COVID-19 Shows What Innovation Looks Like Without Patents (Spoiler: It Works)

from the innovation-doesn't-need-patents dept

This post is one of a series of posts we're running this week in support of Patent Quality Week, exploring how better patent quality is key to stopping efforts that hinder innovation.

The COVID-19 pandemic has given rise to a fascinating natural experiment: What does innovation look like when patents are largely out of the picture? For Patent Quality Week, I’ll be looking at the development of COVID-19 vaccines and what lessons can be drawn for reforming the patent system.

The development of COVID-19 vaccines has largely progressed without any noticeable effect of patents. None of the vaccine developers have sued competitors for patent infringement, and Moderna has even pledged not to assert patents during the pandemic. To be sure, patents have not been out of the picture entirely: the developers are getting plenty of them, and analysts are predicting the lawsuits to start as early as the first booster shots. But even in this world just partially free of patent threats, a few things are worth noticing.

Start with the sheer number of COVID-19 vaccine products. The two mRNA vaccines from Pfizer/BioNTech and Moderna coexist with each other and vaccines from Johnson & Johnson, AstraZeneca, Novavax, and others. In any other situation, these companies would right now be in massive patent litigation, and many of the firms would likely have dropped their products or not even entered in the first place. Along with non-patent incentives such as government funding and social prestige, the absence of patent assertion has helped open the door to multiple similar vaccines being available on the market.

Similar, but not the same. Moderna’s vaccine can be stored at higher temperatures than Pfizer’s, J&J is a single dose, Novavax is based on more traditional vaccine technology. Each vaccine has distinct characteristics preferable for certain consumers and certain settings.

Multiple suppliers and product differentiation are hallmark features of many competitive markets. It’s simply good business sense for competitors to make slightly different products that serve different consumers, and vaccine manufacturers are no exception. As a result, economists find that “neck-and-neck” competition spurs innovation when multiple firms each try to outdo the others through incremental improvements and differences.

The presence of multiple, differentiated competitors has been a tremendous boon to the American COVID-19 response. Health care providers can opt for a vaccine technology that best fits their facilities, and some individuals have gotten to choose between mRNA or one-and-done. More importantly, competition means robust supply chains. Contamination of production batches and discoveries of serious side effects didn’t halt the flow of vaccines because other products were in place.

Patents could easily have upended vaccine deployment in the United States by constraining the market to a single supplier. For comparison, during the 2001 terrorist anthrax scare, the only approved drug for anthrax was Bayer’s patented product Cipro. Unlike the COVID-19 vaccine manufacturers, though, Bayer vigorously defended its patents and refused to allow competitors to make Cipro, which led to national panic and tense negotiations until the Bush administration pressured the company into major price and manufacturing concessions.

The word “monoculture” is sometimes used to describe how dependence on a product or company creates a potentially devastating single point of failure. Originally referring to agricultural wipeouts due to single-crop plantings, the term was popularized by computer security experts who credited a monoculture of Microsoft Windows with the catastrophic spread of computer worms. Others (including myself) have worried about monocultures of cell phone chips, encryption software, and global shipping canals.

The medicine for monocultures is competition to ensure that if one product fails, others will continue to meet the public’s needs. Multiple vaccine options and suppliers are plainly better than panic-buying the last boxes of Cipro on the shelf. Given the potential of patents to create monocultures, how can the patent laws be written to avoid them and foster valuable competition?

There are at least two answers. First, the patent system needs flexibility to deal with unexpected situations such as pandemics and national emergencies. A law called section 1498 already provides this flexibility by allowing the United States to authorize use of any patented technology, with compensation to the patent holder, and Chris Morten and I have argued that the government should be more proactive in asserting this authority. The need for flexibility also explains the importance of the United States’ support for international patent waivers. While the COVID-19 vaccine patent truce has resulted in sufficient supply for the United States, worldwide patents have helped to dissuade some foreign drug manufacturers from producing their own. An international waiver that overcomes patent barriers to competition could add more, diverse vaccines to the market. And in view of arguments that vaccine patents are irrelevant in view of manufacturing bottlenecks, it is worth asking whether new international entrants freed from patent restrictions might discover alternative ways of manufacturing vaccines, thereby pushing the bounds of innovation.

