Tag: humanitarian

What is humanitarian IPR?

 

While looking for a new career path, I am finding that the term “humanitarian IPR” resonates. Why? In part because it is useful to look at things no one else is looking at (Blue Ocean strategy).  In part because it would be nice to apply whatever skills I might have in IPR and innovation to something socially meaningful for a change.

A definition is needed. For lack of a better guideline, I consider the UN Declaration of Human Rights to define the limits of what is acceptable. Any patent that could severely infringe on these rights, especially in the case of highly vulnerable people, would be “humanitarian IPR”.  The term as I use it is in principle value-neutral. Humanitarian IPR can be abused, or it can be used benevolently.

But there the simple part ends.  It is extremely difficult to define what “infringe” means in practice. One really needs to look at the purpose of a patent rather than just its content, which is terrifyingly difficult or impossible.

Should humanitarian IPR be put into a category of its own? Intellectual property is already divided into at least two major segments: patents and copyright. Inventions and works of creative art are so different that it makes no sense to apply the same rules to them. (In this context, it doesn’t matter whether one finds copyright ridiculous or not. They are different, and need different rules). Many countries also have various kinds of petty patents, innovation patents, design patents, and so on the cover cases which do not need the full utility patent arsenal.

A full revamp of the IPR system is probably what is needed, but if that cannot be realistically achieved, could it at least be possible to carve out niches for which the rules are different? Something like this has been hinted by Richard Posner in a blog posting. Most interesting quote:“Although there are some industry-specific differences in patent law, for the most part patents are “one size fits all,” so far as length of protection and criteria and procedures for the grant of a patent are concerned. In contrast, copyright protection tends to vary considerably across different media.”

The huge advantage of a separate niche

Having a well-defined niche for humanitarian IPR could allow new types of funding modes specific for that segment. The Nobelist Joseph Stiglitz has written an article “Prizes, not Patents”, proposing“a medical prize fund that would reward those who discover cures and vaccines. Since governments already pay the cost of much drug research directly or indirectly, through prescription benefits, they could finance the prize fund, which would award the biggest prizes for developers of treatments or preventions for costly diseases affecting hundreds of millions of people.”

Furthermore,“Especially when it comes to diseases in developing countries, it would make sense for some of the prize money to come from foreign assistance budgets, as few contributions could do more to improve the quality of life, and even productivity, than attacking the debilitating diseases that are so prevalent in many developing countries. A scientific panel could establish a set of priorities by assessing the number of people affected and the impact on mortality, morbidity, and productivity. Once the discovery is made, it would be licensed.”

I will later be analyzing cases in which this kind of a system could be useful. A large one-off prize to the patent owner, in exchange for placing the patent in the public domain, could end a lot of the difficulties in one blow.

Reality check

There are two problems here. The first one is acerbically discussed in  “The Case Against Patents” by Boldrin and Levine (summarized in The Atlantic). Whenever there are holes in the patent laws, large companies and their lawyers will gravitate toward those holes. Litigation will change, but its amount will not.

For the humanitarian IPR problem, the hole would be in defining what is humanitarian and what is not, with large players hopping across the boundary in whatever direction best suits them. But even this could be better than the present situation, in which there are no restraints on what can be patented.

Perhaps even more seriously, I see a psychological issue that makes Stiglitz’s argument less convincing. If development aid money is used to give prizes to Western companies rather than developing countries, what kind of psychological effect will that have on the donors? Will they be even less willing to donate the 0.7% of GDP that is now a target but almost never reached?

Or, would a selfish interest (supporting local R&D) actually make them more willing to donate? It could go either way.

There are more open questions than answers in this area. That is why it would be a worthwhile subject to pursue.

 

Ramping down Project Troglodyte

“On a personal level, I may have found a niche which I will need now that I have been “liberated” from my previous job and am “facing new challenges”: humanitarian IPR. “

Last year we decided to make a spinoff from Zygomatica, focusing on “hunting for bad patents”. We called it Project Troglodyte (www.project-troglodyte.org) and found new collaborators. We gave it about six months to evolve. The six months is now up. The readership and core team did not grow enough, so we are ramping it down. We will rewrite and republish some of the material here on Zygomatica.

I do not really consider this a failure, as we learned a good many valuable and interesting things. On a personal level, I may have found a niche which I will need now that I have been “liberated” from my previous job and am “facing new challenges”:  humanitarian IPR. There is plenty of humanitarian activity going on; for the most part, patents and IPR are not considered at all relevant in that world. Yet, they can be relevant — and almost never in a good way. Someone needs to understand the risks and also the upsides.

