Supreme Court Affirms CAFC in Stanford v. Roche on Bayh-Dole

By Gene Quinn
June 6, 2011

This morning the United States Supreme Court issued its decision in Stanford v. Roche, a decision that has been much anticipated in the technology transfer world.  Technology transfer is the front line for the interfacing of University research and private sector commercialization, so it is no great wonder that this case captured the attention of academia and the private sector alike. At issue in the case was whether the Bayh-Dole Act automatically vested ownership of patent rights in Universities when the underlying research was federally funded.

Chief Justice Roberts delivered the opinion in a 7-2 decision.

It is not at all an exaggeration to say that Bayh-Dole is one of the most successful pieces of domestic legislation ever enacted into law. The Bayh-Dole Act, which was enacted on December 12, 1980, was revolutionary in its outside-the-box thinking, creating an entirely new way to conceptualize the innovation to marketplace cycle. It has lead to the creation of 7,000 new businesses based on the research conducted at U.S. Universities. Prior to the enactment of Bayh-Dole there was virtually no federally funded University technology licensed to the private sector, no new businesses and virtually no revolutionary University innovations making it to the public. Bayh-Dole set out to remedy this situation, and as a direct result of the passage of Bayh-Dole countless technologies have been commercialized, including many life saving cures and treatments for a variety of diseases and afflictions. In fact, the Economist in 2002 called Bayh-Dole the most inspired and successful legislation over the previous half-century. Nevertheless, the question remained, at least until this morning, whether ownership of patent rights immediately vested in the University as the result of federal funding.

In a blow to the convention wisdom of Supreme Court patent-watchers, the Supreme Court affirmed the United States Court of Appeals for the Federal Circuit.  This is unusual because the Federal Circuit is for all intents and purposes the only Federal Appellate Court to decide patent matters, so it is the normal course for the Supreme Court to take cases from the Federal Circuit to either alter the outcome or alter the methodology of the Federal Circuit that was employed to achieve the outcome.  Unlike some recent decisions where the result of the Federal Circuit was affirmed, but with a wholly new test announced, the Supreme Court simply concluded: “The judgment of the Court of Appeals for the Federal Circuit is affirmed.” Perhaps even more surprising, the Supreme Court seems to have objectively reached the correct conclusion.
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Chief Justice John Roberts, writing for the majority, was joined by 6 others (Justices Scalia, Kennedy, Thomas, Alito, Sotomayor and Kagan).  Roberts set the tone from the outset, immediately summarizing the case and the Court’s holding in the opening paragraph of the decision, which read:

Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor. The question here is whether the University and Small Business Patent Procedures Act of 1980—commonly referred to as the Bayh-Dole Act—displaces that norm and automatically vests title to federally funded inventions in federal contractors. We hold that it does not.

The Supreme Court, in affirming the Federal Circuit, would later go on to say: “The Bayh-Dole Act’s provision stating that contractors may “elect to retain title” confirms that the Act does not vest title.”

The genesis of this dispute between Stanford and Roche can be traced all the way back to 1988, but to give complete context the story should really be told beginning a few years earlier — 1985.  It was in 1985 that a small California research company called Cetus started developing methods to quantify blood-borne levels of the human immunodeficiency virus (HIV), which is the virus that causes AIDS.   Polymerase chain reaction, or PCR, which was a Nobel Prize winning technique developed at Cetus, was an integral part of the efforts to quantify levels of HIV.

It was as a result of Cetus’ early work that in 1988 they began to collaborate with scientists at Stanford University’s Department of Infectious Diseases to test the efficacy of new AIDS drugs. Dr. Mark Holodniy joined Stanford as a research fellow in the department, and when he did he signed a Copyright and Patent Agreement (CPA) stating that he agreed to assign the right, title and interest to inventions resulting from his employment to Stanford University.  This would ultimately lead to Stanford’s belief that they were the owner of the patent rights in question, which they would ultimately sue Roche for infringing.

At Stanford Holodniy undertook to develop an improved method for quantifying HIV levels in patient blood samples, using PCR.  Because Holodniy was largely unfamiliar with PCR, his supervisor arranged for him to conduct research at Cetus. As a condition of gaining access to Cetus, Holodniy signed a Visitor’s Confidentiality Agreement (VCA). That agreement stated that Holodniy would assign and did presently assign to Cetus any right, title and interest in each of the ideas, inventions and improvements made as a consequence of his access to Cetus.  Thus, Holodniy entered into two separate assignments, giving rights to both Stanford and Roche (via Cetus).  It was this duality of assignment that directly lead to the dispute requiring resolution of this novel legal question, first by the Federal Circuit and then ultimately today by the Supreme Court.

