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The US Supreme Court is hearing a case about patent law’s “exhaustion doctrine”
- JohnJamesRambo 10y agoParents are also a big part of why we have anything at all.
- ekidd 10y agoThere have been several historical studies done on the effects of patents on innovation, and the results are mixed. For an example of the "patents may hurt innovation" side, see http://levine.sscnet.ucla.edu/papers/ip.ch.1.m1004.pdf http://levine.sscnet.ucla.edu/papers/ip.ch.1.m1004.pdf , which argues that the steam engine patents actually held back the development of superior steam engines, reduced the total horsepower deployed, and even distracted Watt (the inventor) from his business. I've seen more detailed studies of patent history (which I can no longer find, alas), and they make a good case that patents have an ambiguous effects on industrial innovation. I'm not sure if I believe these studies, but I don't think it's an open and shut case either way. Also, steam engines may have different issues than drug development, and drug developent may have different issues than software.
- lprubin 10y agoIf you're interested in a book length exploration of patents on the anti-patent side of the argument, I found this book to be well argued: http://www.cambridge.org/catalogue/catalogue.asp?isbn=9780521879286 http://www.cambridge.org/catalogue/catalogue.asp?isbn=978052...
- throwawaykf09 10y agoI believe ewatt (edit: Sorry not ewatt, ekidd, the GP) referenced that same book. Here's my take on it: https://news.ycombinator.com/item?id=13930823 https://news.ycombinator.com/item?id=13930823
- moomin 10y agoDrug development is an interesting case, because the costs aren't associated with the research: they're associated with the safety testing. This has horribly distorting effects.
- lordnacho 10y agoIf that's the case, there's an obvious answer. Don't have patents, have certificates of safety. That way anyone can make a drug, and show consumers that it's been tested safe.
- mantas 10y agoIf someone makes a drug and proves it safe, someone else could piggyback on that and say they're making the drug the same way, thus it's safe.
- maxerickson 10y agoThat was basically the case for the drug that made Martin Shkreli famous. (the drug was long out of patent, his company bought the FDA approved production line and such)
- 6stringmerc 10y agoThis is an interesting postulation and one I can support in theory. My reaction though is tempered in the same way when I hear a US Federal Government person (ex: Secretary of Health) claim that a system of "Patient Empowerment and Patient Choice" is an ideal situation. I disagree. Looking at Health Statistics Reality (cough) a large portion of the US Population has made categorically bad decisions. Obesity. Heart Disease by way of contributing factors. I get the rationale behind empowerment and allowing patients to find the "best" care around, but trusting Average Health Consumer to make Medical choices when they can't even get Dietary choices right is problematic.
- throwawaykf09 10y agoWhile I agree with your overall sentiment, the Levine book is not a good reference. Here's a comment I'd posted about the book in the past: I would be wary of taking that book at its word. The authors have an agenda and they are not afraid to twist historical facts to suit their narrative. I mean, their very first chapter begins with a lie which perpetuates the myth that Watt's patent retarded steam development [1]. When the authors of [1] called out Boldrin and Levine on this, the latter responded by fabricating new myths rather than admit that the truth undermined their narrative [2]. The very chapter you cite itself has such inaccuracies. I did not track down all the stuff they cite, but I did find an instance of mischaracterizing references to suit their view points. For instance, when they discuss the German dyestuff industry, they cite a study by Murmann to support their narrative that Germany dominated in that industry due to the lack of patents. But if you look at the actual study itself, Murmann paints (heh) a very different picture: German dominance in that industry was fueled by close ties with academic research, and later by R&D labs encouraged by, of all things, the newly introduced patent laws: >When in 1877 German patent law protected dye innovations, a few German firms such as Hoechst, BASF, and AGFA saw the advantage of hiring organic chemists whose sole task was to synthesize new dyes. After these research chemists turned out economically successful dyes, firms hired more and more chemists and pioneered an entirely new corporate function, formally organized research. The birth of corporate research and development (R&D), which today is a standard activity in high-tech industries ... can be traced to the German synthetic dye firms in 1880s. By the 1890s the vast majority of dyes were being discovered in the R&D laboratories of Bayer, Hoechst, and BASF. > Whereas in the early days of the industry a firm could exist by copying dyes invented somewhere else, patent laws made the systematic application of science within the boundaries of the firm a critical dimension of remaining a leader in the industry. Moreover: > The most important institution in the early success of the German dye industry was the university system, but patent laws were a second key factor that allowed the German firms to capture a dominant position. With that many assertions in the study that refute their view, they cherry-pick a few comments and actually cite the study as one that supports their view. With so many accuracies in there, I find it hard to take anything else they say in that book at their word. 1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589712 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589712 2. http://econpapers.repec.org/article/bpjrlecon/v_3a5_3ay_3a2009_3ai_3a3_3an_3a7.htm http://econpapers.repec.org/article/bpjrlecon/v_3a5_3ay_3a20... 3. Murmann JP, 2003, "Knowledge and Competitive Advantage – The Coevolution of Firms, Technologies and National Institutions." - http://catdir.loc.gov/catdir/samples/cam041/2003043048.pdf http://catdir.loc.gov/catdir/samples/cam041/2003043048.pdf
- zeteo 10y agoFor another famous example, the Wright brothers spent most of their latter life litigating patents [1]. Who knows what other great things they might have invented otherwise. [1] https://en.wikipedia.org/wiki/Wright_brothers#Patent_war https://en.wikipedia.org/wiki/Wright_brothers#Patent_war
- pif 10y agoYes, parents are a big part. And patents are, too :-)
- deleted 10y ago[deleted]
- baybal2 10y agoPatents give monopoly rights on inventions. Monopolies are bad.