Our initial interest was in fighting “patent trolls” — entities that file and buy patents purely for the purpose of litigation. A major eye-opener was the possibility that trolling could quite quickly lead to trampling of basic human rights: See Trolling on the human rights. See also “How farmers were punished for using a shovel” and “The trolling triad“. The risks are real.

We came up with ideas that might actually genuinely have worked, in particular “antipatents”. Simple concept:

  • It seems to be possible to patent almost anything.
  • If something has already been “invented”, it can no longer be patented. (In technical terms, there is “prior art” that prevents it).
  • If so, why not “invent” everything trivial before someone else has time to patent it?
  • This collection of “inventions” could be called the “Antipatent Office” (APO).

This sounds flippant, but in fact this could be technically doable. I will summarize some of the better antipatent ideas in later postings.

However, in the end we ran into a major wall of demotivation. It might be possible to fight patent trolls in the United States with the antipatent strategy. However, the craziest features of the US patent system are not really being exported to the rest of the world, so mostly this is a US issue. American companies are suffering greatly from patent trolls; as Europeans, we really could not care less, as long as we are not contaminated. Antipatents might work if someone is motivated; we are not.

I found that the patent systems of developing countries are far more interesting, as are questions related to the use of IPR in humanitarian situations. However, I did not manage to drum up sufficient enthusiasm in the rest of the team. So, it makes more sense to pursue them as a solo project here on Zygomatica.

I wish to thank our collaborators (Kalle Pietilä, Viv Collins, and Florian Lengyel) for their contributions to Troglodyte.

 

Refugee maps

Map week continues. The first one was perhaps a bit boring. Mostly because the data was not normalized by area of each country. But you can still say something about the state of the economies.

Some data is better shown when split to categories. So, I made an algorithm that finds deciles from the data and colors the countries according to how they compare against these.

Refugees from country_DecilesMap 1. Number of refugees from country. Data from Wikipedia (Feb 2013)

From Map 1 it can easily be seen that refugees come from all over the globe, but again it should be noted that no correction for population is made. So for example from the numbers available in the map, when corrected for population Finland and the US could have the same number of refugees per capita. Refugees from the US number over 500 times more than from Finland, which is a much larger factor that the ratio of populations would suggest.

This type of map also conceals the fact that there are a couple of countries in the last group that have sent out a lot of refugees.

Refugees_from_countryMap 2. Origin of refugees, linear scale. Data from Wikipedia (Feb 2013)

Map 1 and Map 2 are based on the same data, but Afghanistan, Iraq and a couple of others really stand out from Map 2.

Where did the refugees go?

natives_per_refugee_DecilesMap 3. Natives per refugee population in that country. Data from Wikipedia (Feb 2013)

Map 3 also tells something about where refugees want/can go and what sort of burden they are for the host country. It doesn’t tell anything about how rich the receiving country is so the burden will still varies.

Color selection in the maps is all mine and I apologise. I have pretty much no artistic talent or taste for that matter. Perhaps I need to make an algorithm that calculates which colors would give maximum contrast between the groups. Then I could say that the selection is based on something other than me manually inserting hex values that seem to be far from each other.

 

 

Trolling on the human rights

If I were a patent troll, which universal human right would I start abusing next?

Patents and humanitarian activity (and how patents can kill humanitarian activity) have been covered on this blog before (see the SMOS project). I am in a slightly cynical mood, so I will now pretend to be a strategist for a patent troll (a “non-practicing entity”). How could I best abuse the world?

Note: I am NOT talking about the way big companies (like, say, Monsanto) are perhaps strong-arming the patent system. Compared to me, Monsanto are the good guys. They at least have at some point put some money into some R&D, and produce something. All I plan to do is to exploit quirks in the patent system.

I would want my target industries to have three key criteria:

  1. They have little or no experience with IPR, and none with trolls. The best attack is when the target has no idea what hit him.
  2. They produce things which every person needs to have. Ideally, things that are considered human rights. That way, the targets have no real option except to accede to my demands (or else break IP law).
  3. (Optional): Some type of vendor lock-in. This means that the customer is tied to one specific vendor for all his needs. Many people realize that the vendor can then abuse the customer at will. Most people do not realize that a troll can then abuse both the vendor and the customer at will.

An nice target list is provided by the UN’s Universal Declaration of Human Rights, especially Articles 25-26.  There are many potential attacks, but here I will focus only on a few novel ideas.

Article 25.

