[Insight-users] PATENT ENTRAPMENT : The Blues of Patenting &
Publishing
Luis Ibanez
luis.ibanez at kitware.com
Tue Aug 28 12:23:52 EDT 2007
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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