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which means instead of a discovery in lab A spurring a totally new way of thinking in lab B, it restricts lab B from ever thinking that way. This is not necess

by JackC 12y ago

which means instead of a discovery in lab A spurring a totally new way of thinking in lab B, it restricts lab B from ever thinking that way. This is not necessarily true. Patents, unlike copyrights, are additive. If you write a book based on the Harry Potter characters, JK Rowling owns the copyright to your derivative work. But if Lab A patents a way of making graphene, Lab B is free to research and patent non-obvious refinements. So you tend to see a tree of patents by different people: 1. Awesome new invention Foo! (Lab A) 1.A. Small but commercially important refinement of Foo. (Lab B) 1.A.i. More performant version of small refinement of Foo. (Lab A) 1.A.ii. Different way of increasing performance on small refinement of Foo. (Lab C) ... where you definitely need to license Patent 1 from Lab A if you want to sell your own Foo, but if you want to sell a Foo with Lab C's performance improvements you need to license Patent 1.A and 1.A.ii as well. This is why there is a "race to patent every single miniscule discovery" in the first place -- Lab A getting Patent 1 doesn't remove the incentive to discover refinements. It is not obvious that the search for refinements would happen faster without this incentive.

new299 12y ago
In order to develop on Patent 1, Labs B and C should officially license Lab As patent. As I understand it there's no "research exception" for patents, and they don't just apply to "selling". I'm basing my understanding on this article: http://www.nature.com/nbt/journal/v25/n11/full/nbt1107-1225.html http://www.nature.com/nbt/journal/v25/n11/full/nbt1107-1225.... It's also true that researchers rarely take any notice of patents, and the issue just gets ignored.
- _delirium 12y ago
  A university patent office explained it to me as follows (note of course that doesn't guarantee this person was correct): patents do cover any "practice" of the patent, which includes practicing it for the purpose of even merely understanding and improving it. So research is not legally exempt. But in practice, patent infringement damages are almost exclusively at a court's discretion, and courts are almost exclusively interested in unlicensed commercial exploitation. A court can in principle issue a wide range of relief: an injunction against practicing the patent; a mandatory licensing fee; compensatory damages; or some combination of those. The nature of the relief is supposed to depend on the nature of the infringement and considerations of public policy. A widespread assumption is that it's not worth suing researchers who are trying to improve an invention without commercially exploiting the patent, because a court will be very unsympathetic to the patent holder, and unlikely to award any substantial relief.
  - andyjdavis 12y ago
    Although I imagine being able to conduct research but never commercially exploit any discoveries made without the prospect of winding up in court would have a significant chilling effect on research funding.
AnthonyMouse 12y ago
> Patents, unlike copyrights, are additive. If you write a book based on the Harry Potter characters, JK Rowling owns the copyright to your derivative work. No, they're both the same. One of the exclusive rights under the Copyright Act is the right to make derivative works, so you can't make a book based on Harry Potter characters without JK Rowling's permission. If you do anyway, JK Rowling can sue to stop you but she can't start selling your version herself and taking all the money without your permission. Nobody can sell the derivative work without permission from both authors, which is as it is with patents. > This is why there is a "race to patent every single miniscule discovery" in the first place -- Lab A getting Patent 1 doesn't remove the incentive to discover refinements. Of course it does. It requires the discoverer of the refinement to obtain the permission of Lab A before they can make any money, and the refined version competes with Lab A's version. So Lab A is better off to exclude the refined version from the market unless they can claim nearly the entire margin from it as they can with the original version, and the patent allows them to do that. Which leaves little or no incentive for anyone other than Lab A to make refinements. The same thing happens with copyright. Disney makes movies based on ancient fairy tales because they're in the public domain. ABC's Once Upon A Time uses characters from Disney's Frozen because they're the same company. Universal Studios pretty much never makes movies with Disney characters, even though they theoretically could with Disney's permission, because Universal would be doing all the new work even though Disney could claim as much of the revenue as they like. > It is not obvious that the search for refinements would happen faster without this incentive. That's the fundamental trade off with patents. You grant a monopoly to one entity on the theory that the incentive of the monopoly will get that entity to invest in the research. The benefit of that incentive then has to be weighed against the cost of excluding all other potential innovators from the market for the term of the patent. This is why patents work best in markets where innovation is slow. If patentable innovations happen only infrequently and/or there are only a small number of major players then the cost of the monopoly is smaller because fewer incremental innovations are being excluded by the patent. This is one of the big reasons that software patents are so abominable -- the more innovation that would be happening without patents, the higher the cost of issuing patents grows.
- _greim_ 12y ago
  > It requires the discoverer of the refinement to obtain the permission of Lab A before they can make any money Not necessarily; they (lab B) can license the refinement to whoever they want, for example lab A. Or to a third party who licenses both technologies.
saidajigumi 12y ago
> This is not necessarily true. In biotech/pharma research, it is absolutely true. If a competitor's patent lands first on targeted genes/proteins/etc. it can shut down an entire lab's line of work permanently. The staff involved usually get reshuffled to other lines of interest, and any work they'd done is simply written off, never to see the light of day.