  1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
  2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Food / clean water

This is where I would strike, first and foremost, no hesitation.  Water-purification technologies are the choicest target because they fulfill all key criteria (they are essential, people don’t expect attacks, and there are lock-ins). Some target markets (for example oil-rich desert countries) are rich enough to provide considerable blackmail money.

Methods to create potable drinking water would be my number one focus. It is a high-tech activity, with serious companies doing serious R&D work. An overly broad patent (either created now, or bought from a suitable player, or an fire sale after a bankruptcy) could be a major block.

I would target companies close to a breakthrough, and file/buy a huge number patents around the same area. Here’s a secret: It doesn’t really matter whether or not the patents are truly valid. All one needs to do is to strike at a strategic moment, and announce that one has a hundred patents which company X is infringing. This is a typical troll strategy.

The strategic moment: the instant a major water-cleaning plant has started providing water to a large city (Dubai, Nairobi, Mumbai, Dhaka). Even a brief court injunction on the operation of a key water plant could be problematic to a whole city. The blackmail potential is very high.

(Normally, one would expect a reasonable government to act like India in the medicine case discussed below, and simply ignore the blackmail and the the injunction. However, consider an extremely poor and corrupt country with the leading elite fully tied to foreign interests… it might not do the sane thing).

Water distribution would be even more fruitful, since it is in practice impossible to set up a competing water and sewage network overnight. There is a definite vendor lock-in in that business. However, the technology is so simple that there is little IPR to abuse.

Medical care

Medical care would be a lucrative area for attack, but… filing spurious patents is difficult in this area. The major drug manufacturers are well protected by patent thickets.  There is also an active backlash against medical patents, which means that criterion 1 is no longer satisfied. Everyone is expecting attacks. For example, India is banning branded drugs. Governments and NGOS’s are already on their toes, unlike the water case. I would pass on this.

Communications

I would put communications in this category as well. I am not the only one; the ITU (the telecommunications branch of the United Nations) is waking up to the patent wars in the telecoms industry, and their effect on innovation (see for example here). This war was also addressed in our SMOS project.

The ITU initiative is largely an attack on patent trolls. A cynic might expect that since the big companies have deep pockets to affect the process, and governments have their own telecom industries to protect, the end result will be an even deeper monopoly on development by a few megacompanies, with no benefit for poor countries. Time will show.

In any case, while trolling the telecoms industry is currently all the rage, the competition is getting harsh, there is little chance for a surprise attack, and a serious backlash is likely. I would look elsewhere.

Motherhood and childhood

Childhood diarrhea is one of the worst killers in the world, and could largely be avoided by providing clean water and saline solution. A patent on a particular type of saline solution could provide interesting leverage to an utterly sociopathic troll. However, in practice it is relatively easy for medical professionals to work around the IPR by substituting slightly different components. Thus, while intriguing, the work-arounds make trolling difficult.

Article 26.

  1.  Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
  2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
  3.  Parents have a prior right to choose the kind of education that shall be given to their children.

(Distance) education

Low-cost distance learning technologies are interesting, especially as they provide a very low-cost alternative in extremely poor countries. The best course of attack would be cases where a given company has achieved an effective lock-in on the overall technology and has created a walled garden.

A walled garden means that one company controls all aspects of the material: the hardware, the software, and the content. Apple is the best-known example of this strategy,  followed perhaps by Microsoft and Google (whose lock-in does not extend fully to hardware though). The walled garden can create many type of problems for customers; for example, there have been cases where critically-needed applications have been pre-emptively deleted from the AppStore if Apple has feared litigation.

These companies have pockets deep enough to fight the trolls, but those same pockets can also bribe the trolls. I would frame the attack behind the scenes, making the problems appear to be the fault of the company, as in the AppStore case above. Since their brand names are absolutely crucial to them, they would be more  likely to pay off (though of course they also have armies of lawyers. The balance is difficult).

A public-service note: attacks like this could be avoided by using open-source solutions, or at least by minimizing vendor lock-in. A sure way to create problems of this type is to accept a walled garden, however attractive it might look in the short run.

Am I serious? Yes and no.

No. If I actually wanted to do this, I wouldn’t write about it. Profit is made by keeping absolutely silent and working in the shadows.

Yes. The basic principles are valid. The exact sample cases I’ve suggested might or might not work. I have outlined some techniques for avoiding attacks of this type (most importantly avoiding walled gardens), but where there is money, there will be trolls.

Rest assured: there are people out there thinking precisely along these lines. Globally, masses of people are now being downsized who have the competence for this, families to feed, and negotiable moral values.  (To be consistently cynical: I am among them. I could  be good at this. We all like to think we’re on the side of the angels, but we’re not).

