades of looking at old silent films, is watching an old lady dressed in bonnet and long dress, shuffling around the driveway of a house in Roundhay, Leeds. </p>
<p>The woman is Sarah Robinson Whitley, who was born almost 200 years ago, in 1816. I was suddenly struck with astonishment that I was seeing someone born before Queen Victoria, less than 30 years after the French Revolution and at a time when it was still legal for British citizens to own slaves, actually moving. Not as a result of digital enhancement, but under her own steam and <a href="http://www.bbc.co.uk/news/entertainment-arts-33198686">filmed as it happened</a>.</p>
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<p>This two-second sequence was shot by Sarah’s son-in-law on Sunday October 14 1888, and is the earliest known film from a single-lens camera. His story – that of Louis Aimé Augustin Le Prince, known as Gus to his Yorkshire relatives – has recently resurfaced. A new film, <a href="http://guerilla-group.com/tff/">The First Film</a>, is touring the UK, so you may well already know the poignant tale of “the man who first invented cinema”. </p>
<p>Le Prince’s efforts to claim rights to his inventions by filing patents, while simultaneously trying to keep his research and development under wraps, meant he was was involved in a high-risk project which he expected would create significant income. Understandably, he was reluctant to go public until he was ready. But then, in 1890, he disappeared while in France. </p>
<p>The mystery of his death remains. His pioneering work was overtaken by others, including William Dickson, Thomas Edison, the Skladanowskys and the Lumieres. His family waited for some years, their distress made worse by their inability to intervene in the <a href="http://www.history.com/this-day-in-history/edison-sues-over-new-motion-picture-technology">patent wars</a> between Edison and American Mutoscope, over what they saw as Le Prince’s invention. He could not be declared dead for seven years – by which time the wars were over.</p>
<p>So does this make him the archetypal lone genius who failed? Or perhaps he is the forgotten hero who really did get there first. Or is he one of several inventors who collectively worked on what became cinema?</p>
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<h2>The inventor</h2>
<p>It’s the popular conception of the individual genius which is the problem here, as Richard Howells has outlined in his careful and detailed <a href="http://screen.oxfordjournals.org/content/47/2/179.abstract?sid=40b10e09-ea5a-40b3-a9eb-154944b940c6">study</a> of the evidence for Le Prince’s claim. There is a particular tendency towards national partisanship. Who invented television, for example? John Logie Baird (say the British), or Philo Farnsworth, or Charles Jenkins (USA), or Boris Rosing and Vladimir Zworykin (Russians)?</p>
<p>It may depend on who has a higher profile; for example Logie Baird’s secret work on radar is claimed to <a href="https://books.google.co.uk/books?id=J9GyAAAAIAAJ&q=secret+life+of+john+baird&dq=secret+life+of+john+baird&hl=en&sa=X&ved=0CCAQ6AEwAGoVChMI7v2Gg5WPxwIVSLYUCh2LtQDf">pre-date</a> and exceed in importance that of its “father”, Robert Watson-Watt. </p>
<p>Even the definition of what has been invented may occur only after the fact. Le Prince’s claim hinges on whether inventing cinema includes projection or not – and if he achieved it. Who decides the rules?</p>
<p>Some argue that inventions are culturally determined, but technical innovation is unpredictable and subject to individual vagaries. On the other hand, the concession that an individual genius stands on the shoulders of giants doesn’t quite add up, either. If several people follow similar lines of enquiry simultaneously, as in the case of moving pictures, who’s the genius? </p>
<p>Indeed, like Edison later, Le Prince may have visited Etienne-Jules Marey, a scientist interested in human movement and <a href="http://www.victorian-cinema.net/marey">cited</a> by Laurent Mannoni as “the real founding father of cinematographic technique”. Marey had invented a camera which took 20 images per second and publicly showed them on October 29 1888. He did not project them either. So who was first? Who influenced whom? </p>
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<h2>Just a game</h2>
<p>“Who came first” may be a good game, but Le Prince doesn’t fit any of the archetypes anyway. We cannot ignore his primacy in the search for moving image production, but neither can we offer him the laurels. He patented his work, but there was no public demonstration. </p>
<p>Periodically scholars and filmmakers revisit the mystery, like <a href="http://www.imdb.com/title/tt0097894/">Christopher Rawlence in 1989</a> – and there might yet be more to find out, assisted by the recent gift of some important Le Prince papers to the Leeds Literary and Philosophical Society (of which, by an elegant coincidence, Le Prince was a member in the 1870s) and <a href="http://www.leeds.ac.uk/news/article/3722/father_of_cinematographys_archive_comes_to_leeds">now held</a> by Leeds University Library.</p>
<p>Like his mother-in-law Sarah Whitley, Le Prince comes more alive the more we know about him; a middle-class family man gambling his dwindling funds on a project that might have kept his family comfortable for years to come. He saw the potential for showbiz. Like many inventors, he didn’t quite complete the race, but his efforts were important indicators of what could be done in that era.</p>
<p>Technical innovation is always a story with several protagonists, even if each one is also a hero in his own right. Le Prince deserves our admiration for what he did, and for his vision, even while he might have been ahead for only a short while. It’s for this that he gets the dedication in the book <a href="http://www.victorian-cinema.net/about">Who’s Who of Victorian Cinema</a> (1996), which simply (and movingly) states: “To Gus, who came so close, but got lost along the way”.</p><img src="https://counter.theconversation.com/content/44863/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ian Macdonald does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>“Who came first” may be a good game, but it doesn’t lead to any clear answers.Ian Macdonald, Senior Lecturer in Screen Studies, University of LeedsLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/438122015-07-31T10:49:21Z2015-07-31T10:49:21ZAn early expression of democracy, the US patent system is out of step with today’s citizens<figure><img src="https://images.theconversation.com/files/90139/original/image-20150729-30871-1u1dkq.jpg?ixlib=rb-1.1.0&rect=23%2C26%2C2132%2C1106&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Started with high democratic ideals, how does the U.S. Patent Office work for the 21st century?</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/streetsofdc/4011978857">StreetsofWashington</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>Last month, the U.S. Patent and Trademark Office issued its <a href="https://10millionpatents.uspto.gov">10 millionth patent</a>. But are all of these patents helping society? The American patent system was designed initially to stimulate innovation, but some citizens now argue that it’s actually <a href="http://www.teslamotors.com/blog/all-our-patent-are-belong-you">hurting innovation</a>, <a href="http://thehill.com/blogs/congress-blog/healthcare/244728-tpp-is-designed-to-make-medicines-more-expensive-reforms-more">limiting access to technology</a> and <a href="http://www.icta.org/patent-watch/">promoting unethical areas of research and innovation</a>. These critics are <a href="http://pubpat.org/">making their voices heard</a> through courtroom challenges, legislative hearings and even street protests.</p>
<p>This grassroots activism might seem strange. After all, the patent system is a highly specialized technical and legal domain, seemingly of interest only to inventors seeking exclusive rights to commercialize their new technologies for a limited period of time. Why has it become such a controversial site, and what can policymakers and citizens do about it?</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/90142/original/image-20150729-30886-e8u3hr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/90142/original/image-20150729-30886-e8u3hr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/90142/original/image-20150729-30886-e8u3hr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/90142/original/image-20150729-30886-e8u3hr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/90142/original/image-20150729-30886-e8u3hr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/90142/original/image-20150729-30886-e8u3hr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=506&fit=crop&dpr=1 754w, https://images.theconversation.com/files/90142/original/image-20150729-30886-e8u3hr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=506&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/90142/original/image-20150729-30886-e8u3hr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=506&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">1869 patent drawing of a flying machine.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/usnationalarchives/5574345706">The U.S. National Archives</a></span>
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<h2>We the people and our patents</h2>
<p>When first developed in the late 18th and early 19th centuries, the U.S. patent system was <a href="http://www.cambridge.org/us/academic/subjects/history/early-republic-and-antebellum-history/democratization-invention-patents-and-copyrights-american-economic-development-17901920?format=HB">designed</a> to be democratic – particularly in comparison to the European patent systems of the time.</p>
<p>European royal courts <a href="https://eh.net/encyclopedia/an-economic-history-of-patent-institutions/">bestowed patent “privileges”</a> upon entrepreneurs for a high price. By contrast, the U.S. system issued patent “rights” to inventors. And it encouraged widespread participation in the system by <a href="http://www.jstor.org/stable/40971878?seq=1#page_scan_tab_contents">keeping patent application fees low</a> and creating public displays of patented technologies to inspire future innovation.</p>
<p>The U.S. system, in other words, put patents, innovation and entrepreneurship in reach for every citizen. Policymakers thought this <a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/jpatos76&div=94&id=&page=">would increase innovation</a>, which would produce economic and eventually social benefit.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/90145/original/image-20150729-30854-6x31oa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/90145/original/image-20150729-30854-6x31oa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/90145/original/image-20150729-30854-6x31oa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/90145/original/image-20150729-30854-6x31oa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/90145/original/image-20150729-30854-6x31oa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/90145/original/image-20150729-30854-6x31oa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/90145/original/image-20150729-30854-6x31oa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/90145/original/image-20150729-30854-6x31oa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An 1812 patent, signed by President James Madison.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/nationalmuseumofamericanhistory/9407060033">National Museum of American History</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<p>By many measures, these efforts were successful. Patent application rates grew throughout the 19th and 20th centuries, and in 2017, the U.S. issued over <a href="https://www.uspto.gov/sites/default/files/documents/USPTOFY17PAR.pdf">300,000</a> patents on innovations ranging from photocopies to solar panels. Indeed, many industries – from <a href="http://www.jstor.org/stable/3106161?seq=1#page_scan_tab_contents">railroads</a> to <a href="http://www.press.uchicago.edu/ucp/books/book/chicago/M/bo17212890.html">pharmaceuticals</a> – have credited their success to the modern patent system.</p>
<p>And this approach has also gone global, buoyed by <a href="https://doi.org/10.1111/j.1747-1796.2004.tb00260.x">international legal agreements</a> designed to create a uniform patent regime that would make it easier for inventions to travel, for inventors to reap rewards across borders and for markets to become transnational.</p>
<p>This centuries-old system, which continues to this day, assumes widespread public agreement on the idea that stimulating innovation through patents will <a href="http://www.uspto.gov/about-us">ultimately benefit everyone</a>. It envisions every citizen as a potential inventor and expects that if legislators and the courts serve the interests of inventors, they automatically serve the interests of the public. And it assumes the public will trust its decisions because the patent system is guided by scientific knowledge and the law.</p>
<h2>Patents, persecuting rather than protecting?</h2>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/90185/original/image-20150729-30851-11vnvbo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/90185/original/image-20150729-30851-11vnvbo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/90185/original/image-20150729-30851-11vnvbo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1003&fit=crop&dpr=1 600w, https://images.theconversation.com/files/90185/original/image-20150729-30851-11vnvbo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1003&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/90185/original/image-20150729-30851-11vnvbo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1003&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/90185/original/image-20150729-30851-11vnvbo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1261&fit=crop&dpr=1 754w, https://images.theconversation.com/files/90185/original/image-20150729-30851-11vnvbo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1261&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/90185/original/image-20150729-30851-11vnvbo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1261&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">What’s driving individuals to protest patents?</span>
<span class="attribution"><span class="source">Shobita Parthasarathy</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
</figcaption>
</figure>
<p>But the dynamics of the patent system have changed in recent decades. Public health activists have filed lawsuits stating that, rather than increasing access to technology, patents create monopolies that <a href="http://www.bcaction.org/our-take-on-breast-cancer/gene-patenting/">make good health unaffordable and inaccessible</a> for many. In 2013, a coalition of patients, health care professionals and scientists challenged patents covering genes linked to breast and ovarian cancer at the U.S. Supreme Court. They argued the patents had led to expensive and poor-quality genetic tests available <a href="https://mitpress.mit.edu/books/building-genetic-medicine">only through one company</a>: Myriad Genetics, the patent holder.</p>
<p>Meanwhile, small farmers have <a href="http://www.pubpat.org/monsanto-seed-patents.htm">organized protests against seed patents</a>, suggesting they accelerate the corporate control of agriculture in ways that are damaging for their livelihoods, for innovation, for consumers and for the ecosystem. </p>
<p>And civil society groups have instigated legislative hearings and media campaigns arguing that patents implicitly provide moral certification for the development and commercialization of ethically controversial areas of research and development. Such campaigns began as early as the 1980s, when environmentalists, animal rights organizations and religious figures <a href="https://www.jstor.org/stable/20027762">challenged the patentability of genetically engineered animals</a>. They worried that by turning these animals into commodities, the patent system would transform people’s understanding of ownership and our relationship with the natural environment. </p>
<p>Patent system officials and lawyers tend to <a href="https://doi.org/10.3152/030234210X501180">view this activism as seriously misguided</a>. They argue that these citizen challengers lack the expertise to understand how the patent system works: It is a limited domain focused merely on certifying the novelty, inventiveness and utility of inventions. This technical and legal orientation is also embedded in the rules and processes of the system, which make it virtually <a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/ncjl15&div=19&id=&page=">impossible for average citizens to participate</a>, except by submitting patent applications.</p>
<h2>How to reform a system from 1790</h2>
<p>In my 2017 book “<a href="http://press.uchicago.edu/ucp/books/book/chicago/P/bo25338584.html">Patent Politics: Life Forms, Markets, and the Public Interest in the United States and Europe</a>,” <a href="https://scholar.google.com/citations?user=-x17iNgAAAAJ&hl=en&oi=ao">I</a> suggest that these responses from the usual participants in the patent system, as well as the structure of the U.S. patent system itself, are out of step with modern democratic politics. </p>
<p>Citizens are playing a more active role in science and technology policymaking in a variety of ways. They are now trying to ensure that the systems that regulate the development, availability and use of innovation <a href="http://nyupress.org/books/9780814762387/">better reflect their values and concerns</a>. For instance, patient advocacy groups have forced their way <a href="https://doi.org/10.2190/HPXB-9RK8-ETVM-RVEA">onto the review panels that distribute government funding</a> for biomedical research, in order to maximize not just scientific but public benefit. </p>
<p>In the case of the patent system, traditional participants miss that the patent system’s scope and structure were originally built with a different kind of public – and public interest – in mind. The country’s founders targeted their patent policies to a small, white and male citizenry. But today, America’s multi-ethnic population is far more critical and makes a diverse set of demands of science and technology policy institutions. </p>
<p>Is it possible to reform the system to accommodate the newly engaged public? Indeed, there is no natural definition of what the patent system is, what citizens should expect of it, or who should participate and how they should do so.</p>
<p>Consider, for example, the pan-European patent system, which by most accounts is <a href="http://www.cambridge.org/us/academic/subjects/history/early-republic-and-antebellum-history/democratization-invention-patents-and-copyrights-american-economic-development-17901920?format=HB">quite similar to its U.S. counterpart</a>. In recent years, it has demonstrated <a href="https://doi.org/10.1007/s11077-011-9133-7">openness to civil society participation</a> in its bureaucratic and court proceedings, and incorporated <a href="http://documents.epo.org/projects/babylon/eponet.nsf/0/63A726D28B589B5BC12572DB00597683/$File/EPO_scenarios_bookmarked.pdf">attention to moral and socioeconomic concerns</a> into its decision-making. It has been particularly sensitive to citizen concerns regarding patents on software and biotechnology. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/90143/original/image-20150729-30854-10ufgd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/90143/original/image-20150729-30854-10ufgd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/90143/original/image-20150729-30854-10ufgd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/90143/original/image-20150729-30854-10ufgd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/90143/original/image-20150729-30854-10ufgd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/90143/original/image-20150729-30854-10ufgd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/90143/original/image-20150729-30854-10ufgd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/90143/original/image-20150729-30854-10ufgd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A 2005 protest against software patents in the EU.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/nathelbiya/10986865">Nath el Biya</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>In 2007, the European Patent Office invited a variety of its critics to participate in developing an unprecedented report, entitled “<a href="http://www.epo.org/news-issues/issues/scenarios.html">Scenarios for the Future</a>,” that identified the challenges and opportunities it would face over the next 30 years. It noted, for example: </p>
<blockquote>
<p>“Whether or not the patenting system is at fault for a failure to get drugs to those who need them is immaterial. Blame is laid at the door of the IP system by many forces in society.”</p>
</blockquote>
<p>In response, institutions across Europe have taken steps to limit patent-based monopolies that might hurt <a href="http://www.eolss.net/sample-chapters/c17/E6-58-10-05.pdf">public health</a> and <a href="https://no-patents-on-seeds.org/en/information/news/german-parliament-prohibits-patents-plants-and-animals-conventional-breeding">agriculture</a>. </p>
<p>It is worth observing that while the U.S. system was initially conceived as a democratic improvement upon the European systems of the time, today’s pan-European patent system is far ahead of its U.S. counterpart in terms of both its public engagement and its attention to the implications that citizens care about.</p>
<p>If the U.S. patent system wants to maintain public trust, it has to realize that the 21st-century citizen is quite different from her 18th-century forebears. Today’s citizen cares about the ethical and socioeconomic implications of patents and the technologies they cover and is not content to assume that the system’s benefits eventually trickle down. And she seeks to have an active role in decision-making.</p>
