[Insight-users] PATENT ENTRAPMENT : The Blues of Patenting &
Publishing
Dan Mueller
dan.muel at gmail.com
Tue Aug 28 18:24:45 EDT 2007
On 29/08/07, Dan Mueller <dan.muel at gmail.com> wrote:
> Hi Luis,
>
> Thanks for your reply.
>
> I was not meaning I would intentionally submit an Insight Journal
> article about an algorithm which was covered by a patent, I was
> meaning if I did so unintentionally. However, you made it clear that
> it is the developer's responsibility to ensure his or her research
> work does not infringe on a patent. I was not cognizant of this fact.
>
> I have further investigated the patents I found yesterday, and on
> closer inspection it appears the basic method I have implemented is
> *not* covered by any patents (at least as far as I can tell).
> Ultimately the method is a gradient descent optimization of a cost
> function (which I hope is not patented or else many of existing ITK
> registration methods are in trouble!). I have found examples in
> literature circa 1996 which apply such optimization to Fast Marching
> arrival functions, which pre-date the earliest patent I found (2000).
> The patents I found seem to be regarding specific applications and/or
> specific cost functions. Obviously I am no expert in these matter, so
> I guess it is my responsibility as a developer to get the legal people
> at my institution to confirm my suspicions before submitting the
> article to the Insight Journal.
>
> Anyway, thanks again for your advice.
>
> On a lighter side, your joke sounds like something Manfred Macx did in
> Charles Stross' fictional work Accelerando. To quote:
>
> "He's the guy who patented using genetic algorithms to patent
> everything they can permutate from an initial description of a problem
> domain – not just a better mousetrap, but the set of all possible
> better mousetraps." (pdf pp. 4)
Opps, I should have added that he then assigned the patents to the "Free
Intellect Foundation, as contributions to their obligation-free
infrastructure project."
> FYI: the book is available under the Creative Commons "Some Rights
> Reserved" license here: http://www.accelerando.org/book/
>
> Cheers, Dan
>
> On 29/08/07, Luis Ibanez <luis.ibanez at kitware.com> wrote:
> >
> > Hi Dan,
> >
> > You bring up very interesting points.
> >
> >
> > 1) You are welcome to post implementation of patented algorithms
> > to the Insight Journal *AS LONG AS YOU CLEARLY DISCLOSE IT*.
> >
> > The Insight Journal is a reader-oriented journal, as opposed
> > to the decadent journals of our field that are oriented to
> > satisfy the needs of the author's annual productivity report.
> >
> > As such, what you should keep in mind when posting to the
> > Insight Journal is:
> >
> > "Is this useful for the readers ?"
> >
> > A patented method may still be useful, since somebody may be
> > motivated enough or desperate enough for pursuing a licensing
> > agreement with the patent holder.
> >
> > The important point is that the reader of the paper should
> > become aware of the patent in the *first few words* of the
> > paper. For example, in the Title you could add "(Patented)",
> > or in the abstract, you should add the patent number and
> > title. In this way, readers will be able to make an informed
> > choice. Note that just saying "patented" is not enough, you
> > should point out the patent number somewhere in the paper,
> > e.g. at least as a citation, so that readers will be able to
> > read the patent claims and make an informed decision.
> >
> > The immoral situation that we see in the decadent journals of
> > our field is a case of "double-dipping" and "double-standards"
> > where authors *Patent and Publish*.
> >
> > In principle there is nothing wrong with patenting and publishing,
> > since after all, patents are public disclosures of an invention,
> > and the temporal monopoly that the law grants you on the idea is
> > given *in exchange* for its public disclosure. The immoral situation
> > arises when the authors "forget" to mention in the paper something
> > like:
> >
> >
> > "... and by the way, this method is covered by patent
> > number X, or has a patent application pending".
> >
> >
> > In those circumstances, readers start using the method, teaching it
> > in schools and diffusing its use in the field. At some point, later
> > on, somebody mention that the method is covered by a patent and that
> > all those who are using it are infringing the patent. At that point,
> > the community have to bite the bullet and negotiate with the patent
> > holder, or have to spend a lot of effort in extirpating this tumor
> > from the body of public knowledge.
> >
> > That situation is almost equivalent to *entrapment*, and the authors
> > have *abused* the Journal by using it as a *Marketing* platform, and
> > they have *abused* the community by inviting them to use a method
> > that they knew was not freely available to use (free as in freedom).