Holodniy conducted research at Cetus and worked with Cetus employees, devising a PCR-based procedure for calculating the amount of HIV in a patient’s blood. That technique allowed doctors to determine whether a patient was benefiting from HIV therapy.  He then subsequently returned to Stanford where he and other University employees tested the HIV measurement technique. Ultimately, Stanford filed several patent applications related to the procedure. Stanford secured three patents to the HIV measurement process.

In 1991, Roche Molecular Systems, a company that specializes in diagnostic blood screening, acquired Cetus’s PCR-related assets, including all rights Cetus had obtained through agreements like the VCA signed by Holodniy. After conducting clinical trials Roche commercialized the PCR procedure. Today, Roche’s HIV test kits are used in hospitals and AIDS clinics worldwide.

Believing that they owned the patent rights to the Holodniy inventions, in 2005 the Board of Trustees of Stanford University filed suit against Roche Molecular Systems, Inc., Roche Diagnostics Corporation, and Roche Diagnostics Operations, Inc. (collectively Roche), contending that Roche’s HIV test kits infringed Stanford’s patents. Roche responded by asserting that it was a co-owner of the HIV quantification procedure, based on Holodniy’s assignment of his rights in the Visitor’s Confidentiality Agreement. As a result, Roche argued, Stanford lacked standing to sue it for patent infringement. Stanford claimed that Holodniy had no rights to assign because the University’s HIV research was federally funded, giving the school superior rights in the invention under the Bayh-Dole Act.

The District Court held that Holodniy had no interest to assign and that the Bayh-Dole Act provides that the individual inventor may obtain title to a federally funded invention only after the government and the contracting party have declined to do so.

On appeal the Federal Circuit disagreed, concluding that Holodniy’s initial agreement with Stanford in the Copyright and Patent Agreement constituted a mere promise to assign rights in the future, unlike Holodniy’s agreement with Cetus in the Visitor’s Confidentiality Agreement, which itself assigned Holodniy’s rights in the invention to Cetus. As a result the Federal Circuit determined that Cetus obtained Holodniy’s rights in the HIV quantification technique through the VCA, which were then passed on to Roche through the acquisition of the Cetus assets.  further, the Federal Circuit ruled that the Bayh-Dole Act does not automatically void the inventors’ rights in government-funded inventions and that the statutory scheme did not automatically void the patent rights that Cetus received from Holodniy.  Thus, because Roche did have an ownership interest in the underlying invention they had an ownership interest in the patents acquired and could not be sued by Stanford for infringing a patent covering an invention for which they had lawfully obtained rights.

At the Supreme Court Stanford was joined by the United States as amicus curiae, which normally is extremely significant.  In the vast majority of cases where the United States sides with a party at the Supreme Court that party prevails.  That was not to happen on this occasion though.

Both Stanford and the U.S. argued that the Bayh-Dole Act reorders the normal priority of rights in an invention when the invention is conceived or first reduced to practice with the support of federal funds. In their view, the Act moves inventors from the front of the line to the back by vesting title to federally funded inventions in the inventor’s employer—the federal contractor.  In analyzing the actual language of the Bayh-Dole Act, however, the Supreme Court noted:

Such language is notably absent from the Bayh-Dole Act. Nowhere in the Act is title expressly vested in contractors or anyone else; nowhere in the Act are inventors expressly deprived of their interest in federally funded inventions. Instead, the Act provides that contractors may elect to retain title to any subject invention.

Essentially, the Supreme Court believed it to be implausible that Congress would “subtly set aside two centuries of patent law” in anything other than a clear and direct manner.  On this point the Supreme Court explained:

It would be noteworthy enough for Congress to supplant one of the fundamental precepts of patent law and deprive inventors of rights in their own inventions. To do so under such unusual terms would be truly surprising. We are confident that if Congress had intended such a sea change in intellectual property rights it would have said so clearly—not obliquely through an ambiguous definition of “subject invention” and an idiosyncratic use of the word “retain.”

In fact, taking the next step forward the Supreme Court explained that Stanford’s proposed statutory construction would “permit title to an employee’s inventions to vest in the University even if the invention was conceived before the inventor became an employee, so long as the invention’s reduction to practice was supported by federal funding.”  This was a bridge too far, and rightly so.  Invention in the United States relates back to the date of conception, not to the date of reduction of practice or to the effort required to reduce an invention to practice.  A reading of Bayh-Dole that would have allowed a University to take title whenever federal funds are used for any aspect of the invention would have been an extraordinary change to the patent laws with only the thinnest of rationals to support it.

At the end of the day the Supreme Court’s decision in Stanford v. Roche will likely be an interesting decision without much, if any, lasting consequences.  I was surprised that the Supreme Court even took this case quite frankly.  There are no lasting lessons or holdings that will come from this case.  The only lasting impact will be that now Universities need to be far more careful with respect to the agreements they have researchers sign and far more vigilant about the agreements those researchers sign when they collaborate with joint venture partners, whether the joint venture is a formal one or one that is decidedly more informal.

