[…] the story of Myriad Genetics, the biotech company that has a test for the BRCA1 and BRCA2 genes (often an indicator of a higher risk for breast cancer). The company argued that because of its patent on those genes, no one else could test for those genes. Back in 2013, the Supreme Court did the right thing and finally rejected the concept of gene patents, despite years of the USPTO granting such patents. As the court noted, allowing gene patents created a perverse situation in which a single company could have the exclusive right to isolate a person’s own genes — and that’s just not right.
But Myriad Genetics did not give up easily. Just a month after the Supreme Court ruling it sued a bunch of competitors over a different set of gene patents, insisting that the Supreme Court had really only struck down the two in question. Those lawsuits did not go well, as Myriad lost again and again. At this point, it’s only choice was to go back to the Supreme Court, where it was obviously going to get a pretty big smackdown — so Myriad has now admitted that it will not pursue an appeal effectively ending this latest round of cases (after costing those other testing centers tons of money to defend themselves).
Good for Myriad, finally seeing sense (though at great expense to many).
Meanwhile, however, the USPTO (US Patent & Trademark Office) continues its long running bad strategy of simply tweaking its guidelines to allow more application. This despite a) court rulings disqualifying such non-innovations and b) overwhelming proof that the strategy does not aid innovation.
I find it astonishing that an organisation can go so wrong in that its primary activity now appears to be directly opposed to the goal it was created to promote.
The Electronic Frontier Foundation posted Can You Believe It? Legislation that Would Actually Help Fix the Patent System, about a new bill introduced by two US Representatives. The “SHIELD” act (Saving High-Tech Innovators from Egregious Legal Disputes) simply states that if you sue someone over a computer hardware or software patent, you better have a reasonable and good-faith belief a defendant actually infringes a valid patent before it sues. Otherwise, you’re up for all the costs.
I think it’s an excellent initiative. While not really fixing the patent system, it makes the now rife patent trolling particularly in the space of software patents unprofitable. Fundamentally I believe that software patents are a mistake, but I’m also a pragmatist. Software patents are not going to disappear overnight. However, any person or corporation with money (troll or not) can currently bully a small innovator, the mere threat can put them out of business regardless of whether the claims have merit. This is because the small innovator cannot even afford to let it go to court now, the process itself would bankrupt them even if they’d win. That is a hindrance to both innovation and valid economic activity – clearly that is not the intended purpose of the patent system. The patent system was intended to provide an inventor an exclusive time period to benefit from their invention either directly or through licensing (and as a sideline, recoup up-front costs) while having the details of the invention publicly available – thus promoting innovation, not hindering it.
The proposed bill is US legislation, but with a much broader effect. For instance, technically Europe doesn’t even have software patents, but any place that interacts with the United States through free trade agreements has some form of exposure to the US way of handling Intellectual Property, no matter how broken it is.
EFF point out that the “no frivolous claims or you pay” system has long been in place for copyright infringements and other such cases, so as a concept in the space of Intellectual Property rights it’s not new at all. It makes legal and logical sense sense and puts the US patent system in line with the rest of the US IP legislation, but no doubt there’ll be vigorous lobbying by parties that have an interest in keeping the system broken. It is a good sign that US Reps. DeFazio and Chaffetz stick their head out in this way.
For the broader case of software patents, see the Defend Innovation website. You can add your support there too.
This project is a good example of Upstarta principle#4: “Pragmatic on Intellectual Property (IP): speed-to-market over protection. Share information. No software patents.”
OpenCores.org host the source code for different digital hardware projects (IP-cores, System-on-Chip, boards, etc) and support the users with different tools, platforms, forums and other useful information.
Considering the complexity of designing and validating (debugging) these systems, the process becomes prohibitively expensive when done in-house, while fundamentally there’s nothing unique in there that must be hidden/protected to have a viable business model. So with benefits of cost as well as development speed, the openness becomes a true enabler: it allows startups and small businesses to consider this technology, which would otherwise be simply inconceivable.