News Stop: IP and Patents, Expats pay in Life Sciences

Two articles of interest have been picked for News Stop from Today Online. We want to point you out to an article about patents & intellectual property in Singapore by Siew Kum Hong and also comment on the positive spin (and of course, put in the juicy parts which they did not tell you) on expats’ pay in the life sciences market.

Let’s start with the first article entitled “Protect, Not Stifle” by Siew Kum Hong (Today Online, 18 Oct 2006). In a brief summary, he pointed out the problems of abuse in IP and patents and provided a Singaporean perspective to the subject. It is timely that someone should realize that signing a free trade agreement with the US can be problematic for the IT market in Singapore. The problem comes when the legislation on intellectual property and patents get mapped into Singapore, for example, the Digital Millenium Copyright Act (DMCA). One issue is that reverse engineering software is difficult.

One distinction which is highlighted in the article, is the difference in patent law between US and the rest of the world. In US, you are allowed to patent business models and software.

Laws safeguarding intellectual property should not obstruct the creation of new ideas
I HAVE always thought that the policy discourse on intellectual property (IP) law in Singapore was dominated by rights owners, to the near-exclusion of other stakeholders. So it was gladdening to note the Chief Justice’s words at a recent legal conference: “We should strive towards the principled development our IP laws so as to continually strike a fair and equitable balance between the interests of all stakeholders in this brave, but wonderful, new world of intellectual property.”…..

The Chief Justice cited the example of “patent trolls”, entities who acquire extensive patent portfolios for the primary purpose of obtaining licence fees from companies who may potentially infringe the patents. Unfortunately, there are other instances of IP law being used or extended in ways that may not be balanced. For instance, digital content, such as films, music and software, is frequently delivered using digital rights management (DRM) technology. DRM is underpinned by legislative provisions that outlaw the circumvention of the technological measures used, with certain limited exceptions. (The Intellectual Property Office of Singapore recently conducted a public consultation on whether to add further exceptions.)

But this prohibition is unrelated to the question of whether the intended use of the protected content is permitted. This means that the owner of a digital work can prevent others from using it in ways that the law would otherwise deem appropriate and non-infringing.

For instance, if done properly, existing software can be reverse engineered to create new, competing software. But DRM can be circumvented only to achieve interoperability between software. This means that society has lost the right to reverse engineer DRM-ed software to create new software, even if the same activity may be permissible for non-DRM-ed software. What we can and cannot do becomes controlled by IP owners, not the law.

Patents present another hotly contested issue. Traditionally, software could be patented only as part of some sort of system or machine, and business methods could not be patented. But a 1970s case in the United States basically opened the floodgates in terms of what can be patented in the US. This has led to all manner of dubious software and business method patents in the US, such as Amazon.com’s infamous “1-click” patent covering online purchases on a website using only one mouse click.

While Europe continues to prohibit software and business method patents, despite continual efforts to permit software patents, such patents are registrable in Singapore after explicit prohibitions against them were removed in 1995. However, there remains some doubt as to whether the courts will enforce such patents even if they are registered.

This is important, because software and business method patents can be very broad in their application and can cover very fundamental ideas. New technologies can easily infringe software patents, especially if they cover an efficient way of solving a problem. Similarly, business method patents may cover obvious and commonly-used operational processes………

And yet, IP law is not just about owners’ rights. Instead, it aims to enrich society as a whole (and not just IP owners) by striking an optimal balance between rewarding rights owners and encouraging the creation of more IP, which often requires building on existing IP. It is, therefore, crucial not to veer too far to either side.

Unfortunately, the discourse is often dominated by rights owners engaged in rent-seeking behaviour — that is, trying to increase the value of their existing IP portfolio in ways that do not necessarily or clearly encourage the creation of new IP. For instance, the term of copyright was recently extended from the author’s life plus 50 years to life plus 70 years, but does this really increase the incentive for creating new works?

Globally, there is a growing awareness of the dangers of imbalances in IP law. For instance, Australia is considering changes to their provisions on the circumvention of technological measures such as DRM, to link offences to actual infringement of the protected digital work. The British Library recently released a manifesto calling for an update of the United Kingdom’s laws, to avoid it becoming, in its chief executive’s words, “an ass”. Unfortunately, Singapore’s hands are largely tied, because many recent changes are mandated by the US-Singapore Free Trade Agreement…….

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