The Supreme Court has once and for all settled the rule that Bayh-Dole does not automatically vest title, which seems the appropriate decision.  Moving forward agreements will change and this is likely the last most will ever hear of Bayh-Dole not automatically vesting ownership.  Once issues of rights are settled like this they have a way of being traded among the parties, so what is necessary is a certain rule for everyone to comprehend.  Mission accomplished on that level for the Supreme Court.

Of course, the decision certainly impacts Stanford, and will be a warning short across the bow of all those Universities engaging in technology transfer.  Look at your agreements, verify what rights you have or will have through assignment, and if you are going to want to sue later make sure your researchers haven’t given away rights to the underlying invention at some other time.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 30 Comments comments.

  1. Gerald Barnett June 6, 2011 1:14 pm

    Folks have to understand that the present assignment deal took place before there was any federal funding. It is the deal that is binding. Later federal funding )(an agreement between the govt and Stanford) cannot simply void the private contract that Stanford allowed its employee to enter into (per consulting policy, per IP policy). Stanford could have prevented the employee from participating, could have required the employee to restructure the arrangement, or could have struck a deal directly with the company. It did none of these things.

    The upshot is: patent administrators at a lot of universities in the country who signed onto amicus briefs clearly do not know how Bayh-Dole operates and took a public position against inventors’ rights and the natural history of a whole lot of research innovation. The Supreme Court took time out to give them all a lesson.

    The unfortunate effect now, likely, will be that these same patent administrators will get advice on how to make university patent policies yet more compulsory and “air-tight”. Not much lives in “air-tight” conditions. Certainly not research innovation.

  2. Blind Dogma June 6, 2011 2:54 pm

    At the end of the day the Supreme Court’s decision in Stanford v. Roche will likely be an interesting decision without much, if any, lasting consequences. I was surprised that the Supreme Court even took this case quite frankly. There are no lasting lessons or holdings that will come from this case

    As the case had more to do with contract drafting than with actual patents, notwithstanding Stanford’s attempt at overcoming patent law, there appearas to be limited insight to be obtained from this case.

    With one limited exception.

    The anti-patent position of Breyer is once again explicated:

    But patents sometimes mean unnecessarily high prices or restricted dissemination; and they sometimes discourage further innovation and competition by requiring costly searches for earlier, related patents or by tying up ideas, which, were they free, would more effectively spur research and development. See, e.g., Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc., 548 U. S. 124, 128 (2006) (BREYER, J., dissenting 3 from dismissal of certiorari as improvidently granted); Heller & Eisenberg, Can Patents Deter Innovation? TheAnticommons in Biomedical Research, 280 Science 698 (1998).” (emphasis added)

    Evidently Breyer has drunk deeply of the Free Kool-Aid (in an analogy to Free Beer). If everything were free and abundant, than no one would go without (everyone Kum-by-yah here). Time to come back to the real world, Mr. Justice. Any time I see “anticommons,” my radar goes off for patently anti-patent rhetoric. Not only does Breyer want everything “free,” he also loses sight of the valuable impetus that a patent “blocking the path” affords – the impetus to design differently and per chance better. He ignores the fact that even while a patent has an “off-limits” aspect, the Quo is there and can be used for the betterment of Society (give me another Kum-by-Yah everyone). So, and quite to the contrary, the so called “tying up ideas” is a feature, not a bug.

    And also, let’s not forget that any of these so-called deleterious effects are merely for a limited time, after which they do, quite in fact, become “free.”

    Finally, Breyer’s rather free lance re-conceptualizing patent and contract law in order to fit his ideal world view is captured in his turn of his phrase “Given what seem only slight linguistic differences in the contractual language, this reasoning seems to make too much of too little.” – sure – why not simply hand waive away any express contract words of timing when they interfere with how a Justice wants the world to work? (And yes, that was a sentence typed dripping in sarcasm.)

    So while this decision is rather ho-hum (albeit, I would be interested in EG’s response, since he was so strongly on the side of Stanford), shining a light on the anti-patent members of the Supreme Court may be a good thing. At least we can see the Kool Aid stained lips.

  3. Steve M June 6, 2011 4:58 pm

    Blind you’re not, BD.

    Much akin to Mr. Breyer being willing to “produce” all the “creative” work he does … for free.

    Which he of course–and understandably and justifiably so–would never agree to do.

    No one should be able to take without permission or compensation the fruits of others.

    Including from inventors.

  4. EG June 6, 2011 5:02 pm

    “I would be interested in EG’s response, since he was so strongly on the side of Stanford.”

    BD,

    SCOTUS has spoken and affirmed the Federal Circuit at that, so who am I to say that my view of the statutory scheme in Bayh-Dole is the correct one? Actually, Justice Breyer (whose views in the patent area and others I generally disagree with) does have a point about the undue impact of the “technical” differences between Stanford’s assignment clause and Roche’s. But then again, all Stanford (and any other university) has to do is use Roche’s phrasing in the assignment clause and the impact of this case won’t matter.

