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There are many experimental tools in biological research that cost researchers an exorbitant amount (for example, single-cell RNA sequencing technology) - would someone be infringing on a patent (or likely, multiple patents) if they choose to produce the tools themselves and then gave the tools away to researchers, and received no compensation? How about if that person took donations through a GoFundMe to cover the production costs? Would there be any ways of doing this that are explicitly legally safe?

Aaron
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    Your title and body ask nearly opposite questions... – paul garrett Jul 20 '22 at 00:07
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    @paulgarrett How so? The sentence "would someone ... no compensation?" is basically a longer version of the question in the title. – marcelm Jul 20 '22 at 11:04
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    @marcelm I think they're referencing the "How about if that person took donations through a GoFundMe to cover the production costs?" portion. Compensation for costs is still compensation. – TCooper Jul 20 '22 at 19:32
  • @marcelm That's because there are three separate questions in the body. If the answer is "yes", does it mean "yes, it's patent infringement" or "yes, there are safe ways of doing this"? – TooTea Jul 21 '22 at 12:26
  • @TooTea If we disallow any questions that can't be answered with an unqualified "yes." or "no." then we won't have a site left. While I agree that the question could be formulated better, it is perfectly understandable and answerable as it is. – marcelm Jul 21 '22 at 15:27
  • Related question: Is there a fair use for patents? – 200_success Jul 21 '22 at 19:38
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    I think you should also quality whether the tools you are thinking about are software or hardware. In the EU you cannot patent software but in the US you can. – Bruce Adams Jul 22 '22 at 13:41

3 Answers3

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You can’t do this

A patent provides the owner with the exclusive right to make (among other things) the patented thing.

Dale M
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"Would there be any ways of doing this that are explicitly legally safe?"

Yes. Buy all the patents, out of your own money.

Another option, if you can't afford that, is to buy a smaller number of licences and then pass those on for free to whoever you like. Or fund your own research/innovation centre. There are lots of legal ways of doing this.

The problem patents (and other intellectual property restrictions) are intended to solve is that research and innovation to develop a new technique is very expensive (laboratories, equipment, worker education, safety regulations, the cost of all the failed attempts, ...), but once invented, it is very cheap to copy. If researchers can't make money out of it, they won't do the research, and human progress suffers. (Scientists have bills to pay, too!) So we get round this - in a crude and inefficient way - by granting a temporary monopoly on an invention so that the inventor can charge as much as is needed to pay back the costs of its development and fund the next stage of research, and then the world gets it for free thereafter.

The result is that inventors invent, the rich who can afford it pay the full development costs in return for immediate access, and the rest of the world reaps the benefits in perpetuity of a much more voluminous stream of enthusiastic inventions once the patents expire.

If you want the rest of the world to get earlier access to those benefits, then you need to find a way to pay off the development costs faster. The obvious way is to simply pay the inventors directly. Buy the patent out of your own funds, and then release it to the rest of the world for free. The patent-holders are happy, they're being paid. The world is happy, they're getting the benefits immediately. And you're happy, you have generously used your own earnings to make the world a better place.

Nullius in Verba
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    "buy a smaller number of licences and then pass those on for free to whoever you like" It's almost certain that the original license owner would prevent that. There's also nothing inherent in licenses that allows a licensee to be able to pass their license onto someone else, unless it's explicitly allowed in whatever contract they signed. And, unless you are a multi-billion dollar company, you aren't going to be able to get that in the contract. – computercarguy Jul 20 '22 at 17:42
  • Really appreciate the alternative perspective here. "It can't be done directly, but there are methods to accomplish the goal" – TCooper Jul 20 '22 at 19:48
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    +1 for "intended" – preferred_anon Jul 20 '22 at 20:46
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    Aren't countries like China and India more lax with patents, especially in the medical space (topical to OPs question)? – Mathemats Jul 21 '22 at 02:14
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    @computercarguy That's a tiny technical detail that doesn't really matter much. Can't transfer licenses? OK, set up a website with "Need a license for this here expensive patent? Fill in your details in the form below and we'll buy a license for you". Or if that still doesn't work, then "Order a license from the inventor and send us the invoice, we'll pay it for you!". – TooTea Jul 21 '22 at 12:22
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    @TooTea Doesn't matter much for this question, but money isn't the only reason people don't license out their patents. E.g. the artist Anish Kapoor bought exclusive rights to the pigment Vantablack so that no other artists can use it. Then another group developed some cool pigments and made them available for anyone but Anish Kapoor to purchase, with a license that specifically says you cannot allow Anish Kapoor to use them. – user3067860 Jul 21 '22 at 13:22
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    @TooTea, specifically licensing a person, business, or use is actually pretty common. In fact, licenses that prohibit transferring them is basically the default, because, simply put, selling licenses is how many people make money off inventions. They don't have the money or resources to make it themselves, so they sell the rights to someone who does. Often, this is an exclusive right so only the one manufacturer can make them as rare and expensive as they want. – computercarguy Jul 21 '22 at 15:01
  • @user3067860 99PI? – TCooper Jul 22 '22 at 14:21
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    Or move to a country which doesn't recognize the patents, and stay there. – barbecue Jul 22 '22 at 14:54
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Of course it is; how could it not be?