<p>Taking this citizen seriously will require serious patent system reforms. Possible reforms include increasing opportunities for the public to participate in patent decision-making, allowing more legal and bureaucratic challenges on behalf of the public interest, and incorporating more emphasis on ethical and socioeconomic implications into our patent and innovation policies.</p>
<hr>
<p><em>This is an updated version of an article originally published on July 31, 2015.</em></p><img src="https://counter.theconversation.com/content/43812/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shobita Parthasarathy has received funding from the National Science Foundation, Wellcome Trust, and the Max Planck Institute for Intellectual Property, Competition, and Tax Law. She is on the Board of Directors for Breast Cancer Action.</span></em></p>Founded in 1790, the Patent Office aimed to put innovation and entrepreneurship within reach of every citizen. Now, 10 million patents later, critics say an out-of-touch system is doing the opposite.Shobita Parthasarathy, Associate Professor of Public Policy and Women's Studies, University of MichiganLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/441072015-07-31T10:49:02Z2015-07-31T10:49:02ZAcademic entrepreneurs’ intellectual property strategies should include more than only patents<figure><img src="https://images.theconversation.com/files/90225/original/image-20150730-10368-t1tpgr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Getting a patent isn't the only possible box to check when it comes to protecting IP.</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-95329345/stock-photo-decision-making-concept-business-woman-touching-screen.html?src=5RrnmAZbkqju-5jnLJpAmQ-1-9">Woman image via www.shutterstock.com.</a></span></figcaption></figure><p>As the director of the <a href="http://www.impactcentre.ca">Impact Centre</a> at the University of Toronto, I work with students, postdoctoral fellows and even faculty members who are interested in commercializing their research. Since 2010, over 100 teams – from the fields of optics, material science, chemistry, computer science and others – <a href="http://www.impactcentre.ca/entrepreneurship/current">have participated</a> in the Impact Centre’s entrepreneurship training and mentorship programs. Some have raised money from investors and sell their products, while others never made it past the lab bench and initial business plan.</p>
<p>Although companies ranging from the University of Minnesota’s <a href="http://www.medtronic.com/us-en/index.html">Medtronic</a> to the University of Toronto’s <a href="http://www.sanofipasteur.ca/node/17302">Connnaught Laboratories</a> have their <a href="https://books.google.ca/books/about/Academic_Entrepreneurship.html?id=yB_SiqnczbQC&redir_esc=y">origin at academic institutions</a>, most academic researchers <a href="http://www.kpu.ca/sites/default/files/Teaching%20and%20Learning/TD.6.3.10_Flaherty%26vonMassow_Mixing_Business_with_Science.pdf">are not versed</a> in product development, intellectual property, market analysis and other core business practices that are vital to successfully commercializing breakthrough science.</p>
<p>Once an academic group comes up with a viable innovation, it’s vital to protect the researchers’ intellectual property (IP) as they move toward commercialization. Of course, patents can play an important part in any company’s IP strategy. However, we’ve found that many government programs, funding agencies and other commercialization support programs focus excessively on obtaining patents. They tend to ignore the fact that any IP strategy must be tailored to the specific technology, company and industry.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/90232/original/image-20150730-10325-17bfpl9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/90232/original/image-20150730-10325-17bfpl9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/90232/original/image-20150730-10325-17bfpl9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/90232/original/image-20150730-10325-17bfpl9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/90232/original/image-20150730-10325-17bfpl9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/90232/original/image-20150730-10325-17bfpl9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/90232/original/image-20150730-10325-17bfpl9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/90232/original/image-20150730-10325-17bfpl9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">OK, you’ve got your big idea.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/ian_munroe/4156429482">ian munroe</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>Protecting intellectual property</h2>
<p>The products that academic entrepreneurs put on the market are the result of years of research and deep technical expertise. Properly protecting their intellectual assets is vitally important to the future of these knowledge-based companies. If a more established competitor – with its financial resources, sales networks and suppliers – is able to easily copy the new products and leapfrog years of research, then the new start-up will find it very challenging to succeed.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/90226/original/image-20150730-10358-1cv6soi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/90226/original/image-20150730-10358-1cv6soi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/90226/original/image-20150730-10358-1cv6soi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/90226/original/image-20150730-10358-1cv6soi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/90226/original/image-20150730-10358-1cv6soi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/90226/original/image-20150730-10358-1cv6soi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/90226/original/image-20150730-10358-1cv6soi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/90226/original/image-20150730-10358-1cv6soi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A lot to ponder….</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/tomgehrke/6890064645">Thomas Gehrke</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>Fundamentally, an IP strategy allows a technology company to profit from the knowledge, expertise and inventions it has created. One of the most important topics we cover when mentoring teams of researchers is how to protect their IP through practical strategies. The best solution for each group must be based on their own situation and leverage all of the available IP protection tools.</p>
<p>These strategies can be composed of different components, such as:</p>
<ul>
<li>trade secrets – where you don’t tell anyone how your product works and hope no one figures it out</li>
<li>trademarks – where you protect an identifying mark, such as a logo</li>
<li>patents – where you apply to the Patent Office and disclose your invention in exchange for a 20-year monopoly on the use of your invention. If you are successful and your patent is issued, you have to continue paying the Patent Office maintenance fees to ensure your patent remains valid.</li>
</ul>
<p>The role that patents play for these early-stage, usually resource-constrained companies is complex. Founders have to carefully weigh the costs and value of any component of an IP strategy. Factors to consider include legal fees, immediate and future payments owed to the Patent Office, time, impact on business strategy, ability to defend against infringement and the normal practices of the particular industry.</p>
<p>Patents are <a href="http://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule">expensive</a> to file and maintain, require a lot of <a href="http://www.wipo.int/sme/en/faq/pat_faqs_q4.html">time</a> and human resources, and result in the <a href="http://www.wipo.int/patents/en/faq_patents.html">public disclosure</a> of sensitive information. So filing a patent can have drawbacks that must be assessed as part of the start-up’s overall IP strategy.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/90228/original/image-20150730-10329-l2uwmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/90228/original/image-20150730-10329-l2uwmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/90228/original/image-20150730-10329-l2uwmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/90228/original/image-20150730-10329-l2uwmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/90228/original/image-20150730-10329-l2uwmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/90228/original/image-20150730-10329-l2uwmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/90228/original/image-20150730-10329-l2uwmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/90228/original/image-20150730-10329-l2uwmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">This doesn’t have to be your automatic first stop.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/cytech/3222442854">Kazuhisa OTSUBO</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>Patenting game plan should vary by company</h2>
<p>The necessity of a patent differs from case to case and industry to industry. For example, patents play a central role in the IP strategy of one company I’ve mentored that’s developing new chemistry to improve the efficacy of herbicide formulations. </p>
<p>Although the costs of filing and maintaining its patent portfolio are high, they’re a major part of the company’s IP strategy. The pesticide regulatory environment requires significant upfront investment and working with multiple distribution partners to get a product to market. The legal protection provided by patents ensures larger partners or competitors are not able to copy the years of groundbreaking work done by the company’s researchers. </p>
<p>Contrast this with another company working on a coatings technology. Application of the coating can significantly speed up a common diagnostic method used to test for numerous diseases, including HIV. Coatings, unlike drug molecules or new mechanical machines, are very difficult to reverse engineer. This makes them difficult to copy – but it’s also hard to prove when someone else has infringed on your patent.</p>
<p>After carefully weighing the benefits of patent protection against the financial costs, risks of public disclosure and challenge of proving infringement, this company decided to keep their coating formulation a trade secret.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/90234/original/image-20150730-10373-ykj466.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/90234/original/image-20150730-10373-ykj466.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/90234/original/image-20150730-10373-ykj466.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=337&fit=crop&dpr=1 600w, https://images.theconversation.com/files/90234/original/image-20150730-10373-ykj466.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=337&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/90234/original/image-20150730-10373-ykj466.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=337&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/90234/original/image-20150730-10373-ykj466.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=423&fit=crop&dpr=1 754w, https://images.theconversation.com/files/90234/original/image-20150730-10373-ykj466.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=423&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/90234/original/image-20150730-10373-ykj466.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=423&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Just one file in the drawer.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-263977949/stock-photo-patents-concept-word-on-folder-register-of-card-index-selective-focus.html?src=_wdHenfJCs_GXGPWU3BoVQ-1-1">Files image via www.shutterstock.com</a></span>
</figcaption>
</figure>
<h2>Patents are just part of the IP protection puzzle</h2>
<p>Rarely are patents the sole method of IP protection used by companies. But there are individuals and organizations that see patents as the direct measure of potential future success for start-ups.</p>
<p>From our extensive experience working with start-ups, some investors will not speak to you, government organizations will not give you funding and university technology transfer offices will not assist in commercializing your technology if you do not have a patent. This can make commercializing anything you don’t want to patent – either for technical or business reasons – very challenging. It can even dissuade academic entrepreneurs from engaging in commercialization at all. </p>
<p>Patents can be very effective in industries and for technologies that lend themselves easily to patent protection and enforcement. However, we need to move beyond the misplaced idea that patents are the only viable method of IP protection. And they certainly don’t provide a <a href="http://www.boozallen.com/media/file/Global_Innovation_1000_2006.pdf">direct measure of the knowledge output and innovation</a> of any company or academic institution. </p>
<p>By encouraging a more nuanced vision of intellectual property along the commercialization pipeline, we can improve the flow of new knowledge and products from our academic institutions to the market. And we’ll all benefit sooner from groundbreaking research.</p><img src="https://counter.theconversation.com/content/44107/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>M. Cynthia Goh is a professor at the University of Toronto and director of the Impact Centre. She has received research funding from the Natural Science and Engineering Council (NSERC), the Ontario Centres of Excellence (OCE), the Ontario Ministry of Research and Innovation, Vive Crop Protection and Axela. The Impact Centre obtains partial funding for its entrepreneurship activities from the Ontario Centres of Excellence. </span></em></p><p class="fine-print"><em><span>Scott McAuley works for the Impact Centre and is a student at the University of Toronto. He has previously received funding and support from the Impact Centre, the Ontario Centre's of Excellence and Grand Challenges Canada for his company Lunanos. </span></em></p>When academics come up with a viable innovation, they need to figure out the best way to protect their intellectual property if they’re going to bring it to market. Patents aren’t always the answer.M Cynthia Goh, Professor, Department of Chemistry, University of TorontoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/133982013-04-24T21:57:57Z2013-04-24T21:57:57ZEverything but the squeal: researchers steak claim with beef patent<figure><img src="https://images.theconversation.com/files/22553/original/x5wqmh3n-1366174169.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A group of university researchers in Oklahoma are trying to patent a new cut of steak, which would provide their university with a healthy revenue stream if the patent is licensed to meat processors.</span> <span class="attribution"><span class="source">Flickr\james c.</span></span></figcaption></figure><p>During the golden age of the unregulated food industry, Chicago slaughterhouses boasted that they processed every part of the animal except for the squeal. How times have changed: agricultural businesses in the US and Australia no longer rely on cheap labour, economies of scale, and the absence of regulation. Instead they are turning to patent protection, in ways that might amuse, bewilder or horrify some observers.</p>
<p>One example is the US patent for a new cut of steak. Oklahoma State University researchers are seeking protection for the extraction of the “<a href="http://patentscope.wipo.int/search/en/detail.jsf?docId=WO2013048839&recNum=1&maxRec=943&office=&prevFilter=&sortOption=Pub+Date+Desc&queryString=ALLNAMES%3A%28mata%29&tab=PCTDescription">Vegas Strip steak</a>”, inconveniently situated inside the cow and thus hitherto processed by abattoirs as hamburger meat. </p>
<p>Invention of a new processing technique potentially adds value for consumers and the abattoirs, in addition to a <a href="http://chronicle.com/article/University-Inventions-Earned/133972/">revenue stream</a> for the university if the patent is licensed to meat processors. Patenting of <a href="http://www.cleantechpatentedge.com/wp-content/uploads/2012/04/Ivy_League_report-Small.pdf">university</a> research is big business, with licensing helping to build billion-dollar endowments at Stanford and other leading institutions. It is consistent with one rationale for patent law: an economic <a href="http://www.ipo.gov.uk/ipresearch-patincentive.pdf">incentive</a> for innovation.</p>
<p>That law is blind to whether the innovation involves cows, silicon chips, advanced composites, pharmaceuticals, or the hula hoop. Accordingly,there is no reason in principle to exclude novel methods of processing animals and crops. The Vegas Strip steak patent is interesting because it illustrates pressures facing universities to commercially exploit research. It also potentially involves dilemmas about <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1930272">patent trolling</a>, patent holders “extorting” undeserved payments from consumers and competitors or stifling research through threats of <a href="http://www.zdnet.com/56-percent-of-all-patent-lawsuits-are-made-by-patent-trolls-7000013896/">litigation</a> over alleged patent infringements. Patent protection doesn’t last forever, but there are legitimate concerns about abuses by trolls in the short term.</p>
<p>The patent also illustrates questions about agribusiness practices and patent law. Patent protection has traditionally centred on innovations in hardware, with law and history students for example encountering patents for innovative ploughs, the <a href="http://www.hvmckaytrust.org.au/hvbio.htm">Sunshine</a>-brand harvester and the refrigeration equipment that allowed Australia to ship millions of tonnes of lamb and other meat to Europe. Recently, research entities such as CSIRO have had major success in using patents and plant breeders rights to commercialise the results of research into drought and disease resistant grains, tastier fruits and fish, better cotton, and low-maintenance sheep.</p>
<p>There has, however, been eloquent criticism of the patent mind-set or of a growing “patentisation” of areas of commercial activity where patents may not be <a href="http://www.claytonchristensen.com/key-concepts/">needed</a>. A patent lawyer is not the solution to every problem; most patents are not commercially viable and many introduce confusion rather protecting true innovation. </p>
<p>Alongside increasing use of the “reach for a patent lawyer” strategy on farms, factories and universities, there are arguments that as public policy we should be requiring true innovation and shouldn’t be encouraging egregious monopolies. One example is Matthew Rimmer’s incisive 2011 <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1787702">analysis</a> “Owning Omega-3: Monsanto and the Invention of Meat”.</p>
<p>There is also a healthy scepticism about patents. Some are truly valuable. Others - and as former farm boy I might be forgiven for questioning the Vegas patent - are probably only <a href="http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0014059">valuable</a> as the basis of a media release and a hug from the Vice-Chancellor. In some industry sectors, continuous improvement, impeccable service and strategic repackaging may be more important than patent law. Strong protection for <a href="http://pharmapatentsreview.govspace.gov.au/files/2013/04/Pharmaceutical-Patent-Review-Draft-Report-corrected.pdf">pharma patents</a> (where there’s typically a long lead-time and research investment), weak protection for cuts of steak and hula hoops?</p>
<p>Patent law is a matter of assertion: the patent holder makes and defends claims about the originality of the invention. The cost of challenging those claims potentially deters many people who encounter “<a href="http://blog.patentology.com.au/2013/02/junk-patents-dumped-on-australia-as.html">junk patents</a>”. If universities are going to patent ostensibly new ways of carving a cow, they might also want to contribute - through legal clinics - to public interest litigation that challenges patents that should never have been granted, <a href="http://righttocreate.blogspot.com.au/2005/11/patents-chilling-science.html">chills </a> (ie deters) research and cannot be successfully defended from a legally informed critique. Craig Emerson might find a little bit of the <a href="https://theconversation.com/should-universities-suffer-to-pay-for-school-funding-13472">Gonski</a> money to encourage that critique and thereby the clever country to which all parties pay lip service.</p>
<p>Moves to patent everything except the squeal - no doubt an over-enthusiastic US patent attorney is working on even that - are inevitable. As Australian researchers, civil society advocates and investors await the US Supreme Court decision in the <a href="https://theconversation.com/who-owns-our-genes-myriad-genetics-monopoly-challenged-13489">‘Myriad’ gene patents</a> case we might think about whether there’s over-stretch in patent protection. Can and should businesses protect their innovation without relying on patents, and without rewarding lawyers? </p>
<p>Should we also be asking some uncomfortable questions about policy-making, and for example criticise the ongoing ‘penny wise, pound foolish’ cuts to the Australian Law Reform Commission (<a href="http://www.alrc.gov.au">ALRC</a>), author of landmark advice on patent law. If we want a smart economy we need both properly funded universities and a patents dialogue based on informed independent legal advice. </p><img src="https://counter.theconversation.com/content/13398/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bruce Baer Arnold does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>During the golden age of the unregulated food industry, Chicago slaughterhouses boasted that they processed every part of the animal except for the squeal. How times have changed: agricultural businesses…Bruce Baer Arnold, Assistant Professor, School of Law, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/131982013-04-03T19:33:21Z2013-04-03T19:33:21ZIndia’s Novartis patent ruling puts health before profits<figure><img src="https://images.theconversation.com/files/22016/original/hkktbzfg-1364965675.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Novartis sought to charge A$26,000 a year for its anti-cancer drug, compared with A$2,000 per year for a generic copy.</span> <span class="attribution"><span class="source">ChrisGoldNY</span></span></figcaption></figure><p>Swiss pharmaceutical company Novartis this week lost a seven-year legal battle over a drug patent in India. It’s certainly a win for those in India who use the drug, and for patients in India more generally. Given India’s key role in the global supply of affordable medicines, the decision also has world-wide implications. </p>
