There is at least some evidence that many cancers share a relatively small common set of replication mechanisms. These protein compounds that affect cellular replication are antibodies that are highly specific to a certain substrate; they have very narrow targets. Another branch in targeted therapy is the increasing use of monoclonal antibodies in cancer therapy. Although monoclonal antibodies immune proteins which can be selected to precisely bind to almost any target have been around for decades, they were derived from mice and did not function particularly well when administered to humans, causing allergic reactions and being rapidly removed from circulation.
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Rituximab , a drug used to treat lymphomas, is a prime example. The point is that some cancers can be specifically targeted by certain antibodies, because they have specific antibody receptors not present or not relevant in non-cancerous cells. The receptors involved tend to be very idiosyncratic. Antibodies are produced by specific immune-system cells; an antibody is monoclonal if it is or was at one time produced by one specific cell that was repeatedly cloned.
Generally speaking, "monoclonal" means that the antibody has only a single receptor; that is, its activity is very focused. None of these drugs would exist in the US marketplace if it were not for pharmaceutical patents. On the other hand, the US Food and Drug Administration, which regulates new drugs, is arguably a massive government intrusion into the free market.
Why shouldn't patent law intrude as well? This makes those cells more visible to existing immune-system defenses. In some breast cancers, the HER2 receptor is, as wikipedia put it, "stuck in the 'on' position". The ALK gene encodes a protein that triggers the unlimited-cell-division process of the cancer. Ipilimumab disables these limiting mechanisms, allowing the T-lymphocytes to work more effectively.
There are very few new antibiotics, actually. The FDA used to require not just proof of effectiveness, but proof that the infection that was cured was in fact resistant to existing antibiotics. A more serious problem is economics: a new antibiotic will be approved for use only in the most dire cases, to postpone the development of resistance.
This means that, during the patent period, sales will be at best modest. One promising new antibiotic is Teixobactin , discovered with a new technique for culturing soil bacteria in situ. Protein pump inhibitors PPIs : used for various stomach-acid problems, including ulcers. This made drug development profitable again. It is offcially for type-2 non-insulin-dependent diabetes. From byetta. This allowed generic drug makers to use a patented drug in their own FDA application, so that approval would be in place as soon as the original patent expired normally after 20 years. However, it also gave pharmaceutical developers a chance at a patent extension for up to five extra years, subject to the following:.
Basically, if a country is too poor to afford to treat all its citizens with a new drug, many may die. This has definitely been the case with some HIV drugs. As a result, the Third World has long argued that it should be exempt from pharmaceutical patents. In the mid's, the WTO basically agreed, and allowed I'm not sure of the exact terms third-world countries to manufacture generic equivalents of first-world drugs for use within their own borders only. The manufacturing must be for the government's own use eg in distributing to its people; the manufacturing can't be a for-profit initiative of a private company in that country.
Also, a good-faith attempt must have been made first to negotiate for a reduced-rate license to manufacture the drug, and such profits as are made must be given to the patent holder. In practice, large US pharmaceutical companies often enter into vastly-reduced-price licensing arrangements with third-world companies. In , the WTO relaxed this rule to allow poorer nations to import generics that would otherwise be covered by a patent. This is sometimes described as a "compulsory license".
The manufacturer would not be prosecuted. The US patent on imatinib expired in Novartis is believed to have paid Sun Pharmaceuticals to delay the introduction of their generic formulation. The price has since fallen, but not precipitously. Complaints about the patent system as a purveyor of undeserved monopolies go back a long time; usually these come from the same sources as attacks on copyright. An implementation issue might be the rather more mainstream claim that the patent office is too free in granting patents for weak software ideas. We will get to business-method patents below, but it is not unreasonable to suppose that monopolies on a specific business idea are incompatible with free enterprise.
At the risk of being misleading about the term "obvious" as used in patent law, I will call this the " obvious-in-context " problem. Much of what passes for "invention", at least in terms of application of known algorithms, is really just competent software engineering. We might define when an invention is obvious in context as follows:.
If a software engineer of ordinary skill, familiar with the general area of programming, and familiar with common algorithms, and who was presented with the problem in a reasonably concrete setting , would readily be able to outline a solution. This not quite the patent standard of "obviousness" under current law, in which discovering the applicability of an idea to a particular domain can be part of the novelty of an invention. For example, regarding the use of XOR for drawing easily erasable lines on a video screen, we can take either of the following two approaches:.