by JackC 12y ago

new299 12y ago

In order to develop on Patent 1, Labs B and C should officially license Lab As patent. As I understand it there's no "research exception" for patents, and they don't just apply to "selling". I'm basing my understanding on this article: http://www.nature.com/nbt/journal/v25/n11/full/nbt1107-1225.html http://www.nature.com/nbt/journal/v25/n11/full/nbt1107-1225.... It's also true that researchers rarely take any notice of patents, and the issue just gets ignored.

_delirium 12y ago
A university patent office explained it to me as follows (note of course that doesn't guarantee this person was correct): patents do cover any "practice" of the patent, which includes practicing it for the purpose of even merely understanding and improving it. So research is not legally exempt. But in practice, patent infringement damages are almost exclusively at a court's discretion, and courts are almost exclusively interested in unlicensed commercial exploitation. A court can in principle issue a wide range of relief: an injunction against practicing the patent; a mandatory licensing fee; compensatory damages; or some combination of those. The nature of the relief is supposed to depend on the nature of the infringement and considerations of public policy. A widespread assumption is that it's not worth suing researchers who are trying to improve an invention without commercially exploiting the patent, because a court will be very unsympathetic to the patent holder, and unlikely to award any substantial relief.
- andyjdavis 12y ago
  Although I imagine being able to conduct research but never commercially exploit any discoveries made without the prospect of winding up in court would have a significant chilling effect on research funding.

AnthonyMouse 12y ago

> Patents, unlike copyrights, are additive. If you write a book based on the Harry Potter characters, JK Rowling owns the copyright to your derivative work. No, they're both the same. One of the exclusive rights under the Copyright Act is the right to make derivative works, so you can't make a book based on Harry Potter characters without JK Rowling's permission. If you do anyway, JK Rowling can sue to stop you but she can't start selling your version herself and taking all the money without your permission. Nobody can sell the derivative work without permission from both authors, which is as it is with patents. > This is why there is a "race to patent every single miniscule discovery" in the first place -- Lab A getting Patent 1 doesn't remove the incentive to discover refinements. Of course it does. It requires the discoverer of the refinement to obtain the permission of Lab A before they can make any money, and the refined version competes with Lab A's version. So Lab A is better off to exclude the refined version from the market unless they can claim nearly the entire margin from it as they can with the original version, and the patent allows them to do that. Which leaves little or no incentive for anyone other than Lab A to make refinements. The same thing happens with copyright. Disney makes movies based on ancient fairy tales because they're in the public domain. ABC's Once Upon A Time uses characters from Disney's Frozen because they're the same company. Universal Studios pretty much never makes movies with Disney characters, even though they theoretically could with Disney's permission, because Universal would be doing all the new work even though Disney could claim as much of the revenue as they like. > It is not obvious that the search for refinements would happen faster without this incentive. That's the fundamental trade off with patents. You grant a monopoly to one entity on the theory that the incentive of the monopoly will get that entity to invest in the research. The benefit of that incentive then has to be weighed against the cost of excluding all other potential innovators from the market for the term of the patent. This is why patents work best in markets where innovation is slow. If patentable innovations happen only infrequently and/or there are only a small number of major players then the cost of the monopoly is smaller because fewer incremental innovations are being excluded by the patent. This is one of the big reasons that software patents are so abominable -- the more innovation that would be happening without patents, the higher the cost of issuing patents grows.

_greim_ 12y ago
> It requires the discoverer of the refinement to obtain the permission of Lab A before they can make any money Not necessarily; they (lab B) can license the refinement to whoever they want, for example lab A. Or to a third party who licenses both technologies.

saidajigumi 12y ago

> This is not necessarily true. In biotech/pharma research, it is absolutely true. If a competitor's patent lands first on targeted genes/proteins/etc. it can shut down an entire lab's line of work permanently. The staff involved usually get reshuffled to other lines of interest, and any work they'd done is simply written off, never to see the light of day.