<p>In the face of fierce opposition from public health advocates and sections of the domestic drug industry, <a href="http://www.novartis.com/index.shtml">Novartis</a> stubbornly pursued a patent for its anti-cancer drug imatinib mesylate, marketed in India as Glivec. </p>
<p>Through its legal action, Novartis sought to continue to be able to charge a price for Glivec per patient per year of around A$26,000. Generic versions are presently available at about A$2,000 per year. Novartis also supplies Glivec at no cost to some patients. </p>
<p>What made the patenting of Glivec such a major issue was not only the price of this particular drug in the Indian market, but its significance as a policy precedent for the future. A legal victory for Novartis would have meant a proliferation of patents on a wide range of medicines for a longer period.</p>
<p>Novartis’ initial application to patent imatinib mesylate was rejected in January 2006 on the grounds it represented a new form of a known substance and therefore was not patentable. Novartis’ claim was first rejected by the Chennai Patent office in 2006, then by the Madras High Court in 2009, and then again by an appeals court in 2009. </p>
<p>At each step, Glivec was deemed to be a modified version of a pre-1995 drug for which patents cannot be issued under Indian law.</p>
<p>The Supreme Court in New Delhi has now determined that Novartis cannot be granted this patent. In a carefully argued <a href="http://judis.nic.in/supremecourt/imgs1.aspx?filename=40212">judgement</a>, the court found imatinib mesylate “fails the test of section 3(d)” of <a href="http://www.wipo.int/wipolex/en/details.jsp?id=2407">India’s Patents Act</a>.</p>
<h2>Medicine policy in India</h2>
<p>India has a remarkable history of civil society engagement with drug policy and intellectual property rights, notably the World Trade Organization’s (WTO) 2005 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). </p>
<p>From the 1980s, during the negotiations leading up to the formation of the WTO, public health advocates and domestic drug producers mobilised public opinion against looming pharmaceutical patents. </p>
<p>When India became fully TRIPS-compliant in 2005, with the introduction of pharmaceutical product patents, the legislation incorporated in full the “flexibilities” available under TRIPS, as confirmed in the 2001 <a href="http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm">Doha Agreement</a>.</p>
<p>These flexibilities include the right of national governments to define patentability in domestic legislation, limits on data protection, pre- and post-grant opposition to patents, and provisions for the issuing of compulsory licensing.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/22005/original/88jppkgx-1364962585.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/22005/original/88jppkgx-1364962585.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=433&fit=crop&dpr=1 600w, https://images.theconversation.com/files/22005/original/88jppkgx-1364962585.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=433&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/22005/original/88jppkgx-1364962585.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=433&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/22005/original/88jppkgx-1364962585.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=544&fit=crop&dpr=1 754w, https://images.theconversation.com/files/22005/original/88jppkgx-1364962585.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=544&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/22005/original/88jppkgx-1364962585.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=544&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A legal victory for Novartis would have meant a proliferation of patents on a wide range of medicines for a longer period.</span>
<span class="attribution"><span class="source">Novartis AG</span></span>
</figcaption>
</figure>
<h2>Minor modifications</h2>
<p>The Novartis case revolved around the definition of the criteria for patentability. Section 3(d) of the Patents (Amendment) Act, 2005, is intended to prevent the awarding of patents for new uses or slightly modified versions of known molecules, unless a “significant enhancement of efficacy” can be demonstrated. </p>
<p>The objective is to prevent evergreening: unwarranted extension of monopoly pricing through patenting of trivial modifications. Such patent extensions constitute a form of rent seeking, known in corporate parlance as an important “life cycle management” technique. The purpose is to delay the market entry of cheaper generic brands. </p>
<p>Evergreening does not contribute to research addressing the “neglected diseases” affecting the world’s poor. Rather, it causes social welfare losses through the stifling of competition. Preventing this type of marginal and trivial patenting will provide stronger incentives for truly innovative research. </p>
<p>Indeed, the patent-based business model of the large pharmaceutical companies is detrimental to the global need for affordable medicines meeting real therapeutic needs. </p>
<p>Patented drugs currently constitute a small proportion of India’s pharmaceutical markets, but their relative share and therapeutic significance will inevitably increase in coming years. </p>
<p>On present trends, the pricing of patented <a href="http://utw.msfaccess.org/background">second and third generation HIV/AIDS drugs</a> will significantly reduce the number of patients able to afford adequate treatment – not only in India but throughout the developing world. </p>
<h2>International implications</h2>
<p>This ruling has implications for affordable access to medicines across the developing world. As <a href="http://www.msfindia.in/content.php?con_id=356">Médecins Sans Frontières (MSF) said this week</a>,</p>
<blockquote>
<p>The Supreme Court’s decision now makes abusive patents on the medicines that we desperately need less likely. This marks the strongest possible signal to Novartis and other multinational pharmaceutical companies that they should stop seeking to attack the Indian patent law.</p>
</blockquote>
<p>The Novartis ruling sets an important precedent. It demonstrates that flexibilities available under TRIPS are not dead letters, notwithstanding pressures from corporations and the US government. </p>
<p>It is possible for governments in developing countries to set stringent criteria for patenting and thus facilitate early access to life-saving, low-cost generics. In particular, countries such as India, China, and Brazil bring growing political and economic resources to bear in their interactions with multinational companies and with the governments of the United States and Europe. </p>
<p>The outcome of the Novartis case is consistent with a pattern since the 1990s of a de facto coalition of health advocates, non-governmental organisations and some governments, including India’s, seeking to limit the impact of intellectual property rights protection on access to medicines. </p>
<h2>Next steps</h2>
<p>Other important legal cases are pending in India, including <a href="http://www.pharmatimes.com/Article/13-03-05/Bayer_loses_appeal_in_Indian_compulsory_licence_case.aspx">Bayer’s appeal</a> against lower court decisions to reject its challenge to the issuance of a compulsory license on Nexavar, another cancer medicine. </p>
<p>And the impending <a href="http://keionline.org/node/1681">free trade agreement between India and the European Union</a> pose further threats to access to affordable medicines. </p>
<p>But in the meantime, the rebuff of Novartis’ attack on a measure to protect public health should be celebrated as a great win for patients in India and the developing world. </p><img src="https://counter.theconversation.com/content/13198/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hans Löfgren is the editor of The Politics of the Pharmaceutical Industry and Access to Medicines: World Pharmacy and India (Social Science Press, New Delhi, 2013) and (with Owain David Williams) The New Political Economy of Pharmaceuticals: Production, Innovation and TRIPS in the Global South (Palgrave Macmillan, Basingstoke, 2013). </span></em></p>Swiss pharmaceutical company Novartis this week lost a seven-year legal battle over a drug patent in India. It’s certainly a win for those in India who use the drug, and for patients in India more generally…Hans Löfgren, Associate Professor Politics and Policy Studies, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/131842013-04-03T19:31:24Z2013-04-03T19:31:24ZPodcasts are patented – or so say the patent trolls<figure><img src="https://images.theconversation.com/files/22010/original/zw9vxvk6-1364962895.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">"It seems patent trolls are here to stay, but that might not be the case for much longer."</span> <span class="attribution"><span class="source">K.G.Hawes</span></span></figcaption></figure><p>Can podcasting be patented? If you are an instigator of what’s being referred to as the <a href="http://defazio.house.gov/index.php?option=com_content&view=article&id=811%3Adefazio-chaffetz-introduce-expanded-shield-act-to-combat-patent-trolls&catid=71%3A2013-press-releases&Itemid=1">SHIELD Act</a> – introduced into US Congress last month – the answer would seem to be no. If you represent a US company called <a href="http://personalaudio.net/">Personal Audio</a>, the answer would seem to be yes. So who is right, and more likely to win out?</p>
<p>That question piques my interest both personally and professionally. Later this year I hope to start podcasting. I’ve bought a microphone, registered at the Apple Store, and am now limbering up the vocal chords before taking the plunge.</p>
<p>It sounds so simple, and it’s cheap – or so I thought.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/22001/original/7rgc8hwv-1364962046.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/22001/original/7rgc8hwv-1364962046.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/22001/original/7rgc8hwv-1364962046.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=578&fit=crop&dpr=1 600w, https://images.theconversation.com/files/22001/original/7rgc8hwv-1364962046.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=578&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/22001/original/7rgc8hwv-1364962046.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=578&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/22001/original/7rgc8hwv-1364962046.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=727&fit=crop&dpr=1 754w, https://images.theconversation.com/files/22001/original/7rgc8hwv-1364962046.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=727&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/22001/original/7rgc8hwv-1364962046.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=727&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">themaccraic-david</span></span>
</figcaption>
</figure>
<p>Personal Audio, based in Texas and founded in 1996, claims it “<a href="http://personalaudio.net/patents/podcasting/">invented</a>” podcasting, <a href="http://personalaudio.net/pdf/US8112504.pdf">has a patent</a> to prove it, and has made millions through litigation and license fees through what’s known as “<a href="http://en.wikipedia.org/wiki/Patent_troll">patent trolling</a>”. Unlike the <a href="http://en.wikipedia.org/wiki/Troll_(Internet)">slang term</a> for someone who posts deliberately inflammatory comments online, patent trolls are people or companies that enforce their patents for financial gain.</p>
<p>Even though such behaviour is less of an issue in Australia due to our <a href="http://www.brrmedia.com/event/89859?popup=true">strong Patents Act</a>, Australians with successful podcasts in the US could be sued too.</p>
<p>So if I’m one, I might expect a call from Personal Audio LLC.</p>
<h2>Who is Personal Audio?</h2>
<p>Despite <a href="http://arstechnica.com/tech-policy/2013/02/eff-to-defend-against-troll-with-podcasting-patent-granted-in-2012/">reportedly</a> not having sold a single product since 1998, Personal Audio is a nice little earner by being an aggressive patent troll.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/21987/original/n5sz39dk-1364957383.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/21987/original/n5sz39dk-1364957383.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/21987/original/n5sz39dk-1364957383.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/21987/original/n5sz39dk-1364957383.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/21987/original/n5sz39dk-1364957383.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/21987/original/n5sz39dk-1364957383.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/21987/original/n5sz39dk-1364957383.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/21987/original/n5sz39dk-1364957383.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Dunechaser</span></span>
</figcaption>
</figure>
<p>Which is to say, it sues major podcasters who refuse to pay it a license fee, with some success.</p>
<p>In 2011, a federal jury in Texas <a href="http://www.bloomberg.com/news/2011-07-08/apple-told-to-pay-8-million-in-patent-trial-over-ipod-playlists.html?cmpid=yhoo">awarded</a> Personal Audio US$8 million in its lawsuit against Apple.</p>
<p>This encouraged the company to go after others, with comedy podcast <a href="http://9to5mac.com/2013/01/10/patent-troll-personal-audio-llc-sues-itunes-top-podcaster-adam-carollas-ace-broadcasting/">The Adam Carolla Show</a> and HowStuffWorks’ <a href="http://news.priorsmart.com/personal-audio-v-howstuffworkscom-l7qw/">Stuff You Should Know podcast</a> among its targets.</p>
<p>Samsung, Motorola, RIM, Archos, Coby, Sirius, LG and HTC have <a href="http://personalaudio.net/licensees/">paid up license fees</a> to avoid litigation.</p>
<h2>Patent basics</h2>
<p>In the US, <a href="http://www.uspto.gov/patents/index.jsp">utility, design, and plant patents</a> are granted by the Patent and Trademark Office (<a href="http://www.uspto.gov/">USPTO</a>).</p>
<p><a href="http://www.uspto.gov/patents/resources/types/utility.jsp">Utility patents</a> are <a href="http://www.patent-ideas.com/Design-Utility-Patents/Design-Patent-vs-Utility-Patent.aspx">most common</a>, and can be issued, according to the <a href="http://www.uspto.gov/smallbusiness/patents/faq.html">USPTO website</a>, to:</p>
<blockquote>
<p>anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.</p>
</blockquote>
<p>According to its <a href="http://www.google.com.au/patents?hl=en&lr=&vid=USPAT8112504&id=Jy0DAgAAEBAJ&oi=fnd&dq=Patent+8,112,504&printsec=abstract#v=onepage&q=Patent%208%2C112%2C504&f=false">patent</a>, Personal Audio claims to have designed a “system for disseminating media content representing episodes in a serialised sequence” - a concept within which podcasting falls.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/21993/original/dqxygk47-1364958952.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/21993/original/dqxygk47-1364958952.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/21993/original/dqxygk47-1364958952.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/21993/original/dqxygk47-1364958952.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/21993/original/dqxygk47-1364958952.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/21993/original/dqxygk47-1364958952.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/21993/original/dqxygk47-1364958952.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/21993/original/dqxygk47-1364958952.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">rimblas</span></span>
</figcaption>
</figure>
<p>And under <a href="http://www.uspto.gov/web/offices/pac/mpep/consolidated_laws.pdf">US patent laws</a>, anyone considered infringing a standing patent - in this case, podcasters - can be <a href="http://inventors.about.com/od/patentinfringement/a/Infringement.htm">sued</a> in Federal court by the patentee.</p>
<p>Patent trolls now account for the <a href="http://www.reuters.com/article/2012/12/10/patents-usa-lawsuits-idUSL1E8NA55M20121210">majority</a> of all US patent lawsuits, and it’s been estimated that they netted <a href="http://www.bu.edu/law/faculty/scholarship/workingpapers/documents/BessenJ_MeurerM062512rev062812.pdf">US$29 billion in 2011</a> alone.</p>
<h2>How did Personal Audio secure its patent?</h2>
<p>As well as being lucrative, patent trolling is easy to do. A quick look at Personal Audio’s patent shows just how simple it is to claim valuable intellectual property.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/22003/original/kzwrqzq9-1364962449.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/22003/original/kzwrqzq9-1364962449.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/22003/original/kzwrqzq9-1364962449.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=770&fit=crop&dpr=1 600w, https://images.theconversation.com/files/22003/original/kzwrqzq9-1364962449.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=770&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/22003/original/kzwrqzq9-1364962449.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=770&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/22003/original/kzwrqzq9-1364962449.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=967&fit=crop&dpr=1 754w, https://images.theconversation.com/files/22003/original/kzwrqzq9-1364962449.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=967&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/22003/original/kzwrqzq9-1364962449.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=967&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source"> BiblioArchives / LibraryArchives</span></span>
</figcaption>
</figure>
<p>Podcasting has been around for <a href="http://en.wikipedia.org/wiki/History_of_podcasting">some time</a>, and while Personal Audio’s patent was issued in 2012, the company <a href="http://personalaudio.net/patents/podcasting/">claims</a> it filed papers in 1996 that covered the same technology.</p>
<p>In addition, the overworked patent offices, <a href="http://www.washingtonpost.com/wp-dyn/content/article/2009/09/30/AR2009093005017.html">particularly in the US</a>, often grant patents for ideas that are neither new nor revolutionary. </p>
<p>Trolls seize on patents that are vague and describe function, rather than going to the trouble and cost of actually inventing something - and such actions are on the rise.</p>
<p>A <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2158455">2012 study</a> found that lawsuits filed by troll-like entities grew from 22% in 2007 to 40% in 2011. The study’s authors wrote:</p>
<blockquote>
<p>From all appearances, lawsuits filed are only the tip of the iceberg, and a major operating company may face hundreds of invitations to license for every lawsuit.</p>
</blockquote>
<p>And trolls don’t only make financial threats. Notorious copyright troll <a href="http://en.wikipedia.org/wiki/Anti-Piracy_Law_Group">Prenda Law</a> - an Illinois-based law firm – <a href="http://www.theregister.co.uk/2013/04/03/prenda_pleads_the_fifth/">files lawsuits</a> against those who allegedly download copyrighted “adult” films.</p>
<p>If the accused don’t settle - perhaps for a few thousand dollars - they risk being sued for a larger sum, with the spectre of their interest in porn being aired in public.</p>
<h2>Are patent trolls unstoppable?</h2>
<p>It may seem patent trolls are here to stay, but that might not be the case for much longer.</p>
<p>The mission of the Electronic Frontier Foundation (<a href="http://www.eff.org">EFF</a>) - an non-profit digital-rights group based in the US – is to protect “freedoms in the networked world”, and it sees so-called “patent trolls” as a significant threat.</p>
<p>According to the <a href="https://www.eff.org/issues/resources-patent-troll-victims">EFF website</a>, trolls use “patents as legal weapons, instead of actually creating any new products or coming up with new ideas”, and it <a href="https://www.eff.org/deeplinks/2013/02/podcasting-community-faces-patent-troll-threat-eff-wants-help">specifies</a> that Personal Audio is patent trolling.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/iSZEAhzMdIY?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">A SHIELD against trolls.</span></figcaption>
</figure>
<p>But without a change in the law, patent trolls will continue to prosper.</p>
<p>But there is hope. As mentioned at the start of this article, the Saving High-tech Innovators from Egregious Legal Disputes (<a href="http://defazio.house.gov/index.php?option=com_content&view=article&id=811%3Adefazio-chaffetz-introduce-expanded-shield-act-to-combat-patent-trolls&catid=71%3A2013-press-releases&Itemid=1">SHIELD</a>) Act was introduced into the US Congress last month by Reps <a href="http://defazio.house.gov/">Peter DeFazio</a> and <a href="http://chaffetz.house.gov/">Jason Cheffetz</a>.</p>
<p>The Act is designed to deter would-be patent trolls by forcing them to pay legal costs for lost cases.</p>
<p>While some people have their <a href="http://www.forbes.com/sites/timworstall/2013/03/01/the-shield-act-tries-to-kill-the-patent-trolls-but-does-it-go-far-enough/">misgivings</a>, the Act has been billed as <a href="http://www.adweek.com/news/technology/bill-targeting-patent-trolls-could-be-first-nail-coffin-147585">the first step</a> towards eliminating patent trolls.</p>