A hypothetical solution to a problem of physical engineering is not the end of the story; it remains to be seen whether the solution works. But for software development, that is not a concern: unless the engineer has missed something, the solution will work. A classic "broad" patent is the Wright brothers patent on "wing-warping" to control flight to the Wrights, the wings were the "aero-planes", planing the air, the rest of it was the "flying machine". The Wright brothers actually twisted the whole biplane structure -- using cables -- to bank in a turn.
This later led to the development by others of ailerons, which achieve the same effect but which mechanically are entirely different. A court ruled the Wright patent still applied: what mattered was the concept of adjusting wing angles to tilt the craft. This is a classic "broad patent" for a major new innovation. The courts have traditionally recognized "broad" patents, but somehow in software this distinction is often lost.
Some have argued that the Wright brothers tried to claim a functional patent here: a patent on any method for turning an aircraft. This is not entirely correct: the Wright claim was really for a specific set of movements of the wing and of the rudder. There has also been major patent litigation about sewing machines, agricultural machinery, 19th-century telephones, and electric power. For a long time, software was held to be unpatentable, as mathematical algorithms are unpatentable. Any fundamental mathematical or physical laws are unpatentable. More below. This patent was dedicated to the public domain in This patent is certainly a deep idea: if a certain bit is set in the filesystem information node for a file not in the file itself , then when the file is executed , it runs with the privileges of its owner and not the user.
Before then and after; look up why Windows has all those svchost processes , there were complex ad-hoc methods for running selected programs with elevated or alternative privileges. For a long time after, software patents always described the software in combination with some hardware device. This patent dealt with the curing of rubber, using a computer to guide the process. In the Diehr ruling the Supreme Court said that an invention isn't automatically un patentable just because it contains an algorithm.
Problem of "non-obviousness": the rules state that it's not enough to prove it's obvious today. Uh oh. That becomes an extremely difficult burden. To be patentable, an invention must be "novel". Novelty is usually challenged by the presentation of "prior art": did someone else discover it first? Often there are arguments about this. If prior art is published , it can invalidate a patent. However, if it was used privately, those users can continue to use their idea without paying royalties to the owner of the patent, but the patent may still stand.
The patent can be challenged on the grounds of not being novel, but this is harder. One principle is that broad interpretation of patents should be reserved for for fundamental new ideas, while patents for incremental improvements should be interpreted narrowly. Unfortunately, the courts are expected to assume, unless proven otherwise, that patents are valid, sometimes leading to broad interpretation of all patents. Two cases where there was at least some movement away from a patented format:.
Inventions Patentable : Whoever invents or discovers any new and useful process , machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. Here the "process" claim is so abstract and sweeping as to cover both known and unknown uses of the BCD to pure binary conversion. The end use may 1 vary from the operation of a train to verification of drivers' licenses to researching the law books for precedents and 2 be performed through any existing machinery or future-devised machinery or without any apparatus.
In the two decades before the creation of the Federal Circuit, appeals courts sided with patent holders in only 20 to 40 percent of cases. In contrast, the Federal Circuit sided with patent holders more than 80 percent of the time during its first year on the bench. You can look them up online. To use the patent office files, go to the search-by-patent-number page:. Infringement is considered willful if you had advance notice of infringing. Your belief that the patent was invalid is NOT generally a defense although some judges have recently been allowing this.
Damages automatically triple. Patent-holding companies are sometimes known as "trolls", as in "the troll under the bridge, demanding tolls". They are often seen as parasitic: they do not, for example, actually produce anything. Is this a fair characterization? They do, after all, create a market for small inventors. Many times, when patent reform is proposed it is the small-inventors community that is most up in arms. Should we care? From Wikipedia :.
But small inventors can still sell to patent-holding companies. Supposedly, though I can't find the source, this was purchased by DEC [? Or not enforced. The Supreme Court had just ruled in Benson that software couldn't be patented; why was this patent awarded? British Telecom patent on the hyperlink, patent BT filed in ; the patent was granted in In they attempted to sue a large number of websites. The patent itself apparently refers to a system in which multiple remote users can access "blocks" of data on a central computer.
Altavista patents on "web searching".
Federal Circuit Rules Software Invention Unpatentable
Altavista did have several such patents on basic web "crawling". Most were predated by the "archie" archive-searcher for ftp sites, developed by Alan Emtage in Altavista was purchased by CMGI, which then tried to demand licensing fees for its patents. RSA encryption : patent RSA uses standard high-precision arithmetic in its calculations; the underlying number theory has been well-known for centuries. That application was certainly novel. The RSA patents finally expired, after much controversy.
