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Patent Office Director: "My Hands Are Tied"
Goatbert writes: "Grant Gross from NewsForge has posted a report on a panel discussion on patents featuring TCP/IP co-inventor Vint Cerf as moderator, and with Tim O'Reilly and Todd Dickinson, director of the U.S. Patent and Trademark Office. Very interesting read, with some good (and bad) ideas on patent laws."
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Lessig framed the debate about software patents (really business method patents) as being 3 separate debates: 1) Is there really property involved, i.e. should the patent office even be involved? 2) Is the property being properly administered, i.e. the way in which the patent office is handling things. And 3) should there be a separate class of property defined for business methods?
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When Jeff Bezos asked Tim O'Reilly whether he [Tim] thought Amazon was justified in pursuing its patents, Tim told Jeff that he was "pissing in the well", because he was angering both his core customer base and the very people that provide the technology Amazon's business is based on.
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At one point, Lessig remarked on the '97 change in business practice patent law by quoting Norman Mailer: "Being evil is doing something you know is wrong. Being wicked is upping the ante without knowing the consequences."
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Dickinson started out the night by stating that his staff had researched the earliest relevant business patent they could find. It was from the 1860's, and covered the process of creating a hotel registry book which had advertising down the margins. The patent included a hand-drawn picture of such a register, which Dickinson held up for people to see. That drew a lot of laughs, because the register looked *strikingly* like a web page.
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Dickinson stated that a new "18-month publication" rule will be in effect soon, whereby the review process will be shortened. He also indicated that, starting sometime next year, they will change the rules so that applicants can apply for legal relief from the time they submit a patent for review, rather than having to wait until the end of the review process.
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O'Reilly's comment about farmers and ranchers was actually the very last comment of the night, given as Vint Cerf was about to dismiss the crowd. In context it was a conciliatory remark that he made to try and explain to Dickinson and Walker why there was such emotion from O'Reilly's and Lessig's side of the debate. The comment drew the biggest applause of the night, and my companions thought O'Reilly had been pretty shrewd to nab the last remark as he did.
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At one point, Walker stated that Priceline's business method patents were a driver of innovation across the industry, because people had to "find ways to work around" his patents, instead of copying his methods of doing things.
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In contrast, Vint Cerf jumped in at one point to state that he felt the "View Source" option in web browsers, and the fact that it was easy to copy someone else's methods, was one of the primary reasons the Web had grown so fast.
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Lessig at one point suggested a compromise: allow patents, but forbid lawsuits to enforce them until a comprehensive review of the effects of business method patents could be conducted. This struck me as remarkably naive, especially for a law professor. Walker was just about apoplectic - "You want Microsoft to take my property? You think Microsoft should take my property?"
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Walker: "The burden of proof is not on those who say that property should be, but on those who say that property should not be."
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Walker: "Property drives innovation [because] humans are economic animals. Except for economists."
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O'Reilly: "That work [having to file and defend against patents] is a tax on innovation." Walker: "All property is a tax."
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Dickinson stated that an NSF study has been started to determine the effect that IP laws are having on not just the software industry, but technological ventures in general.
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Dickinson stated that Congress had passed a law in November of '99 that explicitly forbade him to solicit or accept outside criticism of patents under review. To wit: "The Director shall make no provision for pre-grant opposition."
I'm sure I'm leaving some out - the evening was chock full of quotey goodness. It was quite entertaining, and educational. Kudos to the Internet Society for putting on the debate.I am no fan of Walker, but to group him and all other businessmen as just "businessmen" is ridiculous. What you fail to see is that real invention, innovation, and development go hand in hand with business. Very few of the improvements in this world are the strike of genius; they're generally the result of a lot of effort and, more often than not, resources. Put simply, it is the so-called businessman that makes it happen. It is the so-called businessman who applies the technology and creates a viable product. It is the so-called businessman who obtains the funding. It is the so-called businessman that takes the lionshare of the risk.
...or even the Steve Jobs of this world. Without "capitalists" like that...yeah, I think it's pretty safe to say this country would be no where today.