If you want to do this, that or the other without paying patent fees you have the option to contact the patent holder, explain how your activity doesn't infringe the patent and ask for some kind of special licence.

Why would that not work for you?

Robbie Goodwin
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  • If the activity doesn't infringe the patent, you don't need a license. – cjs Jul 21 '22 at 02:46
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    When contacting a patent holder, it might be more fruitful to explain how the activity either doesn't hurt their income (provide tools to people who couldn't afford to buy them anyway?) or provides positive publicity or other benefits. – jpa Jul 21 '22 at 08:50
  • Making the thing covered by a patent (during the patent period) is basically the main thing that infringes on a patent--a patent is the sole rights to make the thing. From Oxford Languages, a patent is "a government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention." – user3067860 Jul 21 '22 at 13:22
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    Important to note, that even if you don't sell an item, giving it away for free potentially deprives the patent-owner of the equivalent revenue. – MikeB Jul 22 '22 at 10:03
  • @cjs Of course not, and what makes you think it could be up to anyone but the patent holder… or the court… to decide what infringed the patent? – Robbie Goodwin Jul 29 '22 at 00:15
  • You are not correct about what I think. Anybody, patent holder or not, may decide that they think a patent is being infringed. Only a court evaluating a lawsuit in front of it may decide that a patent is actually being infringed. ¶ You said, "...explain how your activity doesn't infringe the patent and ask for some kind of special licence" which doesn't make sense. If your activity doesn't infringe the patent, you have no need for a licence from the patent holder. – cjs Jul 29 '22 at 01:04
  • @cjs I don't know what you think. That's why I asked. Of course anyone may decide that they think a patent is being infringed - just as they may think anything else - and how does that matter? How is your "Only a court evaluating a lawsuit in front of it…" not the same as my "… the patent holder… or the court"? Are you suggesting the patent holder doesn't get a think in this, and only the court counts? Sorry you don't have time to read the law texts… – Robbie Goodwin Jul 29 '22 at 21:17
  • "...what makes you think X?" indicates that you believe I think X. I am suggesting that the patent holder's thoughts on whether their patent has been infringed are no more likely to be accurate than the thoughts of anybody else with similar technical knowledge looking at the situation. Yes, only the court counts to determine if the patent was actually violated. And there's another hitch there, even if the patent as written was violated, the result may also be a patent being struck down due to being overly broad. (I.e., the violation was of no consequence.) – cjs Jul 31 '22 at 02:23
  • At any rate, you seem to be missing my main point. You suggest (per my quote two days ago) that if you believe your activity doesn't infringe the patent you still ask for a licence. This doesn't make sense. If your activity doesn't infringe the patent, you don't need a license. If you believe it does infringe, you won't be able to explain why it doesn't infringe. (This problem could be fixed very simply by changing the "and" to an "or.") – cjs Jul 31 '22 at 02:26
  • @cjs Sorry and you seem to be trying to deal with a single case, whose details are unstated. Tricky; no?

    By contrast, I'm trying to deal with all cases, whether or not ny details are stated. Much more simple; no?

     – Robbie Goodwin Aug 06 '22 at 00:12
  • @RobbieGoodwin No, I am dealing with the general case. There are two things you can do: A) tell them you're not infringing, and B) ask for a license. You state that you should do A and B; this wrong. You should do A or B. In other words, if you're not infringing, you don't need a license. I'm not sure how to explain it any more clearly than that. – cjs Aug 07 '22 at 12:14
  • @CJS A third thing you could do would be to wake up to the fact that "Tell them you're not infringing…" is not a real option. You seem to be looking for "After they've rejected your claim, prove to the court…" I suggest they are not the same.

    Go back and ask yourself first what could have been the point of the Question, if there was no infringement?

    Why not recognise that whether you take - or plan to take - any compensation is beside the point?

    Like it or not, producing the goods without licence infringes the patent… despite the rather unusual wording?

     – Robbie Goodwin Aug 07 '22 at 20:09
  • @RobbieGoodwin If "tell them you're not infringing" is not a real option, why do you suggest doing exactly that in your answer? ("[E]xplain how your activity doesn't infringe the patent and ask for some kind of special licence.") You seem to be going to a lot of trouble here to avoid simply editing your answer to be more clear about what you're trying to say. – cjs Aug 12 '22 at 01:34
  • Thanks and do you really have nothing better to do? My intent was to cover all possibilities. What was your intent? – Robbie Goodwin Aug 17 '22 at 20:35