  5. Bobby June 6, 2011 5:18 pm

    BD,
    “So, and quite to the contrary, the so called “tying up ideas” is a feature, not a bug. ”
    It is without a doubt a mixed bag, and more often than not, it’s probably a negative aspect far more often than not. Sometime having to work around a patent results in a better, product, but I’d suspect that is by far the exception, not the rule. Other times, it results in wasted research on inventing square wheels.

    Truth be told, if an alternative solution provides a significant advantage over the existing one, it would probably warrant research on its own without the barrier. If it doesn’t provide a significant advantage, then the research is wasteful or inefficient. There may be some cases where having to work around a patent happens to result in a breakthrough that nobody had any way of seeing, but those rare cases has to be weighed against the cases where research is wasted as well as the social burdens of the technically inferior winning out due to better licensing.

    If the need for workarounds to problems already solved was truly a feature, then we ought to legally prevent others from copying inventions even with the permission of the inventor, and do so on a permanent basis.

  6. UC Berkeley Grad Student June 6, 2011 8:48 pm

    One thing that hasn’t been mentioned is that, when asked about the rat’s-nest of patent agreements most researchers (like Holodny) are assaulted with, university patent staff will invariably tell the researchers “oh, just go ahead and sign it” — actively encouraging researchers to get into a situation where they have signed conflicting agreements. I’m sure that this is exactly what would have happened if Stanford’s agreement had said “I assign” instead of “I agree to assign”.

    Of course, these patent staffers will never say this in writing. Always verbally. Or, better yet, via some assistant dean or provost who can claim ignorance of the legal issues.

    This decision is going to cause a real catastrophe for the UC system’s patent regime. The whole thing is built on an obscure law which makes UC faculty “officers of the state” who, due to anti-corruption laws, can have no influence on any decision (like application for a patent) from which they might gain financially (royalties). Hence the “run it by us and we’ll decide if we want to patent it” strategy. Since it’s now clear that those sorts of agreements aren’t worth much, UC is going to have to switch to a “we own everything” agreement instead of a “you promise to give us what we ask for” agreement.

    That’s going to torpedo university-industry collaboration. There just isn’t enough lawyer-bandwidth to write all the agreements we’re going to need.

    What a clusterf*ck.

  7. UC Berkeley Grad Student June 6, 2011 8:51 pm

    To summarize, this case has done a very good thing by exposing the totally ridiculous situation researchers are in today (and the totally ridiculous off-the-record advice they’re being given).

    Unfortunately it only fixed a small portion of the ridiculosity. Which is understandable, since the court can really only rule on the case in front of it, and in this case there was a pretty obvious wording issue that mooted everything else.

    Sadly, the way in which they fixed that ridiculousity is going to drive people to create even more ridiculosity than was fixed.

    Bleh.

  8. Blind Dogma June 7, 2011 6:56 am

    If the need for workarounds to problems already solved was truly a feature, then we ought to legally prevent others from copying inventions even with the permission of the inventor, and do so on a permanent basis.

    Bobby, Yet another comment rooted in the ignorance of the Quid Pro Quo. Yet again you walk stright into a wall because your dogma blinds you from what our law is. Your antipathy towards the inventor shows here because you want to take away from the inventor the right to choose to do with his property that which he so chooses. If you had a proper apprreciation of what patent law is about, a proper appreciation for the nature of property and a proper appreciation for inventors, you would not constantly make such asinine suggestions.

  9. Bobby June 7, 2011 9:30 am

    BD,
    I’m not talking about Quid Pro Quo here or what the law says. You really need to learn to read. I’m talking about fostering innovation, and specifically addressing the silly notion you presented with a certain degree of isolation from the other elements. After all, the blocking principle doesn’t apply to those that invent something (unless someone has managed to defraud the system, anyway), but rather, to those that would otherwise copy that original invention.

    You champion “the impetus to design differently and per chance better.” I’m just saying that if that principle is true, than what I suggest, which blocks the path more, will provide a stronger impetus. I’ll acknowledge that my example isn’t sophisticated enough to take in the potentially complex nature at work here, but you must walk before you run, so I’m taking baby steps for your sake.

    The occasional ‘per chance better’ design is the silver lining to the burdensome cloud of having to invent around. Don’t try and pretend it’s anything else.

  10. Blind Dogma June 7, 2011 9:56 am

    so I’m taking baby steps for your sake.

    Downright ridiculous, coming as it is from someone who cannot even crawl with an understanding of the law and the Quid Pro Quo (which permeates the discussion here).

    You are not taking baby steps – you are sprinting – straight into the wall with your eyes closed.

