tag:theconversation.com,2011:/uk/topics/ideas-and-ownership-2335/articlesIdeas and ownership – The Conversation2014-07-23T13:54:13Ztag:theconversation.com,2011:article/296232014-07-23T13:54:13Z2014-07-23T13:54:13ZNobel laureate: for inspiration, I take to the sky and fly with birds<figure><img src="https://images.theconversation.com/files/54672/original/56gmvs3h-1406122334.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Flying is not an easy job, and neither is science.</span> <span class="attribution"><span class="source">EPA</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Oliver Smithies won the Nobel Prize in Physiology or Medicine in 2007 “for discoveries of principles for introducing specific gene modifications in mice by the use of embryonic stem cells”.</p>
<p><a href="https://theconversation.com/profiles/mohit-kumar-jolly-110631">Mohit Kumar Jolly</a>, researcher at the University of Rice and contributor to The Conversation, interviewed him at the 2014 Lindau Nobel Laureates Meeting.</p>
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<p><strong>Where do you think good ideas come from?</strong></p>
<p>I fly a glider, and I turn off the engine at some altitude, and then the glider needs upwards thrust to maintain itself. I often spot a hawk then, and start to fly in the direction it is flying, because it [the hawk] is also looking for the upward thrust, so if I follow it, I’ll also get the thrust. So my flying experience also makes me think.</p>
<p>I still go to the lab every day, even on weekends. Very often ideas for research comes from our experiences or memories – it takes only one moment for the idea to occur, but it takes a lifetime sometimes to show that it works.</p>
<p><strong>You have been in science for a very long time. How, in your opinion, has the culture of science changed over time?</strong></p>
<p>Not much actually. Scientists then as well as now want to be known as “the first one to do something”. When Galileo discovered Jupiter’s moon, he was worried about the same, and even today, scientists are afraid of the same [not being first].</p>
<p><strong>But hasn’t this intense competition caused scientific misconduct increase significantly today?</strong></p>
<p>Yes, but it must be understood that scientists are not different from other communities – of course, you’ll find many dishonest scientists.</p>
<p><strong>Do you agree that more dialogue between science and the public is needed to ensure the trust people have in science?</strong></p>
<p>That is very much required. I haven’t done as much in this aspect as I should have done, but I’d like to share an anecdote. When we were doing experiments on cloning genes, the community in Cambridge, Massachusetts revolted against our plan, due to various fears associated with cloning. But, in Wisconsin, we invited the media and explained to them in detail what exact experiments we were planning, and also listening to their misinformed fears and clarifying them – they finally allowed us happily to do those experiments.</p>
<p><strong>What is your opinion of fellow Nobel Laureate Randy Schekman’s <a href="https://theconversation.com/how-to-break-free-from-the-stifling-grip-of-luxury-journals-21669">attack on the three big science journals</a> – Science, Nature, Cell?</strong></p>
<p>I believe that what matters more is not where you publish, but what you publish. A good scientist is a global citizen, and I support open access and sharing of ideas.</p>
<p><strong>What message would you give to young scientists?</strong></p>
<p>Find something that you enjoy doing, and then pursue it. It need not be science, but must be something that excites you.</p>
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<p><em>A version of this interview appeared on the Lindau Nobel <a href="http://blog.lindau-nobel.org/?p=8980">blog</a>.</em></p><img src="https://counter.theconversation.com/content/29623/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Oliver Smithies 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>Oliver Smithies won the Nobel Prize in Physiology or Medicine in 2007 “for discoveries of principles for introducing specific gene modifications in mice by the use of embryonic stem cells”. Mohit Kumar…Oliver Smithies, Weatherspoon Eminent Distinguished Professor, University of North Carolina at Chapel HillLicensed 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>
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<span class="attribution"><span class="source">917press</span></span>
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<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>
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<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">
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<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>
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<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">
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<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>
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<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">
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<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>
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<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="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>