<p>After all, once my podcast starts making me millions, I don’t want to be sharing it with anyone.</p><img src="https://counter.theconversation.com/content/13184/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Harry Blutstein does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations. However, as a prospective podcaster, he could attract a lawsuit from a patent troll.</span></em></p>Can podcasting be patented? If you are an instigator of what’s being referred to as the SHIELD Act – introduced into US Congress last month – the answer would seem to be no. If you represent a US company…Harry Blutstein, Adjunct Professor, School of Global Studies, Social Science and Planning , RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/57612012-03-08T04:00:40Z2012-03-08T04:00:40ZWhy Australia’s medicine cabinet is almost bare<figure><img src="https://images.theconversation.com/files/8460/original/pmrpctf6-1331177994.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There's nothing worse than running out of paracetamol – and it's much more serious in a hospital.</span> <span class="attribution"><span class="source">Zokah</span></span></figcaption></figure><p>The risk we’ll fall short of essential medicines has increased dramatically over the past decade, largely due to policy shifts in patent regulation and a boom in pharmaceutical innovation that began in the 1980s. </p>
<p>Rates of drug shortages in Australia haven’t been recorded but the trends are likely to be similar to the United States. In 2001 there were 120 individual medicine shortages in the US, dropping to 58 in 2004 and steadily rising to at least 220 last year. </p>
<p>The medicines most vulnerable to short supply are the minimally profitable <a href="https://theconversation.com/explainer-how-do-generic-medicines-compare-with-brand-leaders-1386">“generic” drugs</a> – particularly injectable medicines that are expensive and challenging to make. </p>
<p>Market forces and scales of economy have seen the total global number of manufacturing plants for these “old” off-patent drugs dwindle and move to mega-factories in countries such as India and China, where labour is cheap and the markets are already huge and expanding. With one batch failure or factory fault, global supplies are interrupted.</p>
<p>In contrast, pharmaceutical companies invest heavily in new drug innovation and developments are focused on maximising profits from patents. They have extensive resources behind their manufacturing facilities, so patented drugs are almost never in short supply.</p>
<h2>Medicine innovation</h2>
<p>The last century of medical innovation in Australia and and its translation to treatments at the bedside has been impressive. And it’s left us with one of the best and most cost-effective health-care systems in the world. </p>
<p>We enjoy this position because of the hard work of countless scientists and clinicians, and the clever strategic decisions that our politicians and leaders have made over those tumultuous 100 years: </p>
<ul>
<li><p><a href="http://www.csl.com.au/">CSL</a> was a government body, formed in 1916 to translate medical findings into vaccines and therapies for Australian populations. </p></li>
<li><p>The <a href="http://www.pbs.gov.au/pbs/home">PBS</a> was established in 1948 to ensure the “timely provision” of essential medicines to all Australians.</p></li>
<li><p>The <a href="http://www.tga.gov.au/">Therapeutic Goods Administration</a> (TGA), the PBS and the <a href="http://www.health.gov.au/internet/main/publishing.nsf/content/nmp-objectives-policy.htm">National Medicines Policy</a> all focus on the timely provision of high-quality medicines. </p></li>
</ul>
<p>These agencies traditionally focused on sustaining a viable medicines industry in Australia. However, over the past decade, there has been a paradigm shift to focus on health-care innovation. This shift in focus, along with a fundamental change in strategic health policy and the establishment of the <a href="http://www.dfat.gov.au/fta/ausfta/index.html">Australia-US Free Trade Agreement</a> (AUSFTA), has left the viability of day-to-day clinical care relatively unattended. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/8443/original/s45s6g6z-1331167344.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/8443/original/s45s6g6z-1331167344.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=901&fit=crop&dpr=1 600w, https://images.theconversation.com/files/8443/original/s45s6g6z-1331167344.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=901&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/8443/original/s45s6g6z-1331167344.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=901&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/8443/original/s45s6g6z-1331167344.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1133&fit=crop&dpr=1 754w, https://images.theconversation.com/files/8443/original/s45s6g6z-1331167344.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1133&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/8443/original/s45s6g6z-1331167344.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1133&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Medicine regulators have shifted their focus from sustainability to innovation.</span>
<span class="attribution"><span class="source">Solstice Cetl</span></span>
</figcaption>
</figure>
<p>The National Medicines Policy says it wants to facilitate a “viable medicines industry” but, in reality, it appears to prioritise the funding of patented “miracle cures” or life-prolonging treatments, which are incredibly costly. </p>
<p>It is this imbalance between health-care innovation and sustainability that is at the very core of the current international drug shortage. </p>
<p>The shortage of essential medicines in Australia over recent months – including the injectable drugs <a href="http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682221.html">doxorubicin</a> (to treat certain types of cancer), <a href="http://www.tga.gov.au/safety/alerts-medicine-benpen-110928.htm">benzylpenicillin</a> (a common antibiotic), <a href="http://www.nlm.nih.gov/medlineplus/druginfo/meds/a685034.html">labetalol</a> (for high blood pressure) and adrenaline – shows a real vulnerability in Australia’s health system that could escalate tomorrow, next week or a couple of years down the track. </p>
<p>The Commonwealth government’s changes to the PBS in 2005 have served to protect the high prices (and pharmaceutical company profits) of newly patented medicines. The PBS changes have also forced down the price of older, off-patent medicines, which are already cheap. And you get what you pay for – spending less on already cheap drugs probably means an increased potential for quality compromises. </p>
<p>Although the reasons for these 2005 PBS changes were valid, they seem to have had other perverse consequences, such as weakening in supply of already cheap essential drugs and perpetuating a process of pinching pennies (for cheap generics) and spending pounds (for patented drugs).</p>
<p>It will be telling to watch the US deal with its medicine supply problems, which are much more acute than ours. Obama has directly intervened and the <a href="http://www.fda.gov/">Food and Drug Administration</a> has geared up to deal with shortages, which may have global repercussions (and could be a contributing factor to Australia’s current shortage of doxorubicin). </p>
<p>There is talk of expanding US manufacturing capacity of these cheap drugs, of regulating industry to ensure shortages are predictable, and some crazy talk of starting not-for-profit pharmaceutical companies, reminiscent of the birth of CSL in Australia 96 years ago.</p>
<p>This article is, of course, a simplification of some very complex international issues. Many more conversations are needed to help us navigate through these changing times. </p>
<p>But one thing is clear. If future generations of Australians are to have the same high level of health care as we do today, scientists and policy makers need to find the right balance between innovation in health care treatments and the much less sexy area of medicine sustainability.</p><img src="https://counter.theconversation.com/content/5761/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon Quilty does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The risk we’ll fall short of essential medicines has increased dramatically over the past decade, largely due to policy shifts in patent regulation and a boom in pharmaceutical innovation that began in…Simon Quilty, Medical Physician, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/55922012-02-28T00:43:42Z2012-02-28T00:43:42ZIdeas and ownership: series highlights<figure><img src="https://images.theconversation.com/files/8121/original/2hdv9ntx-1330318764.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lightbulb moments come at any time – but how do we protect them?</span> <span class="attribution"><span class="source">Adriano Agulló</span></span></figcaption></figure><p>The concept of protecting ideas and innovation by legal means dates back to antiquity. But many of our existing laws are under strain, their suitability and ultimate purpose called into question.</p>
<p>Here are some snippets from our series, Ideas and Ownership, looking at where the law currently stands, where it might be going, and whether the time has come for a major change. </p>
<p><strong>We’ve heard of IP, patents, copyright and trademarks – are these the essentially the same thing, or different? University of Canberra’s Bruce Arnold explains.</strong></p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/8134/original/zghy8dqk-1330388697.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/8134/original/zghy8dqk-1330388697.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/8134/original/zghy8dqk-1330388697.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/8134/original/zghy8dqk-1330388697.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/8134/original/zghy8dqk-1330388697.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/8134/original/zghy8dqk-1330388697.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/8134/original/zghy8dqk-1330388697.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">917press</span></span>
</figcaption>
</figure>
<p>It’s become a cliché that most Australians are part of an information society or information economy. In fact, we’re all part of an intellectual property society. Intellectual property (IP) affects what we consume and what we create. It also affects when we’re born and when we die, given modern medicine is founded on pharmaceuticals and devices that are encouraged by intellectual property law.</p>
<p>[…] IP is ultimately about power, money, innovation and regard for individuals who struggle to add to the sum of knowledge and cultures. Academia needs to make decisions about its own IP on an informed rather than emotive basis, and work with other interests in developing equitable law and practice.
IP is not just something that belongs to the vice-chancellor or Bill Gates: it’s about us. <em><a href="https://theconversation.com/ip-patents-copyright-you-5421">Read more</a></em></p>
<p><strong>We’re told patents, and the patenting system, promote innovation, but do the numbers back this up. Dianne Nicol and John Liddicoat of University of Tasmania investigate.</strong></p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/8135/original/ymyty6sp-1330388737.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/8135/original/ymyty6sp-1330388737.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=460&fit=crop&dpr=1 600w, https://images.theconversation.com/files/8135/original/ymyty6sp-1330388737.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=460&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/8135/original/ymyty6sp-1330388737.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=460&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/8135/original/ymyty6sp-1330388737.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=578&fit=crop&dpr=1 754w, https://images.theconversation.com/files/8135/original/ymyty6sp-1330388737.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=578&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/8135/original/ymyty6sp-1330388737.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=578&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Xurxo Martinez</span></span>
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<p>The extent to which patents actually encourage innovation is difficult to empirically measure. Anecdotally, the CEO of any company operating in a field of high technology will probably argue their patents are crucial to the success of their business. On the other hand, economists who have been modelling such questions for many years tend to provide much more equivocal answers.</p>
<p>Recent work by economists at the Intellectual Property Research Institute of Australia (IPRIA), based at the University of Melbourne, suggests patents provide some incentive to commercially develop an invention. The researchers found that, if a patent application is not granted for whatever reason, the chance of the invention making it to market decreases by 13%.</p>
<p>A separate paper analysing the same dataset focused on the commercial returns from patents. Controlling for the value of the invention itself, it was found that having a patent increased the financial returns by between 40% and 50%. <em><a href="https://theconversation.com/do-patents-promote-innovation-5443">Read more</a></em></p>
<p><strong>Anyone standing on the sidelines would be forgiven for wondering what was – and still is – going on with the so-called “patent wars” between Apple, Samsung and a raft of other high-profile companies.</strong></p>
<p><strong>University of Sydney’s Kimberlee Weatherall considers the strategic use of patents by major corporations, whether for defensive or offensive purposes.</strong></p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/8136/original/9hbnq2k3-1330388763.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/8136/original/9hbnq2k3-1330388763.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=414&fit=crop&dpr=1 600w, https://images.theconversation.com/files/8136/original/9hbnq2k3-1330388763.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=414&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/8136/original/9hbnq2k3-1330388763.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=414&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/8136/original/9hbnq2k3-1330388763.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=521&fit=crop&dpr=1 754w, https://images.theconversation.com/files/8136/original/9hbnq2k3-1330388763.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=521&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/8136/original/9hbnq2k3-1330388763.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=521&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">CoastConFan</span></span>
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</figure>
<p>Why would a company need masses and masses of patents? There are a few reasons. One is to stake out a technological “territory” and deter or block potential competitors. Evidence from research suggests that smaller firms do avoid working in areas of technology that are heavily patented already.</p>
<p>Another reason would be for offensive use: a company with a large number of patents can overwhelm a competitor they allege is infringing on their technology with a barrage of different patents. The more patents that are alleged to be infringed, the more costly the option of litigation becomes for the alleged infringer.</p>
<p>In theory the alleged infringer can challenge the validity of the patents, but patent litigation is expensive at the best of times, and challenging multiple patents is a very daunting prospect. In these situations, the company with multiple patents may be able to force a settlement – perhaps including the alleged infringer paying royalties or changing their product. <em><a href="https://theconversation.com/the-art-of-war-know-your-enemys-patents-and-your-own-5489">Read more</a></em></p>
<p><strong>Thomas Faunce of the Australian National University examines the legal loophole that allows pharmaceutical companies, and others, to continually renew product patents – a process known as “evergreening”.</strong> </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/8137/original/b4v6h5kn-1330388792.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/8137/original/b4v6h5kn-1330388792.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/8137/original/b4v6h5kn-1330388792.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/8137/original/b4v6h5kn-1330388792.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/8137/original/b4v6h5kn-1330388792.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/8137/original/b4v6h5kn-1330388792.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/8137/original/b4v6h5kn-1330388792.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">eMagineArt.com</span></span>
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<p>To overcome the use of patents to inhibit community and environmental benefit in areas such as solar fuels and pharmaceuticals, law reform should focus on what patent experts call “raising the bar of patentability”.</p>
<p>Patents should not be granted simply to allow companies to profit from, and potentially impede, an area of expanding research that is important to the national interest.</p>
<p>When a patent expires, competition should be rapidly allowed to enter the market. If a public health crisis evolves, patents should be able to be discarded and, after reasonable compensation is paid, mass production commenced. <em><a href="https://theconversation.com/evergreening-patents-playing-monopoly-with-solar-fuels-and-medicine-innovations-5165">Read more</a></em></p>
<p><strong>Has the internet given us a glimpse of life without copyright, and is that a lesson we should be taking greater note of? Philip Soos of Deakin University thinks we should.</strong></p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/8138/original/nk7pr27j-1330388821.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/8138/original/nk7pr27j-1330388821.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/8138/original/nk7pr27j-1330388821.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/8138/original/nk7pr27j-1330388821.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/8138/original/nk7pr27j-1330388821.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/8138/original/nk7pr27j-1330388821.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/8138/original/nk7pr27j-1330388821.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption"></span>
<span class="attribution"><span class="source">marfis75</span></span>
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<p>Ownership under copyright is twisted to the point where consumers do not own the software they purchase; rather, they are merely extended a license to use the software that the company owns.</p>
<p>The problems with copyright (and other forms of intellectual property rights) are extensive. The most obvious flaw is the monopolistic pricing inherent to this form of intervention. Any introductory economic textbook tells us the efficiency is met when outputs are produced and sold at marginal cost – what it costs to produce the next good or service.</p>
<p>In the information age, electronic data or informational goods can be copied for free. Accordingly, this is what goods should be priced at: zero, instead of monopoly pricing.</p>
<p>Ironically, pirates are acting as conventional economists claim people should – that is, they are rational agents seeking to maximise their utility (happiness) by obtaining copies of informational goods at marginal cost. <em><a href="https://theconversation.com/will-the-internet-kill-copyright-heres-hoping-5560">Read more</a></em></p>
<p><strong>Since gaining recognition in the 1970s, the open-source movement has shown how collaboration, rather than competition, can lead to cheaper, more effective solutions.</strong></p>
<p><strong>University of Tasmania’s Anton Hughes explores the benefits of working, living and creating outside the patent system.</strong></p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/8139/original/rwh3zpfp-1330388845.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/8139/original/rwh3zpfp-1330388845.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/8139/original/rwh3zpfp-1330388845.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/8139/original/rwh3zpfp-1330388845.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/8139/original/rwh3zpfp-1330388845.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/8139/original/rwh3zpfp-1330388845.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/8139/original/rwh3zpfp-1330388845.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption"></span>
<span class="attribution"><span class="source">loop_oh</span></span>
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<p>Given its origins as a liberalisation of the copyright paradigm, speaking about open source in the patent context is tricky. While copyright protection is automatic, and free, getting a patent is a slow and expensive process. The pragmatic critic might question why anyone would invest in such a process, only to give free access to everyone else.</p>
<p>But if we think of open source, as Janet Hope, author of The Open Source Revolution and Biotechnology suggests, as “the basis for an analogy – the seed of an idea rather than a rigid formula for success”, possibilities begin to emerge.</p>
<p>Rather than trying to graft “copyleft” (making a work and its derivatives free) on to patent law, it might be possible to work within patent law to promote collaborative innovation. <em><a href="https://theconversation.com/open-source-ditching-patents-and-copyright-for-the-greater-good-5302">Read more</a></em></p>