    As for that “burden” you allude to – you must be having some of that same Free Kool-Aid that the good Justice Breyer has been swigging. And yes – that “burdenis a feature.

    Kum-by-Yah everyone.

  11. Gene Quinn June 7, 2011 11:40 am

    Bobby says: “Sometime having to work around a patent results in a better, product, but I’d suspect that is by far the exception, not the rule.”

    You miss the entire point of the patent system. Our patent system is to foster innovation, not to guarantee that each iteration of an invention results in a better product.

    It is undeniably true that forcing work-arounds leads to more innovation. Those who are estopped from pursuing a path need to become creative and that lurches innovation forward. So whether any particular work-around results in a better product is wholly irrelevant. Nevertheless, your view of work-arounds not resulting in better products is an inaccurate supposition backed by nothing other than your opinion.

    Bobby says: “Other times, it results in wasted research on inventing square wheels.”

    It is nearly mind-boggling that someone who professes knowledge about science, innovation and the patent system could say such a thing. Even if efforts fail that is not wasted research. As Thomas Edison is famously believed to have said, if you fail 2,000 times you haven’t really failed at all. Now you know 2,000 things that don’t work. Failure, along with appropriate documentation, is as valuable if not more valuable than success. Through failure you learn more than you ever do through success.

    -Gene

  12. Blind Dogma June 7, 2011 12:33 pm

    Gene,

    Your statement “Through failure you learn more than you ever do through success. ” is only partially true – and only fully true if only you are not willfully blind to your own failure.

    Bobby, being willfully blind, continues to fail in his positions taken here. He continues to run full speed into walls with his eyes closed. He continues to refuse to open his eyes and learn from his failures.

  13. Bobby June 7, 2011 3:42 pm

    BD,
    If the burden is a feature, then it is in and of itself desirable, and it would theoretically be beneficial to have more of it. As for your repeated mentions of Kumbayah, you should keep in mind that the intent of the founding fathers in regards was a benefit for society, and that one can advocate free culture precisely because it brings things down to cold, uninhibited competition. Patents in this light are of a similar nature to federal funding of research, but use a more indirect way of getting the funding to researchers. Really, it’s those like you and Gene that are at least nominally gathered around the campfire.

    Gene,
    “It is undeniably true that forcing work-arounds leads to more innovation. Those who are estopped from pursuing a path need to become creative and that lurches innovation forward.”
    I’m not saying that it doesn’t result in more innovation. Rather, that much of the innovation it creates is useless. For example, lots of low priority drugs receive billions of dollars each year, much of which comes from federal sources, because there is a lucrative market with an existing solution that is blocked. These drugs have little to no benefit over the existing drugs (hence being low priority), but end up consuming lots of resources that could be better spent elsewhere, and would if . Also, creativity is still needed to stand on the shoulders of giants as well.

    “So whether any particular work-around results in a better product is wholly irrelevant. Nevertheless, your view of work-arounds not resulting in better products is an inaccurate supposition backed by nothing other than your opinion.”
    I’m not saying it doesn’t result in better products. I’m saying that it generally doesn’t result in better products, and many of the cases where it does would warrant research on their own. If forcing workarounds did result in better products, then forcing workarounds would be in and of itself desirable, and my proposal would be a good one. Now, perhaps it should use a bit more nuance, since it’s not unreasonable to think that eventually, we will have all of the solutions to a particular problem, or at least the highest level of solutions that are socially desirable and aren’t cumulative. However, finding an optimal level would require a good bit of real research on the subject, and it doesn’t seem that proponents of IP are fond of guiding those policies by actual evidence.

    “Failure, along with appropriate documentation, is as valuable if not more valuable than success. Through failure you learn more than you ever do through success. ”
    Failure CAN be more valuable than success, but it doesn’t mean that it is as a general rule in the instance of resolving solved problems.

    The blocked path and exclusion in general is as a whole not desirable for society, and notion that it is seems to be a rather new. The bulk of the social value of it is that it in theory lets inventors recoup their costs, although falling upon that idea would mean that the guiding principle of our policy would be having inventors recoup just enough to make it worthwhile and not any more than that. The minute quantities of success in overcoming adversity don’t change the fact that it is adversity. We know that some people take the adversity they face, be it poverty, war, oppression, prejudice, etc., and make lemonade with it, but we don’t think that the adversity itself is desirable because we know that many are harmed by these things, and may harm society themselves. Blocking via patents is adversity. If patent proponents need to retcon their logic to milk every conceivable benefit out of it, then perhaps their stance is rather weak.

  14. Blind Dogma June 7, 2011 4:47 pm

    it would theoretically be beneficial to have more of it.

    I guess that you never heard of the phrase, “Too much of a good thing,” or the phrase “Everything in moderation,” eh Bobby? Anything, taken to extreme, is, well… extreme.