More important is to avoid granting patents that enable monocultures in the first place, and that’s where patent quality becomes important. Done right, patents should encourage product differentiation by restricting close copies of a technology while allowing alternate solutions to problems. Monocultures arise from patents on broad swathes of solutions or even on the problem itself—say, patenting the idea of vaccinating against COVID-19 versus a patent on the biochemical structure of a particular vaccine. Especially for computer software, broad problem-covering patents are far too common—patents on scanning to email, accounting for currency exchanges, and one-click online shopping, for example. At best, such patents fall into the hands of trolls who use them to harrass startups and other companies for money. At worst, they become tools that large, dominant firms can use to suppress competitors, setting the public up for the failures that monocultures can cause.

There are many options for enhancing patent quality and avoiding the dangers of monoculture: rigorously applying law that prohibits patents on computer algorithms and laws of nature, giving patent examiners sufficient time to review patent applications, and enhancing lower-cost ways for competitors to challenge patents issued wrongly. Many lawmakers have been receptive to these ideas, with the White House’s recent executive order and hearings in Congress both looking into how to keep patents from deterring competition. But some have pushed in the opposite direction of more patents regardless of quality. There have been recent efforts to change the law to allow for more patents on software and natural discoveries, patent examiners are overworked, and the Patent Office has made it increasingly hard to challenge questionable patents.

These seemingly backward steps are taken out of fear, a hypothetical worry pushed by patent-holding industries that a more rigorous patent system will destroy incentives to innovate. Perhaps the most important story to be learned from the COVID-19 vaccines is that this worry is unfounded. Multiple competing innovators not bogged down with patent lawsuits can function better, innovate more, and robustly serve public needs better than an industry of patent-backed monocultures. Bold steps toward patent quality should be cause for celebration, with an eye toward a competitive technological future.

Filed Under: competition, covid-19, patents, vaccines

As White House Says It's 'Reviewing 230', Biden Admits His Comments About Facebook Were Misinformation

from the of-course,-not-in-those-words dept

In the never ending stupidity saga, kicked off by the White House picking a fight with Facebook because Facebook hasn't banned 12 individuals (who were named as disinformation dozen by the Center for Countering Digital Hate), things have kicked up a notch -- and nobody involved in the debate seems to know how any of this works. First, the White House has claimed that it is "reviewing Section 230" whatever that means.

"We're reviewing that, and certainly they should be held accountable," Bedingfield told MSNBC when asked about Section 230 and whether social media companies like Facebook should be liable and open to lawsuits for publishing false information that causes Americans harm.

The problem with this, of course, is they can "review" it all they want, but if the people spreading disinformation aren't breaking the law (and, they're not), there would be no underlying cause of action against Facebook with or without Section 230. But, of course, this should be worrisome on multiple levels, not the least of which is that Biden said multiple times during his campaign for President that he wanted to repeal Section 230 entirely, explicitly because he (falsely) thought this would magically make Facebook liable for disinformation.

(As a small aside, it's kind of rich that it's Communications Director Kate Bedingfield claiming that the White House is looking at Section 230, considering in a former life she was VP for the MPAA -- and was literally the chief spokesperson for the MPAA at a time when it was running a secretive campaign to have its own lawyers act as a shadow legal team for state Attorneys General to undermine Section 230 in order to take down tech companies Hollywood disliked. Seems kind of like a conflict, but what do I know?)

Anyway, along with all of this, President Biden walked back his statement on Friday when he said directly that he believed Facebook was "killing people," by not banning certain users. This was a stupid and misleading thing to say. And on Monday, he kind of recognized that what he originally said was not accurate:

“Facebook isn’t killing people, these 12 people are out there giving misinformation,” the president said, citing an administration report last week on online coronavirus vaccine misinformation. “That’s what I meant.”