> >
> > Serious Journals should *REQUIRE* authors to disclose whether any
> > part of their publications are covered by patents. Of course, this
> > only applies to patents filed by the authors themselves, since in
> > the current sad state of affairs, pretty much anything is patented
> > and it is almost impossible to claim that something is not covered
> > by some random patent.
> >
> > Most medical conferences require disclosure of conflict of interest.
> > Curiously medical image conferences do not have such requirements.
> >
> > I would argue that if I'm giving a conference talk on a method that
> > I know is patented and I don't disclose that fact, I'm displaying
> > a serious lack of integrity. Specially if I filed the patent
> > application a couple of days before I submitted the paper to the
> > conference,...
> >
> > as most University Intellectual Property offices actually
> > advice their researchers to do, See for example:
> >
> > http://www.yale.edu/ocr/pfg/guidelines/patent/patent_app_deadlines_bars.html
> > http://www.uvapf.org/about/index.cfm/fuseaction/viewpage/page_id/82?CFID=7914&CFTOKEN=76413007&
> > http://www.research.utoronto.ca/ipc/inventions.html
> > http://research.unc.edu/otd/policies/uncpat.html
> > http://www.northwestern.edu/ttp/policies/intell-prop.html
> > http://www.wwu.edu/depts/rsp/patent.html
> >
> >
> > 2) If you have implemented methods that are covered by a patent,
> > *EVEN IF YOU DO IT FOR RESEARCH*, you have to negotiate a license
> > with the patent holder.
> >
> > If you use a patented method in your own research without having
> > acquired a license from the patent holder, then you are infringing
> > the patent and you are in *big trouble*.
> >
> > As you see, you have been the victim of the "entrapment" and
> > *double-dipping* abuse that I'm referring in section (1).
> >
> > You may want to go back to the papers and check if the authors
> > ever mention that, by the time they submitted the paper to the
> > Journal, they have already submitted a patent application on the
> > same concept.
> >
> > If they didn't mention that fact, then I would encourage you to
> > email the authors and ask them:
> >
> > "Why ?"
> >
> > As well as to email the editor of the Journal and ask them why
> > they didn't require a disclosure of intellectual property burdens
> > when they accepted the paper for publication.
> >
> > All the time that you may have invested in implementing and using
> > that patented method, is now compromised, because you cannot
> > continue using it until you negotiate a license with the patent
> > holder. In some way, the authors are responsible for all the
> > time and resources that you have wasted so far in using their
> > method, since now you are trapped in the conundrum of losing
> > that investment, or spending an unknown amount on negotiating
> > a license with the patent holder, which presumably is the
> > institutions that is the employer of the inventors.
> >
> >
> > One of the symptoms of "POCD" (Patenting Obsessive Compulsive
> > Behavior) is nearsightedness and denial. That is, sufferers of
> > POCD get blinded thinking on how much money they are going to make
> > by patenting and later licensing the slightest spark of idea that
> > crosses their minds. They miss the fact that, being surrounded by
> > other people infected with POCD, they will also be the victims of
> > the appropriation of public knowledge that results of everybody
> > wanting to patent everything.
> >
> > The terrible result is that the public domain gets depleted,
> > and the research field get to a standstill where nobody can
> > use anything without the extra burden of hiring two layers
> > for every researcher, and therefore nothing gets done.
> >
> >
> > As Bill Gates put it in a memo:
> >
> > "If people had understood how patents would be granted when
> > most of today's ideas were invented, and had taken out patents,
> > the industry would be at a complete standstill today."
> >
> >
> >
> > 3) Note that even if you are welcome to post *disclosed* patented
> > methods to the Insight Journal, we will *never* include them in
> > the Insight Toolkit. We are still trying to get rid of the few
> > patented method that got included in ITK when we were not paying
> > enough attention to the dreadful consequences of not clearing
> > the status of every method before adding it to the toolkit.
> >
> > Readers of the Insight Journal, may still find the methods useful
> > though, and may want to negotiate licenses with the patent holder.
> > That is perfectly fine. Although, I would think that in that case
> > we should charge for doing Marketing for the patent holders. :-)
> >
> >
> >
> >
> > 4) A Joke:
> >
> > Since business methods can be patented, we should patent
> > the practice of "Patenting and Publishing".
> >
> > It could easily go in as a "clever marketing strategy".