    Rather, that much of the innovation it creates is useless

    Another boggles-the-mind-farm-policy type of statement.

    One never knows how the strands of even “worthless” inventions weave the tapistry of the future. It is downright reckless, even dangerous to think that one can a priori determine what will be valuable from what will not be. That is why the patent schema is meant to be wide and welcoming, rather than the anti-patent forces view of narrow and limiting.

    The blocked path and exclusion in general is as a whole not desirable for society

    Bobby: ZERO credibility with that statement – an absolute vacuum. One only has to briefly remind you of yet another of your failed posts regarding the fact that society more than evidently proves you wrong in that today – now – right now – there is NO advanced society without a patent system (and rather than rehash the argument you failed at already, just go back and learn – if you dare – if you can.

  15. Bobby June 7, 2011 5:44 pm

    “guess that you never heard of the phrase, “Too much of a good thing,” or the phrase “Everything in moderation,” eh Bobby? Anything, taken to extreme, is, well… extreme.”
    I addressed that to some extent, but that means you must acknowledge that too much blocking is bad. We should try and evaluate how much blocking is ideal before we say that the patent system is beneficial in that regard. However, we might find that the current level of blocking is, at least by itself, too much to be ideal.

    “Another boggles-the-mind-farm-policy type of statement.”
    Since you seem so intent on bringing this up over and over again, I’ll address it in greater detail. Paying farmers not to farm hopefully accomplished two different goals: preventing further erosion from overfarming the land, and helping farmers keep their farms in tough economic times. Both of those result in greater amount of food being available to the public in the long view. However, that specific element wasn’t even the point at hand, something you tend to miss over and over again, likely because derailing arguments is easier than presenting valid points.

    “One never knows how the strands of even “worthless” inventions weave the tapistry of the future. It is downright reckless, even dangerous to think that one can a priori determine what will be valuable from what will not be. That is why the patent schema is meant to be wide and welcoming, rather than the anti-patent forces view of narrow and limiting.”
    What individual inventions are useful and what are not is not readily apparent. However, we can look at things as a whole and determine what works and what doesn’t. The notion that, as a whole, forcing competitors to come up with an alternate solution when a satisfactory solution exists is worth the costs this forcing incurs doesn’t have any real backing to it.

    “Bobby: ZERO credibility with that statement – an absolute vacuum.”
    You’ve already acknowledged that you perceive a Kumbayah element of free culture, which suggests that there is a widely held view that if we could, it would be preferable to do so, but reality says we are better off with patents. The patent monopoly is at best a necessary evil, which is exactly what I described. Patents are perceived as the social costs for fostering innovation, and if we could get the same amounts of innovation without those costs (and without other comparable costs), we should do so.

    “One only has to briefly remind you of yet another of your failed posts regarding the fact that society more than evidently proves you wrong in that today – now – right now – there is NO advanced society without a patent system (and rather than rehash the argument you failed at already, just go back and learn – if you dare – if you can.”
    Your argument neglects that countries with patent systems often force patent system on other countries. There are no advanced societies today without life of the author+ copyright terms, but that isn’t evidence that such terms are needed or even useful for creative works. That’s one of the biggest concern about IP laws: they don’t play well with others or respect their sovereignty.

    Also, you still haven’t addressed my concern from the previous “failure” of whether European countries should attempt to force the US to amend its Constitution to protect databases.

  16. Blind Dogma June 8, 2011 7:50 am

    I’ll address it in greater detail.

    I am not interested in your greater detail here, as the problem with your posting on this subject was explicated well enough and your propensity to be purposefully blind on any subject was well shown.

    You taking the time now to try to re-spin what you already have said is of no merit. As for presenting valid points – you have not done this at all. Valid points do not come from imaginary castles built on the shifting sands of kitty litter.

    Take another swig of the Kool-Aid. and get back to running into walls full steam ahead.

  17. Bobby June 8, 2011 8:24 am

    I saw it as a minor point in the past not worth quibbling over any longer, but since you won’t let it go, I decided to elaborate so you might shut up about it. But it’s quite clear you can’t actually give a real reply to anything I’ve said, and can only put your finger in your ears about my response to an ancient point that wasn’t relevant to even the original conversation. That’s good to know.

  18. Gene Quinn June 8, 2011 12:44 pm

    Bobby says: “For example, lots of low priority drugs receive billions of dollars each year, much of which comes from federal sources, because there is a lucrative market with an existing solution that is blocked. These drugs have little to no benefit over the existing drugs (hence being low priority), but end up consuming lots of resources that could be better spent elsewhere…”

    That is what you get when international agreements (i.e., TRIPS) allows countries to ignore patent rights for drugs that save lives. The drug companies spend their time and money on lifestyle drugs that bring in huge rewards and cannot be ripped out intentionally under TRIPS. So it is the absence of solid patent rights that leads to the problem you identify.