“My hope is that Facebook, instead of taking it personally … that they would do something about the misinformation, the outrageous misinformation about the vaccine,” Biden continued.

And, again, it's perfectly fair to talk about misinformation, and how the impact of it can be very real and very dangerous. But the blame for that misinformation really ought to be on the people spreading it.

Indeed, in this case, it could easily be argued that the President himself spread misinformation in saying that Facebook was killing people. Misinformation is false or inaccurate information, especially when it's intended to deceive. Biden's statement on Friday certainly could qualify. It was inaccurate to say that Facebook is killing people. It is not. It's arguably deceptive to pin the blame on Facebook rather than on the individuals spreading the disinformation -- and Biden corrected that misinformation on Monday.

And, to be clear, I do think that Facebook should be better about dealing with such misinformation on its platform -- I'm just not so naive as to think that the company can just magically snap its fingers and make misinformation disappear. Should it be doing more to stop the spread of misinformation about vaccines? Yes. Absolutely. Does it help when the White House jumps in like this? Not at all.

And, again, it's not as if there's a clear rule on what is and what is not misinformation. As I noted, it's arguable that Biden's own comments are misinformation. There are no simple rules to distinguish what is and what is not misinformation in these contexts that can easily be applied across billions of users. And the end result of more aggressive removals also likely means the removal of perfectly reasonable content, perhaps that criticizing vaccine deniers and helping to better educate people.

Everyone thinks it's easy to make disinformation go away until you actually have to make the calls yourself.

And the White House isn't doing anyone any favors by claiming that getting rid of Section 230 would actually help. If anything, it would make things way worse, by vastly cutting back on the ability of websites (including Facebook) to experiment with better approaches to actually minimizing the impact of misinformation on their platforms.

On top of that, as some are noting, this appears to be yet another case of the government trying to cover up its own policy failings by blaming social media.

Filed Under: content moderation, disinformation, joe biden, kate bedingfield, liability, misinformation, section 230, vaccines
Companies: facebook

WIPO Says Johnson & Johnson Can't Seize Parody Website Suggesting Band Aids With Corporate Sponsors

from the brand-aid dept

Danielle Baskin is something of a brilliant creative force who constantly comes up with hilarious art projects/commentary/satire -- some of which end up turning into actual businesses. This included, somewhat recently, her Maskalike business that would print yours (or someone else's?) face on a mask. That operation just closed up shop, but was quite popular in the midst of the pandemic. She's also created satirical services such as one that puts blue checks on your home (a la being "verified" on Twitter or Facebook) or stained glass film over airplane windows, or a "Decruiter" service to help you figure out when to quit your job, or a hoodie that will let you replace corporate logos with velcro. There's also the website that runs obituaries for expired domain names.

There are many more of these kinds of projects listed on her website. One of her attention-getting projects from a few years ago was Branded Fruit, where she would... well... do what it says, and put a corporate brand on a piece of fruit.

Perhaps somewhat inspired by the success of the Branded Fruit project while thinking about the pandemic, the vaccines, and the rush to turn just about anything these days into a branding opportunity, a few months back Basken set up Brand-Aid™ at the website BrandedBandAid.com. It's a clever bit of commentary on the nature of the commercialization of health care these days.

Of course, as the little ™ in the title of her site obliquely comments on, Johnson & Johnson still holds the trademark on the brand "Band-Aid" and tries to police the mark fairly aggressively -- especially since many, many people assume that "band aid" is a generic term for medical adhesive bandages, and J&J is terrified of losing the actual trademark.

Soon after the Brand-Aid (sorry Brand-Aid™) domain was registered, J&J sent a nastygram. Baskin responded quickly that the site was clearly a parody about the capitalization of public healthcare. J&J then did what J&J does and went to WIPO to demand that the domain itself be handed over to the company. What then followed is fascinating and laid out in WIPO's decision that denies J&J's demand, allowing Baskin to keep the website.

