THE PROBLEM WITH PATENTS REVISITED

Bert Gold bgold at itsa.ucsf.edu
Tue Apr 9 06:29:51 EST 1996


On Mon, 8 Apr 1996, Jack H. Pincus wrote:

> Your posts indicate you understand nothing about patent law or patenting 
> and insist on whining to promote your personal agenda.  You are also 
> blissfully unaware of several pertinent facts about corporate 
> inventions.
> 
Mr. Pincus, you are VERY PRESUMPTUOUS!!  Your 'facts' indicate
an agenda which reflects making America a safe place for large
corporations, widespread corporate greed and dishonest lawyers.

You would clearly make a good addition to OJ's new defense team.
Being an officer of the court apparently has no meaning to you insofar
as civic honesty is concerned.  Let us examine your 'facts'.

> The facts are:
> 
> 1.  Under US Patent Law ONLY inventor can apply for a patent.  
> Corporations CANNOT apply for a patent.  Inventors must sign an oath 
> that they are the true inventors of one or more claims.  Falsely signing 
> that oath can be grounds for a court striking the patent so true 
> inventorship is not a trivial matter.
>
Corporations, universities, institutes and the federal government
routinely compel every scientist working for them to assign all
patents, invented using their resources or not, during their
time of employ, to those institutions. These contract clauses 
generally live 'forever' and have a life far beyond the life of
employment.  Companies routinely choose not to employ scientists
previously employed by institutions where they may have had
patents granted.  As to honesty concerning authorship, Monsanto 
has many times 'chosen' as one of the  'inventor', department heads only
peripherally aware of the mechanism of the invention.  Robert Horsch's
name upon the glyphosate gene resistant transgenic plant patent comes
to mind.
> 
> 2.  Individual inventors can and do still file for patents to protect 
> their inventions.  More experienced inventors often prosecute their 
> inventions without the aid of a lawyer.  For those who cannot, it si 
> sometimes possible to work out a payment arrangement with an attorney.
> 
Sir, this is the most preposterous misconstruction of the entire
system which I have ever seen:  You should be ashamed of yourself
for suggesting it!

Patents are, as you well know, nothing more than a sanction for 
standing to sue others for infringement.  If you don't have significant
financial resources, you cannot sue.  No attorney will take a patent
case on a 'contingency' basis, and there is no way to compel such
an arrangement.  You have neither been honest nor forthcoming in
the statement above.

> 3.  Individual inventors can and do license their inventions.  One 
> succesful one that comes to mind is a device for regulated ignition that 
> is licensed to every auto company for $1.00 per car.  The inventor is a 
> garage inventor in Detroit.

I am not familiar with this particular invention.  I am however, aware
of a case in which a Detroit inventor had to fight each auto company
nearly 20 years in order for his 'individual' patent on winshield
wipers to be respected.  It was a landmark case and threw him into
personal and financial ruin.  Perhaps you are 'Wall Street sorry'
(Edison's phrase).

>  Their are many successful individual 
> inventors in the medical device field.

Occasionally surgeons invent methods and devices which they then
promote and patent.  Some have the money to defend these in court.
In the end, these often end up 'hurting us' more than helping us,
as they prohibit other doctors from using these techniques without
paying a significant royalty.  The case of radial keratotomy comes
to mind...

> 
> 4.  Inventors can assign their invention to a a person or corporation.  
Most are forced to; read above.

> Companys hire researchers to invent, provide them with equipment, 
> laboratory space, assistants, reagents, a salary, and beneifts.  In 
> exchange for that, companies require that the inventor assign all 
> inventions to them. In this situation, corporations take all the risk 
> and pay for those experiments that fail. 

Labor risk and intellectural risk and time risk are widely misunderstood
by those who value ONLY capitol risk.  Most inventors in corporations
cannot get all their intellectual and/or tool needs met within those
corporations and often spend their own funds to meet those needs.
Even those clear 'capitol' risks are contractually mitigated by
employment agreements, signed upon entry, which prohibit employees
from laying claim to their inventions.

I know one MD who quarreled over this issue with his hospital employer
for months, before deciding he could finally work for them, if only
he could get copyrighted software written by him, in his off hours,
in his own home, contractually excluded from his invention agreement.
He was successful in his legal effort, but it required significant
financial staying power for him to prevail.

> The inventor assumes no risk 
> the way Edison or Ford did.

After a relatively short period in each of these inventors' lives,
they assumed no risk either.  Names of 'muckers' as Edison called them,
responsible for his more than 2000 patents' appeared on few.  After
his second marriage, Edison apparently felt they did not deserve to
be particularly well rewarded financially, either, and when one of
the many  companies he ran went down the financial tubes, along
with it oftimes did the muckers who worked for him there.

Ford is a case apart:  His unparalleled anti-union vehemence is
well chronicled in David Halberstam's 'The Reckoning'.  I shall not
repeat Ford's well documented use of mob tactics to control his
workers here:  But I will say that honoring inventors is clearly
not something Ford was concerned with.

> 5.  Although corporate inventors may not directly get a share of the 
> profits from an invention, they are frequently rewarded with bonuses, 
> raises, promotions, and sometimes stock options.  If they receive stock 
> options they are indirectly sharing in the profits of their inventions.

My friend who has 12 biotech. patents DID receive stock options as
a reward for his fine work for that Company.  These options make a 
lovely wallpaper for his downstairs bathroom.

> 
> 6.  Whether somone can be a garage inventor is largely dicated by the 
> requirements of the field.  It is relatively easy for individual 
> inventors to exist who develop mechanical or electronic inventions.  
> Contrary to your statment, there are many that of these. Being an 
> individual inventor in chemistry and biology is more difficult.  It is 
> beyond most people's means to set up a molecular biology laboratory in 
> their basement, and it is not practical.  Some types of science can only 
> be practiced in institutional settings.  That is the problem.  Not the 
> patent system.

In short, the system is corrupt.  You are a good example of staunch
supporter who would have us believe that Ralph Nader did nothing
good to influence the auto industry AND that 'electric cars' 
would be available if the marketplace demanded it.

America is being run by an oligarchy of monopoly capitalists and
their supporters who do not understand what it takes to improve life
for the many, and frankly don't care, so long as their limousine
is washed inexpensively and their children are well cared for,
at low cost, preferably by english speaking caretakers, and that
their houses are able to be cleaned and gardens tended in the
style to which they have become accustomed.

So hard to get good help these days, isn't it, Jack?

> 
> Jack H. Pincus
> jhpincus at cris.com
> 
> 

 Bert Gold, Ph.D.                         "If only we stay with that principle
 University of California, San Francisco   which counsels us always to hold
 School of Medicine                        to the difficult, then that which
 Department of Pediatrics                  now seems to us most foreign, will 
 Program in Medical Genetics               become what we most trust and
 (415) 476-2850                            find most faithful." - R.M. Rilke







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