- JustSomeNobody 10y agoWell we wouldn't be where we are today without them, those parents! I jest.
- xroche 10y agoPatents are actually proven harmful in certain domain, including software. More than half of the R&D costs are now patent legal bullshit related & stuff, which is insane.
- wickedlogic 10y agoThis view is often taken, especially historically, that complicated/expensive things to figure out wouldn't exist without such protection. The problem with this line of thought, which can and often-has been true in specific instances... is that protection outcome will always need to be the case, and always remain the case, and that the funder-of-creators get to decide that. Often something complicated/expensive to think about and solve for one group, is easy and obvious to others. Especially over time and with other out-of-bound advances applied. Comedic routines would still exist for example, if people repeated other people's jokes/sets. Granted that would be copyright in that case... but the logic applies there also, and we have the same challenge and arguments, by people who insist there would not be nice things without the protection to justify the cost of the outcome generation method.
- optimuspaul 10y agoI was halfway through the article before I realized it was all about patents and not parents.
- psyc 10y agoUtter nonsense. Human beings are at least as motivated by intrinsic rewards as extrinsic ones, if not more.
- dvfjsdhgfv 10y agoIt's interesting to note Lexmark tried to (ab)use other kinds of so-called "intelectual property" laws earlier: the copyright law and DMCA. When they failed, they decided to use patents instead. And all this for what purpose? To prevent people from using cartridges manufactured by other companies, i.e. blocking competition and acting against free market and user rights. If this isn't abuse, I don't know what it is. If you can't build a superior product supported by good marketing, don't try to save yourself by legal action. If you do, you only alienate your customers, the very people you should serve first.
- JustSomeNobody 10y agoThey built their model around expensive ink and cheap printers. Of course they will try to protect that. And yes, it is abuse.
- maxerickson 10y agoThe thing is there are printers without the stupid on the market. So the EFF is wrong, patents haven't savaged the printer marketplace, there are nice printers available that are not expensive. And it's wrong that the market will punish shitty products, Lexmark is one of the few survivors in the printer business.
- richthegeek 10y agoWithout (ab)using patents, DMCA, etc to prevent 3rd-party products their business model would not be sustainable. If your business cannot survive without a government-granted monopoly, it's not a free market.
- maxerickson 10y agoSure, it's not a free market. What does that have to do with what I said? My claim is that reasonable printers that are free of bullshit exist for most purposes (prior to Epson switching to reservoir printers, the home color printer market was pretty thin) and yet companies that do use bullshit tactics continue to exist. So the printers exist (patents have not particularly held them back) and for some reason enough people ignore these reasonable printers for companies using abusive tactics to survive.
- ramshanker 10y agoJust adding 2 words to the sentence feels more logical. "Patents Are a Big Part of Why We Can’t Own Nice Things for free."
- jhall1468 10y agoIt may feel logical, but it isn't. The Lexmark suit isn't about free products, it's about them being able to restrict what you do with a product AFTER you paid for it. You probably should read the entire article before chiming in.
- kevin_b_er 10y agoNot just restrict but total control. It is the direct control over the right to property. What would happen if lexmark made wood for houses instead of printer cartridges? Would they have control over your home made with wood?
- deleted 10y ago[deleted]
- monochromatic 10y agoThe title is typical EFF bluster. This case is about a relatively narrow question on patent exhaustion, not a referendum on patents in general.
- JustSomeNobody 10y agowhile this may be, when it comes to the EFF I give them some latitude. I think they're fighting the good fight in general and if they get more exposure then I'm ok with that.
- throwawaykf09 10y agoThey do this everytime. Pretty much any EFF post that makes it to the top of HN, I see a comment pointing out how the post is flawed and clickbaity.
