WIRED reports on the launch of EFF's Patent Busting Project (EFF Publishes Patent Hit List). Slashdot discussion here: EFF, PubPat Each Seeking Some Patent Sanity. This is a much needed project, as patent abuse has become a rampant problem. EFF explains it this way:
Unlike most technologies, software and the Internet have attracted a vast number of small business, non-profit, and individual users – each of whom has adopted and built upon these resources as part of their daily interaction with computers and the online world. From open source programming to online journaling to political campaigning, the average citizen is using new technology online and on her desktop as often as any traditional company.Hmmm...I wonder what would happen if you put a law similar to the patent law (only more flawed) into the hands of just about anyone who wants to abuse it (copyrights being even easier to obtain than patents)? Imagine a smallWith this increased visibility, however, comes increased vulnerability. Previously, patent holders had only targeted competing companies. These companies have established legal departments and outside counsel and are thus able to defend against illegitimate patent threats. Now some patent holders have begun to set their sights on the new class of technology users–small organizations and individuals who cannot afford to retain lawyers. Faced with million-dollar legal demands, they have no choice but to capitulate and pay license fees – fees that often fund more threat letters and lawsuits. And because these patents have become cheaper and easier to obtain, the patentee’s costs can be spread out quickly amongst the many new defendants. Our patent system has historically relied on the resources of major corporate players to defeat bad patents; now it leaves these new defendants with few if any options to defend themselves.
Illegitimate patents can also threaten free expression. More and more people are using software and Internet technology to express themselves online. Website and blogging tools are increasingly popular. Video and audio streaming technology is ubiquitous. E-mail and Instant Messaging have reached users of all ages. Yet because patents can be anywhere and everywhere in these technologies, the average user has no way of knowing whether his or her tools are subject to legal threats. Patent owners who claim control over these means of community discourse can threaten anyone who uses them, even for personal non-commercial purposes. We lose much if we allow overreaching patent claims to reduce the tremendous benefits that software and technology bring to freedom of expression.
Yes, the INDUCE Act (née IICA) would have yet another unintended consequence.
Security expert Bruce Schneier has written to blogger and Mercury News technology columnist Dan Gillmor about a patent that seems to be missing from the online US database ('Dangerous' Patent Removed from Database?). He quotes Schneier:
In October 1962, the U.S. Patent Office granted patent 3,060,165 regarding the use of ricin as a biological weapon. Published patents are, of course, publicly available. That's the point.
All US patents are available from the USPTO website: "full-text since 1976, full-page images since 1790." However, for some reason, this particular patent is no longer in the database:
Clicking on "Images" only produces a "Patent not found" image.
The patent is still available in foreign databases, so it seems like a rather futile exercise if the removal was due to concerns about knowledge of WMDs.
This hiding of public information is just the sort of thing we need to fight against. If the bad guys can get a copy of the patent without any trouble, how is this helping?
You can read the three-page patent here: Ricin Patent [PDF].
I wonder if the missing patent has anything to do with a sensationalistic investigative report from NY television station WABC in February of last year that chided the Patent Office for making the patent available (Investigators: Anyone Can Get The Recipe For A Bio-Terror Weapon More Deadly Than Cyanide):
The day before the Secretary of State warned the world about the threat of terrorist ricin attack, I was undercover at the nation's US Patent Office. There, a simple word search on its public computer yielded meticulously detailed instructions on how to make the purest, deadliest form of the poison.
Yeah, like terrorists are going to go to the US Patent Office to do research on biological weapons.
The concern is so great that Ricin will get into the wrong hands the FBI has issued an alert to all law enforcement agencies. Yet just a few miles from the bureau headquarters in the nation's capitol, the US Patent Office allows anyone to get a copy of the Ricin recipe for just 25 cents a page.
Ooookaaay. This is a threat vector we should be worried about because? Anyway, all this sensationalism leads to bogus calls for "increased security."
New York's senior senator says in the interest of national security, the US Army patent needs to be removed from the public domain immediately.
Senator Charles Schumer, New York (D): "For the FBI to be putting out an alert against Ricin and then for the Commerce Department to have this on their computer so anybody can walk in and figure out how to make it, makes the average citizen scratch their head and think, 'What the heck is going on down there in Washington?'
Rest assured Senator, the lack of the patent in the US database means that terrorists will never be able to figure out how to make ricin because even web-savvy bloggers can't get the information very easily .... ooops. Never mind.
The New York Times (reg. req.) has an interesting article on the growing "gray market" in college textbooks (Students Find $100 Textbooks Cost $50, Purchased Overseas). Apparently the exact same textbooks used by colleges in the United States are being offered for sale overseas at substantial discounts, often around 50%. Consequently, arbitrage booksellers are taking advantage of the price discrepancy, such as BookCentral.com (motto: "Brand New Textbooks, Used Prices"). The legality of this was affirmed by the Supreme Court in 1998 in Quality King Distributors, Inc. v. L'Anza Research Int'l, Inc.. The arbitrage is quite substantial:
At one prestigious university, a sophomore imported 30 biology books from England this fall and sold them outside his classroom for less than the campus-bookstore price, netting a $1,200 profit. Next semester, if all goes well, he plans to expand the operation.
We've already seen a great deal of this sort of arbitrage in the drug market, where US residents are buying drugs from Canada, for example, at prices much lower than are available in the United States. The drug importation arbitrage is based on patent law instead of copyright, but the principle is the same.
The policy arguments on behalf of the drug companies and textbooks publishers are similar, except, at least in the case of drugs, there is a quasi-plausible argument that Canadian drugs aren't quite as safe. What can you say about reimported textbooks? Essentially, the argument is that intellectual property goods cost a great deal to produce and price discrimination is necessary in order to allow the holder of the intellectual property rights to gain sufficient return.
This argument carries some weight, but what are we to do about it? Why should struggling US college students (or drug-requiring patients) be the ones to subsidize the production of such goods for students (or patients) in other countries?
Interestingly, it has been the entertainment industry that has been the most successful at foiling the gray market, through "region control" systems that are protected by the DMCA.
Slashdot has an interesting post noting that this coming Saturday would have been the third anniversary of BountyQuest, a quixotic attempt at patent reform that offered $10,000 bounties for finding prior art which would invalidate troublesome patents (Third Anniversary of Bezos-Backed Patent Reform). With the need for patent reform as important as ever and a number of major patent claims ongoing (Personalized Weather Reports, Browser Plug-Ins, Internet Filtering, etc., ad infinitum), where does patent reform stand? Where do we go from here?