Part of that controversy was self-induced; the patent owner at one point appeared to grant a general license for noncommercial use, but then backed away from that. The RSA idea is not "obvious-in-context". Steir patent 5,, on artificially adding hair to a person's image [Garfinkel article; obvious-in-context; Flook standard? Lempel and Ziv published their compression scheme in ; Terry Welch published an improvement in CompuServe used this compression mechanism for the GIF file format, introduced in A year later, they noticed that the algorithm was patented, and that the patent was currently held by Unisys.
Allegedly, Unisys told Compuserve at that time that they would not need to pay royalties. Some commercial sites were asked for even more.
It's not clear whether anyone paid it; most affected sites rapidly switched to. Some observers were especially offended by the fact that Unisys allowed the use of the GIF format as a free standard until it became well-established, and then demanded fees. There's some question as to whether this was the only or even the dominant reason for the shift to PNG format; the latter does offer more features especially alpha and gamma than GIF, and is a lossless format unlike JPEG. Note that LZW compression is not "obvious-in-context"; you can realize you need compression and still work very hard to develop LZW.
Newer compression techniques are even less obvious. These would include the patents on the MP3 sound-compression strategy, and the G. The MP3 idea was not obvious, and remains fairly complex. MP3 was published in Did all US mp3 patents expire in ? These still hold the "core" mp3 patents. The mp3 compression algorithm is admittedly a deep idea. Part of it involves the use of wave decomposition to store the information more efficiently; part of it involves "psychoacoustics" to identify parts of a sound file that are "unhearable" and so can be deleted.
Alice asserted a variety of its patent claims in the case, including claims written in method, system and computer-readable-media claim formats. The majority consensus ends there. A majority of the Court, however, failed to reach agreement on the reasoning behind these conclusions. Computer-related aspects of the claims — including steps for creating records to store data, using a computer to adjust and maintain those records, and reconciling those records at the end of a trading day — in his opinion failed to add anything of substance that would save the claims. In his opinion, they did not.
However, the Board distinguished this from a television system which was defined solely by the information e. In other words, if there is a technical effect or a contribution in a non- excluded field, the invention will not lie solely within excluded matter. In Townsend, an application for an invention relating to an advent calendar with an additional indicator such as a word, picture, colour etc. A claim to a conventional package containing a known product, characterised solely by the instructions on the package, will not generally be allowed, since the contribution relates solely to the presentation of information.
In his judgment, Mann J emphasised that the exclusion was not solely confined to the content of information, and that, in order for the exclusion not to apply, there must be some technical effect beyond the information being presented. The court also stated that if the contribution is defined only in terms of the information to be presented, then that is a presentation of information - the presence of a display does not change this.
In particular, a better or new user interface was not considered to be a relevant technical effect — the rearrangement of information was nothing more than the presentation of information; simply having something different displayed was not sufficient to overcome the exclusion. Two of the three patents were found to be excluded as they lacked the required technical effect; the third presented a physical effect, namely the movement of data between hard disks, such that there was more than merely the presentation of information. In practical terms, the effect of s.
It provides a reasonably objective test which has to be applied to each invention and its particular set of facts and circumstances. Clearly what is to be regarded as contrary to public policy or morality will vary according to changes in social attitudes and on no account ought examiners to allow their own personal and individual beliefs to colour their judgment on this matter.
Only in the clearest cases should examiners invoke this subsection and then only following consultation with their Deputy Director. Any genuine doubt should be exercised in favour of the applicant with an appropriate minute being created. Unlike under the previous s. If, however, the specification includes matter the publication or exploitation of which would generally be expected to encourage offensive, immoral or antisocial behaviour, then irrespective of whether the invention itself is open to objection under s. The corresponding provision of the EPC see 1.
However, the Board in oncomouse added that in making an assessment of morality, no single definition of morality based on e. This case held that the possible detrimental effects and risks had to be weighed and balanced against the merits and advantages aimed at. In particular, the basic interest of mankind to remedy disease had to be set against the protection of the environment of uncontrolled dissemination of unwanted genes and the avoidance of suffering to animals, including the possibility of using non-animal alternatives.
For biotechnology inventions, in addition to the general exclusion of s. Section 1 4 is a rider to section 1 3 to make it clear that an act or action prohibited by a law is not to be considered as necessarily the same thing as contrary to public policy or morality. One reason for this is that a product which could not lawfully be used in the UK may be manufactured lawfully in the UK for export to countries where its use is not illegal.
