Slashdot Mirror
Tim O'Reilly Debates Patent Office Director
jbc writes "The O'Reilly Network is running a debate between Tim O'Reilly and Patent Office Director Q. Todd
Dickinson. Among the highlights is Tim's call for a Slashdot-like forum to serve as a means of identifying prior art."
A bare-knuckled debate, not as in-depth as I'd have liked, but it's good to know Dickinson's perspective. Someone else mentioned a
list of educational patents
on computer assisted instruction techniques some of which go back to the 1960s.
The patent office should locate and talk to 3 people in the field. Ask them whether the discussed patent is an original and innovative idea. If 2/3 cannot help but laugh, throw it out.
Most of the software patents would quickly die by this test...
Cheers,
Ben
My usual seat in the cluetrain is at A HREF="http://pub4.ezboard.com/biwethey.ht
Unless I'm mistaken Dickinson has just guaranteed the eventual starvation of all lawyers. He admits that he would permit a patent of a legal argument if it were software. As soon as the first software lawyer becomes presentable in court, all other lawyers are going to have their arguments taken by the software developers of CyberLawyer1.0
They're also required, under a very stringent rule called "Rule 56," to supply to the office all the prior art of which they're aware that's material to the examination of that application.
This is kind of like asking Bill Gates list any ways he thinks his company may have violated anti-trust laws.
134340: I am not a number. I am a free planet!
I'm only up to page 4 so far, but the feeling Im coming away with is that Dickinson was engaged in an entirely separate and unrelated conversation to the one O'Reilly and the moderater were having.
Take, for example, O'Reilly's question of "How would you feel if a legal argument could be patented?" Dickinson avoids answering the question several times. He starts of saying "sure, if it meets the statutory requirements and is incorporated in software" - but the O'Reilly question asked about a theoretical change in statutory requirements. Dickinson then falls back on arguing that lawyers arguments are not patentable. At no stage did he answer that question, although he tried his best to appear to have answered it!
Dickinson is also adopting clearly partisan positions on the issue, and is commenting on issues he's clearly not up to speed on. His argument actually outlines a definition of "obvious" - he only considers things obvious if prior art exists! This ignores the fact that if there wasn't a prior need, then prior art cannot exist. Prior art is only a valid qualifier if you can also establish long standing prior need.
Perhaps this would be one way to fix the patent system. Make it a requirement to establish prior need dating back, say, the same amount of time as the patent will last. If there is no significant prior need, or if there is prior art, no patent can be granted.
As things are, Dickinson is claiming that if somebody arrives at a particular need first, arrives at an instant and obvious solution, and patents it, then the patent should be allowed because by his definiton it's not obvious (there is no prior art).
I'm pretty sure the Amazon One-Click patent will fail this test, because the patent itself is little more than a patent of that which is needed! In this case, once you have the need you have the "invention".
On the other hand, I think he failed to convey the full impact of something I found very compelling. We might very well *not* have demanded increased Article 56 burden, if we'd been at the hearings.
Right now we're looking at pro-corporate examples that make out blood boil one way, but there *is* another side, even for an ardent anti-corporatist. [Let's forget for the moment that half of SlashDot is rabidly anti-IP right now. We *have* a patent system. Let's work with that] How many of us have tinkered and invented since we were kids, and at some point considered having an inventions produced and marketed? What's the first thing you worry about? The system and being ripped off by the Big Guys. Result: no one wins. The product doesn't get made -- or gets made years later, when someone else comes up with it (and probably *that* person gets ripped off.
Most of us have wished it wasn't so difficult to get a patent. The more inventive you are, the more likely you've wished it. A lot of us would love to be able to support ourselves with our explorations of the possible... so that we could spend our lives inventing more.
But we're 'little guys'. The cost, the search, lawyers, the years to approval -- all are scary!
On the other hand, it realy burns our beans to see someone else patent something that seems 'obvious' (to us) -- often *so* obvious that it seems like the major cleverness lay in imagining the idea of patenting it. Then we start demanding more rigorous standards for patenting.
