Patently-O Bits and Bytes by Juvan Bonni

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47 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

  1. 3

    “But with former Google lawyer Renata B. Hesse now the reported front-runner to head the Biden Justice Department’s antitrust division, we can afford to be silent no more.” I would call my prediction prophetic, but it’s such an obvious call, maybe not so much. Read the whole thing. link to spectator.org

  2. 2

    The article about C 19 vaccine patents I find much more worthwhile to discuss. Here in Europe, the UK stole a march over the EU Commission procurement team by ignoring issues of liability if the vaccine harms anybody. The Commission obsessed about it and so ended up with virtually no vaccine supply. Silly! More harm is done by the delay than any plausible risk from the vaccine itself.

    The UK has always had a provision in its patent statute that allows the State to procure equipment for defence purposes, regardless of any extant patent rights covering it. Instead, the State is obligated to pay the patent owner, afterwards, reasonable compensation, the courts to determine what is reasonable.

    With C 19 vaccines, if I were Head of State, I would invoke those provisions. Why can’t every other country?

    Mind you, it’s not much help if there simply isn’t any more any vaccine available to buy. How long would it take, say, India, to tool up and create its own vaccine supply for sale to all those countries who can’t get their supplies on reasonable terms from China or Russia.

    Every citizen of the USA has a personal interest in seeing everybody all over the world get vaccinated. For the British to suppose they are now saved by the UK’s vaccination programme is a delusion. We should all be doing all we can to ensure that the vaccine gets used, all over the world.

    1. 2.1

      Silly! More harm is done by the delay than any plausible risk from the vaccine itself.

      Beyond reckless and inte11ectually indefensible.

      This type of blind “but it’s science” is the stuff of many dystopian nightmares.

      1. 2.1.1

        I’m talking about delay at the EU Commission in Belgium, AFTER Stage III clinical trials had established an effectiveness of >90%, in signing a contract with A-Z to supply its proven vaccine to the EU.

        What are you talking about?

        1. 2.1.1.1

          by ignoring issues of liability if the vaccine harms anybody.

          1. 2.1.1.1.1

            Oh, I see. OK, come on then. tell me. Which approach served the people better then? The UK government set issues of liability aside, piled in and got the vaccine. By now 18% of England’s population is vaccinated with the A-Z product.

            Meanwhile, the EU Commission spent 3 months negotiating with A-Z to ensure that all liability was carried by A-Z. Here in Germany, only about 2% have received a vaccine and most of that is the Pfizer product.

            Which population thinks its government did a good job, and which thinks it did a s**t job?

            1. 2.1.1.1.1.1

              Come on man,…

    2. 2.2

      Read this blog post (link to blogs.sciencemag.org) from Science Magazine, Max. Talk of suspending these patents is just beside the point. Patents are not the rate limiting choke point for this problem.

      1. 2.2.1

        Well indeed, Greg. He is writing exclusively about mRNA vaccine, isn’t he? Such production is something only a very few locations can carry off. I do understand that. But what about the more conventional vaccines, such as that from Astra-Zeneca and the others? The UK has vaccinated 15% of its population with the A-Z product, mainland Europe more or less nil. But only because none of it is being made available by A-Z.

        1. 2.2.1.1

          But only because none of it is being made available by A-Z.

          And you want to blame the government….?

          1. 2.2.1.1.1

            Why is none of it being made available? I just told you. Because the EU declines to give A-Z a waiver of liability. No waiver? OK, no vaccine for you, mate.

            Otherwise in the UK, which just volunteered its populace for the biggest Stage III clinical trial ever.

            Which government deserves more blame? The one that absolved A-Z of any liability? Or the one that tries to hold A-Z to its liability, if the vaccine turns out to be a killer?

            1. 2.2.1.1.1.1

              That does not sound like the government is making the decision — it sounds like the Corporation wants it cake and to eat it to (reward without risk — mighty mighty nice)

              1. 2.2.1.1.1.1.1

                What corporation doesn’t run on cake-ism, what public body, what private person. Everybody wants to have their cake and eat it too. It’s a basic human instinct. We hall have to recognise it and cope with it. If you criticise it, you might just as well criticise a fellow human being for being a bio-hazard.

                What would you have done, as Head of State, last autumn, when offered the vaccine by Astra-Zeneca? Give A-Z the waiver, or not? If not, how about invoking the compulsory licence provisions of patent law. What would your voters expect of you?

                1. From your reply, do you espouse limitless “cake-ism?”

                  For if you DO – then see my first reply above vis a vis dystopian nightmares.

                  And NO, I do not agree with you if you think that limitless “cake-ism” is anywhere near the same type of thing as Adam Smith’s invisible hand. Adam’s Smith view does NOT attempt to defeat consequence from personal desire to succeed. The “selfishness” of that type of drive is NOT (necessarily) married to a powered “but we won’t take any responsibility.”