<p><strong>Patenting an invention such as the telephone makes much intuitive sense. But genes? Dianne Nicol examines what’s at stake in a case currently before the Federal Court of Australia.</strong></p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/8140/original/mb8cyjhz-1330388867.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/8140/original/mb8cyjhz-1330388867.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/8140/original/mb8cyjhz-1330388867.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/8140/original/mb8cyjhz-1330388867.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/8140/original/mb8cyjhz-1330388867.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/8140/original/mb8cyjhz-1330388867.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/8140/original/mb8cyjhz-1330388867.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><span class="source">David/Flickr</span></span>
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<p>The Federal Court of Australia will soon rule on a case with significant implications for the multitude of gene patents granted in Australia.</p>
<p>In a hearing that ended on February 24, the court was, for the first time, given the opportunity to decide whether genes are patentable subject matter in Australia.</p>
<p>Patient advocacy organisation Cancer Voices Australia has challenged the validity of a patent owned by the US biotechnology company Myriad Genetics, Inc. Myriad claims exclusive rights to exploit the so-called BRCA1 gene, which is linked to increased susceptibility to breast and ovarian cancer. <em><a href="https://theconversation.com/open-source-ditching-patents-and-copyright-for-the-greater-good-5302">Read more</a></em></p><img src="https://counter.theconversation.com/content/5592/count.gif" alt="The Conversation" width="1" height="1" />
The concept of protecting ideas and innovation by legal means dates back to antiquity. But many of our existing laws are under strain, their suitability and ultimate purpose called into question. Here…Paul Dalgarno, EditorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/53022012-02-27T02:52:42Z2012-02-27T02:52:42ZOpen source – ditching patents and copyright for the greater good<figure><img src="https://images.theconversation.com/files/8090/original/5gcv2z4c-1330299133.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Collaboration leads to higher quality, lower costs and greater flexibility.</span> <span class="attribution"><span class="source">loop_oh</span></span></figcaption></figure><p><strong>IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But many of our existing laws are under strain, their suitability and ultimate purpose called into question.</strong></p>
<p><strong>Here, Anton Hughes discusses collaboration and considers the role of the open-source movement in a world still governed largely by copyright and patents.</strong></p>
<p>Open source <a href="http://eu.conecta.it/paper/brief_history_open_source.html">began in the late 1970s and early 80s</a> as a way of preserving the sharing ethos upon which early computer science was built. Since then it has grown well beyond its original scope, and now underscores the creation of many creative works.</p>
<p>Patent law is also directed towards a similar end, but encourages individuals rather than groups. So does the success of open source suggest patent law, as we know it, is set to change?</p>
<h2>How does open source work?</h2>
<p>Software’s <a href="http://en.wikipedia.org/wiki/Source_code">source code</a> (the lines of code that make up the software) is both the “machine” that makes it work, and the instruction manual for that machine. As such it is a source of great value. But should this source code be kept under lock and key or shared with others?</p>
<p>Open-source software advocates take the latter view. By sharing source code with others, it’s possible to create a collaborative development ecosystem. </p>
<p>The <a href="http://www.opensource.org">Open Source Institute asserts</a> that the benefits flowing to software products from this collaborative approach are “better quality, higher reliability, more flexibility, lower cost, and an end to predatory vendor lock-in”.</p>
<p>A certain “section” of the open-source movement, free software advocates, argues for the sharing of source code not because these ends justify the means, but on ethical grounds. <a href="http://www.gnu.org/philosophy/why-free.html">They say</a> society ought to encourage the voluntary co-operation of its citizens, and that “co-operation is more important than copyright”.</p>
<h2>Open source, in practice</h2>
<p><a href="http://www.infoworld.com/d/open-source/greatest-open-source-software-all-time-776?page=0,1&source=fssr">Successful open-source software products</a> abound but the movement’s poster child is probably the <a href="http://www.ibm.com/developerworks/linux/library/l-linux-kernel/">Linux kernel</a>, a project started in 1991 by Finnish software engineer <a href="http://en.wikipedia.org/wiki/Linus_Torvalds">Linus Torvalds</a>.</p>
<p>The Linux kernel is part of a larger bundle of free and open source <a href="http://www.gnu.org/">“GNU/Linux distributions”</a>, such as <a href="http://www.ubuntu.com/">Ubuntu</a> and <a href="http://www.redhat.com/">RedHat</a>. These distributions are operating systems in their own right and are free alternatives to Windows and OSX.</p>
<p>Although these GNU/Linux distributions only have about 1% market share, Linux has a <a href="http://www.focus.com/fyi/50-places-linux-running-you-might-not-expect/">significant presence</a> in government, educational and business markets. Familiar websites such as Google, Amazon, and Wikipedia all rely on GNU/Linux.</p>
<p>But it’s not just in the operating system that open source dominates the web. The open source <a href="http://httpd.apache.org/">Apache web server</a> is behind about <a href="http://news.netcraft.com/archives/2012/02/07/february-2012-web-server-survey.html">64% of all websites</a>, with another 9% run by the open source <a href="http://nginx.org/en/">nginx</a> server.</p>
<p>(GNU/)Linux is just the “L” in the popular <a href="http://en.wikipedia.org/wiki/LAMP_(software_bundle)">LAMP stack</a> – a bundle of open-source products frequently used in web development. The remaining letters in LAMP refer to the aforementioned Apache web server, the <a href="http://www.mysql.com">MySQL</a> database engine, and programming languages <a href="http://www.php.net">PHP</a>, <a href="http://www.perl.org">Perl</a> or <a href="http://www.python.org">Python</a> respectively.</p>
<h2>Beyond the web</h2>
<p>But open-source software isn’t limited to web development. If there’s a piece of computer software you use on a daily basis, there’s almost certainly an open-source (and therefore free) version available as well.</p>
<p>Need a web browser? Try <a href="http://www.mozilla.org/">Firefox</a> or <a href="http://dev.chromium.org/">Chromium</a>. Sick of paying hundreds of dollars for Microsoft Office? Try <a href="http://www.libreoffice.org">LibreOffice</a> or <a href="http://www.openoffice.org">OpenOffice</a> or <a href="http://abisource.com/">AbiWord</a>. Want to edit photos without paying for Photoshop? Try the <a href="http://www.gimp.org/">GNU Image Manipulation Program (GIMP)</a>.</p>
<p>You might even be carrying open-source software in your pocket. The Linux kernel is at the heart of <a href="http://source.android.com/">Android</a> – the open-source mobile phone operating system that runs so many smartphones and tablets, including the Samsung Galaxy Tab.</p>
<p>Given the success of open-source projects, it’s no surprise the
open-source software model has been adopted within a range of non-software domains. </p>
<p>This is typically in areas where there is some equivalent “source”, or know-how which would otherwise be protected through traditional copyright. In the case of open source, sharing of this know-how is not only allowed – it is encouraged.</p>
<p><strong>Creative Commons:</strong></p>
<p>Creative Commons licences (under which this article and all others on The Conversation are published), grant a range of creative freedoms to literary, and other “artistic” works traditionally published under copyright.</p>
<p>Despite some resistance from publishers – who are quite happy with traditional copyright – the benefits to authors (such as notably increased dissemination) are leading to pressure, especially among the academic community, to <a href="http://theconversation.com/spread-the-word-scientists-are-tearing-down-publishers-walls-5098">“tear down the walls”</a>. </p>
<p>Similar initiatives exist to <a href="http://opendatahandbook.org/en/what-is-open-data/index.html">open up data</a> stored in government/public repositories.</p>
<p><strong>Open Hardware:</strong></p>
<p>Given the inter-reliance of software and hardware, it’s natural that an open-source approach has caught on in electronics. It’s a different creature to open-source software because the hardware itself is already available for anyone to look at.</p>
<p>The “open source” part refers to information about the hardware that would be needed to reverse-engineer the hardware, such as the circuit layouts, the components used and any software embedded in the devices.</p>
<p>Perhaps the biggest success in this context is the <a href="http://arduino.cc/en/Main/Hardware">Arduino</a> micro-controller – essentially an <a href="http://arduino.cc/en/Main/FAQ">open-source computer circuit board</a> – of which more than 300,000 units have been sold. Other examples abound, including <a href="http://www.h-online.com/open/features/Five-open-source-hardware-projects-that-could-change-the-world-1428043.html?page=2">open-source agricultural equipment</a> and <a href="http://www.h-online.com/open/features/Five-open-source-hardware-projects-that-could-change-the-world-1428043.html?page=3">open-source DNA analysis equipment</a>.</p>
<h2>Open-source patents?</h2>
<p>Given its origins as a liberalisation of the copyright paradigm, speaking about open source in the patent context is tricky. While copyright protection is automatic, and free, getting a patent is a slow and expensive process. The pragmatic critic might question why anyone would invest in such a process, only to give free access to everyone else.</p>
<p>But if we think of open source, as Janet Hope, author of <a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674026353">The Open Source Revolution and Biotechnology</a> <a href="http://www.gene-watch.org/genewatch/articles/18-1Hope.html">suggests</a>, as “the basis for an analogy – the seed of an idea rather than a rigid formula for success”, possibilities begin to emerge. </p>
<p>Rather than trying to graft <a href="http://www.gnu.org/copyleft/">“copyleft”</a> (making a work and its derivatives free) on to patent law, it might be possible to work within patent law to promote collaborative innovation.</p>
<p>Software is seen by many, including open-source advocates, as an <a href="http://www.nosoftwarepatents.com/en/m/basics/index.html">inappropriate subject matter for patents</a>. Attempts to reconcile patent law and open source software – such as the <a href="http://www.openinventionnetwork.com/">Open Invention Network</a> – have therefore largely been directed towards defending copyleft, rather than exploring a new patent-based paradigm.</p>
<p>But there are concrete examples of attempts to create collaboration mechanisms within patent law. For a start, the aviation industry has used patent pooling to promote collaboration since <a href="http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war">before the first world war</a>. More recently, there have been a <a href="http://opensourcebiotech.anu.edu.au/Open_Source_Biotechnology/Practice.html">number of attempts</a> to adapt the open source approach to the patent-rich landscape of biotechnology.</p>
<p>So while patent law is currently without a “patent source” poster-child, the growth of the open source phenomenon suggests that such success may be only a matter of time.</p>
<p><strong>This is part six of Ideas and Ownership. To read the other instalments, click on the links below:</strong></p>
<ul>
<li><strong>Part One: <a href="https://theconversation.com/ip-patents-copyright-you-5421">IP, patents, copyright, you</a></strong></li>
<li><strong>Part Two: <a href="https://theconversation.com/do-patents-promote-innovation-5443">Do patents promote innovation?</a></strong></li>
<li><strong>Part Three: <a href="https://theconversation.com/the-art-of-war-know-your-enemys-patents-and-your-own-5489">The art of war: know your enemy’s patents, and your own</a></strong></li>
<li><strong>Part Four: <a href="https://theconversation.com/evergreening-patents-playing-monopoly-with-solar-fuels-and-medicine-innovations-5165">Evergreening patents: playing monopoly with solar fuels and medicine innovations</a></strong></li>
<li><strong>Part Five: <a href="https://theconversation.com/will-the-internet-kill-copyright-heres-hoping-5560">Will the internet kill copyright? Here’s hoping …</a></strong></li>
</ul><img src="https://counter.theconversation.com/content/5302/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anton Hughes does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But many of our existing laws are under strain, their suitability and ultimate purpose called…Anton Hughes, PhD Graduate, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/51652012-02-22T03:05:16Z2012-02-22T03:05:16ZEvergreening patents: playing monopoly with solar fuels and medicine innovations<figure><img src="https://images.theconversation.com/files/7937/original/hwhzs9qv-1329872340.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Companies too often replace genuine innovation with regulatory shenanigans.</span> <span class="attribution"><span class="source">eMagineArt.com</span></span></figcaption></figure><p><strong>IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But many of our existing laws are under strain, their suitability and ultimate purpose called into question.</strong></p>
<p><strong>Here, Thomas Faunce explains that when energy and pharmaceutical companies attempt to acquire or hold on to patents for the sake of extra profits by reducing competition, innovation suffers.</strong></p>
<p>There has long been controversy over the balance between protecting patents to facilitate innovation and addressing the great social and environmental needs of our times. </p>
<p>Inventors need patents to protect their ideas. But often those patents are bought out by companies with no direct role in the invention and no plan to improve it. At some point, such excessive patent rights begin to impede the process whereby innovations are refined and improved. Patents then become mechanisms for freezing out competition simply for the sake of prolonging profits. </p>
<p>Patents haven’t prompted the develop of new antibiotics, for example, or new medicines for many diseases in the developing world. Likewise, patents in the “old photosynthesis” (coal, gas and oil) energy field may be acquired chiefly to inhibit the globalisation of new molecular solar fuel technologies that positively address our energy security and climate change problems.</p>
<p>Patents are sometimes inaccurately treated as a corporation’s “natural” intellectual property right (IPR). Instead, they are more accurately depicted as an intellectual monopoly privilege (IMP). A consequence of policy focus on the former view is that companies may be encouraged to replace genuine product innovation with innovation in lobbying, collusion and regulatory shenanigans to freeze out competition from the market place. </p>
<p>Such strategies can include the use of trade agreements and memorandums of understanding with governments, and freedom of information legislation. </p>
<p>In the context of pharmaceutical patents, these tactics are often called “evergreening”.</p>
<p>In the context of renewable energy, they can involve the use of companies pejoratively referred to as “<a href="https://theconversation.com/patent-wars-we-get-the-war-but-what-about-the-patents-2974">patent trolls</a>”. These take up patents in expanding and potentially lucrative fields simply to enhance profits. </p>
<h2>Renewable energy patent tactics</h2>
<p>One of the most exciting areas of renewable energy research is the development of molecular solar fuels. Such technology uses sunlight to power the splitting of water as a source of hydrogen fuel which, when burnt, produces fresh water. </p>
<p>Debates in this area have focussed on whether patents should cover solar fuels processes and functions such as nanotechnology components for light capture, electron transport and water catalysis. </p>
<p>If patent ownership in the solar fuels area becomes fragmented, researchers may find their “follow-on” research hampered by the high cost and difficulty of negotiating contracts with large numbers of IMP owners.</p>
<p>Without some prior licensing and sharing arrangement, each individual solar fuels patent owner will have an incentive to overcharge other researchers requiring access. The research and development of critical innovations for energy security and environmental sustainability could thereby be inhibited.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/7938/original/b757jvms-1329872497.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/7938/original/b757jvms-1329872497.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=466&fit=crop&dpr=1 600w, https://images.theconversation.com/files/7938/original/b757jvms-1329872497.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=466&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/7938/original/b757jvms-1329872497.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=466&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/7938/original/b757jvms-1329872497.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=586&fit=crop&dpr=1 754w, https://images.theconversation.com/files/7938/original/b757jvms-1329872497.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=586&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/7938/original/b757jvms-1329872497.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=586&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">To develop new renewable energies, researchers need access to patented technologies.</span>
<span class="attribution"><span class="source">International Rivers</span></span>
</figcaption>
</figure>
<h2>Pharmaceutical patent evergreening tactics</h2>
<p>The case of the <a href="http://law.anu.edu.au/StaffUploads/236-JLM%20LAWREP2011%20FOI%20as%20EvergreeningFinal.pdf">Department of Health and Ageing v iNova Pharmaceuticals (2010)</a> illustrates how pharmaceutical companies employ evergreening tactics to hold on to their patents. </p>
<p>The Federal Court overturned a decision of the Administrative Appeals Tribunal (AAT) that would have compelled the Australian <a href="http://www.tga.gov.au/">Therapeutic Goods Administration</a> (TGA) to reveal, under a Freedom of Information request, to a corporate pharmaceutical patent holder (iNova Pharmaceuticals) whether the TGA had received an application to register a generic version of the patented drug. </p>
<p>The AAT’s determination would have compromised the listing of a generic drug on the <a href="http://www.pbs.gov.au/pbs/home">Pharmaceutical Benefits Scheme</a>. And it would have breached the 2006 amendments to the Patents Act 1990 (Cth) which protect the right of generic manufacturers to get products ready so they can immediately “springboard” or rapidly launch into the market when the patent, on which their drug is based, expires. </p>
<p>Another evergreening tactic is to undercut and then take over the generic market. The patented pharmaceutical industry (comprised of companies that hold patents) has lobbied successive Australian governments to drop the price it pays for generic drugs. Prices have fallen between 12% and 25% and have undercut the profit margins of once-Australian generic companies so much that they have shed their research arms and jobs. In the end, most of these generic companies have either closed or been purchased by supranational patent-holding drug companies. </p>
<p>In another recent evergreening or patent-perpetualising tactic, US pharmaceutical companies are seeking to use negotiations for the <a href="http://www.dfat.gov.au/fta/tpp/">Trans Pacific Partnership Agreement</a> (TPPA) to create an appeals mechanism for the decisions of the expert committee that lists drugs on the PBS. This would would allow patented drug companies to challenge decisions to compare their price to that of a cheaper generic drug that has the same level of safety and efficacy. </p>
<p>Other US-sought clauses seek to sway the <a href="https://theconversation.com/the-tricks-companies-use-to-get-over-priced-drugs-on-the-pbs-4147">PBS listing system</a> towards processes that require the PBS to accept whatever price a patented drug company offers, without the capacity to check whether those prices are fair and based on market competition. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/7939/original/nkczkwr9-1329873073.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/7939/original/nkczkwr9-1329873073.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/7939/original/nkczkwr9-1329873073.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/7939/original/nkczkwr9-1329873073.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/7939/original/nkczkwr9-1329873073.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/7939/original/nkczkwr9-1329873073.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/7939/original/nkczkwr9-1329873073.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Genetic drug manufacturers want to ‘springboard’ their products onto the market as soon as the patent expires.</span>
<span class="attribution"><span class="source">melloveschallah</span></span>
</figcaption>
</figure>
<h2>Raising the bar</h2>
<p>To overcome the use of patents to inhibit community and environmental benefit in areas such as solar fuels and pharmaceuticals, law reform should focus on what patent experts call “raising the bar of patentability”. </p>
<p>Patents should not be granted simply to allow companies to profit from, and potentially impede, an area of expanding research that is important to the national interest. </p>
<p>When a patent expires, competition should be rapidly allowed to enter the market. If a public health crisis evolves, patents should be able to be discarded and, after reasonable compensation is paid, mass production commenced. </p>