So which will it be? Easier patents or harder? I choose "easier". Why? because a corporation can more readily carry the burden of increased Artcle 56 demands than 'the little guy', the Yankee tinkerer, the one-man R+D shop. And that seems to be Dickinson's view, too. What we need is easier, more consistent, transparent and less painful patent review. Unfortunately, he simply isn't equipped to perform that review. he wants our help (on his terms, of course - whaddya expect?)
In the extreme, the patent system could be like the internet -- anyone can put up a site (stake a claim), but that claim can be shot down too. That isn't the no utopian vision it might seem. The Internet has plenty of problems that we wrestle with daily: spam, threatigation (coercion by threat of litigation -- just made it up), cybersquatters... you all know the list.
But since patents aren't hobbled by free speech concerns, which *need* to be generously oversized, due to the power differential between individuals and coercive groups (private or government), there is a reasonable opportunity to construct a system where scientific and enginneering principles reign and not 'legal principles' (oxymoron).
We don't have to have a 'wild west', we can have a collaborative 'open source patent review'
Admittedly, a lot of people (including many lawyers I know) would find purely technical grounds to be too "cold" or "restrictive". They prefer softer standards, like 'social values' or consensus, or even fantasy. That's not a slap -- we're all sometimes a little less rational that we'd like to believe. My point is: not everyone will agree with *any* patent, when it keeps them from doing what *they* want. We all secretly hate the guy who gets 'our' girl, 'our' parking place or 'our' lottery jackpot.
We'll all sometimes want to decide patents on the basis of what we imagine the consequences would be, rather than whether it is a genuine advance over prior art. We will find the battle for to make rational patent decisions is not, and may never be, as easy as we should.
My 2 cents. Harder or easier? I say easier -- both to create patents and to contest them.
_____________
If you can go to bed, knowing you did a valuable thing today, you're very lucky. If you can't... it's not bedtime
We don't patent obvious inventions. We just don't. And if you believe that it's obvious, and you've got prior art to show that it is obvious, send it on in
our patent system is in the hands of a moron. Dickenson doesn't understand the difference between "obvious" and "prior art". If there is prior art, it doesn't matter if it's obvious. Obvious is for the case where there is no prior art.
And saying that the one-click patent was very narrow: Barnes and Noble used two clicks so they didn't infringe? That is the stupidest reasoning ever!
People don't hate lawyers because they are stupid. We hate them because they are stupid and have influence over anything.
The sad fact is that software patents are downright stupid. They skirt the very edge of patenting "laws of mathematics" (many of them blatantly patent trivial algorithms like interpolation, run length encoding, etc.) But even without that debate, allowing the entire 20 years that it will be valid for well over the useful lifetime of many of these patents; completely destroying the patent system which was designed to encourage inventors to publicly release their secret techniques in exchange for a time limited monopoly. Since it takes about two years for a patent to be processed, the patent is often useless by the time it is granted, let alone when it expires.
magic
Dickinson: I think there's a disconnect there, Tim. You just told me that all these folks, they have eight out of ten of these in their back pocket. If they've got them in their back pocket, they don't even need to do a search. If they're aware of invalidating prior art, send it on in.
Our system derives a substantial portion of the information it requires to reject patents by trusting the client to provide that information.
If you're aware of prior art out there that invalidates a patent that is existing, file a re-examination. We'll be happy to take a look at it. I've done a couple of these. Mr. O'Reilly hasn't filed any. I've actually filed two myself in the last six months.
In six months, I've initiated formal procedures to correct two misappropriations of IP assignments. You've merely noted that the entire procedure of assigning IP is hopelessly insecure.
Tim: But let me just ask the other question. In terms of filing for a re-examination, my understanding is that once you ask for a re-examination, the patent holder gets to comment to the private ruling, and then that prior art can no longer be used in any court cases, so it seems weighted very heavily in favor of the applicant.
Should a flaw be found with our security system, that flaw will only be recognized once, with us trusting the original client to determine whether that flaw was indeed serious. After this initial evaluation, no futher challenges will be accepted.
Dickinson: Absolutely, Mr. O'Reilly. One thing we were lacking was your very cogent voice last year as this legislation was pending on Capitol Hill. We very strongly supported expanding that re-examination, and it only passed in November, and I didn't hear you or Mr. Bezos raise your voices once to try to keep that kind of loophole from being included in the legislation.