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<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="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>
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<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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<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/52442012-02-27T04:06:43Z2012-02-27T04:06:43ZGenetic land-grab or reward for ingenuity? Australian court to rule on gene patents<figure><img src="https://images.theconversation.com/files/8096/original/qgkyy7vk-1330308782.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">What the court decides in this case could potentially change the genetic research landscape for ever.</span> <span class="attribution"><span class="source">David/Flickr</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 examines a court case that will decide whether human genes are patentable subject matter in Australia.</strong></p>
<p>The Federal Court of Australia will soon rule <a href="http://www.theaustralian.com.au/news/health-science/drug-company-defends-gene-mutation-patent/story-e6frg8y6-1226276389707">on a case</a> with significant implications for the multitude of gene patents granted in Australia. 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 <a href="http://www.cancervoicesaustralia.org.au/">Cancer Voices Australia</a> has challenged the validity of a patent owned by the US biotechnology company, <a href="http://www.myriad.com/">Myriad Genetics, Inc</a>. Myriad claims exclusive rights to exploit the so-called <a href="http://www.cancer.gov/cancertopics/factsheet/Risk/BRCA">BRCA1 gene</a>, which is linked to increased susceptibility to breast and ovarian cancer. </p>
<p>Myriad Genetics has been exposed to negative publicity in many countries because of its patent claims to BRCA1 and <a href="http://www.cancer.gov/cancertopics/factsheet/Risk/BRCA">BRCA2</a> (another gene linked with breast and ovarian cancer), and its method of detecting mutations in these genes associated with increased breast cancer risk. But there’s nothing out of the ordinary about Myriad making claims to both the sequences and their diagnostic tests. </p>
<p>The criticism is largely because of the way the company has chosen to use its patent rights. Myriad requires all BRCA testing to be done in its own laboratories. The biotech has been particularly vigilant in enforcing its patent rights in the United States (where it is facing the possibility of a Supreme Court challenge to the patents), but has been less successful in Europe and Canada.</p>
<p>In Australia, Myriad’s patents are exclusively licensed to Melbourne-based biotech company, <a href="http://www.gtglabs.com/">Genetic Technologies, Ltd (GTG)</a>. And there are concerns in some quarters that GTG could take the same approach as Myriad in enforcing the BRCA patents in Australia. </p>
<h2>Challenges elsewhere</h2>
<p>The validity of Myriad’s patents was <a href="http://www.lexology.com/library/detail.aspx?g=27cdfbc8-cf2b-43d9-8025-32f4785bf441">challenged in the United States in 2010</a> by the Association for Molecular Pathology and a number of other organisations and individuals. The patents were initially found to be invalid.</p>
<p>In a successful <a href="https://theconversation.com/patent-controversy-dont-let-breast-cancer-gene-genie-out-of-the-bottle-2616">appeal</a> by Myriad, a majority of judges decided the company’s claims to the BRCA gene sequences were valid, but claims relating to methods of detecting mutations (diagnostic tests that show if people have the gene mutation) were invalid. </p>
<p>The United States Supreme Court will soon decide if it will hear an appeal on the question of whether or not the gene sequence claims are valid. </p>
<h2>Here and there</h2>
<p>The US case and the Cancer Voices litigation in Australia are the first time in both countries that courts are being asked to decide on the fundamental question of whether isolated genes can be patented. </p>
<p>For many readers the answer may seem obvious, but in the eyes of the law, the judgement is far from clear.</p>
<p>The test for patentable subject matter in Australia is cast in curious legal language – proof of “manner of manufacture”. This phrase comes from the <a href="http://ipmall.info/hosted_resources/lipa/patents/English_Statute1623.pdf">English Statute of Monopolies of 1623</a>, and various law reform inquiries have considered whether the wording is appropriate in modern Australian patent law. </p>
<p>The most recent inquiry by the <a href="http://www.acip.gov.au/reviews_completed.html#psm">Advisory Council on Intellectual Property</a> has recommended the language be modernised but amendments have not yet been made. </p>
<p>The best explanation of the manner of manufacture requirement comes from a case in 1959, which says the condition is satisfied if the subject matter is:</p>
<ul>
<li><p>an artificially created state of affairs </p></li>
<li><p>in the useful rather than the fine arts </p></li>
<li><p>a material advantage</p></li>
<li><p>in a field of economic endeavour. </p></li>
</ul>
<p>It was easy for such requirements to be satisfied by inventions such as steam engines, electric cars, velcro, and the like. Everyone would probably agree that these are the very types of inventions that the patent system was designed to cover. </p>