Federal Circuit Rules Software Invention Unpatentable – TechCrunch
However the existence of a law or regulation may be a material fact to be taken into consideration in determining whether to refuse an application under s. The nature and probable uses of the invention will need to be considered as well as the exact terms of the prohibition. Thus if the prohibition is directed unconditionally to the very act which the inventor proposes very careful deliberation must be given as to whether to invoke s. In such cases a useful test is to consider why the prohibition exists.
For example it is considered that the Landmines Act implementing the Ottawa Convention and the Cluster Munitions Prohibitions Act implementing the Convention on Cluster Munitions were passed because the public in the UK generally now consider the development, manufacture and use of anti-personnel mines and cluster munitions to be immoral. In addition, UK is a signatory to other weapons conventions which prohibit categories of weapon, including the Chemical Weapons Convention and the Biological and Toxin Weapons Conventions; these have been implemented in UK law by the Chemical Weapons Act and the Biological Weapons Act respectively.
Again, the signing of the conventions and the passage of the legislation indicate that the general feeling of the public in the UK is that the production and use of these weapons is immoral. However, it should be noted that both these Acts recognise that agents capable of use as a chemical or biological weapon may have legitimate purposes.
In cases in which an invention can be exploited legally albeit in accordance with stringent regulations, it would be very difficult to argue that s. Prior to the Patents Regulations , s. These exclusions remain in place, and are now found, along with others which relate to biotechnological inventions, in Schedule A2 to the Act, introduced by the Patents Regulations and made under section 76A of the Act, which was also introduced by those Regulations see 76A.
Accept cookies. Cookie settings. Home Crime, justice and law Law and practice. Section 1: Patentability Sections 1. Section 1: Patentable inventions 1. General Principles Balance of probabilities 1.
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Using past decisions 1. Substance over form 1. Interaction between the exclusions 1. Not an exhaustive list 1.
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Relationship of excluded matter to novelty and inventive step 1. The test comprises four steps, which are as follows: 1 Properly construe the claim; 2 identify the actual contribution; 3 ask whether it falls solely within the excluded subject matter; 4 check whether the actual or alleged contribution is actually technical in nature. Step 1 — construing the claim 1. Step 2 — identifying the contribution 1. Substance not form 1. Additional factors 1. All of these factors may assist in identifying the contribution, rather than defining it themselves Step 3 — assessing against the exclusions 1.
Step 4 — is the contribution technical? In Merrill Lynch page , lines , the necessity of making this assessment was characterised as follows: …it cannot be permissible to patent an item excluded by section 1 2 under the guise of an article which contains that item — that is to say, in the case of a computer program, the patenting of a conventional computer containing that program.
Interaction between steps 3 and 4 1. Section a - Discoveries, scientific theories and mathematical methods 1. Mathematical methods 1. Section b — aesthetic creations 1. Section c — mental act, playing a game, business methods, and computer programs Mental act 1. Games 1. Business methods 1. Computer programs 1. In paragraph , Lewison LJ considered the scope of the exclusion, and remarked that: Since each case must be determined by reference to its particular facts and features Symbian at  we need to begin by asking: what does the computer program in this case actually contribute?
The signposts are:- i. Section d — Presentation of information 1. Section 1 4 For the purposes of subsection 3 above exploitation shall not be regarded as contrary to public policy or morality only because it is prohibited by any law in force in the United Kingdom or any part of it. Section 1 5 The Secretary of State may by order vary the provisions of subsection 2 above for the purpose of maintaining them in conformity with developments in science and technology; and no such order shall be made unless a draft of the order has been laid before, and approved by resolution of, each House of Parliament.
Print this page. Is this page useful? Maybe Yes this page is useful No this page is not useful Is there anything wrong with this page? Thank you for your feedback. What were you doing? What went wrong? Email address. A patent may be granted only for an invention in respect of which the following conditions are satisfied, that is to say a the invention is new; b it involves an inventive step; c it is capable of industrial application; d the grant of a patent for it is not excluded by subsections 2 and 3 or section 4A below; and references in this Act to a patentable invention shall be construed accordingly.
It is hereby declared that the following among other things are not inventions for the purposes of this Act, that is to say, anything which consists of - a a discovery, scientific theory or mathematical method; b a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever; c a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer; d the presentation of information; but the foregoing provision shall prevent anything from being treated as an invention for the purposes of this Act only to the extent that a patent or application for a patent relates to that thing as such.
A patent shall not be granted for an invention the commercial exploitation of which would be contrary to public policy or morality. For the purposes of subsection 3 above exploitation shall not be regarded as contrary to public policy or morality only because it is prohibited by any law in force in the United Kingdom or any part of it.