The key issue is whether or not the domain was registered in bad faith. The WIPO panel isn't completely convinced by Baskin's arguments -- noting that even if the website is a parody, it's not clear that the domain itself is:

Here, the Panel considers that the phrase chosen by Respondent in the Domain Name – “brandedbandaids” – does not itself convey parody of Complainant, its trademarks, and related products. Moreover, and while the Panel tends not to find Respondent’s arguments on this point terribly persuasive, it is also at least debatable whether the website linked to the Domain Name targets Complainant and its BAND-AID marks, or rather is intended as a more general parody of “the capitalization of public health,” as initially claimed by Respondent. See e.g., A&F Trademark, Inc. and Abercrombie & Fitch Stores, Inc. supra (“In order to constitute parody, the web site must poke fun at the goods or services associated with Complainants’ marks: use of another’s trademark to poke fun at something unrelated to Complainant’s mark is not parody.”) Of course, the Panel also recognizes that Respondent has free speech interests protected as a constitutional right in the United States; however, under the law individuals do not enjoy absolute freedom of expression especially with respect to terms protected as trademarks.

But the key issue for WIPO is really whether or not the domain was registered in bad faith, and there's no evidence to support that.

Here, there is no doubt that Respondent, when registering the Domain Name, was aware of Complainant and its BAND-AID brand. The question is whether, despite that awareness, and in view of Respondent’s asserted artistic parody intention for registering the Domain Name, the registration and use amounts to bad faith.

Complainant has contended that Respondent’s registration of the Domain Name without authorization reflects opportunistic bad faith and was intended to exploit the goodwill and fame of Complainant’s marks in bad faith to improperly deceive Internet users and benefit Respondent financially. Complainant has pointed out that when Respondent initially launched her website, the disclaimer was not prominently placed and Respondent used an allegedly infringing version of the BAND-AID mark in the font and color typically used by Complainant. Further, Complainant argued that the ultimate effect of use of the Domain Name will be to cause confusion with Complainant, and thus the registration and use of the Domain Name must be considered to be in bad faith. Complainant has sought to emphasize that Respondent’s use should not be considered “purely noncommercial” because an Internet user, by using the link to Respondent’s Twitter account and then clicking through to her personal website, could be introduced to commercial ventures offered by Respondent.

In the face of these contentions, Respondent has argued that while a given use may or may not meet the standards for the parody defense, it may still be a sufficiently plausible, good-faith motive to overcome Complainant’s proposed inference of bad faith within the meaning of the Policy. Given the facts and circumstances of this case, the Panel agrees with Respondent on this point. See The California Milk Processor Board supra (“This may or may not meet the standards for the parody defense under United States trademark law, but it is a sufficiently plausible, good-faith motive to outweigh the Complainant’s inference of bad faith within the meaning of the Policy.”). Respondent has provided evidence to demonstrate that she is, in fact, an artist who engages in parody of the Internet, capitalism, online businesses and the technology industry more generally, while using websites, domain names and social media. Respondent has not demonstrated any interest in selling or transferring the Domain Name, nor is there evidence that she has previously made a practice of acquiring domain names resembling trademarks for sale. Respondent has claimed that the website linked to the Domain Name has no revenue or plan to seek revenue, and has submitted a sworn affidavit to this effect:

“I registered and used the website solely for the purpose of artistic parody. At no time have I ever sought commercial benefit from either the website or from the registration of the domain name.”