                2. … further, I WILL / CAN / DO criticize any human being who wants to wield unlimited “cake-ism” and act as if there is no such thing as personal responsibility.

                  My view of humanity is at a higher level than that – and the view that you seem to want to float as ‘normal” is very much worthy of criticism.

                3. No answer MaxDrei?

                  How Fn typical.

                  Just like the policy you espouse, you seek to not be bothered with any consequence of the position taken.

                4. I read you, anon. Indeed, no answer. None necessary. You can find the answer to your question by simply reading again what I wrote.

                  Nobody else but you craves one. And I think it’s not a good idea to feed your cravings. It only encourages you to be even more discourteous in your postings. Tip: discourtesy is not the best way to initiate and husband a satisfying dialogue.

                  If I judge that other readers might find my answer worthwhile, then I’ll reply to you. Otherwise not.

                5. A tip back at you: false politeness is even worse than frank, direct “discourtesy.”

                  Your “read what I wrote above” is a
                  F
                  A
                  I
                  L
                  in view of what I wrote above.

                  Your cowardice is noted.

        2. 2.2.1.2

          He is writing exclusively about mRNA vaccine… [W]hat about the more conventional vaccines, such as that from Astra-Zeneca and the others?

          Sorry, of course you are right. I was not thinking about the A/Z vaccine, which we do not have here in the U.S. I really do not know what the rate-limiting factor is for A/Z, so I should not opine on how to scale up their output.

      2. 2.2.2

        I thought that was an informative article the first time you posted it, but I was left wondering about whether any of these players had patents on scale LNP production.

        I’m sure the author is correct that appropriate microfluidic devices are not currently going unused. But from what I recall, they are not terribly expensive or time consuming to produce once you have the know-how. It makes we wonder whether these techniques are being used without patent protection, or whether they are protected by patents that are “enabled” such that it would take so much “reasonable” experimentation that it is not worth it for anyone to do the work despite the pandemic.

        1. 2.2.2.1

          [F]rom what I recall, they are not terribly expensive or time consuming to produce once you have the know-how.

          I have never built a lipid microvesiculation device, so I really should not opine on how hard it would be to make more. I can tell you, however, that they are devilishly tricky to calibrate for use (maybe not all such devices, but the ones that you can use in pharmaceutical applications) and to keep sterile in high capacity production. They are also not going to be of much economically significant use once the COVID vaccine effort finishes (there is a reason, after all, why there are not many such machines with slack capacity available).

          The real rate-limits here are: (1) technicians with the know-how to operate such equipment under sterile conditions; and (2) incentives to acquire and install such equipment when you know that it will become commercially obsolete in (hopefully) less than a year.

          The invocation of the defense production act can help some of this, as can a generous bonus of government funds. We definitely should be doing what we can to increase the supply of such machines, but patent law has almost nothing to do with that effort. Patents are not going to be your rate limiting factor here.

          1. 2.2.2.1.1

            I agree that patents aren’t rate limiting.

            I just think this situation might be informative about the reasonableness of the current bar for “undue experimentation.”

            1. 2.2.2.1.1.1

              Would you care to explicate?

              Is this solely based on your feelings?

              1. 2.2.2.1.1.1.1

                Monkey , Dance $$$

                1. LOL – a three-peat of your inanity and game playing on one thread.

                  This invokes a multiplier affect on my monetization of your choices.

                  So yes, to take back my meme (and use it appropriately),…

                  Thank$$$

                2. You may want to pause and recognize just how much ‘dancing’ YOU have been doing.

                  It’s quite delicious making bucks off of your choices.

                3. Y
                  A
                  W
                  N

                  the same variant….

                  Lot’s of cut and paste form meme’s from you, Shifty. What was your job at the patent office before you retired? Funny how you have never answered that question. Are you embarrassed?

                4. Stole your “meme.” ? Which you admit is just made up stuff. Snowflake. Now is your chance. Fill this room with your intelligence.

                  What is the actionable IP violation? Somebody stole your “meme.”

                  Go.

                5. Oh. Yet another IP related post. Who decides whether it’s IP related? Snowflake decides? Isn’t that convenient?

                  Monkey, Dance !! $’

                6. Shifty, what was your job at the patent office before you retired?

                  Funny how you have never answered that question.

                  Are you embarrassed?

                  ..

                  Which you admit is just made up stuff.

                  False assertion. That dog just won’t hunt. I don’t “made up stuff” and thus there is no admission to such. Both of which I have been more than clear about, and it is only you
                  l
                  y
                  i
                  n
                  g
                  otherwise as part of your game (that you just can never win).

                  Oh. Yet another IP related post.