    Bobby says: “it doesn’t seem that proponents of IP are fond of guiding those policies by actual evidence.”

    That is laugh out loud funny coming from someone who never provides evidence for anything and continues to engage in speculation even absent any evidence.

    Bobby says: “The blocked path and exclusion in general is as a whole not desirable for society, and notion that it is seems to be a rather new. ”

    Evidence please! This is not a correct statement for many reasons, so I am asking for you to back this statement up with proof.

  19. Gene Quinn June 8, 2011 12:47 pm

    BD-

    Re: point on failure… point taken! To learn from failure you have to actually have an open mind and be willing to be guided what is correct. If what is objectively correct is not the ultimate goal then failure becomes identified with entrenchment.

    -Gene

  20. Bobby June 8, 2011 3:08 pm

    Gene,
    “That is what you get when international agreements (i.e., TRIPS) allows countries to ignore patent rights for drugs that save lives. The drug companies spend their time and money on lifestyle drugs that bring in huge rewards and cannot be ripped out intentionally under TRIPS. So it is the absence of solid patent rights that leads to the problem you identify.”
    The profits that one could legally extract from say, India, with patents just as strong as the US has probably don’t matter that much to the bottom line, both in lifesaving drugs and in lifestyle drugs. And absent countries with established industries putting international pressure on these countries, they would likely have no protection at all for any drugs in these countries.

    “That is laugh out loud funny coming from someone who never provides evidence for anything and continues to engage in speculation even absent any evidence.”
    I’ve cited evidence on quite a few occasions. For example, I recently linked to an independent study on piracy (I linked to a summary at first, which had you rather upset) that said there was no systematic link between piracy and organized crime, and that study had much better methodology than the industry backed numbers, which are largely just citing existing numbers that cited existing numbers.

    “Evidence please! This is not a correct statement for many reasons, so I am asking for you to back this statement up with proof.”
    The harm of blocking is self evident. Being able to use X, Y, and Z in your invention gives you more options than not being able to, and if the best solution involves their usage, than you will either have to license the patents for them (if you can) or devise an inferior method. The benefits of blocking you speak of are much more difficult to lock down, and it’s not even a simple matter to even separate the ideas that would happen with blocking from the ideas that would happen. The benefits, and the evidence that they outweigh the costs is what needs positive proof, and the best I’ve seen presented is a handful of anecdotal evidence.

    Furthermore, this notion of benefit by blocking seems to be a fairly recent idea, or at least it’s fairly recent in having any popularity, and is absent from most of the arguments I can find that aren’t on your site or on sites with similar demographics. It doesn’t seem that those that established either the British or US patent systems had considered that point, so that factor being a net benefit would be very lucky on their part.

  21. Gene Quinn June 8, 2011 3:32 pm

    Bobby writes: “The profits that one could legally extract from say, India, with patents just as strong as the US has probably don’t matter that much to the bottom line, both in lifesaving drugs and in lifestyle drugs.”

    Does the phrase “black market” mean anything to you? Do you really think the countries run by dictators take life saving drugs to give to their people?

    Further… I asked Bobby for evidence and his response is his: “The harm of blocking is self evident.” Thanks for the admission that you have no evidence to back up your erroneous and naive claims.

    -Gene

  22. Blind Dogma June 8, 2011 4:52 pm

    An observation of Bobby, with eyes closed:

    BAM, there’s that wall.

    BAM, there’s that wall.

    BAM, there’s that wall.

    (repeat as long as Bobby continues his current posting methodology).

  23. Bobby June 8, 2011 5:09 pm

    “Does the phrase “black market” mean anything to you? Do you really think the countries run by dictators take life saving drugs to give to their people? ”
    India was the given example, and it isn’t generally regarded as a dictatorship. I also don’t see how it’s relevant. The concern you brought up was profit. The people of the countries that have exceptions in TRIPS couldn’t afford the drugs at the rates we pay, at least not in significant numbers. Asking to remove these exceptions (which as far as I’m aware, aren’t that extensive anyway, although I welcome further resources on the subject) is asking to let many people die for a pittance, perhaps one so small it’s basically a rounding error in the grand scheme of things. How do you contend that money that isn’t going to be made in either lifestyle or lifesaving drugs regardless of the level of patent protection greatly affects the direction of drugs?