> >
> > In that way we could prevent people infected with POCD
> > from engaging in such practice, or at least we could
> > make them pay for it. :-)
> >
> >
> >
> >
> > Regards,
> >
> >
> >
> > Luis
> >
> >
> >
> > ----------------
> > Dan Mueller wrote:
> > > Hi Luis,
> > >
> > > I found your discussion regarding "Intellectual Monopolies"
> > > interesting. Moreover, it has raised some questions which are plaguing
> > > me:
> > >
> > > Can we submit implementations of patented algorithms to the Insight Journal?
> > > Is there any point?
> > >
> > > The reason I ask is that I have implemented the minimal path
> > > extraction algorithm given in:
> > >
> > > [1] T. Deschamps. Curve and Shape Extraction with Minimal Path and
> > > Level-Sets techniques: Applications to 3D Medical Imaging. PhD
> > > dissertation, University of Paris Dauphine, 2001.
> > > [2] T. Deschamps and L. Cohen. Fast extraction of minimal paths in
> > > 3D images and applications to virtual endoscopy. Medical Image
> > > Analysis, 5(4):281–299, 2001.
> > >
> > > I used the US Patent office database search page you provided with the
> > > terms "minimal path" and "fast marching" and received five hits. I
> > > tried to decipher the terminology used in these patents but the
> > > "inventions" still remain a mystery to me.
> > >
> > > Do I continue with the planned Insight Journal submission? Will the
> > > review process uncover if a patent covers the "idea(s)" I have
> > > implemented? Is there an easy mechanism to determine if a particular
> > > algorithm can be included in the toolkit *before* actually spending
> > > the time implementing it and preparing a submission? (I was quite
> > > disappointed to find these five patents and discover the work I have
> > > been preparing may now be of little use to others...)
> > >
> > > Thanks for your advice.
> > >
> > > Cheers, Dan
> > >
> > >
> > > On 28/08/07, Luis Ibanez <luis.ibanez at kitware.com> wrote:
> > >
> > >>Hi Flo,
> > >>
> > >>It is indeed very wise to pay attention to intellectual
> > >>"property" issues when dealing with Open Source software.
> > >>
> > >>
> > >>By the way, the term "PROPERTY" is incorrectly used in this
> > >>context. What many people refer to as "intellectual property"
> > >>is actually a set of exclusive rights assigned to creators
> > >>of inventions and works of art. You cannot really "own" an
> > >>idea or the expression of an idea, mainly because no idea
> > >>exist by itself, instead they are based on previous ideas.
> > >>
> > >>What a patent grant is the monopoly of use of an idea for
> > >>a limited time. It practice it is only useful from preventing
> > >>others from using an idea. A Patent doesn't grant the holders
> > >>the right of exploiting the idea, because, as it is usually
> > >>the case, the idea itself may require other concepts in order
> > >>for it to work, and those other concepts may be covered by
> > >>other patents.
> > >>
> > >>What copyright grants is the exclusive right of preventing
> > >>others from reproducing a work of art.
> > >>
> > >>What the law grants is not the *property* of an idea or the
> > >>expression of an idea, but the benefit of having the monopoly
> > >>of exploitation of the idea *for a limited time*. The fact that
> > >>patents and copyrights expire is an indication that they are
> > >>not "property" in the proper sense.
> > >>
> > >>In order to be more precise we should refer to these concepts
> > >>as "Intellectual Monopolies", not as the misnomer "Intellectual
> > >>Property".
> > >>
> > >>
> > >>See for example:
> > >>
> > >> Free Culture
> > >> by Lawrence Lessig
> > >> http://www.free-culture.cc/freecontent/
> > >> page 56.
> > >>
> > >>
> > >>-----
> > >>
> > >>Note that you are giving a paper publication as the reference
> > >>to a patent. This is very misleading, a Journal publication
> > >>is not the proper way of referring to a patent. The content of
> > >>a paper may be pertinent to multiple patents, or it may refer
> > >>to only some of the claims of a patent.
> > >>
> > >>What you should do is to search the database of the US Patent
> > >>office:
> > >>
> > >>http://patft.uspto.gov/netahtml/PTO/search-bool.html
> > >>
> > >>E.g. for the terms "Fuzzy Connectedness". That will lead you
> > >>to a list including the following issued patents:
> > >>
> > >>
> > >>6,885,762 Scale-based image filtering of magnetic resonance data
> > >>
> > >>6,584,216 Method for standardizing the MR image intensity scale
> > >>
> > >>5,812,691 Extraction of fuzzy object information in
> > >> multidimensional images for quantifying MS lesions
> > >> of the brain
> > >>
> > >>
> > >> From that list, you could proceed to read the claims of every patent
> > >>to see how they refer to the technical aspect of the method that
> > >>you are interested on.