                  You seem really confused on this point. Perhaps its that inability to recognize that YOU are in the spotlight, and YOUR choices are what is in the focus of not being related to the topic of the patent law article or discussions thereof in which YOU insert your semi-random blatherings.

                  Somehow you lose track of what the plain black and white facts show:
                  100% of YOUR posts are to or about me.
                  0% of YOUR posts have anything meaningful in relation to the patent law topic or discussion thereof.

                  Can you recognize that?
                  Can you explain that?
                  Do you realize that THAT is something entirely within your control, and has absolutely nothing to do with me (so your assertions of ME doing anything simply cannot inure)….?

                  Your move.
                  As usual.

                  (I’m banking on the choice that you will next make – talk about not being able to control yourself, and all )

                7. Snowflake [Hall Monitor] why do you feel so inadequate as to not even try to make a case for your IP rights in what you call your “mene?”

                8. False presumptions galore.

                  Who in the world taught you how to argue?
                  What was your role in the patent office before you retired?

                  Your post falls apart even before you are done typing it.

                  Is that because you cannot put down that ga y ch1ld cl0wn p0rn0 that you are ad dict ed to?

            2. 2.2.2.1.1.2

              Well Ben, are you just going to pout and cry in your diapers, trying to mindlessly detract from my comments, or are you going to man up and engage on the questions put to you?

              1. 2.2.2.1.1.2.1

                Ok ! We are happy to engage !!

                Monkey , Dance $$$$$

                1. LOL – a three-peat of your inanity and game playing on one thread.

                  This invokes a multiplier affect on my monetization of your choices.

                  So yes, to take back my meme (and use it appropriately),…

                  Thank$$$
                  Thank$$$

            3. 2.2.2.1.1.3

              …and like MaxDrei, your non-answer is the answer.

              1. 2.2.2.1.1.3.1

                You think Max cares what it is you think you are trying to say when you try to say what it is you think you are trying to say?

                Monkey, Dance $$$$ [what a maroon]

                1. LOL – a three-peat of your inanity and game playing on one thread.

                  This invokes a multiplier affect on my monetization of your choices.

                  So yes, to take back my meme (and use it appropriately),…

                  Thank$$$
                  Thank$$$
                  Thank$$$

                2. LOL – so again you try the meme, but without setting up the meme that you took from me.

                  So train-wrecky.

                  Are you going to “give the cite” for which you ‘first’ told me all about this level of money that you are ‘roughly’ making?

                  Or are you just going to go on collecting anvils to your noggin with these same ACME plans?

                  Beep Beep

  3. 1

    Re: Hrdy & Brean article:

    I was intrigued by the title since I grew up reading anthologies of Golden Age stories. Leinster’s definition of a politician (“Politics”) and Heinlein’s description of a sensible liberal (“Solution Unsatisfactory”) have stayed with me and have repeatedly proven true in the 80+/- years since they were written.

    Imagine my disappointment at reading the H&B article.

    The legal content was so low and with minimal accuracy (e.g., a patent doesn’t give the right to practice an invention; rather, it gives the right to exclude others from practicing an invention — you get the drift) that I wonder what qualifies it for publication in a real law journal. (Then again, it’s a journal from that school in Ann Arbor. How the mighty have fallen in the decades since I was there.)

    The literary and historical content was, to be kind, disjointed. The argument about SF “enablement” being a fan requirement was buried way too deep in the article. (Who qualifies as a fan, anyway, and what is the basis for generalizing about them?) The failure to relate that to the willing suspension of disbelief, and to the need for consistency once the reader is asked to suspend disbelief of one or more scientific principles (a/k/a “facts”), lessens the persuasiveness of any point the authors are trying to make.

    IMO “The Martian” was a horrible book not because it was bad science fiction but because it piled implausibility upon top of implausibility. There’s only so much disbelief an author can ask the reader to suspend. (That may be a better way to set a mark on the SF/fantasy continuum: how often the reader has to suspend disbelief.) “The Andromeda Strain” started out with a similar insult to intelligence, opening with an author’s note apologizing for the technical detail of the book, then misdescribing triangulation in its opening passage.

    This article might be a piece of entertainment OK for a fanzine but for a law journal? Not unless it’s presented as entertainment per se, rather than legal analysis.

    1. 1.1

      I hear you Cass – but I had the benefit of dismissing the article after reading the abstract.

    2. 1.2

      It is indeed the real question “what qualifies it for publication in a real law journal.” Just think the Scotus quoted one of Lemley’s trashy articles to hold that patents are a public right based on Lemley’s ridiculous allegations that the privy counsel invalidated patents before the ratification of the U.S. Constitution.

      Just think about that. A holding of fact by the Scotus based on one of these trash law journal articles.

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