It's not our fault that our security policy is broken; you didn't email our management any detailed proposals defining exactly what a loophole was.
Tim: How would you feel if a lawyer was able to patent an argument?
Dickinson: If it was new and non-obvious, I wouldn't have a problem with it at all.
Tim: And the ability to basically extract a royalty from other lawyers for using that same legal argument?
Dickinson: As I say, if it's new, and if it met the statutory standards for patentability (and that's the key question here), and it was incorporated into software in some form, that wouldn't be a problem.
Today's security policy is brought to you by Franz Kafka.
(side note: We now have the world's best example to get software patents eradicated.)
Dickinson: Obvious functions are not patentable. We don't patent obvious inventions. We just don't.
Attacks against our system do not exist, have never existed, will never exist. Our trust of the client is completely secure.
And if you believe that it's obvious, and you've got prior art to show that it is obvious, send it on in, as I've said many times.
We respond to systematic failures in our security policy by analyzing each penetration on a case by case basis, rather than rewriting our access control lists to actually do something.
I am eager for Mr. Bezos to get moving and fund the comprehensive software database he said he was going to fund, because we need that kind of prior art, we need those kinds of databases to help us do our work better.
We have no problem moving from a system where nobody respects our patents to one where nobody can write a line of code without knowing which dozen patents they're violating. We like the idea of insecurely authorized policies being grandfathered into our system.
Yours Truly,
Dan Kaminsky
DoxPara Research
http://www.doxpara.com
1) Business Methods and Software Methods are not part of the 'traditional' patent system. They have only recently been allowed.
2) The only way to change the system is to get political. When you sat back and let Congress allow the above changes to the Patent Office's mandate, *you* made it possible for this current absurd situation to arise.
Now, IMHO, it's too damn late. The mandate has been expanded, and it is *impossible* to shrink it back.
Which leads to...
3) The *ONLY* solution is to work *with* the PO and *with* Congress.
Work with the PO to help them get their shit together wrt prior art and obviousness. Sounds like the database idea is a good start.
Work with Congress to exert pressure to help refine the way that Business Methods and Software Methods go through the patent process. You can't remove them from the process: you can only change the way they're validated.
You gotta get involved. S'only way.
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Don't like it? Respond with words, not karma.
I think this goes to the heart of it, and where they were talking at cross purposes. Every time Tim talked about obviousness, Dickenson talked about prior art. I agree that the patent office should only consider published material as prior art, but obviousness is a much fuzzier thing, apparently.
I'd have thought you could show obviousness if someone tried to patent a standard mail-order or phone-order convention as applied to the Internet by citing those as prior art, and making the argument that it's obvious to do the process with another communications medium. Can anyone think of some specific examples (I've had a long day) that we can write up and send in? I'd like to see how well the process works :-).
Too bad Tim didn't get to say what he meant by
18 out of 20 developers having whatever in their back pockets. What he meant (and should have said, outright) was that they could pull it out of their ASSES! These are patents of obvious solutions to common problems. Any developer faced with the same problem to solve, would come up with the same solution (patentwise).
And, to have the Director of the Patent Office of the USA state that "no obvious patents have been granted" is very embarassing for me (note the bare assing part) as an American. Given that I have only looked at a very small number of patents granted and ignoring the slew of internet patents issued recently, I have seen several which are beyond obvious, such as patents relating to database cursors (which are beyond obvious); certainly the idea of having a reference (pointer? index? handle?) to your current location within a list of data objects is not patentable, Right?! Not so. Thank god (or whomever you want to thank) that the company holding this patent isn't defending its patent! Everyone using a linked-list (much less a database engine) is in violation right now! Perhaps the Director would like to examine the amount of software he is using on a regular basis that are not paying royalties to the legal patent owners for their illegal use of patented (i.e. those granted patents, not those which deserve patents) inventions. The fact is, the patent owners know their patent is bogus and that only the legal fees required to defend against a patent infringement suit are a deterent.
Hence the need to patent everything, so you have a defense against everyone else.
