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Why Geim Never Patented Graphene 325

Posted by Soulskill
from the makes-perfect-sense dept.
gbrumfiel writes "As we discussed on Tuesday, Andre Geim won this year's Nobel prize in physics for graphene, but he never patented it. In an interview with Nature News, he explains why: 'We considered patenting; we prepared a patent and it was nearly filed. Then I had an interaction with a big, multinational electronics company. I approached a guy at a conference and said, "We've got this patent coming up, would you be interested in sponsoring it over the years?" It's quite expensive to keep a patent alive for 20 years. The guy told me, "We are looking at graphene, and it might have a future in the long term. If after ten years we find it's really as good as it promises, we will put a hundred patent lawyers on it to write a hundred patents a day, and you will spend the rest of your life, and the gross domestic product of your little island, suing us." That's a direct quote.'"
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Why Geim Never Patented Graphene

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  • by Anonymous Coward on Friday October 08, 2010 @11:51AM (#33836748)

    If a Nobel prize doesn't count as prior art, the system is even more broken that it seems

  • by Culture20 (968837) on Friday October 08, 2010 @11:53AM (#33836776)
    That's a threat to abuse the legal system.
  • by Tim C (15259) on Friday October 08, 2010 @11:55AM (#33836800)

    The two are not mutually exclusive.

  • by hedwards (940851) on Friday October 08, 2010 @11:57AM (#33836842)
    That wouldn't be smart. If he did that, he'd probably get taken to court for slander, and if he didn't have evidence that the individual said that, he could very easily lose. Given the content of the quote, I rather suspect that the individual wouldn't have the scruples to look the other way if it is an accurate quote.
  • by Stiletto (12066) on Friday October 08, 2010 @11:59AM (#33836868)

    This is as fine example as any about how patents help the small business and/or lone inventor.

  • by jd (1658) <imipak@yahoo.cEINSTEINom minus physicist> on Friday October 08, 2010 @12:01PM (#33836902) Homepage Journal

    Y'know, just asking. If this isn't a demand with menaces, it sure the hell ain't kippers.

    The interesting part of this is the use of the patent system to prevent an inventor patenting their invention. (You know damn well that the company WILL file patents in ten years anyway and will make gob-loads of money, prior-art not withstanding.) The sole value of a patent system is to ALLOW the inventor to patent their invention. It serves no other function. (The other theoretical value of properly documenting an invention has long-since given up the ghost.) That we now have a verifiable, demonstrable example of patent inversion shows that the system as it stands must be replaced.

  • by Anonymous Coward on Friday October 08, 2010 @12:02PM (#33836940)

    Power corrupts, absolute power corrupts absolutely. Corporations, and their masters have become absolutely powerful and absolutely evil. The only thing more absolute is people's denial and greed.

    How many people have sold themselves out into corporate slavery?

    Now, go as your told, boy.

  • by Anonymous Coward on Friday October 08, 2010 @12:03PM (#33836956)

    "Method of making something similar to Graphene but isn't"
    "Method of using a Graphine-like material to wipe your ass"
    add "on a smartphone", "on the internet" etc. to each of them.

    They can generate a mountain of patent applications and a good chunk would be granted. They'd never stand up in court, but they don't care. Like the guy said, they'd kill the competition with legal fees.

    Yes, it's an abuse of the legal system. Good luck getting THAT to stick.

  • by dougmc (70836) <dougmc+slashdot@frenzied.us> on Friday October 08, 2010 @12:04PM (#33836976) Homepage

    Well, they don't have to patent graphene itself -- they can just patent every possible application of it that they can think of.

    That's really the way things seem to work -- if you patent something really awesome, somebody with a lot more lawyers will surround your invention with patents so it can't be used, even by you, without infringing on one of their patents. In general, these patents tend to be "obvious to the layperson" and therefore should be thrown out, but that requires lots of money, and it's easier to just pay their extortion money.

    The system is screwed up. It would be even more screwed up if you needed a Nobel prize to protect yourself against it, but at least in this case it's not needed -- and doesn't even help.