<p>But things get more complicated for methods of medical treatment, computer software, business methods, living organisms and other material coming from the natural world, such as gene sequences. </p>
<p>In the Cancer Voices case, the court will doubtless seek assistance from decisions in other jurisdictions (such as the United States), but it must ultimately decide based on the peculiarities of the Australian “manner of manufacture” requirement. </p>
<p>While it’s difficult to predict the outcome, it’s worth noting that courts have tended to take an expansive view of what constitutes patentable subject matter, suggesting that the validity of this patent may be upheld. </p>
<p>Some will be disappointed by a decision not invalidating the Myriad patent; some will be concerned about the viability of the biotechnology industry if the decision goes the other way. But what’s more important is that we have a well-reasoned decision on this crucial aspect of patent law, based on sound legal authority. </p>
<p>It’ll be some months before we’ll have a decision on whether or not genes are patentable subject matter in Australia. And given the importance and impact of this issue, we can expect appeals. All we know with certainty is that what the court decides could potentially change the landscape for ever. </p>
<p><strong>This is part seven 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>
<li><strong>Part Six: <a href="https://theconversation.com/open-source-ditching-patents-and-copyright-for-the-greater-good-5302">Open source – ditching patents and copyright for the greater good</a></strong></li>
</ul><img src="https://counter.theconversation.com/content/5244/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>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 TasmaniaLicensed 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/55602012-02-24T03:02:03Z2012-02-24T03:02:03ZWill the internet kill copyright? Here’s hoping …<figure><img src="https://images.theconversation.com/files/8049/original/23y7mh2c-1330045205.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Debates about online copyright protection have been particularly heated of late.</span> <span class="attribution"><span class="source">marfis75</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, Philip Soos considers the faults that plague existing copyright laws and suggests that, in an increasingly online world, we need to find more realistic options.</strong></p>
<p>In the past few months, there’s been substantial media interest in the <a href="https://theconversation.com/topics/sopa">Stop Online Piracy Act (SOPA)</a> bill in the US, introduced ostensibly as an attempt to crack down on intellectual property rights (IPR) violations.</p>
<p>If adopted, this bill would give the US government even more power to deal with those found infringing IPRs than currently exists under the existing legislation – the <a href="http://www.copyright.gov/legislation/dmca.pdf">Digital Millennium Copyright Act (DMCA)</a>. </p>
<p>SOPA has spawned a great deal of debate over the merits and demerits of further expanding protection for IPRs. Some claim SOPA would help protect jobs and profit – hence innovation; while many argue SOPA would impinge upon citizens’ right to privacy. </p>
<p>Opposition to SOPA prompted many websites, including Wikipedia, to <a href="https://theconversation.com/major-turn-off-leading-lights-stage-an-internet-blackout-to-fight-sopa-4964">close down temporarily</a> in protest.</p>
<p>But this debate leaves much to be desired. It consists of arguing IPR protection should be strengthened, weakened or left alone. Few, if any, are critical of the reigning assumption that IPR is a necessary intervention in the economy. </p>
<p>The question that needs to be asked is: why is a <a href="http://en.wikipedia.org/wiki/History_of_copyright_law#Early_privileges_and_monopolies">16th century medieval government monopoly</a> being used to spur innovation and creative art in the technologically-advanced 21st century?</p>
<p>The usual story trotted out is that markets will produce a less than optimal level of research and development and creative works without some form of government intervention. <a href="http://www.copyright.com.au/assets/documents/benefits%20&%20costs%20of%20copyright.pdf">We are told</a> that without such intervention, many of the technologies and modes of entertainment we enjoy today would simply not exist. </p>
<p>Thus the need for copyrights to provide the stimulus for firms to invest to meet consumer wants and needs.</p>
<p>The state-driven tech revolution of the late 1990s has seen an explosion of IPR-protected content being shared over the internet. Evolving technology (such as <a href="https://theconversation.com/the-bittorrent-lawsuit-why-sly-stallone-is-out-to-get-you-1231">peer-to-peer networking</a>) has made it easy for almost anyone with a decent internet connection to continuously download and upload files, whether that’s video games, music, books, magazines, comics, TV episodes, films, documentaries, or programs.</p>
<p>Anything that can be converted into electronic data and stored on a computer can be shared. It <a href="http://torrentfreak.com/bittorrent-and-netflix-dominate-americas-internet-traffic-111027/">has been estimated</a> that the sharing of content through the <a href="http://en.wikipedia.org/wiki/BitTorrent_(protocol)">BitTorrent file-sharing protocol</a> accounts for one-third of internet traffic today.</p>
