This post was originally published in August of 2016 on another platform:
I recently listened to a TED Talk. It was about how some companies had patented portions of the human genome. This sort of patenting had been going on for more than 25 years. Sadly, real people in the US Patent office somehow decided that the patent application in question had merit. The ACLU pursued a law suit that eventually went to the Supreme Court. The decision came unanimous that although a company could patent a process to isolate specific gene fragments, it could not patent portions of the genome itself. The base argument is that the human genome is a part of nature and no person is able to create it. Much like a mineral, you can do something to use it, or modify it, that is original, but you can't make it.
What made this important was that companies would patent an isolated gene, then charge licensing rights to medical practitioners isolating and examining these genes in order to diagnose patient conditions to know how to treat them. Even worse, once a company had patented the isolated gene, they would sometimes stop advancing the study of the gene themselves. By charging large fees to allow others to study the gene, and by not furthering the study themselves, they were in effect stopping medical advancement related to the specific gene in question. As a result, real people went undiagnosed and untreated.
These companies who were attempting to profit from ownership of a human gene remind me of people or companies dubbed "patent trolls." The classic example is a person who digs into someone else's technology, modifies it slightly, files a patent, then waits for someone to use the change so they can pounce with a lawsuit. The patent troll never actually creates anything of value with their supposed idea. Their only intent is to sue and make money.
I experienced this once while working in Nebraska. In preparation for the conversion to digital television we had been able to modify our work flow by using some new technology then available. Our effort got some attention in the trade publications of the day, including an interview of one of our engineers. During the interview he mentioned the specific equipment models we were using. About a month later I got a legal letter in the mail ordering us to cease-and-desist all activity using one specific piece of equipment. Supposedly, the equipment in question was using technology that had been patented by the author of the letter. The manufacturer was claimed to have had no right to sell the equipment because they had not paid him a license fee. The letter also told us we even had to delete all content that had passed through this equipment and that they might consider suing us for the value of the money we received from underwriters from any programming that had passed through the equipment.
I was shocked. Don't get me wrong. If a manufacturer uses someone else's intellectual property, then they should pay for the value of that intellectual property. That said, even if this guy had a leg to stand on in his pursuit of the equipment manufacturer, why was he targeting us as a user of the equipment? After engaging an attorney with experience in patent law, we learned that even if we had not created the equipment, just using it made us liable. Through our respective lawyers, we agreed to not use the one specific piece of equipment anymore and he agreed not to ask for any money or rights to the content.
Why did he go after us? Because we immediately complained to the equipment vendor who was unwilling to defend us and had no legal opinion from a court that they could point to that supported their rights. In short, the troll chased us to get to the manufacturer. In our case it worked. Because the vendor would not defend us and only gave us a credit for the now unusable equipment after lots of complaints by us, we banned purchasing any more equipment from that manufacturer for years. That wasn't just our idea at our little organization. Remember, at the time we made our major purchases through the State of Nebraska procurement office and our primary lawyer was the state Attorney General.
I'm not sure if there is a specific lesson here for my current position other than to consider multiple design alternatives in case our primary plan suddenly becomes unusable for whatever reason.
I recently listened to a TED Talk. It was about how some companies had patented portions of the human genome. This sort of patenting had been going on for more than 25 years. Sadly, real people in the US Patent office somehow decided that the patent application in question had merit. The ACLU pursued a law suit that eventually went to the Supreme Court. The decision came unanimous that although a company could patent a process to isolate specific gene fragments, it could not patent portions of the genome itself. The base argument is that the human genome is a part of nature and no person is able to create it. Much like a mineral, you can do something to use it, or modify it, that is original, but you can't make it.
What made this important was that companies would patent an isolated gene, then charge licensing rights to medical practitioners isolating and examining these genes in order to diagnose patient conditions to know how to treat them. Even worse, once a company had patented the isolated gene, they would sometimes stop advancing the study of the gene themselves. By charging large fees to allow others to study the gene, and by not furthering the study themselves, they were in effect stopping medical advancement related to the specific gene in question. As a result, real people went undiagnosed and untreated.
These companies who were attempting to profit from ownership of a human gene remind me of people or companies dubbed "patent trolls." The classic example is a person who digs into someone else's technology, modifies it slightly, files a patent, then waits for someone to use the change so they can pounce with a lawsuit. The patent troll never actually creates anything of value with their supposed idea. Their only intent is to sue and make money.
I experienced this once while working in Nebraska. In preparation for the conversion to digital television we had been able to modify our work flow by using some new technology then available. Our effort got some attention in the trade publications of the day, including an interview of one of our engineers. During the interview he mentioned the specific equipment models we were using. About a month later I got a legal letter in the mail ordering us to cease-and-desist all activity using one specific piece of equipment. Supposedly, the equipment in question was using technology that had been patented by the author of the letter. The manufacturer was claimed to have had no right to sell the equipment because they had not paid him a license fee. The letter also told us we even had to delete all content that had passed through this equipment and that they might consider suing us for the value of the money we received from underwriters from any programming that had passed through the equipment.
I was shocked. Don't get me wrong. If a manufacturer uses someone else's intellectual property, then they should pay for the value of that intellectual property. That said, even if this guy had a leg to stand on in his pursuit of the equipment manufacturer, why was he targeting us as a user of the equipment? After engaging an attorney with experience in patent law, we learned that even if we had not created the equipment, just using it made us liable. Through our respective lawyers, we agreed to not use the one specific piece of equipment anymore and he agreed not to ask for any money or rights to the content.
Why did he go after us? Because we immediately complained to the equipment vendor who was unwilling to defend us and had no legal opinion from a court that they could point to that supported their rights. In short, the troll chased us to get to the manufacturer. In our case it worked. Because the vendor would not defend us and only gave us a credit for the now unusable equipment after lots of complaints by us, we banned purchasing any more equipment from that manufacturer for years. That wasn't just our idea at our little organization. Remember, at the time we made our major purchases through the State of Nebraska procurement office and our primary lawyer was the state Attorney General.
I'm not sure if there is a specific lesson here for my current position other than to consider multiple design alternatives in case our primary plan suddenly becomes unusable for whatever reason.
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