  • by MozeeToby (1163751) on Friday October 08, 2010 @12:06PM (#33837004)

    Oh yes, a very simple method to make graphene is covered by the prior art. But what if they come up with some tiny improvement to the process (or more likely a massive improvement if they're going to commercialize it I don't think using scotch tape and pencil lead is going to cut it). And then you can file a patent for each possible use that you can come up with, and another for every tiny incremental improvement you make to those uses, and even uses that you come up with that you know won't work but might end up being close enough to something that does work that you can sue someone later. Broken... broken... broken, I just can't express how broken the patent system is.

  • by Anonymous Coward on Friday October 08, 2010 @12:08PM (#33837036)

    They'll also patent every way of making it. Then they'll patent every change/improvement
    to the process for the next 50 years.

  • Patents (Score:5, Insightful)

    by cjcela (1539859) on Friday October 08, 2010 @12:14PM (#33837152)
    Maybe patents use to work 50 years ago. Now it is always the case that the company with deeper pockets always gets its way one way or the other. What really gets to me is the hypocrisy of people saying 'patents protect innovators'. They do not. Patents do anything but protecting innovation.
  • by jorenko (238937) on Friday October 08, 2010 @12:19PM (#33837230)

    While we're being pedants here, the UK isn't an island either.

    Or are you one of those people who doesn't understand the difference between the UK and Great Britain?

  • by MozeeToby (1163751) on Friday October 08, 2010 @12:20PM (#33837252)

    Never understood the 'not obvious to the layperson' requirement, seems to me like it should be 'not obvious to someone in the given field'. In other words, if you presented 5 engineers with a problem and they all came up with the same or similar solutions, that solution should not be patentable, there is no leap that is worth rewarding with a monopoly. But I guess just getting the layperson requirement to actually be honored would be a good step in the right direction.

  • by hey! (33014) on Friday October 08, 2010 @12:23PM (#33837286) Homepage Journal

    You don't understand how this works. You write patents like "Use of graphene as a conducting element in an electronic device," or "Method of fabricating graphene on silicon substrates employing one of several obvious design choices that nonetheless sound like witchcraft to anyone without a PhD in Materials Science."

    It doesn't matter if the patents won't stand up. If there's enough of them, it won't be worth the cost for any private party to knock them all down. The only way to stop this is to get tough on fraudulent claims. If an "inventor" shows a pattern of putting his name on patent applications that a professional working in the field would consider trivial, then he should go to prison for perjury.

    The problem with the current system for policing fraud is that it relies on competitors. But the whole strategy is to pile the BS so deep it's not worth the competitors' bother. Furthermore, the competitors aren't going to rock the boat because they're doing the same damned thing.

    Patent abuse is a win-some, lose-some proposition for the corporations engaged in it. It's the public and the real inventors who consistently lose.

  • by BadAnalogyGuy (945258) <BadAnalogyGuy@gmail.com> on Friday October 08, 2010 @12:29PM (#33837384)

    It's really simple, and Geim seems to have totally misunderstood the guy's comment.

    By patenting it, and the company creating patents surrounding it, Geim stands to gain in licensing incredible amounts of profit. He would be able to "buy his own island".

    Geim calls this comment arrogant, but by not patenting it he has simply made it possible for the multinational electronics company to use his invention at no cost. They reap all the benefit while his work to discover/invent goes unrewarded - even the Nobel prize award would be dwarfed by the licensing fees he could make if the invention is truly useful. Geim's altruism benefits only the "arrogant" companies he seems to disdain.

  • by bl8n8r (649187) on Friday October 08, 2010 @12:31PM (#33837418)

    Patent System: A system put in place to be manipulated to protect corporate IP while stifling competitive innovation.

    Legal System: A corporate asset which is manipulated to keep innovative products from being competitive.

  • by FooAtWFU (699187) on Friday October 08, 2010 @12:32PM (#33837432) Homepage
    Yeah..... that is one of the many reasons the US put "freedom of speech" in a Constitutional amendment and wrote very loose slander/libel laws.
  • by MozeeToby (1163751) on Friday October 08, 2010 @12:38PM (#33837490)

    I'm just saying that an army of patent lawyers will box in any important invention so much that any layman's patent is going to be 100% worthless because they won't be able to do anything with it without stepping all over a dozen other patents. Lets say that you're one of the inventors and want to start a business to actually sell a product that uses graphene. Oh, you want to mass produce graphene now? Well, there's 13 patents on ways to mass produce it so you'll need to license one of them even though it is really just an automation of the process that one you a Nobel prize. You want to use graphene in a touchscreen display? Sorry, that violate the patent on "monolayer semiconductor based resistive devices". etc, etc, etc.