<p>Given authorities across the world have often had to catch up to the evolving uses of the internet via legislation, it is difficult for individuals and firms to simultaneously enforce their state-granted rights in many countries, all with differing laws in regards to IPRs.</p>
<p>(That said, the <a href="http://www.wto.org/">World Trade Organization</a> has attempted to standardise international and national law through its Agreement on <a href="http://www.wto.org/english/tratop_e/trips_e/trips_e.htm">Trade Related Aspects of Intellectual Property Rights (TRIPS)</a>.)</p>
<p>Industry and governments have certainly tried hard in this respect. Every iteration of copyright protection law appears to be more draconian than the last. It is unsurprising that the US is in the lead of protecting IPR, as its industries are the largest and often most profitable (as in the case of pharmaceuticals and biotech).</p>
<p>The TRIPS and DMCA legislation have clearly done little to prevent file sharing, which appears to be ever-increasing in magnitude. Draconian laws have done little to deter users from violating copyrights and other forms of IPRs.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/8040/original/5k3cjzr2-1330041860.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/8040/original/5k3cjzr2-1330041860.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/8040/original/5k3cjzr2-1330041860.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/8040/original/5k3cjzr2-1330041860.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/8040/original/5k3cjzr2-1330041860.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/8040/original/5k3cjzr2-1330041860.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/8040/original/5k3cjzr2-1330041860.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">
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Gideon Burton</span></span>
</figcaption>
</figure>
<p>Online content is really no different to drugs that are currently illegal: people who want them will always get them, with entrepreneurs and cartels operating within the black market to meet demand. The sane course of action is to carefully legalise and regulate the supply of drugs/ content, not impose wildly invasive, expensive and equally ineffective government intervention against producers and consumers.</p>
<p>Ever more draconian legislation has not and will not prevent people from file-sharing and violating IPRs. Industry will claim IPRs, as private property, must be respected. But to claim IPR, as information, should be covered by private property rights is as nonsensical as if the government were to assign a property right to an autoworker’s job, allowing the employee the right to hold it or sell to another.</p>
<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 IPRs) 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.</p>
<p>Other costs include those associated with the court system and <a href="http://members.pcug.org.au/%7Earhen/">patents offices</a>, which have effectively become a joke. People and firms are <a href="https://theconversation.com/topics/patent-wars">endlessly suing each other</a> over potential and real copyright infringements, with these legal expenses essentially acting as a tax on innovation that is passed on to consumers.</p>
<p>Bureaucrats at the patent office are under a difficult burden to ensure that software patents are truly innovative and do not violate previously-granted patents.</p>
<p>Under SOPA, citizens’ online activities would be <a href="http://www.itworld.com/security/251584/sopa-replacement-uses-child-porn-excuse-spy-997-percent-americans">watched and recorded</a> in ever-greater detail, in a futile attempt to crack down on piracy. What industry is calling for is an ever-stronger police state to ensure legislative compliance, despite what the evidence may say about the <a href="http://torrentfreak.com/music-piracy-not-that-bad-industry-says-090118/">loss of sales</a> pertaining to piracy.</p>
<p>It should be obvious by now that a new form of funding research, development and creative works needs to be implemented. The cornerstone of any new system should ensure goods are sold at the cost of production: either free on the internet or a few dollars for the physical product. <a href="http://creativecommons.org/">Creative Commons</a> and free software licenses should become the new mode.</p>
<p>The extremes of wealth also need to be avoided: there is no natural law that says Bill Gates should become a billionaire via government monopoly while many creative artists just scrape by.</p>
<p>It is imperative that the wastes and inefficiencies of the IPR system be eliminated and not reproduced under alternative systems.</p>
<p>It is time for some creative thinking on the part of the public (industry isn’t going to help) to design alternate models of financing. Otherwise, the nanny state that operates on behalf of the rich is going to become ever more authoritarian.</p>
<p><strong>This is part five 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>
</ul><img src="https://counter.theconversation.com/content/5560/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Philip Soos 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…Philip Soos, Deakin UniversityLicensed 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.