The evidence in this case supports Respondent’s assertion concerning noncommercial use. As for the link on the Domain Name’s website to Respondent’s Twitter account, which in turn might be used to link to Respondent’s personal website that reflects one or more commercial ventures, the Panel finds that this path is too attenuated such that it would by itself disqualify the Domain Name from noncommercial use. Further, since being contacted by Complainant’s counsel, Respondent has taken steps – through a disclaimer on the website and changing the font and color of text on the site – to respond to Complainant’s demands concerning the content of the website. This point is important because UDRP panels tend to assess relevant facts concerning use of a domain name with a view to the circumstances prevailing at the time of the filing of the complaint, and Respondent made the relevant changes before the Complaint was filed. See WIPO Overview 3.0, section 2.11. Ultimately, and acknowledging that the Policy criteria are non-exclusive, looking at paragraph 4(b)(iv) in particular, the Panel finds that owing to the credibility of the sworn assertion as to the noncommercial nature of the Domain Name and attendant website, the Domain Name was not registered and used in bad faith.

Finally, the Panel emphasizes that the decision in this case is limited to the criteria under the Policy, and the Panel makes no findings concerning the parties’ rights under applicable national law – which may in any event be better suited for determination by a court.

Complainant has failed its burden to demonstrate that the Domain Name was registered in bad faith.

As the panel makes clear, that doesn't mean Baskin is totally free and clear. J&J could still go after her in court for trademark infringement, in which case the fair use, non-commercial use and other defenses would be used and could prevail (though it would still be quite a mess). Hopefully, J&J realizes not only what a wasteful headache that would be, but also how it would make the company look like a ridiculous, censorial bully who can't take a joke.

Anyway, to celebrate, I'm going to go put Techdirt logos on some generic Band-Aids.

Filed Under: advertising, brand aids, commentary, danielle baskin, domains, parody, satire, trademark, vaccines, wipo
Companies: johnson & johnson

No, The White House Isn't Colluding With Facebook To Silence Dissent; But It Sure Could Have Handled Things Better

from the what-a-mess dept

Honestly, this is the last thing I wanted to be writing about today. First, let's make this clear: when I've seen political officials -- both Democrats and Republicans alike -- threatening to punish companies for 1st Amendment protected activities, I call it out. Indeed, I've been highlighting these kinds of issues for years -- and it has nothing to do with politics or ideology or who I like or who I don't like.

It's a simple fact: the US government should not be threatening or coercing private companies into taking down protected speech.

But, over the past few days there's been an absolutely ridiculous shit storm falsely claiming that the White House is, in fact, doing this with Facebook, leading to a whole bunch of nonsense -- mainly from the President's critics. It began on Thursday, when White House press secretary Jen Psaki, in talking about vaccine disinfo, noted that the White House had flagged vaccine disinformation to Facebook. And... critics of the President completely lost their shit claiming that it was a "First Amendment violation" or that it somehow proved Donald Trump's case against the social media companies.

It did none of those things.

On Friday, rather than recognizing how this whole line of argument would be weaponized, the White House doubled down, again highlighting how it was upset about misinformation about vaccines on social media, and then when asked directly about "Facebook" Joe Biden said "they're killing people." This is, of course, wrong. Facebook is not killing people. Some idiots on Facebook are spreading misinformation and disinformation that is likely causing people to die, but we should be putting the blame where it needs to be put. On the people spreading the disinformation.

Either way, the fact that the government might flag to social media companies that certain content is disinformation does not, in any way, reach the level of coercion or demands that would make it a 1st Amendment violation. There was no indication that the companies were told to take it down. There's no indication that anything happened other than the administration saying "Hey, this stuff is dangerous." And, I mean, if you're going to get mad at administrations demanding social media posts get taken down, it certainly looks like the Trump administration went way further than the Biden administration did in demanding such things (like that time with regards to posts advocating for the removal of confederate statues). I don't remember any of the folks now screaming about the Biden administration complaining when Trump actually did demand posts be removed.

Of course, that still doesn't make this necessarily the right approach by the White House -- and frankly, it's astounding that they walked right into this seemingly unaware of how it would all play out. Ken White wrote out the perfect way in which a smart White House would have dealt with this issue:

Here’s how the Biden Administration could handle the plague of deadly disinformation in a way that wouldn’t play into the Trumpist censorship narrative:

"The First Amendment and Section 230 let private companies like Twitter and Facebook choose how to moderate their sites. American free speech rights are exceptional and protect a very large amount of speech many of us would agree is dangerous or harmful. That broad protection helps insulate speech from political and ideological urges to censor. But the government has a leadership function as well as a governing one. Part of leadership is praising good behavior and condemning bad behavior, in hopes that people will do the right thing, without the coercion of law.