    “Further… I asked Bobby for evidence and his response is his: “The harm of blocking is self evident.” Thanks for the admission that you have no evidence to back up your erroneous and naive claims.”
    There are examples both new and old. James Watt was blocked others and was blocked by others. From the footnotes of Against Intellectual Monopoly
    “Some details of Hornblower’s invention may be of interest. It was patented in 1781 and consisted of a steam engine with two cylinders, significantly more efficient than the Boulton and Watt design. Boulton and Watt challenged his invention, claiming infringement of their patent because Hornblower engine used a separate condenser, and won. With the 1799 judicial decision against him, Hornblower had to pay Boulton and Watt a substantial amount of money for past royalties, while losing all opportunities to further develop the compound engine. His compound steam engine principle was not revived until 1804 by Arthur Woolf. It became one of the main ingredients in the efficiency explosion that followed the expiration of Boulton and Watt’s patent.”
    As for newer examples, one I’m somewhat familiar with is the field of audio and video codecs. The FOSS community has done quite well in that market despite often operating in a legal gray area. Ogg vorbis is a competitive format, that is close to the quality of AAC, with superiority generally seen as depending on the encoder and bitrate. However, they’ve had to maneuver around a few existing methods, and if they could utilize a few of those, vorbis would be in an even stronger position. The video market has been less successful, at least in regards to FOSS formats. Theora suffered quite a few technical difficulties, and VP8 had similar drawbacks, despite Google spending a rather large sum of money just to have a royalty free codec available. But even with that, there are still legal threats from patent holders. MPEG-LA and others associated with them have said things as close to “You can’t have a remotely modern video codec without infringing on our members’ patents” as they could without directly saying that, as doing so would lead to antitrust hearings.
    However, x264, an implementation of the h.264 specification, is a good implementation that has itself been innovative, and the legal environment in which they operate is more permissive than the US. There was even a bit of controversy in that a technique they appear to be the first to invent was used in a patent application by someone else.

    BD,
    Have you opened your eyes on my statement about modern societies and copyright terms, which mirrors your claim about patents and modern societies? How about whether or not European countries would be just forcing us to amend our constitution to protect databases?

  24. Gene Quinn June 8, 2011 5:20 pm

    Bobby-

    Just want to point out that I ask for evidence and you have to go all the way back to the 18th century. You should have just conceded the point really.

    You say the FOSS community is doing pretty well. Really? Decades into this experiment and there are no viable business models? The industry is constantly searching for a business model that will succeed and you think it is an industry that is doing well? WOW!

    Obviously you don’t believe everything you read, even those things that are objectively correct, but yet you site the overblown statements of those who seek to misuse their patents as proof. Sometimes I wonder whether you are really a joke. It seems like you just like to make ridiculous statements for the purpose of trying to get us to react.

    -Gene

  25. Bobby June 8, 2011 5:50 pm

    Gene,
    “Just want to point out that I ask for evidence and you have to go all the way back to the 18th century. You should have just conceded the point really.”
    It was a good example, and I pointed out that we had old examples of it. I also mentioned a modern example. If you wish to have more examples of various problems with the patent system. I highly recommend the Against Intellectual Monopoly book, as they make the arguments in a professional context, and have the time to be very thorough (and they’ve got more examples than I could dare post). It’s very well written, and if you can get over the fact that slashdotters have had some kind of role in it’s conception (which BD apparently can’t), it’s quite a good read, and is laden with examples.

    “You say the FOSS community is doing pretty well. Really? Decades into this experiment and there are no viable business models?”
    Specifically, in regards to codec quality. LAME is generally regarded as the best mp3 codec, libvorbis is widely used in gps, games, and other uses, and x264 is by most standards the best h.264 encoder. That said, there are quite a few viable models for FOSS development. They won’t allow you to become as big as Microsoft (as if that is something we really want), but that doesn’t mean there aren’t viable models. The difference is that the same business model that proprietary software companies use isn’t viable on the same scale with FOSS.

    “Sometimes I wonder whether you are really a joke. It seems like you just like to make ridiculous statements for the purpose of trying to get us to react.”
    There can be fun in getting a reaction, but I am generally not joking. Your statement just a minute ago about black markets was more of a reaction getter IMO, as you still haven’t explained any kind of relevance to profitability. The ‘outrageous statement’ that I made here basically boils down to ‘tying an inventor’s hands doesn’t foster invention as a whole.’ While I’m not a big fan of Edison, he did occasionally have pearls of wisdom, such as “Hell, there are no rules here – we’re trying to accomplish something.” That notion would seem to concur that applying rules to what an inventor can and can’t do gets in the way of accomplishment.

    I don’t even see why you and BD are so concerned with this point anyway. The notion you bring up doesn’t appear to have been used in the early justifications for patents, so it seems the only reason you would feel add a new reason would be because the old reason no longer stands up on its own or because you wish to justify even more of a power grab.

  26. patent enforcement June 13, 2011 5:23 pm

    This case underscores the vast differences between copyright and patent law; particularly considering the federal-funding angle, I somewhat expected the Court to rule in favor of the employer. Anyway, this patent litigation should serve as a lesson (especially to universities) that it’s not always enough to reduce agreements to writing; you also have to make sure that such agreements are legally airtight.
    http://www.youtube.com/watch?v=YZT-WQI3SfI