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
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.
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.
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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