Facebook has a right to make money off of this alarming and deadly disinformation. But that doesn’t make it the right thing to do. Just as Americans have the right to say poisonous and ugly things to each other, that doesn’t make it right. When Facebook is exercising its right to profit off of deadly propaganda about COVID, it’s doing the wrong moral thing. It’s being a bad citizen. The First Amendment protects it from coercion, but not from criticism — yours and ours.

We call on Facebook to reconsider its stance. We’ve identified common anti-scientific propaganda that puts lives at risk. Facebook can continue to profit off of it. But it can choose not to. We call on Facebook to do the right thing - for Americans and their lives."

Would it really have been so hard to have done something like that?

Filed Under: censorship, content moderation, disinformation, intimidation, jen psaki, joe biden, orders, social media, vaccines
Companies: facebook

Crappy US Broadband Is Also Hampering Equitable Vaccine Deployment

from the do-not-pass-go,-do-not-collect-$200 dept

As our recent Greenhouse policy forum on broadband made abundantly clear, COVID is shining a very bright light on US broadband dysfunction. The high cost of service, spotty coverage, slow speeds, and high prices are all being felt acutely in an era where having a decent broadband connection is the pathway to education, employment, healthcare, and opportunity. And after 25 years of US apathy to its telecom monopoly problem, COVID-19 is applying pressure on lawmakers and regulators in an entirely new way to do something about the 42 million without broadband, the 83 million under a monopoly, and the tens of millions who simply can't afford service due to limited competition.

But it's not just high prices and spotty coverage that have proven to be an issue in the COVID era. In Kentucky, one of countless US states where local monopolies AT&T and Time Warner Cable (now Charter Spectrum) literally dictated state telecom policy for 25 years (with obvious results), a lack of broadband access is hampering the public's access to vaccines. Louisville, Kentucky high schoolers recently set up VaXConnect Kentucky to help seniors get access to their first and second shots. And they're finding themselves "surprised" to learn just how many people don't have access to a reliable, affordable connection:

"People are calling us and they only have landlines, and they don't have internet or a computer or an email," Beck says. "That's more common than I realized."

Granted part of the problem is monopolization and limited competition impacting broadband availability and price. But the other problem, long discussed here at Techdirt, is the fact that state and federal regulators have done a piss poor job accurately measuring broadband availability. In large part because giant incumbents like AT&T have fought tooth and nail against improving broadband mapping for the better part of thirty years. Mostly because once lawmakers and regulators get a better sense of monopolization's real impact, they might just get the crazy idea to do something about it.

In this case, our failures to seriously tackle monopolization and regulatory capture are having a very real human cost. And usually, it's the most vulnerable among us who are the first in line to feel the pain, something experts also discussed at length during our recent Greenhouse panel:

"About 27% of American adults over the age of 65 don't use the internet, according to the Pew Research Center. Pew also reported that a third of Black adults in the US lack home broadband. ABC News reported that the situation is even worse for seniors of color. Meanwhile the Centers for Disease Control and Prevention said people 65 and older, as well as members of racial and ethnic minority groups, are dying at disproportionate rates from COVID-19."

Having co-built DSLReports, I spent every day for fifteen years watching first hand how the broadband industry (and its various policy tendrils at think tanks, consultants, and lobbying shops) spent millions of dollars and countless man hours trying to convince the press, public, and regulators that the US broadband market was perfectly healthy and competitive, and in absolutely no need for reform or meaningful oversight. COVID has, in a very short amount of time, punched that self-serving, bad faith argument squarely in the jaw. Hopefully we learn something from the experience.

Filed Under: broadband, competition, covid-19, fcc, us, vaccines