  • by Rude Turnip (49495) <valuation@gmail. c o m> on Friday October 08, 2010 @12:41PM (#33837528)

    Evil prevails when good men do nothing.

  • by Grond (15515) on Friday October 08, 2010 @12:43PM (#33837576) Homepage

    Counter-intuitively, this actually presents a case for stronger patents. A strong, easily enforced patent would allow Geim to secure licenses from companies using graphene without a long or expensive legal battle. Strong patents give individual inventors and startups the leverage they need to compete against established players.

    Weak patents favor large, established companies. A single weak patent isn't very useful, but a thousand weak patents can destroy a startup competitor or force a settlement with a large one. The result is that large, established companies will tend to accumulate huge portfolios while preventing startups from flourishing. Startups will tend to hope to be bought up by established companies rather than try to compete on their own. And that's exactly what we see today: comparatively few new, large companies and a lot of established players with large patent portfolios that buy up new competitors and engage in low stakes patent litigation with each other that routinely ends in status quo-preserving settlements and cross-licensing agreements.

    Note that strong patents are not mutually exclusive with tougher examination and stricter patentability standards. We can do things like reform the written description and enablement requirements so that patentees are forced to write narrower claims that only cover what they actually invented and not just whatever they could brainstorm or dream up without actually nailing down the particulars. Such reforms are not incompatible with making patents stronger and more easily enforced.

  • by TheKidWho (705796) on Friday October 08, 2010 @12:45PM (#33837600)

    Once the patents expire the knowledge will be in the public domain and free to use for everyone. Much better than keeping it a family/industrial secret for hundreds of years IMO.

  • by Intron (870560) on Friday October 08, 2010 @12:49PM (#33837648)

    You can't obtain a patent on a substance. You can only obtain patents on the manufacturing or some "novel" usage of the substance.

    If there's only one way to make a material and you patent it, then you have essentially patented the material. That's how gene patents work too, they're on the process to produce the gene.

  • by Dachannien (617929) on Friday October 08, 2010 @12:56PM (#33837732)

    if you patent something really awesome, somebody with a lot more lawyers will surround your invention with patents so it can't be used, even by you, without infringing on one of their patents.

    If you hold the patent for Illudium Pu-36, for instance, then even if someone else patents the Illudium Pu-36 explosive space modulator, they will be on the hook if they try to make their invention without getting a license from you. So even if everyone else comes out of the woodwork getting patents that hedge out all the possible applications of your invention, you're still better off with the patent, since they can't make their own patented inventions without using your patented invention.

  • by Spatial (1235392) on Friday October 08, 2010 @12:58PM (#33837752)

    We've arranged a society based on science and technology, in which nobody understands anything about science and technology. And this combustible mixture of ignorance and power, sooner or later, is going to blow up in our faces. I mean, who is running the science and technology in a democracy if the people don't know anything about it?

    Carl Sagan

  • by Anonymous Coward on Friday October 08, 2010 @01:19PM (#33837994)

    100 years from now no one will care who the richest corporation or individual was but all scientists will know his name.
    A Nobel prize, a great book or painting, etc can bring a kind of immortality that money never can. Edgar Allan Poe died an alcoholic pauper but he left all of us a timeless legacy.

  • always will be political. additionally: ANY peace prize will be political, forever. any kind of peace is dictated according to terms. terms are always decided by processes that are political. therefore, the very concept of peace is essentially a political animal

    since the peace prize is always political no matter what, then the prize will always bother someone somewhere. therefore, the existence of yourself, someone who is bothered by it, is simply a problem that has no solution. therefore your complaint has no merit, because there is nothing that can be done about your complaint: whiners and gripers will always exist in politics

  • by AhabTheArab (798575) on Friday October 08, 2010 @02:11PM (#33838590) Homepage
    But then you can't use your Illudium Pu-36 for any practical applications. Your patent is as useless as theirs at that point.
  • by srussia (884021) on Friday October 08, 2010 @02:28PM (#33838780)

    In the US, the standard is "not obvious to one having ordinary skill in the art". In other words, someone with more skill than Joe Sixpack, but less skill than an expert in the field.