If someone has good ideas on how to protect the world against them (us?), I would appreciate hearing those ideas.

UN

 

SMOS: Humanitarian Patent Pool

What would it take take to actually, truly start  a “Humanitarian Patent Pool” like Timo Tokkonen suggested in a posting last week? The idea being to collect certain patents in a non-profit “pool” to keep patent trolls away from ruining humanitarian efforts.  The question was inspired by humanitarian catastrophe communications (see SMOS web page). But there could be other areas.

Is HPP even vaguely realistic? Patents are powerful, but not all-powerful: the Doha Declaration allows developing countries to bypass existing patents for medicines when public health is threatened. A concept similar to HPP, defensive patent aggregation, exists in the commercial world, but to my knowledge not in a non-profit setting.

Here are some back-of-the-envelope estimates on how the HPP might work.  Bear with me if there are ludicrous errors, and please propose improvements.

The core purpose of the HPP must be to eradicate patent trolls in humanitarian areas. The purpose is not to hinder legitimate players. (This is immediately a controversial goal. Idealists will want to eliminate patents from the humanitarian field altogether. I feel it is sufficient to eliminate just the rabid dogs, and let the healthy ones thrive).

The HPP needs to be a non-profit foundation. It should be international in scope, but it might be sufficient to restrict it to the USA because that is the home of the patent trolls.

The key function of the HPP is to collect ownership of “bad” patents. By “bad” I mean something that is not being used to create anything, but can be used by a troll to stop development. A much more refined definition is obviously needed.

The main category of “bad” patent is one which is too broad and should never have been granted in the first place. Another category are patents for a technical solution which has become obsolete, but which a lawyer can stretch to cover some other technology. Such patents are lethal weapons in the hands of a troll. But they could also be lethal weapons in the hands of the HPP.

There are two key strategies.

  1. Containment and decay. Collect patents that are allowed to expire as soon as possible. The purpose here is to prevent trolls from making claims, and to create strong prior art against future spurious patents. These patents should for the most part be collected through donations.
  2. Active deterrence. Patents that can and will be used in litigation against trolls. In some cases, the HPP might consider paying for these. The cost of filing a patent is > 10 kEUR, so the HPP might be willing to consider buying them at cost.

The HPP should be aggressive, not defensive. Unless the HPP is willing and happy to go to court against trolls, it will have no deterrence effect.

Since the USA already has a well-oiled machine in the Electronic Frontier Foundation, it would make sense to tie the HPP in very tightly with the EFF, especially its Patent Busting Project.  On the other hands, in terms of funding, the HPP could have wider appeal and hence be independent.

The working principle needs to be absolute transparency. For strategic reasons, if preparing for an attack, the HPP may require secrecy. But even there things need become public when fight is over. As far as I can see, the HPP cannot ever accept secret agreements or settlements.

The focus areas for active deterrence must be chosen very tightly. They should be restricted to those areas in which humanitarian damage can be massive, and in which trolling activity seems to be particularly easy. Catastrophe communications would certainly be one such area.

The budget of the HPP simply cannot be kept small. Even if using only donated patents, there are legal costs associated, even if the patents are allowed to expire immediately. A reasonable minimum estimate is 1 kEUR per patent. Since there must be hundreds to thousands of patents in the pool, this easily results in a budget of hundreds of kEUR per year.

If some key patents are bought with hard money (though at cost), the cost per patent could be 10 kEUR. The number of truly crucial patents will be small — court cases are typically litigated over just a handful of patents — but knowing which ones a critical requires buying more.

The cost of stockpiling and maintaining the patents will easily climb to a million EUR per year. Unlike projects like the EFF’s patent-busting project, there is no meaningful way to crowdsource the idea. It needs hard money.

If the HPP goes to court, the legal costs are unpredictable, but the HPP must be able to handle them. This is where my reasoning becomes completely fuzzy. Could this work on a pro bono principle? If courts find trolls’ patents spurious, might they willing to force the trolls to pay costs? I find this highly problematic.

Is there any way for the HPP to make some profit to recoup all its losses? In principle, yes, by licensing to legitimate businesses. However, trying to make a distinction between non-legitimate and illegitimate players would add costs and make enforcement difficult.

And, more crushingly, the HPP would risk turning into a patent troll of its own. (“He who fights monsters should see to it that he himself does not become a monster”). It is difficult to see any way to make the HPP self-sufficient.

So where would the funding come from, then? I have no real idea. This was as far as I was able to get in one sitting.

So is the HPP idea even vaguely realistic? If not, would be worth developing from some other angle? If not, do we just have to adapt to life with the trolls?

 

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