- 6stringmerc 10y agoTime and time again the EFF articles throw so many coats of fear mongering and "Chicken Little" doom over worthwhile subjects and causes for Review / Reform / Revision that they become an art of self-parody. If they'd drop the National Enquirer song and dance of extrapolating one to three case examples into an epidemic it would be to their benefit, in my opinion. They're free to behave as they please and raise funds if it works for them, and I'm fortunate enough to live in a place where I can criticize openly, because I do share some guiding principles I'm certain.
- bo1024 10y agoThe EFF chose a very bad / misleading title compared to what the article is actually about. A better one would be: > Supreme Court to Rule on Whether Patent-Holders Can Control What You Do With Your Stuff or something like that.
- joshuahaglund 10y agoThe title is a play on the phrase "this is why we can't have nice things." To me, this reminds us that the things we have, we might not own. "Control what you do with your stuff" sounds like the concept of ownership. Yes patents do other things but according to Lexmark their patent means you don't get to do the things you traditionally get to do with the printer you bought.
- bo1024 10y agoTo me, the phrase has always referred to a scenario where someone misuses a privilege, which is then taken away from everyone. And I don't see what that has to do with this circumstance.
- joshuahaglund 10y agoWe once had the privilege of refilling our machines with whatever we wanted. Now, because of the misuse of patents, we can't do that.
- deleted 10y ago[deleted]
- zebrafish 10y agoWithout the guarantee of a patented marked up drug, would drug companies waste the same amount of money that they currently do on R&D? I'm of the opinion that we would see a major slow down in drug innovation without patents. R&D is very wasteful and expensive. Patents prevent competition for a short period of time to help the business recoup losses from failed experiments and to deliver profits which serve as an incentive for more innovation.
- koonsolo 10y agoYou are correct, for R&D that takes years, patents are stimulating innovation. For ideas that take a week to "invent", patents are probably stifling innovation instead of promoting it. Most software patents (if not all) fall into the 2nd category. That's why in Europe we don't have software patents, and rightly so. So it indeed depends on whether you are able to recover your R&D costs after going to market.
- ryandrake 10y agoMaybe tie the patent duration to some measure of how long the invention took to develop? An algorithm that took a day from napkin to filing for the patent? You get a day of protection. A drug that took 10 years to develop? You get 10 years. The difficulty there preventing companies from exaggerating about the time it took to develop. I suppose it's not too much to ask companies to show written evidence of the date that a specific invention process commenced.
- wtetzner 10y ago> Patents prevent competition for a short period of time to help the business recoup losses from failed experiments and to deliver profits which serve as an incentive for more innovation. Is 20 years a short period of time? It seems like we'd get most of the benefits with fewer drawbacks by just shortening the time patents are granted for.
- kortex 10y agoSee my other comment. 20 years may be too long for some industries (software), but may not be long enough/ structured properly for R&D heavy industries like pharmaceuticals and biosciences. Biologics (all the -mab drugs, monoclonal antibodies, adalimumab Humira) are a treat because you have to share your methodology, but you do not have to share your cell culture line. Since the cell line itself needs to be approved, the me-too's have to go through ALL the trouble themselves.
- Someone1234 10y agoI don't think patents are inherently evil; and I also believe that "obvious" patents will get less common with time (relatively speaking we're still in the early days of patent law for many areas). That being said, I think the big issue we're seeing these days is that some patent categories simply last too long. Technology moves a mile a minute, a patent system with a duration of 20 years is absurd, something that was innovative in 1997 doesn't continue to provide the same level of value in 2007 let alone 2017. At absolute MOST the patent duration for technology patents should be halved. Ten years is still too long but at least there's a chance the entire industry doesn't overtake the patent too much, five years would be better but realistically patents are fairly expensive to file so the whole system might collapse.
- psyc 10y agoI'm personally against patents, but even if I were to assume they do provide the common good used to justify them, the #1 problem with patents is that the people who grant them appear to be either completely unqualified, or under too great a workload. Or both.
- mtgx 10y agoI think I'd prefer it if filing for a patent would cost like $500, or even less, but then the USPTO would reject most applications by default, instead of accepting most applications by default, as they do now. I'd prefer a rejection bias over an acceptance one. And I think a patent costing however many thousands of dollars it does now puts some pressure on USPTO employees to accept most patents.
- joombaga 10y ago>> I think a patent costing however many thousands of dollars it does now puts some pressure on USPTO employees to accept most patents. Why? Fear of lawsuit?
- Someone1234 10y agoEven if they did do a better job of reviewing patents in certain countries, people would just shop around until they found the most lenient international patent office and file there. The US Patent office in particular decided many years ago that they simply weren't qualified to review all patents and just left it to the courts to deal with the fallout. Realistically a patent examiner cannot be qualified in all areas; so they'd need to gather industry experts which would make patent filing pretty expensive (plus a lot of experts disagree, so where do you set the standard?).
- AndyMcConachie 10y agoI initially misread this as, "Parents are a big part of why we can't own nice things." And could only agree.
