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THE REASON BEHIND THE NEXT WORLD WAR? PATENTS!

patented

patented

The Indian government has successfully challenged the US patenting of turmeric–a standard ingredient of grandma’s remedies in India for centuries–leading to the cancellation of the patent. A patent is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention. An invention is a solution to a specific technological problem and is a product or a process. Patents are a form of intellectual property. The procedure for granting patents, requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a granted patent application must include one or more claims that define the invention. A patent may include many claims, each of which defines a specific property right. These claims must meet relevant patentability requirements, such as novelty, usefulness, and non-obviousness. The exclusive right granted to a patentee in most countries is the right to prevent others, or at least to try to prevent others, from commercially making, using, selling, importing, or distributing a patented invention without permission. Under the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights, patents should be available in WTO member states for any invention, in all fields of technology, and the term of protection available should be a minimum of twenty years. Nevertheless, there are variations on what could be a patentable subject matter from country to country.

In 1995, two expatriate Indians at the University of Mississippi Medical Centre were granted U.S. Patent 5,401,504 on the Use of Turmeric in Wound Healing. The claim covered “a method of promoting healing of a wound by administering turmeric to a patient afflicted with wound”. This patent also granted them the exclusive right to sell and distribute turmeric. Initially, this news was a disbelief and surprise by many people in India. In India, the turmeric has been “a classic grandmother’s remedy”, applied to cuts of children as an anti-parasitic agent, used as a blood purifier and in treating the common cold for generations. It is also used as an essential ingredient in many Indian dishes. It is part of our traditional knowledge. So, the question was how could someone get an exclusive right to sell and distribute turmeric? In 1996, The Council of Scientific & Industrial Research (CSIR), India, New Delhi requested the US Patent and Trademarks Office (USPTO) to revoke the patent on the grounds of existing of prior art. CSIR did not succeed in providing that many Indians already use turmeric for wound healing although turmeric was known to every Indian household for ages. Fortunately, it could provide documentary evidence of traditional knowledge including ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association. The patent was revoked in 1997, after ascertaining that there was no novelty.

Legal scholars, economists, activists, policymakers, industries, and trade organizations have held differing views on patents and engaged in contentious debates on the subject. Critical perspectives emerged in the nineteenth century that was especially based on the principles of free trade. Contemporary criticisms have echoed through those arguments, claiming that patents block innovation and waste resources (e.g. with patent-related overheads) that could otherwise be used productively to improve technology. These and other research findings that patenting decreased innovation because of the following mechanisms:

  • Low quality, already known or obvious patents hamper innovation and commercialization.
  • Blocking the use of fundamental knowledge with patents creates a “tragedy of the anti-commons, where future innovations cannot take place outside of a single firm in an entire field.
  • Patents weaken the public domain and innovation that comes from it.
  • Patent thickets, or an “an overlapping set of patent rights”, in particular, slow innovation.
  • Broad patents prevent companies from commercializing products and hurt innovation. In the worst case, such broad patents are held by non-practicing entities (patent trolls), which do not contribute to innovation. Enforcement by patent trolls of poor quality patents has led to criticism of the patent office as well as the system itself. For example, in 2011, United States business entities incurred $29 billion in direct costs because of patent trolls. Lawsuits brought by “patent assertion companies” made up 61% of all patent cases in 2012, according to the Santa Clara University School of Law.
  • Patents apply a “one size fits all” model to industries with differing needs that are especially unproductive for the software industry.
  • Rent seeking by owners of pharmaceutical patents has also been a particular focus of criticism, as the high prices they enable puts life-saving drugs out of reach of many people.

A few anti-patent initiatives are as follows:

  • The Patent Busting Project is an Electronic Frontier Foundation (EFF) initiative challenging patents that the organization claims are illegitimate and suppress innovation or limit online expression. The initiative launched in 2004 and involves two phases: documenting the damage caused by these patents and submitting challenges to the United States Patent and Trademark Office (USPTO).
  • Patent critic, Joseph E. Stiglitz has proposed Prizes as an alternative to patents in order to further advance solutions to global problems such as AIDS.
  • In 2012, Stack Exchange launched Ask Patents, a forum for crowdsourcing prior art to invalidate patents.
  • Several authors have argued for developing defensive prior art to prevent patenting based on obviousness using lists or algorithms. For example, a Professor of Law at the University of North Carolina has demonstrated a method to protect DNA research, which could apply to other technology. Chin wrote an algorithm to generate 11 million “obvious” nucleotide sequences to count as prior art and his algorithmic approach has already proven effective at anticipating prior art against oligonucleotide composition claims filed since his publication of the list and has been cited by the U.S. patent office a number of times. More recently, Joshua Pearce developed an open-source algorithm for identifying prior art for 3-D printing materials to make such materials obvious by patent standards. As the 3-D printing community is already grappling with legal issues, this development was hotly debated in the technical press. China made the same algorithm-based obvious argument in DNA probes.
  • Google and other technology companies founded the LOT Network in 2014 to combat patent assertion entities by cross-licensing patents, thereby preventing legal action by such entities.

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