<p>Processes for civil society objections to patents should be strengthened through legislation. There should also be stronger anti-trust and anti-fraud provisions against the misuse of patents. Such provisions could be based on the US false claims laws that <a href="https://theconversation.com/sing-for-your-supper-why-australia-should-reward-corporate-informants-1019">financially compensate private sector informants about fraud</a>. </p>
<p>In relation to solar fuels, measures could include more stringent interpretations on what qualifies as a patent, adopting robust experimental-use exceptions, enhancing licensing powers for both government funded and privately owned patented technologies and expanding the grounds for public “<a href="http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_203.htm">march‐in</a>” rights over government-funded inventions.</p>
<p>Many of these suggestions have been picked up in Australia’s <a href="http://www.comlaw.gov.au/Details/C2011B00114">Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 (Cth)</a>. </p>
<p>The Bill proposes changes to the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/pa1990109/">Patents Act 1990 (Cth)</a> that will remove current restrictions on the type of information patent examiners consider when determining whether an application discloses an “inventive step”. </p>
<p>The Bill also creates a more stringent test for the usefulness of a patent and increases the standard and amount of information applicants are required to disclose to satisfy a provisional application. It also imposes a stricter “on the balance of probabilities” standard for the granting of patents. </p>
<p>This important bill was introduced to the Senate last year and is expected to pass early this year. </p>
<p><strong>This is the fourth part of Ideas and Ownership. To read the other instalments, click on the links below:</strong></p>
<p><strong>Part One: <a href="https://theconversation.com/ip-patents-copyright-you-5421">IP, patents, copyright, you</a></strong></p>
<p><strong>Part Two: <a href="https://theconversation.com/do-patents-promote-innovation-5443">Do patents promote innovation?</a></strong></p>
<p><strong>Part Three: <a href="https://theconversation.com/the-art-of-war-know-your-enemys-patents-and-your-own-5489">The art of war: know your enemy’s patents, and your own</a></strong></p><img src="https://counter.theconversation.com/content/5165/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas Faunce receives funding from the Australian Research Council under a Future Fellowship focused on nanotechnology and public health and a Discovery Grant focused on developing US False Claims type encouragements to private sector informants about pharmaceutical fraud in Australia</span></em></p>IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But many of our existing laws are under strain, their suitability and ultimate purpose called…Thomas Faunce, ARC Future Fellow, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/54892012-02-21T19:39:43Z2012-02-21T19:39:43ZThe art of war: know your enemy’s patents, and your own<figure><img src="https://images.theconversation.com/files/7893/original/58nny78w-1329800844.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Classic patenting norms are increasingly being modified for strategic purposes.</span> <span class="attribution"><span class="source">CoastConFan</span></span></figcaption></figure><p><strong>IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But many of our existing laws are under strain, their suitability and ultimate purpose called into question.</strong></p>
<p><strong>Here, Kimberlee Weatherall unpacks the ways in which patents are being acquired by companies in an escalating battle for offensive and defensive dominance.</strong></p>
<p>Justice Nicholas in the Federal Court in Sydney is currently hearing a patent case in which Cancer Voices Australia is <a href="http://www.businessweek.com/news/2012-02-20/myriad-genetics-australian-cancer-gene-patents-go-on-trial.html">challenging a patent</a> owned by Myriad Genetics relating to gene mutations that cause women to be more susceptible to breast cancer. </p>
<p>The case is related to some similar litigation that has been going on in the US, and raises some fundamental questions about what kinds of things can be patented. In many ways, though, this is a very “classic” patent case. </p>
<p>Myriad uses its patent to assert exclusive rights to undertake activities covered in the patent: namely, testing for the gene mutations. The patent ensures that no-one else can perform such tests without Myriad’s permission. </p>
<p>This is how we think of patent working – whether or not we like the fact that genes and methods for identifying them in a patient can be “owned” by someone.</p>
<p>But you might be surprised to know that many, perhaps even most, patents today are not used this way. In fact, patents are used in a whole range of different, strategic ways that raise interesting questions about the patent system and whether it is doing what we think it is doing – that is, providing incentives for inventors.</p>
<p>One way we see patents used these days is in the accumulation of large patent portfolios. Economists have tracked the rise of such portfolios, but in a way, all you have to do is look at the yearly <a href="http://www.bloomberg.com/news/2012-01-11/ibm-wins-most-patents-for-19th-straight-year-beating-samsung.html">patent league tables</a>, which will tell you, for example, that IBM was granted more than 6,000 patents in the US in 2011, and Samsung more than 4,800. </p>
<p>In fact, most patent offices around the world have been experiencing sustained rises in the number of applications for patents, and in patents granted, <a href="http://blog.patentology.com.au/2012/02/microsoft-once-again-heads-australian.html">including in Australia.</a></p>
<p>Alternatively, you could follow the tech news, which over the last year or so has been full of stories about large-scale patent acquisitions as companies try to build up their position. Google, for example, <a href="http://www.reuters.com/article/2012/02/14/us-google-motorola-eu-idUSTRE81C1HE20120214">acquired Motorola Mobility</a>, paying US$12.5 billion for its 17,000 patents and 7,500 patent applications – after failing to acquire Nortel’s 6,000 patents (which was acquired by an Apple-led consortium for US$4.5 billion).</p>
<h2>Staking territory</h2>
<p>Why would a company need masses and masses of patents? There are a few reasons. One is to stake out a technological “territory” and deter or block potential competitors. Evidence from research suggests that smaller firms do avoid working in areas of technology that are heavily patented already.</p>
<p>Another reason would be for offensive use: a company with a large number of patents can overwhelm a competitor they allege is infringing on their technology with a barrage of different patents. The more patents that are alleged to be infringed, the more costly the option of litigation becomes for the alleged infringer. </p>
<p>In theory the alleged infringer can challenge the validity of the patents, but patent litigation is expensive at the best of times, and challenging multiple patents is a very daunting prospect. In these situations, the company with multiple patents may be able to force a settlement – perhaps including the alleged infringer paying royalties or changing their product.</p>
<h2>The best defence is …</h2>
<p>The flipside of offensive use of a patent portfolio is defensive use: a company might try to build up a strong patent portfolio so that, if it’s threatened with litigation, it can bring its own countersuit, using its own patent battalion – perhaps forcing a cross-licensing deal on much better terms than it would get without its own patents.</p>
<p>We’ve recently seen inklings of all of this in Australia, in the <a href="https://theconversation.com/samsung-galaxy-tab-vs-apple-ipad-the-tablet-patent-wars-hit-australia-2660">Apple/Samsung patent battle</a>. The lawsuit delayed the launch of the Galaxy Tab 10.1 for some four months – until a mere couple of weeks before Christmas. </p>
<p>In that case, Apple – which has spent the last five years or so building up <a href="http://blog.patentology.com.au/2012/02/apples-strategic-plans-for-australian.html">quite the patent portfolio</a> in Australia – has asserted a record number of 22 patents against Samsung devices including the Galaxy Tab 10.1. </p>
<p>Each of Apple’s patents has multiple “claims” (statements of the scope of the monopoly), meaning that, in fact, Samsung is fighting <a href="http://www.theverge.com/2012/2/3/2768122/apple-broadens-samsung-lawsuit-australia">278 separate battles, relating to ten different devices</a>. </p>
<p>Samsung, which is also a <a href="http://blog.patentology.com.au/2011/11/how-apple-punches-above-its-weight-in.html">significant patent holder in its own right</a>, has launched its own countersuit against Apple’s iPhone 4S, and other 3G devices. </p>
<p>Both cases look likely to be heard this year. The case is unprecedented in its size for Australia, and even that litigation is only part of the whole picture of the battle. There have been other cases in the US, Germany, the Netherlands, the UK, France, Italy, and South Korea. </p>
<p>You’d expect, in the end, to see some kind of global deal being done here. In the meantime, the patent missiles fly and the lawyers get paid. And that’s without mentioning Apple is also fighting with HTC and with Nokia.</p>
<h2>Bring on the trolls</h2>
<p>Patent portfolios, Apple and Samsung style, are not an end to the patent strategies that have developed in recent times. We have also seen the rise of the non-practising entity (NPE) – sometimes perjoratively referred to as the <a href="http://en.wikipedia.org/wiki/Patent_troll">patent troll</a>. </p>
<p>An NPE amasses a patent portfolio, not to defend its own product territory or to attack competitors, but solely for the purpose of licensing. In other words, a non-practising entity is just that: it doesn’t itself make or sell products. </p>
<p>Some argue NPEs are a great way for small inventors, for whom litigation is not an option, to get paid. Others argue that NPEs are “trolls” exacting tolls on invention. </p>
<p><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1677785">Very recent research</a> suggests these companies are more often involved as repeat patent litigators than other kinds of patent holders, although they often lose. </p>
<p>They too are contributing to <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319">the increase in patent litigation</a>. They may, according to some research, also be <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1982139">deterring some innovation</a>.
What is more, there are plenty of patents for NPEs to acquire. </p>
<p>Some come onto the market when companies with large offensive/defensive portfolios fold; others when a <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1703557">company decides to offload some assets</a>. </p>
<p>In other words, all these new patent strategies are related. The build up of patent portfolios by some companies has made it imperative for others to join in, meaning an overall rise in the numbers of patents being granted, and an increase in costs for firms, especially in some of these high-tech fields. </p>
<p>Some of these patents are making their way into the portfolios of non-practising entities. In this world, it seems that many companies are locked into playing the patent game, even if it is increasingly expensive and, in at least some cases, a distraction from the work of innovating and selling new products.</p>
<p>All these strategies are a long way from classical thinking about the way patents work. Where patents are acquired defensively, end up being sold to an NPE, and are asserted against an inventive firm, you have to wonder where along that line those patents provided any incentive for investment in research and development – and whether that incentive outweighs the cost to innovation when the final inventive firm targeted by the NPE is forced to license or fold. </p>
<p>You have to wonder, in the great patent wars between Apple and Samsung and others, whether we have lost sight of the patent system’s goals. </p>
<p>And you have to wonder whether patents have become so abstracted from the realities of research and invention that they have started to bear some resemblance to the complex financial products that now seem to plague our financial system: complex, impossible for the ordinary person to understand, and no longer doing their job. </p>
<p>With firms locked into the cycle of patent or perish, it is evident, to me at least, that we need more serious thinking about just what these government monopolies are about, and whether the complexity and abstraction of the system can be tamed. </p>
<p>I don’t have the answers, but I do have a lot of questions.
<br>
<strong>This is the third part of Ideas and Ownership. To read the other instalments, click on the links below:</strong></p>
<p><strong>Part One: <a href="https://theconversation.com/ip-patents-copyright-you-5421">IP, patents, copyright, you</a></strong></p>
<p><strong>Part Two: <a href="https://theconversation.com/do-patents-promote-innovation-5443">Do patents promote innovation?</a></strong> </p><img src="https://counter.theconversation.com/content/5489/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kimberlee Weatherall receives research funding from the Australian Research Council.</span></em></p>IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But many of our existing laws are under strain, their suitability and ultimate purpose called…Kimberlee Weatherall, Associate Professor of Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/54432012-02-21T01:02:34Z2012-02-21T01:02:34ZDo patents promote innovation?<figure><img src="https://images.theconversation.com/files/7807/original/mygyqkvj-1329698198.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Having a patent may increase financial returns by between 40% and 50%.</span> <span class="attribution"><span class="source">Xurxo Martínez</span></span></figcaption></figure><p><strong>IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But in the age of the internet and multinational business models, many of the existing laws are under strain, their suitability and ultimate purpose called into question.</strong></p>
<p><strong>Here, Dianne Nicol and John Liddicoat delve into the issue of whether the patent system, as it stands, really promotes ideas and innovation, as is regularly claimed.</strong></p>
<p>The oft-used mantra in support of the patent system is that it encourages innovation, and innovation is good for society. This seems to make sense in theory: a patent provides an inventor, and any other individuals and organisations that have claims to the patent through the inventor, with broad rights over the subject matter of the invention. </p>
<p>That’s important, because only those people who have patent rights can exploit the subject matter that’s claimed in the patent. Essentially, the patent provides a temporary monopoly, usually for <a href="http://en.wikipedia.org/wiki/Term_of_patent">a 20-year period</a>, over the technology. </p>
<p>If a patent is granted for an invention claiming the use of steam to power an engine, then the only people who can actually use steam to power an engine are those with patent rights. But once the patent expires, anyone else can use the invention. </p>
<p>This freedom from competition supposedly provides an incentive to commercially develop the invention claimed in the patent, and also encourages further inventive activity. Such activity is said to be good for society because it encourages technological advancement. </p>
<p>So would we have had developments in biotechnology, information technology, nanotechnology and the like without patents? That’s not clear-cut.</p>
<p>The extent to which patents actually encourage innovation is difficult to empirically measure. Anecdotally, the CEO of any company operating in a field of high technology will probably argue their patents are crucial to the success of their business. On the other hand, economists who have been modelling such questions for many years tend to provide much more equivocal answers. </p>
<p><a href="http://www.ipria.org/publications/wp/2009/IPRIAWP03.2009.pdf">Recent work</a> by economists at the <a href="http://www.ipria.org/">Intellectual Property Research Institute of Australia (IPRIA)</a>, based at the University of Melbourne, suggests patents provide some incentive to commercially develop an invention. The researchers found that, if a patent application is not granted for whatever reason, the chance of the invention making it to market decreases by 13%. </p>
<p>A <a href="http://www.ipria.org/publications/wp/2009/IPRIAWP11.2009.pdf">separate paper</a> analysing the same dataset focused on the commercial returns from patents. <a href="http://en.wikipedia.org/wiki/Scientific_control">Controlling</a> for the value of the invention itself, it was found that having a patent increased the financial returns by between 40% and 50%.</p>
<p>So the IPRIA analyses suggest you don’t necessarily need a patent to develop an invention but, if you have one, the financial returns are likely to be much higher. Of course this work only measures private value to individuals who have patent rights. </p>
<p>Quite how the social value of patents might be measured is even more perplexing. Measuring the role of patents in signalling to potential collaborators that a technology has been developed is likewise tricky to measure empirically.</p>
<p>Does it matter? Almost all countries have a patent system, and there is no current policy either nationally or internationally to dismantle them. </p>
<p>Where the issue becomes contentious is at the boundary between invention and discovery, between invention and abstract thought. Current debates about the role of patents in encouraging innovation tend to focus on subject matter such as genes, software, <a href="http://blog.patentology.com.au/search/label/Computer%20programs">computer-implementation</a> and business methods.</p>
<p>One concern is that broad foundational patents in new areas of technology could block off whole areas of research and development, deterring innovation. For instance, breast cancer gene patents have delayed additional research on these genes.</p>
<p>Even if no single patent has a blocking effect, if the patent landscape is too complex and if too many negotiations have to be undertaken to provide freedom to operate, the impact on innovation could be negative. </p>
<p>Yet despite concerns that such outcomes are “inevitable” in fields such as biomedicine, concrete evidence that they are eventuating has been hard to find. Rather, what we do see is “work-arounds”, including such strategies as:</p>
<ul>
<li>ignoring patents that are too broad and are susceptible to challenge for invalidity</li>
<li>engaging in licensing</li>
<li>aggregating technologies, and</li>
<li>redirecting research efforts. </li>
</ul>
<p>The <a href="http://www.csl.com.au/s1/cs/auhq/1196562649899/news/1196562810117/prdetail.htm">licensing of patents</a> for Gardasil from CSL Ltd. to Merck is an example of successful licensing.</p>
<p>Inevitably there are costs associated with each of these strategies, such as risk of litigation or expensive licensing fees. But whether they are outweighed by the benefits of allowing such patents is yet another question that’s difficult to answer. </p>
<p>Perhaps the situation can be best summed using the words of two famous economists, <a href="http://mises.org/page/1457/Biography-of-Fritz-Machlup-19021983">Fritz Machlup</a> and <a href="http://www.nytimes.com/1996/10/21/world/edith-penrose-81-dies-business-trend-expert.html">Edith Penrose</a>, <a href="http://econpapers.repec.org/paper/scescecf4/24.htm">who stated</a>:</p>
<p>“If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.” </p>
<p>If we accept that the patent system is here to stay, we should begin to concentrate on mechanisms that adjust the patent system to clearly enhance innovation. Clarifying the distinction between what is patentable, and what is not, is one option. </p>
<p>Improving patent quality and patent transparency, as well as adjusting the role of competition law, may also help achieve this.</p>
<p><strong>This is the second part of Ideas and Ownership. To read the other instalments, click on the links below:</strong></p>
<p><strong>Part One: <a href="https://theconversation.com/ip-patents-copyright-you-5421">IP, patents, copyright, you</a></strong></p><img src="https://counter.theconversation.com/content/5443/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dianne Nicol receives funding from the Australian Research Council.</span></em></p><p class="fine-print"><em><span>John Liddicoat owns shares in Mesoblast Ltd and Benitec Biopharma Ltd</span></em></p>IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But in the age of the internet and multinational business models, many of the existing laws are…Dianne Nicol, Professor of Law, University of TasmaniaJohn Liddicoat, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/54212012-02-19T19:37:08Z2012-02-19T19:37:08ZIP, patents, copyright, you<figure><img src="https://images.theconversation.com/files/7776/original/rp4f9cwy-1329439838.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How can we best reward creators and those who benefit from their creations?</span> <span class="attribution"><span class="source">917press</span></span></figcaption></figure><p><strong>IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But in the age of the internet and multinational business models, many of the existing laws are under strain, their suitability and ultimate purpose called into question.</strong></p>
<p><strong>Bruce Arnold kicks off a new series on The Conversation looking at where we are, where we were and where we’re going with regards to patents, copyright, trademarks and IP.</strong></p>