In the case of the Internet, prior art is almost useless given the pace the internet and internet software are progressing. As someone else said, you can't have prior art without prior need. This stuff hasn't existed long enough for prior art to be developed.
From the interview, the Director is:
A) A moron
B) Doesn't care and is simply carrying out his duties
C) Part of the system
I don't think he's A, as he was very good at cutting Tim off and reciting the law and the charter of the patent office. I can't decide between B and C. In any case, he is certainly an ASS!
Citing actual inventions, such as the light bulb, morse code, the telegraph or the telephone, in defense of the patent system is a very good ploy; however, it doesn't really stand up very well to the situation at hand. These inventions (with perhaps the exception of the lightbulb) preceeded their need. No one even thought about calling someone else before the the telephone was invented, patent applied for, and marketed. Too bad Tim didn't push this further.
Perhaps, rather than attempting to help the patent grantors (not just the patent office in the US, but patent grantors worldwide), we should show them for the idiots they are! Rather than submitting "re-examination applications", simply show how simple the patented idea is or show prior art where available or provide a multitude of alternate solutions to the problem solved by newly granted patents. Instead of having a website which provides prior art, maybe we should have website that debunks patents granted. Show them for the fools they are! If nothing else, perhaps we could make these patents useless and undefendable.
Derry Bryson
You just wish your ID was as low as mine! I used to be proud to have such a low id, but not so much now. Slashdot most
Let me sum up what you just said:
"If you want any justice in this country, you'd better be able to afford it."
While Mr. Dickenson doesn't dictate the cost of a lawyer, he does have a lot of control over how the patent system works. If it currently requires you to hire a lawyer in order to have a reasonable chance at protecting your invention, perhaps it needs to be changed.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
If notification of the impending vote is posted on the back of a filing cabinet in the third sub-basement of an abandoned warehouse in Toadsuck, Arkansas, nobody "chose" not to vote.
:-)
This was a major change with vast implications to everyone in this country, and it was quietly worked out where only people already engaged in the process would even know about it.
Yes, public hearings were held; and after they'd been held, they were publicized in what amounts to "nyah nyah, missed 'em missed 'em now you gotta kiss 'em".
I'm not foreign to the political process; one U.S. Senator voted correctly on encryption issues because I patiently explained them to him while we were waiting for his plane to arrive.
I didn't hear anything about this, and I don't recall any of the geek news sites mentioning it until after the fact, much less the "real" news sites.
Mr. Dickinson is aware of the hidden nature of this discussion (his remarks in the article make that readily apparent) and his remarks also seem to indicate that he doesn't feel that's at all a bad thing, that he basically sees the fact that Open Source is a grass-roots movement and thus doesn't have unlimited funding is a failing of the movement and should rightly result in the movement having no voice in a process that he vigorously defends as being by the lawyers, of the lawyers, and for the lawyers.
His position seems to be that if you don't like the system, you should hire a lawyer to lobby for fixing it.
He states that people writing programs should always hire an attorney first to make sure they're not stepping on some obscure patent on some obvious process, directly equating the alternative with "performing surgery on yourself". That's not my impression, it's a quote. See page 4, about halfway down.
So basically, he should be among the first up against the wall when the revolution comes.
That is, assuming pulling the trigger doesn't violate Amazon's one-click patent.
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Mr. Dickenson said at one point "That's why you need a good lawyer," in reference to paten applications and such. Does he know how much even a mediocre lawyer costs? I had one a while ago, and for six one-hour sessions, it set me back around $3000. He also said a couple of times about how he patent system was "for the little inventor", you know, the garage-inventor type person whose intellectual property would be stolen by the big companies. So, the system is in place to protect the inventor who has just spent his life savings on his invention, but yet that same inventor is expected to have all these thousand-dollar bills around to pay a lawyer?
Bite me.
Dave
Barclay family motto:
Aut agere aut mori.
(Either action or death.)
Mr. Dickinson's argument seems to be:
If you didn't catch it when it was being maneuvered in back rooms, I don't care if it's right or not, tough shit, you should have been richer.
Mr. Dickinson, you are part of the problem, not part of the solution, and I hope you need help with your system from a clueful hacker some day.
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