> > >>
> > >>
> > >>------
> > >>
> > >>
> > >>The ConfidenceConnectedImageFilter is not subject to any of these
> > >>Fuzzy connectedness patents, since it is based on a very basic concept
> > >>that anybody with a basic background on statistics will recognize as
> > >>prior art.
> > >>
> > >>The filter is simply estimating means and variances of the pixel
> > >>population. There is no computation of shortest path in the
> > >>ConfidenceConnectedness filter.
> > >>
> > >>Note that when you are considering the coverage of a patent,
> > >>"Generalization" of the concept is not the way to proceed.
> > >>In the way you are interpreting the method, you could extend
> > >>the coverage of Fuzzy connectedness to any region growing
> > >>method, including probably level sets; since you can always
> > >>come with a "membership function" that frames a region
> > >>growing method as a variant of the Fuzzy connectedness methods.
> > >>
> > >>Instead of generalizing the claims of a patent backward,
> > >>what you must consider is the notion of prior art. That is,
> > >>whether the method under consideration is based on knowledge
> > >>that was public before the particular patent was issued.
> > >>
> > >>
> > >>The decadence of the patent system, and the frenzy for
> > >>appropriation of knowledge in which universities and companies
> > >>alike are obsessing, are leaving many research fields to a sad
> > >>state.
> > >>
> > >>Those who care about the survival of any knowledge domain
> > >>should consider following the example of IBM in adopting
> > >>an open peer-review system for patents:
> > >>
> > >> http://dotank.nyls.edu/communitypatent/
> > >>
> > >>Where patent applications are publicly reviewed online
> > >>and exposed to the scrutiny of domain experts. This novel
> > >>system will help prevent the abuses and distortions that
> > >>are becoming the norm of the patent system.
> > >>
> > >>
> > >>
> > >>The "POCD" Patent Obsessive Compulsive Disorder is a
> > >>recent epidemic disease that plagues both industry and
> > >>academia. As more professionals get infected with it
> > >>the public domain will get depleted to the point where
> > >>you will not be able to make an addition without having
> > >>to get a license from the holder of an intellectual
> > >>monopoly.
> > >>
> > >>
> > >>
> > >>
> > >> Regards,
> > >>
> > >>
> > >> Luis
> > >>
> > >>
> > >>
> > >>-----------
> > >>Flo wrote:
> > >>
> > >>>Dear all,
> > >>>
> > >>>As part of my PhD I'm writting a software and partially using ITK/VTK
> > >>>functions. Although Copyright and Law infringement are not my
> > >>>specialties, I must be careful when writing an open software for the
> > >>>university I'm in (Sherbrooke, Canada) so that I can tell my Supervisor
> > >>>he can do what he wants with the code.
> > >>>
> > >>>Thus, Does itkConfidenceConnectedImageFilter fall under any Patent,
> > >>>especially that of Punam SAHA and UDUPA in which he detailled the
> > >>>FuzzyConnectedFilter: Relative Fuzzy Connectedness and Object
> > >>>Definition: Theory, Algorithms, and Applications in Image
> > >>>Segmentation", Nov. 2002. IEEE Transactions on Pattern Analysis and
> > >>>Machine Intelligence. vol. 24, No. 11. p. 1485-1500.
> > >>>
> > >>>To me, itkConfidenceConnectedImageFilter derives from the concept of
> > >>>Fuzzy Connectedness, as there is only one step from confidence to fuzzy
> > >>>... namely the Membership Function and the determination of the
> > >>>"shortest weighted path" amongst every element to the seed point. Is it
> > >>>this Path Search that actually separate the Patent from any other
> > >>>confidence Filter ?
> > >>>
> > >>>regards,
> > >>>
> > >>>Flo._______________________________________________
> > >>>Insight-users mailing list
> > >>>Insight-users at itk.org
> > >>>http://www.itk.org/mailman/listinfo/insight-users
> > >>>
> > >>
> > >>_______________________________________________
> > >>Insight-users mailing list
> > >>Insight-users at itk.org
> > >>http://www.itk.org/mailman/listinfo/insight-users
> > >>
> > >
> > >
> >
>
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