<p>It’s become a cliché that most Australians are part of an information society or information economy. In fact, we’re all part of an intellectual property society. Intellectual property (IP) affects what we consume and what we create. It also affects when we’re born and when we die, given modern medicine is founded on pharmaceuticals and devices that are encouraged by intellectual property law.</p>
<p>This article offers a snapshot, quick and irreverent, of what IP is, why it’s controversial, and the difference between some key terms.</p>
<p>In essence, IP law provides rights owners with the power to stop unauthorised copying. That power is for a finite period of years. At the end of the period (which can be as little as five years) the owners’ rights evaporate. </p>
<p>IP involves a tension between society’s respect for individuals as creators, incentives for investment (getting a life-saving drug into the market costs hundreds of millions of dollars) and the benefits for both individual consumers and society resulting from easy access to innovation. </p>
<p>Put simply, we want to encourage our authors, artists and researchers to produce good things (and to make money for investors such as the superannuation funds that will pay for our old age). We also don’t want to lock up creativity so that it’s too expensive or too secret for all of us to benefit from sharing. </p>
<p>Australia’s part of a global economy, so we also need to comply with international agreements, some of which (contrary to mythology) place <a href="http://theconversation.com/tobaccos-mad-men-threaten-public-health-3450">public health</a> over the <a href="http://theconversation.com/big-tobacco-vs-australia-philip-morris-scores-an-own-goal-4967">rights of multinational tobacco companies</a>. </p>
<p>Some people disagree about the balance; others simply assert we can disregard IP in the hope that people will play nicely.</p>
<h2>Copyright</h2>
<p>Everyone is a creator when they write a letter or an email, take a photo, post a blog or do a sketch to amuse the kids. The good news is that their creativity’s protected by the <a href="http://corrigan.austlii.edu.au/au/legis/cth/consol_act/ca1968133/">Copyright Act 1968</a>. The bad news is that there’s a commercial difference between my scribble and a masterpiece by David Malouf or <a href="http://jacketmagazine.com/16/porter-peter.html">Peter Porter</a>, your sketch and <a href="http://fineartamerica.com/art/all/rothko/canvas+prints">a Rothko canvas</a>. </p>
<p>The good news is that, irrespective of commercial rewards, copyright law protects all, offers an incentive for creativity by all. The same law allows non-commercial copying by scholars, journalists and others, balancing individual and community interests. </p>
<p>Copyright encompasses music, film, broadcasts, text, software, architecture and the graphic arts. It’s different to trademarks, patents and designs. </p>
<p>We are immersed in trademarks, signs that function as indicators of quality and of the consumer’s taste or affinity. Trademark owners can use the <a href="http://corrigan.austlii.edu.au/au/legis/cth/consol_act/tma1995121/">Trade Marks Act 1995</a> to stop a competitor from using their sign to falsely identify a product of service. </p>
<p>That sign might be words, or a logo (the McDonald’s “Golden Arches” and other <a href="http://www.naomiklein.org/no-logo">icons damned by Naomi Klein</a>). It might be a unique sound (the “Dolmio Waltz” or “Ah McCain” ding). It could even be a scent that uniquely identifies a particular product. </p>
<h2>Trademarks and patents</h2>
<p>Trademarks represent the most in-your-face aspect of contemporary capitalism. They also indicate trust and safety. It matters if your medication is really from Pfizer (with an authentic mark) or a concoction of rat faeces and plaster that <a href="http://www.who.int/mediacentre/factsheets/fs275/en/">uses a counterfeit mark</a>.</p>
<p>Patents – the most contentious form of IP for many academics – protect inventions. The inventions covered by the <a href="http://corrigan.austlii.edu.au/au/legis/cth/consol_act/pa1990109/">Patents Act 1990</a> include car parts, pharmaceuticals, toys, devices <a href="http://theconversation.com/samsung-galaxy-tab-an-early-christmas-present-for-consumers-but-still-not-crunch-time-for-apple-4543">such as the iPad</a>, paints, ploughs and even business methods. </p>
<p>Some of those inventions are trivial and soon forgotten. Others are fundamental and deservedly provide the inventor and investors with large rewards. Think of MRI scanners and stents in medicine, ABS brakes on cars, the chips found in most electronic devices. </p>
<p>Patent law deals with invention, not discovery. It is concerned with originality. After a maximum of 25 years the protection ceases: anyone is free to copy the invention (piggyback on the inventor’s creativity and hard work) without payment or permission. </p>
<p>As with copyright, patent law involves a balance between respect, incentives and social needs. It is contentious because some people consider the balance is overly weighted towards large corporate interests. </p>
<p>Examples of this would be pharmaceuticals being too expensive, speculators engaging in “<a href="http://theconversation.com/patent-wars-we-get-the-war-but-what-about-the-patents-2974">patent trolling</a>” or the traditional knowledge of indigenous peoples being appropriated <a href="http://www.law.berkeley.edu/files/bclt_IPSC_2003_Halbert.pdf">through biocolonialism </a>. Others respond that the problem is with global economic disparities rather than patents per se. </p>
<h2>Looks matter</h2>
<p>Not all IP is about billions or biopolitics. Ever sighed over a <a href="http://www.finkdesign.com/products/jug.html">Fink jug</a> or a “to-die-for” textile? Copyright law coexists with the <a href="http://corrigan.austlii.edu.au/au/legis/cth/consol_act/da200391/">Designs Act 2003</a>, which gives designers short (five years) protection regarding the appearance of a manufactured product.</p>
<p>That appearance might be shape – the sensuous curves of a jug – or it might be the pattern of a textile (<a href="http://www.marimekko.com/products/interior-decoration/fabrics/cotton-fabrics">Marimekko </a>or Ken Done).</p>
<p>What if you develop a blue rose, a crispy lettuce, disease-resistant wheat, an extraordinarily tasty melon or a fast-growing tree? Your innovation – again potentially involving major investment, effort, skills and frustration – can gain short-term protection through the <a href="http://corrigan.austlii.edu.au/au/legis/cth/consol_act/pbra1994222/">Plant Breeders’ Rights Act 1994</a>. Other similarly specialised law protects creativity such as the layout of computer chips.</p>
<p>IP is ultimately about power, money, innovation and regard for individuals who struggle to add to the sum of knowledge and cultures. Academia needs to make decisions about its own IP on an informed rather than emotive basis, and work with other interests in developing equitable law and practice. </p>
<p>IP is not just something that belongs to the vice-chancellor or Bill Gates: it’s about us.</p>
<p><strong>Further articles in this series will be published on The Conversation in the coming week.</strong></p><img src="https://counter.theconversation.com/content/5421/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bruce Baer Arnold does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But in the age of the internet and multinational business models, many of the existing laws are…Bruce Baer Arnold, Assistant Professor, School of Law, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/38082011-11-01T19:41:32Z2011-11-01T19:41:32ZDo patents create software innovation? Computer says no<figure><img src="https://images.theconversation.com/files/5015/original/4371000568_06fdc1a227_o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Software patenting was a fringe activity for the first 20 years of the software industry.</span> <span class="attribution"><span class="source">opensourceway</span></span></figcaption></figure><p>What would the software industry look like without patents?</p>
<p>It’s a question worth asking in the context of Apple’s recent <a href="http://www.zdnet.com.au/apple-wins-injunction-against-samsung-galaxy-tab-101-339324232.htm">body blow to Samsung</a>,
which will see Samsung’s Galaxy Tab 10.1 kept off Australian shelves, at least until the Full Court has heard the appeal.</p>
<p>The <a href="http://www.businessinsurance.org/patent-wars/">patent wars</a> have been raging for the best part of a year and involve some of the biggest companies in technology (Apple, Google and Microsoft for a start). Those watching this instalment might wonder what all that arguing has to do with innovation. Isn’t innovation what patents are all about? </p>
<p>In theory, the patent system is an important mechanism for benefiting society through the encouragement of innovation, not litigation. </p>
<p>To see how the world might look without software patents, you don’t have to look too far.</p>
<p>Those who believe that, in the words of former US Supreme Court judge Oliver Wendell Holmes, Jr, “a page of history is worth a volume of logic”, can look back to the not-too-distant past. After all, software hasn’t been around that long. </p>
<p>The first known use of the word “software” in print <a href="http://www.nytimes.com/2000/07/28/us/john-tukey-85-statistician-coined-the-word-software.html">was in 1958</a>, and a fledgling software industry only took root in the mid-1960s. </p>
<p>A US President’s Commission <a href="http://digital-law-online.info/lpdi1.0/treatise60.html">looked at the patentability of software in 1966</a>. It recommended Congress pass laws excluding software from patentability. Minimal patenting of software seems to have started in the 1970s, although it wasn’t really until the 1980s that it began in earnest. </p>
<p>In Australia, <a href="http://www.hazan.com.au/patentsandcomputersoftware.html">it wasn’t until 1991</a> that a court first considered the patentability of software, although the Patent Office had changed its early position against software patents to match the US position the year before. </p>
<p>For at least the first 20 years of the software industry, software patenting was only a fringe activity.</p>
<p>It follows that the early software advances, upon which many of today’s innovations depend, were established almost entirely without the assistance of patent incentives. One key example was the <a href="http://www.unix.org/what_is_unix/history_timeline.html">development of Unix in 1972</a>. </p>
<p>The importance of Unix, one of the first open, flexible operating systems, <a href="http://theconversation.com/dennis-ritchie-father-of-modern-computer-programming-dies-3855">cannot be understated</a>. Unix-like operating systems live on today in Mac OSX, GNU/Linux distributions, and even Android smartphones.</p>
<p>The ethos of sharing that characterised the early years also lives on in the <a href="http://freeopensourcesoftware.org/index.php?title=Main_Page">Free and Open Source Software</a> communities. <a href="http://www.gnu.org/gnu/linux-and-gnu.html">GNU/Linux</a>, a project begun in 1983 by <a href="http://stallman.org/#serious">Richard Stallman</a>, has a user-base that runs into the millions. GNU/Linux web servers power an estimated 40% of websites on the internet.</p>
<p>So how does anybody make money? There are a couple of options. Some open source vendors, such as <a href="http://redhat.com">Red Hat</a>, treat software as a commodity, and distinguish themselves by offering superior support and customisation services. </p>
<p>Another option is the “freemium” model, used by <a href="http://sugarcrm.com">SugarCRM</a> among others, whereby the core of the product is released as an open source product. Extensions to the basic functionality are kept closed source, and sold to willing customers. </p>
<p>The Android operating system uses a variety of this model. The core is GNU/Linux, but Android depends on a number of extensions controlled exclusively by Google (although that is <a href="http://www.h-online.com/open/news/item/Andy-Rubin-Android-4-0-to-be-open-sourced-by-year-end-1363994.html">about to change</a>).</p>
<p>Free and open source software communities view patents as a threat. That’s why the GNU Public Licence, perhaps the dominant free software licence, has an <a href="http://www.gnu.org/copyleft/gpl.html">anti-patent clause</a>. Patent settlements pursued by Microsoft against GNU/Linux, and of course the battle between Apple and Android, show the threat is very real. </p>
<p>This is why open source communities were so involved in resisting the EU Software Patent Directive in 2005.</p>
<p>The existence of these islands of patent-free innovation suggest we should be cautious of accepting the idea that patents create innovation. For software at least, the link is doubtful.</p><img src="https://counter.theconversation.com/content/3808/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anton Hughes does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What would the software industry look like without patents? It’s a question worth asking in the context of Apple’s recent body blow to Samsung, which will see Samsung’s Galaxy Tab 10.1 kept off Australian…Anton Hughes, PhD Graduate, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/30792011-08-26T04:13:45Z2011-08-26T04:13:45ZApple vs Samsung vs Google vs Microsoft … are patent wars about mutually assured destruction?<figure><img src="https://images.theconversation.com/files/3171/original/aapone-20110825000339962932-germany_apple_samsung_trial-original.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Patent acquisition is a delicate game of balance and counterbalance.</span> <span class="attribution"><span class="source">Rolf Vennenbernd/EPA</span></span></figcaption></figure><p>The patent wars took a bizarre turn this week.</p>
<p>Samsung, currently defending itself against a legal move by Apple to have four Samsung smartphones and tablets banned from America due to alleged patent infringement, <a href="http://fosspatents.blogspot.com/2011/08/samsung-cites-stanley-kubricks-2001.html">pointed to</a> tablet-style computers in Stanley Kubrick’s classic 2001: A Space Odyssey.</p>
<p>Samsung claims the 1968 Kubrick version is an example of “prior art”, a forerunner to the tablets of today. See the embedded video clip below and make up your own mind.</p>
<p>The move comes hot on the heels of headlines charting the enormous recent activity in patent acquisitions and patent infringement proceedings in the mobile telecommunications arena. </p>
<p>“Nortel patents sold for $4.5bn”, we read one day; “Apple sues HTC for infringing on 20 iPhone patents”, the next. </p>
<p>So why is all of this happening? Is it a new phenomenon? And perhaps most importantly, what are the implications for consumers?</p>
<p>Some experts – including those at the <a href="http://www.dailyfinance.com/2011/01/25/rpx-fixing-the-patent-mess/">risk management corporation RPX</a> – take the view that there are more than 250,000 patents relevant to smartphones. Others are of the view that 250,000 is a gross underestimation. </p>
<p>Whatever the actual number, one can confidently say it’s “large”. “Large” is also likely to be the case in relation to the number of patents relevant to other types of mobile products such as tablets. </p>
<h2>Engaging with the enemy</h2>
<p>One significant consequence of current proceedings is that participants in the mobile products market will need to obtain patent licences from their competitors in order to have the freedom to conduct their mobile products businesses. </p>
<p>This results in significant <a href="http://moneyterms.co.uk/cross-licensing/">cross-licensing</a> deals between competitors – such as <a href="http://www.zdnet.com/blog/btl/rim-motorola-agree-on-cross-licensing-settle-all-patent-lawsuits/35740">the agreement</a> between Research in Motion and Motorola – which in turn can result in significant royalty streams to those with the patents from those without those patents. </p>
<p>Therefore, for those companies without the patents, they will either try to develop their own – a long-term process – or acquire patents from others. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/JQ8pQVDyaLo?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>With a larger number of patents in their portfolio, companies are much more likely to find patents their competitors infringe – in other words, there’s a greater likelihood competitors will fall within the ambit of relevant patent claims. </p>
<p>This provides better leverage in any cross-licensing deal and rebalances the royalty flow. </p>
<p>This was the case in the abovementioned Google acquisition of Motorola Mobility – and hence the competitors of Google trying to stymie Google by <a href="http://dealbook.nytimes.com/2011/07/01/apple-and-microsoft-beat-google-for-nortel-patents/">acquiring the Nortel patents</a>. </p>
<p>In particular circumstances that rebalance may ultimately create what in the Cold War was referred to as mutually assured destruction (MAD) – i.e. if protagonists know they each have serious patent firepower it will stave off a litigation apocalypse. </p>
<p>For those with the patents, if they cannot obtain the royalties they want, they will enforce their rights through patent infringement suits. Hence the recent spate of smartphone- and tablet-related patent litigation.</p>
<h2>The game remains the same</h2>
<p>All this has happened before in the context of competition for new and valuable markets. Take the case of the US computer memory and semiconductor manufacturer Micron. </p>
<p>The company’s <a href="http://news.micron.com/secfiling.cfm?filingID=723125-94-20">1994 Securities and Exchange Commission (SEC) filing</a> referred to owning only 557 US patents and having paid $251 million in royalties for the fiscal years 1992, 1993, and 1994. </p>
<p>Micron’s <a href="http://apps.shareholder.com/sec/viewerContent.aspx?companyid=ABEA-45YXOQ&docid=7516164">2010 SEC filing</a> referred to owning 16,800 US patents and 2,900 foreign patents. </p>
<p>That same document contains a reference to a cross-licensing deal between Micron and Samsung under which the former will receive $275 million in royalties – a clear rebalancing for Micron. </p>
<h2>Where you fit in</h2>
<p>The implications for consumers can be considered from at least two perspectives: </p>
<p>1) the cost of the above products to consumers
2) the extent to which innovation will continue in relation to these products. </p>
<p>While the cost of any patent-related activities mentioned above would need to be recouped, that does not necessarily lead to higher prices where the market for relevant products is growing. </p>
<p>History also points to lower prices as the technology evolves over time. </p>
<p>On the innovation front, while in some instances the entry of new products has been delayed through court proceedings, innovation in mobile telecommunications continues apace. </p>
<p>Also, new entrants to market have been a feature of the market. One striking example is the fact that, notwithstanding Motorola was a leader in mobile phone technology and held significant patents in that space, it nevertheless did not sustain that early advantage. </p>
<p>This is because it failed to pick up other trends early enough – for example, the move from analogue to digital, cameras in phones etcetera. What happened? Others entered the market. </p>
<p>So should we panic? Definitely not. To date, it’s hard to see consumers as casualties of the patent wars.</p><img src="https://counter.theconversation.com/content/3079/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adam Liberman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The patent wars took a bizarre turn this week. Samsung, currently defending itself against a legal move by Apple to have four Samsung smartphones and tablets banned from America due to alleged patent infringement…Adam Liberman, Professorial Visiting Fellow, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/29742011-08-22T04:10:34Z2011-08-22T04:10:34ZPatent wars … we get the war, but what about the patents?<figure><img src="https://images.theconversation.com/files/3046/original/5927999767_40969fc35c_b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It can be hard to know where the next bit of hypercharged rhetoric will come from.</span> <span class="attribution"><span class="source">fotoforlizzie</span></span></figcaption></figure><p>If you believe the hype, the <a href="http://online.wsj.com/article/SB10001424053111903639404576518493092643006.html">“patent wars”</a> are well and truly underway.</p>
<p>Google <a href="http://theconversation.com/google-buys-motorola-mobility-to-bruise-apple-must-be-the-patent-wars-2879">announced last week it will buy Motorola Mobility</a> to get access to 15,000 of the handset manufacturer’s patents and HTC, Apple, Samsung and others have been <a href="http://theconversation.com/samsung-galaxy-tab-vs-apple-ipad-the-tablet-patent-wars-hit-australia-2660">suing one another</a> over alleged breaches of patents.</p>
<p>But we should question fashionable rhetoric about “patent wars”, including claims that litigation by major corporations over patent rights is unprecedented, is grossly pernicious or an indication that the patent system is broken.</p>
<p>The first question here being: what <em>are</em> patents?</p>
<p>Simply, patents are a legal mechanism for the encouragement of innovation. The aim is to benefit society by providing an incentive for invention and investment, with inventors (and financiers) gaining exclusive commercial rights to a particular innovation for 20 years.</p>
<p>In return for those rights, <a href="http://www.ipaustralia.gov.au/auspat/index.htm">society gains access to information about the innovation</a>, offering a springboard for future development.</p>
<p>Some patents are trivial, even <a href="http://www.patentlyabsurd.org.uk/contents.html">laughable</a>, such as the <a href="http://books.google.com/books?id=8tdMWO4sLmwC&pg=PA76&lpg=PA76&dq=amphibious+patent+horse&source=bl&ots=zd5qS75A5R&sig=d6TfBNVfjNBtAg6-tAeY_FA381g&hl=en&ei=W8hRTsLyC_HUiALktu2dAQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBgQ6AEwAA#v=onepage&q=amphibious%20patent%20horse&f=false">horse-drawn amphibious taxi</a> or <a href="http://www.patentlyabsurd.org.uk/morepats.html#GB2172200">umbrella hat</a> that have amused several generations of law students.</p>