- turc1656 10y agoThis is just an extension of a tied sale. Tying agreements are already illegal under anti-trust law. The only difference here is that Lexmark (and other companies) are skipping the contract/agreement part of it and going directly to forcing the hand of the consumer by adding new changes and inserting technology that has no other purpose than to specifically limit the consumer to purchase a related product (in this case, ink), where no such restriction previously existed and therefore is not naturally occurring. This is even worse than a regular tied sale arrangement because the consumer never agrees to it. The only wrinkle I can see is that the tied sale laws seem to relate to unrelated products or services. The ink that goes with the printer is obviously related, but I think that's irrelevant here because of the history of inkjet printers. We all know that there never used to be any inherent, natural limitation to obtaining ink from another manufacturer as long as it was designed specifically for your make and model. The new changes were deliberately put in by Lexmark and other printer manufacturers for the sole purpose of restraining trade/commerce. That is blatantly in violation of anti-trust law.
- josaka 10y agoIt's worth noting that tying agreements are no longer per se illegal in all cases. Courts have recognized procompetitive benefits in some cases. Now it's only under certain conditions. http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/the_wonderful_world_of_tying.html http://www.americanbar.org/groups/young_lawyers/publications...
- turc1656 10y agoInteresting. Thanks for this information. Obviously, this wouldn't apply to the case at hand, though, as Lexmark is not a newcomer to the industry nor is the industry itself relatively new, thus requiring facilitation from tied sales. If the USSC ends up ruling against Lexmark, the Justice Department should follow it up with indictments for felony violations of 15 USC.
- microcolonel 10y agoStatute is cancer, long live common law.
- deleted 10y ago[deleted]
- ballenf 10y agoI worked at Lexmark shortly after they spun off from IBM. As an intern in the early 90s I was tasked with researching crypto methods of securing their printer cartridges. Whoever bought or was running Lexmark from day one had these goals in mind as a key part of the value-add in buying IBM's old typewriter division. My answer, at the time, was 'no' there is no foolproof way of using crypto because the keys would have to be stored in the chip that the refiller has access to. I'm sure there were actual engineers working on the same task, who I assume gave the same answer since they moved on to legal instead of technological means. Even at the time, I was disheartened by the leadership's attitude and goals. Kind of amazing that for 20+ years they haven't abandoned this approach.
- javajosh 10y agoI wonder if the founder of Lexmark started the company with the big idea, "Hey, let's apply the razor/blade business model to printers!" If so, then "abandoning the approach" is impossible, and the approach will only be abandoned with company failure. And you know, I have to say it: it's unethical, immoral, but it's not illegal to have a nefarious business plan, and I'm glad. To me, the larger issue is that the justice system has itself become a weapon to punish competitors, particularly through the use of IP claims. Punishment occurs long before conviction, when the cost of defending yourself can mean a significant and ongoing expense. A justice system that ignores reality, including economic reality, cannot be just.
- joncp 10y agoI don't get it. If Lexmark is so hell-bent on preventing refilling, they could just simply change the purchase to a rental. Then, if don't return the cartridge to them you don't get your deposit back. They could even spin it as some sort of "we're being really green by making sure all of our cartridges are recycled" campaign. The same goes for all of the farm equipment manufacturers that are fighting the right-to-fix movement. Why even have that fight and look like the bad guy? Again, I just don't get it.
- nsnick 10y agoI would like to thank whoever changed the title of this post. The old title led this comment section to the generic patents are bad discussion while not addressing the substance of the article. It was clear the people commenting hadn't actually read the article. The new title has already started steering the conversation towards what the article actually says and people will be educated about the exhaustion doctrine.
- lutusp 10y agoI'm in my 70s and I've seen a complete change of atmosphere since the 1950s when I first interacted with tecnology. In 1950, apart from a small number of ready-made products, if you wanted something out of the ordinary, you designed and built it (I was a ham radio operator at the age of 13). I would build my radio gear out of the salvaged parts from neighbors' discarded TV sets (which in those days were very short-lived). Decades later I saw people lose interest in either understanding technology or building/repairing their own. I found this change discouraging, but I failed to see where that was headed. Now corporations are using the political/legal system to forbid people from closely examining their technical purchases or changing them to suit new needs. For most people the level of required knowledge is quite beyond imagining, so it may not seem much of a burden, but for a shrinking minority with technical skill, it nips creativity in the bud. It's a variation on the classic Time Machine plot (H. G. Wells) -- the minority Eloi live on the surface, designing and building IPods for the troglodytic Morlocks. To me personally, the real tragedy will be when people can't even imagine understanding, repairing or building their own equipment.
- kevin_b_er 10y agoLexmark and the Federal Circuit are now a direct and actual threat to the notion of the ownership of property, both real and personal, in the United States of America.