    Sounds like they should just include an "Ask Slashdot" step in the patent process. In fact, I think I'll patent a "method for determining 'obviousness to a person skilled in the art' for patent puproses".

  • by brainboyz (114458) on Friday October 08, 2010 @02:40PM (#33838982) Homepage

    But if they're big enough compared to you, they'll make their space modulator anyway and drag things out in court when you sue. Better have the money to have lawyers dedicated to the case for 8 years. If you run out of money, they win. If your lawyers miss an objection or technicality, they win. If you win, you'll eventually get money and damages.

  • by DrYak (748999) on Friday October 08, 2010 @03:00PM (#33839284) Homepage

    Yup, indeed. Patents are the modern and scientific equivalent of the "Mutual Assured Destruction" doctrine and its nuclear madness.

    only much worse because during the cold war, the nuke-equipped countries kept showing off to each other only through weapon tests, nobody nuked small nuke-less countries on a regular basis just just to kill off competition.

  • by Jafafa Hots (580169) on Friday October 08, 2010 @03:09PM (#33839400) Homepage Journal

    So, you invented Illudium Pu-36 and get a 20 year patent.
    You spend ten years defending that patent, and get very little out of it because you're too small to get good licensing deals, too small to effectively fight off infringers, etc.

    Meanwhile, they after a few years patent every concievable use of it. You're boxed in now. You can spend all your time fighting them. Some of their patents are very obvious, others have prior art, but you have to prove that in court and you can't afford to.

    Your patent expires. They still have years left on theirs and make a billion. Meanwhile they are creating new slight variations of every patent to effectively REpatent the same shit. Most get through because patent examiners are clueless, and nobody wants to fight them in court.

    Rinse, repeat.

  • by shaitand (626655) on Friday October 08, 2010 @03:25PM (#33839582) Journal

    Small correction if you presented 5 engineers with a problem and ANY of them came up with the same or similar solutions, that solution shouldn't be patentable.

    Patents are given out way too easily. I used to think patents should be eliminated altogether but I've finally settled on the belief that we simply give out too many and for too little.

    Progressive inventions will be made without patents. Patents should be reserved for solutions that aren't reached by 1 in a thousand peers let alone five out of five random peers.

  • by Dachannien (617929) on Friday October 08, 2010 @03:55PM (#33839942)

    It's a little more complicated than that.

    True, but it's nigh impossible to convince /.ers to read the claims of a patent, so I figured I'd give the Cliff Notes version.

  • by dgatwood (11270) on Friday October 08, 2010 @04:10PM (#33840124) Journal

    And, of course, the way it should work is this:

    • Gather a panel of people with a typical level of knowledge in the field.
    • Ensure that none of them are aware of the invention.
    • Tell them the problem the invention is trying to solve.
    • Give them any building blocks used.
    • See if they can replicate the invention or a close approximation thereof.
    • If so, reject the patent.

    The problem is that 99% of "inventions" are nothing of the sort. They're little more than ideas that are obvious as soon as you are told the problem that you're trying to solve, and the only reason they weren't invented decades earlier is that nobody was trying to solve that problem yet because the problem space itself did not exist.

    For example, a patent on how to take bids via the Internet could not reasonably be invented prior to the Internet. But ask ten people how they would set up an auction site on the Internet, and even if they've never used eBay or heard people describe how it works, they'll still describe most of it pretty accurately. As such, it's obvious to even a nimrod who knows how the Internet works and wants to conduct auctions online. Since the core purpose of patents is to protect an inventor's exclusivity temporarily in exchange for publishing how something works instead of keeping it a trade secret, and since a patent on that concept would contribute nothing of consequence to the general understanding of technology, such a patent should be soundly rejected.

    Further, any patent on any software technology that does not include the corresponding source code to demonstrate how something is done should be rejected. And again, if the source code is obvious once you've been told its inputs and expected outputs, the patent should similarly be rejected.

    It should not be enough to be the first to think of doing something. The patent should at a minimum provide some significant insight that would not be obvious to a typical person who has been exposed to the problem. Most patents do not, and as such, most patents are junk.

  • by Anonymous Coward on Friday October 08, 2010 @07:26PM (#33842008)

    That may be the /de jure/ standard. But the /de facto/ standard is "non-obvious to the jurors deciding the case". After all, it's not as if them there college boys with their book-learning are any smarter than regular Americans, right?

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