<p>Other patents are fundamental, covering the <a href="http://www.abc.net.au/rn/scienceshow/stories/2009/2550414.htm">pharmaceuticals</a> and electronics that we take for granted.</p>
<p>Australian patent law forms part of an international regime – currently the <a href="http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm">Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)</a> – and has done so since before federation.</p>
<p>Our participation in that regime is a reminder that globalisation isn’t new: trade, investment and research have been taking place across borders for more than a century. </p>
<p>Individual researchers and institutions may choose not to seek patent protection, instead placing discovering in the public domain and forgoing revenue opportunities. </p>
<p>But that choice is likely to be increasingly difficult, as <a href="http://theconversation.com/why-boosting-immigration-or-fertility-wont-fix-our-ageing-population-150">an ageing population</a> results in increased welfare spending at the expense of government support for pure and applied research.</p>
<p>Disagreements about patent law and about the best ways to foster creativity date from the time of the Tudors. </p>
<p>Laments about the wickedness of investors, the avarice of inventors and abuse by patent lawyers are perennial. They are a feature of the ongoing culture wars that are an inescapable and unresolvable aspect of modernity. </p>
<p>There is then, in this sense, nothing new.</p>
<h2>In Australia </h2>
<p>Australian law is predicated on the notion that individuals and corporations will resolve disagreements through negotiation or the courts. </p>
<p>While the news has been full of tech giants suing one another of late, litigation does not signify an imminent collapse of patent law. Rather, it’s a sign of business as usual. </p>
<p>In fact, despite increased <em>reports</em> of litigation of late, Australian courts, government agencies – such as the <a href="http://www.pc.gov.au/">Productivity Commission</a> and <a href="http://www.accc.gov.au/content/index.phtml/itemId/142">Australian Competition & Consumer Commission</a> – and independent bodies such as the <a href="http://www.ipria.org/">Intellectual Property Research Institute of Australia</a> have not identified an explosion in patent litigation.</p>
<p>They have not expressed fundamental concern that major holders are abusing the law through coercive litigation against potential market entrants or through egregious rent-seeking. </p>
<p>Businesses are instead doing what businesses do: seeking to maximise their advantage in a competitive environment. </p>
<p>To paraphrase Shakespeare, the fault is with ourselves – the shape of business and innovation in liberal democratic states – rather than with patent law. </p>
<p>It is often a long and expensive journey from the lab bench to the blister pack containing lifesaving medications or the must-have tool such as a mobile phone. </p>
<p>Contrary to popular images of an Einstein-like figure with a succession of eureka moments in the garage or garden shed, most innovation is an industrial process that involves a hard grind and teams of innovators rather than individuals. </p>
<p>(Thomas Edison, often characterised as the archetypal inventor, in reality mugged for the cameras while hundreds of his employees got on with research behind the scenes.)</p>
<p>Numerous organisations have invented brilliantly but languished commercially, despite their patent portfolios and the very best patent lawyers money could buy, because their executives were inept or self-involved and their production or after-sales service was poor.</p>
<h2>Tech companies</h2>
<p>From that perspective, we might be cautious in accepting recent alarms about Google’s much-publicised acquisition of Motorola patents, hyperbole about <a href="http://theconversation.com/why-loosening-genetic-privacy-law-is-a-recipe-for-fear-and-frustration-1061">gene patenting</a> or expressions of “declinism” such as <a href="http://www.nytimes.com/2011/01/02/business/02unboxed.html?_r=1">claims</a> China is out-patenting (rather than merely out-manufacturing) the US. </p>
<p>Some patents are junk. They have no real value or won’t stand up if contested in court. Many of the patents in corporate or private equity portfolios won’t be commercially significant and won’t be used to stifle competition. </p>
<p>Yes, China’s patent registrations are rising but yes, analysts also question the credibility of many registrations. </p>
<p>Unlike death and taxes, success with a patent isn’t a certainty. In looking beyond the headlines and soundbites we would do well to remember that patents do not last forever – they have a finite life. </p>
<p>Today’s patent is next year’s footnote, not fetters permanently restricting research and public benefit. </p>
<p>Unfortunately, that reality doesn’t make for good headlines.</p><img src="https://counter.theconversation.com/content/2974/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bruce Arnold teaches patent law in the Law Faculty of the University of Canberra. </span></em></p>If you believe the hype, the “patent wars” are well and truly underway. Google announced last week it will buy Motorola Mobility to get access to 15,000 of the handset manufacturer’s patents and HTC, Apple…Bruce Baer Arnold, Assistant Professor, School of Law, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/26602011-08-03T04:12:03Z2011-08-03T04:12:03ZSamsung Galaxy Tab vs Apple iPad: the tablet patent wars hit Australia<figure><img src="https://images.theconversation.com/files/2627/original/aapone-20110720000332986082-samsung_release_tablet-original.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The battles currently being waged raise serious questions about patent law.</span> <span class="attribution"><span class="source">Yonhap/AAPIMAGE</span></span></figcaption></figure><p>The mobile patent wars, it seems, have reached Australian shores. </p>
<p><a href="http://www.smh.com.au/digital-life/tablets/tablet-wars-apple-seeks-to-destroy-rival-galaxy-20110802-1i90c.html">On Monday</a>, representatives of Apple and Samsung were in the Australian Federal Court, fighting it out over <a href="http://www.samsung.com/global/microsite/galaxytab/10.1/index.html">Samsung’s Galaxy Tab</a> tablet computer. </p>
<p>Apple is alleging infringement of a series of Australian patents – mainly related to gesture-sensitive touch screens (see list below) – as well as, it seems, breaches of consumer protection law (by misleading people into thinking that the Galaxy Tab is the iPad, or is licensed by Apple). </p>
<p>The hearing on Monday ended with Samsung <a href="http://blog.patentology.com.au/2011/08/its-apple-vs-samsung-down-under-as.html">undertaking</a> not to sell its US Galaxy Tab 10.1 in Australia (without permission from Apple first), and to give Apple, seven days before launch, samples of an allegedly different “Australian version” of their tablet. The parties are back in court for a procedural hearing at the end of this month.</p>
<p>But this is far from an isolated battle. It’s a very small part of a global battle over patents in the mobile space. Apple and Samsung are currently involved in litigation in <a href="http://fosspatents.blogspot.com/2011/08/galaxy-tab-101-down-under-apple-has.html">at least nine other countries</a>, and these fights aren’t all one-way: in some, <a href="http://online.wsj.com/article/SB10001424052748703983704576277863329446914.html">Samsung has countersued Apple</a> for infringing Samsung’s patents. </p>
<p>Apple is also <a href="http://www.groklaw.net/article.php?story=20100828132209651">fighting</a> with <a href="http://fosspatents.blogspot.com/2011/07/itc-judge-finds-htc-in-infringement-of.html">HTC</a> and <a href="http://mobilebeyond.net/apple-vs-nokia-the-future-of-technology-patent-lawsuits/#axzz1TvbaPSb3">Nokia</a>. </p>
<p><a href="http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202488335514&slreturn=1&hbxlogin=1">Microsoft, too</a>, has been filing patent infringement suits against companies using Google’s mobile system, <a href="http://www.android.com/media/">Android</a>, and <a href="http://www.groklaw.net/articlebasic.php?story=20110731130800781">observers have commented</a> that Google’s recent patent acquisitions <a href="http://www.techworld.com.au/article/383791/samsung_strike_back_against_apple_patent_suit/">have a lot to do with these battles</a>. </p>
<p>Just recently too, all the big companies in this space had a <a href="http://techcrunch.com/2011/07/01/google-nortel-patents/">battle for a portfolio of 6,000 wireless patents</a> previously owned by communications equipment manufacturer, <a href="http://www.nortel.com/">Nortel</a>.</p>
<p>The reasons for the breakout of patent litigation in the mobile space aren’t all that hard to understand. </p>
<p>Historically, the big mobile phone companies (Nokia, Ericsson etc.) had plenty of patents, but ended up licensing each others’ technology. </p>
<p>The entry of Google, via the Android system, and Apple into this space must have been a massive disruption to these comfortable arrangements. And the result has been war.</p>
<p>It is entirely possible – even likely – that the Federal Court will <a href="http://blog.patentology.com.au/2011/08/its-apple-vs-samsung-down-under-as.html">never get to rule</a> on the case – either because the parties settle all the litigation, or because rulings by courts elsewhere lead to a settlement of the remaining cases. </p>
<p>In a way, that’s a shame, because the proceedings raise some interesting legal and policy questions. </p>
<p>The key legal question is whether these patents are valid – whether Apple can really claim that the inventions described are really new and inventive across the full scope of the claims. </p>
<p>Even once the <a href="http://www.ipaustralia.gov.au/">Australian Patent Office</a> issues a patent, it is still possible for someone sued for infringement, such as Samsung, to allege the patent shouldn’t have been granted. </p>
<p>And the breadth of the monopoly Apple is claiming, particularly in <a href="http://pericles.ipaustralia.gov.au/ols/auspat/applicationDetails.do;jsessionid=T41ML3hQnsKL3NRkhLvnhJyvJhH899csWL8V2MhMJTkF7B6XwYJG!156919560">patent 2007286532</a>, is breathtaking. On my quick reading, that patent seems to cover most commands given using more than one finger on a touchscreen of any computing device (mobile phone, tablet, or anything else). Think “pinch to zoom” and everything else.</p>
<p>I’d like to think Apple won’t be able to maintain a claim that broad, but in patent law, you never know – it all depends on what existed before the date of the patent. </p>
<p>The policy questions raised by this case – and all its foreign cousins – are whether the patent system is encouraging innovation in software and mobile technologies, and whether the costs these patents have for competition are just getting too high. </p>
<p>What if we were to tote up all the legal fees and expenses, the costs in court time and the diversion of efforts away from innovation and towards litigation, the costs in getting the patents in the first place, and fighting over them worldwide, and buying the patents of defunct companies? </p>
<p>Do you think we’d be convinced the costs are worth it? Apple and Samsung are big enough and ugly enough to take care of themselves in this kind of battle. But I do worry about the little guys. And I worry about the impact on competition.</p>
<p>If the case settles, we’ll forget these issues for a while – we’ll get our Galaxy Tabs and all the rest. But the patents will stay with us until the mid 2020s. </p>
<hr>
<p>The Australian patents Apple alleges Samsung infringed are:</p>
<p><strong>Innovation Patents</strong></p>
<ul>
<li>2008100283: List scrolling and document translation, scaling, and rotation on a touch-screen display</li>
<li>2008100372: Electronic device for photo management</li>
<li>2009100820: Unlocking a device by performing gestures on an unlock image</li>
<li>2008100419: Unlocking a device by performing gestures on an unlock image</li>
<li>2008101171: Portable electronic device for imaged-based browsing of contacts</li>
</ul>
<p><strong>Standard Patents</strong></p>
<ul>
<li>2008201540: List scrolling and document translation, scaling, and rotation on a touch-screen display</li>
<li>2005246219: Multipoint touchscreen</li>
<li>2007283771: Portable electronic device for photo management</li>
<li>2009200366: List scrolling and document translation, scaling, and rotation on a touch-screen display</li>
<li>2007286532: Touch screen device, method and graphical user interface for determining commands by applying heuristics</li>
</ul>
<p><strong>Related:</strong> Read the <a href="http://googleblog.blogspot.com/2011/08/when-patents-attack-android.html">blog post</a> by Google’s Senior Vice President and Chief Legal Officer David Drummond, in which he argues that the patent wars are part of a “hostile, organised campaign” to push up the prices of Android smartphones and tablets. </p>
<p><em><strong>Should companies be able to patent ideas such as those listed above? Leave your comments below</strong></em></p><img src="https://counter.theconversation.com/content/2660/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kimberlee Weatherall does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The mobile patent wars, it seems, have reached Australian shores. On Monday, representatives of Apple and Samsung were in the Australian Federal Court, fighting it out over Samsung’s Galaxy Tab tablet…Kimberlee Weatherall, Associate Professor of Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/6372011-05-31T04:11:21Z2011-05-31T04:11:21ZPatent amendment bill could kill access to new medicines<figure><img src="https://images.theconversation.com/files/1404/original/4004791663_0d10fc20ae_b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Banning patents on biological agents could see capital for innovative medicines dry up. </span> </figcaption></figure><p><a href="http://theconversation.com/who-owns-the-rights-to-the-human-body-its-patently-obvious-835">Read the argument for the proposed legislation</a> </p>
<p>No one can deny that improved medical treatments and equity of access to them are essential to improving our community’s quality of life. Unfortunately, the<a href="http://www.aph.gov.au/senate/committee/legcon_ctte/patent_amendment/index.htm"> current patent amendment bill</a> threatens to block these goals.</p>
<p>Research translation involves optimizing the production of new medicines and lengthy pre-clinical and clinical testing to determine whether new medicines are safe and effective. </p>
<p>The community should demand nothing less. In many cases, the process of translation takes years or decades and many hundreds of millions of dollars.</p>
<p>This places research translation beyond the reach of academia, philanthropy and government, leaving only the private sector capable of making investments on the scale required. </p>
<p>This reality means that we must work with the private sector if we want the potential of life-changing discoveries to be realized. </p>
<p>It also means that the private sector must be able to generate a return on its investment. </p>
<p>The protection afforded by patents is an important mechanism by which investors are provided time to reap that return, so they can make investments in new medicines.</p>
<p>Given the central role the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/pa1990109/">Patents Act</a> plays in enabling investment and bringing new therapies to market, we must demand that any proposed amendments to the current act are clear in their intent; precise in their effect; and that the burden of proof that the benefits of the amendments vastly outweigh their potential disadvantages is overwhelming.</p>
<h2>What is the problem advocates of the amendment seek to fix and what solution do they propose?</h2>
<p>Quoting from the explanatory memoranda <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fs814_ems_46594cb2-74f1-4de5-834a-d5b1aea4edac%22;rec=0">(1)</a> _“The purpose of this Bill is to advance medical and scientific research and the diagnosis, treatment and cure of human illness and disease by enabling doctors, clinicians and medical and scientific researchers to gain free and unfettered access to biological materials, however made, that are identical or substantially identical to such materials as they exist in nature.”</p>
<p>Quoting from the proposed amendment itself <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbills%2Fs814_first%2F0001%22;rec=0">(2)</a> ; the solution is to expand the definition of non-patentable inventions from <em>“human beings, and the biological processes for their generation” to additionally include “biological materials including their components and derivatives, whether isolated or purified or not and however made, which are identical or substantially identical to such materials as they exist in nature”</em>, with biological materials defined as <em>“DNA, RNA, proteins, cells and fluids”</em>.</p>
<h2>The “straw-man” - patents stifle creative medical research</h2>
<p>First, let us consider whether the patenting of biological material, or indeed any other patents has hindered medical and scientific research. </p>
<p>In our combined experience - having worked for decades in major centres of medical research in Australia, the United States and Europe - the answer is a resounding no. </p>
<p>The vast majority of Australian medical researchers continue their programs without concern for patents. </p>
<p>With more than 11,000 patents being issued every year and more than 75,000 researchers in Australia, if patents, of any type, hindered public research, we would expect to see a myriad of infringement notices and court cases. </p>
<p>Where are they? The answer is they have not occurred because overwhelmingly research takes place without paying any heed to patents. It is a non issue. </p>
<p>Advocates of the amendment paint a picture of the devastating impact of patents on medical research, which is a complete distortion of reality. This argument is a straw man.</p>
<h2>The dangerous fallacy that banning patents on biological materials will enhance access to life-saving diagnostics and treatments</h2>
<p>We all agree that broad access to new ways of diagnosing, treating and curing diseases is desirable. </p>
<p>However, it is naive in the extreme - and ultimately placing patients’ lives at risk - to be advocating that this will be achieved by banning the patenting of biological materials. Quite the reverse! </p>
<p>By banning patents on biological agents, the capital required to transform innovations into products as varied as <a href="http://www.medicinenet.com/statins/article.htm">statins</a>, <a href="http://www.betterhealth.vic.gov.au/bhcv2/bhcmed.nsf/pages/bqctaxol/$File/bqctaxol.pdf">taxol</a>, <a href="http://www.cancer.org/Treatment/TreatmentsandSideEffects/GuidetoCancerDrugs/filgrastim">filgrastim</a>, <a href="http://www.medicinenet.com/sargramostim/article.htm">sargramostim</a>, <a href="http://www.cancer.gov/cancertopics/druginfo/rituximab">rituximab</a>, <a href="http://www.herceptin.com/index.jsp?aq=f&sourceid=chrome&ie=UTF-8&q=Herceptin">Herceptin</a> and <a href="http://www.gardasil.com/">Gardasil</a> will dry up. </p>
<p>As capital dries up, the pipeline of new products that treat the untreatable and prevent the unpreventable will slow to a trickle, and with it will dissipate the hopes of patients.</p>
<h2>The way forward</h2>
<p>The amendments currently being considered, and which will exclude biological materials from consideration from the patent act, fail three tests.</p>
<p>Their intent is misguided; their effect is far-reaching and unpredictable; and while there is no evidence that they will lead to improvements in patient care, there is a major concern that the reverse is true. </p>
<p>The amendments should be withdrawn immediately and, if not withdrawn, resoundingly defeated in Parliament.</p>
<p>There are very real challenges facing the health care sector - challenges such as the high cost of new genetic tests and new pharmaceuticals prohibiting widespread availability; and the escalating cost of healthcare as a percentage of Gross Domestic Product (GDP). </p>
<p>These are important issues but they are issues that can be dealt with by mechanisms, such as invoking Crown use provisions, compulsory licensing or Commonwealth acquisition. </p>
<p>Likewise, if access to affordable diagnostic tests is a major concern, then surely this can be addressed via an arrangement similar to the Pharmaceutical Benefits Scheme (PBS). </p>
<p>The PBS sets a precedent for controlling drug prices and this approach could extend to diagnostics. Let’s focus on real solutions to real problems.</p>
<p><a href="http://theconversation.com/who-owns-the-rights-to-the-human-body-its-patently-obvious-835">Read the argument for the proposed legislation</a> </p>
<p><em><strong>Do you think patenting of genetic and biological materials should be permitted?</strong></em></p>
<p><strong><em>Leave your comments below</em></strong></p><img src="https://counter.theconversation.com/content/637/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Douglas Hilton receives funding from the NHMRC, Australian Stem Cell Centre, CSL, HEARing-CRC, National Collaborative Research Infrastructure Strategy and National Institute of Health (USA).</span></em></p><p class="fine-print"><em><span>Julian Clark does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Read the argument for the proposed legislation No one can deny that improved medical treatments and equity of access to them are essential to improving our community’s quality of life. Unfortunately, the…Douglas Hilton, Director, Walter and Eliza Hall Institute & Professor of Medical Biology , Walter and Eliza Hall InstituteJulian Clark, Business Development Manager, Walter and Eliza Hall InstituteLicensed as Creative Commons – attribution, no derivatives.