I'm not talking about slick VCs, Wall Street types, MBAs, bankers, feeble minded Dot Commers or what have you. I'm talking about people that have their feet on the ground and, more often than not, get their feet wet (to say the least)....the Henry Fords, Thomas Edisons,
Tell me something, if invention/innovation were merely a spark of inspiration. Where are all the great inventions from China? Russia? Or even, to a lesser extent, Europe? They're few and far between... and it's not for want of education or minds. You think it's just a coincidence that the word business is that much further from their vocabulary? What's more, where do you think most academics/scientists are ultimately deriving their funding from? Without real life products like the internal combustion engine, the telephone, the car, the microprocessor, etc....where would our economy be? Where does all the money come from that allows these "scientists" to research? Do you think it's any coincidence that most early inventors were aristocrats or part of an emerging middle class?
Science and modern day business go hand in hand. It's very much of a chicken-or-the-egg type problem.
The Republicans, while for a more corporate US, are very conservative in many areas, including patents.
The Democrats believe that patents should be given to ANYTHING, including some things that redefine "prior art."
IMHO, the patent office simply needs to take their lolly time reviewing things. Yes, some things that are offered can get outdated while the review process happens, but hey, that will probably weed out many bad ones by itself. They do a better job taking their time, and really, the only people that should be irritated with the time would be those who want to slip something by (**ahem, M$**). Also, that will discourage the people with nonsense patents. People with real innovations will be motivated enough to pursue that impossible patent.
I think the best suggestion was "Patent technology under development, not existing software/tech." (paraphrased badly). If that patent passes, then the patent should pass on to the developed product after a review. A double check system for the bad ones, eliminating many the first time around.
We don't need no Net Explorer We don't need no Thought control
As they should be. Now if we can just gag and blindfold them and find a convenient firing squad, we'll be sorted...
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Walker demeans the scientific and academic world, while claiming that patent holders like him are "creating hundreds and thousands of jobs". Let me rephrase it-- the inventors and developers create jobs for people like him. Or more directly, the developers increase the general welfare of society by making computers useful in so many ways. That welfare may not be in cash form, but it improves our lives nonetheless. The businesspeople merely find a way to transform that welfare into cash and move it toward themselves, much like an engine transforms one kind of energy into another. One tool to do this is to claim ownership of technology by using patents, the equivalent of building a fence in a public park and keeping everyone out with a gun. Ultimately, patent enforcement uses guns, too.
What a familiar pattern in this world-- some people work to increase the total wealth for everybody, while other people work to grab as much of it for themselves as they can.
When a patent is applied for, the applicant should specify how long they want the patent to be granted for. The patent office should charge accordingly, and spend a proportionate amount of time and effort analysing the patent for valididy. That way, you can get your dumb patent for a year reasonably quickly, but getting a 20-year patent is going to have to be well-justified and watertight.
Well, if you remember Econ 101, you will recall that so long as there are barriers to entry, there is money to be made, even if consumers have perfect information about market prices.
Not everyone can afford to start up a huge website, with high bandwidth, big servers, etc. Other barriers to entry are specific knowledge, which could vary depending on the business (Think Red Hat). Some Internet services are going to not be so profitable, because of the small barriers to entry, but there is lots of money out there, not the least of which is the "Internetizing" of conventional products and services.
I don't see IP being a major force behind the economics of the Internet. I think that patents are good for the stuff they have always been used for, but on the Internet, I think it isn't going to be who controls the inventions, but rather who makes the inventions work best for them.
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I've had enough abrasive sigs. Kittens are cute and fuzzy.
Article I, section 8 - "To promote the progress of science and useful arts, by securing for limited times to Authors and Inventors...."
It doesn't say "In order to create value..." or "To create jobs...."
try { do() || do_not(); } catch (JediException err) { yoda(err); }
This is the fundamental flaw in today's thinking about intellectual property rights in general, and patents specifically. The view expounded above is very common: people believe that inventors and companies somehow have a right to patents.
Well, the very nature of intellectual property. combined with the nature of a patent, says otherwise. A patent is a privilege, a monopoly granted by the government to a single entity for a period of time. To argue that an individual or company has the inherent right to dictate to the rest of the world what can and cannot be done with an idea is as ludicrous as arguing that an individual or company has the inherent right to dictate what can and cannot be done with other forms of property that individuals own, like saying that an individual or company has the right to say what I can and cannot do with my computer, my car, or anything else I legitimately have in my possession.
No, Thomas Jefferson had it right: intellectual property is a contradiction of terms: ownership has no meaning when the thing in question is a mere idea, something that can be copied directly from person to person simply by the telling of it.
The logical conclusion of the assumption of intellectual property is thought control, and that way lies a police state.
At the same time, of course, it's appropriate to reward people for their intellectual work. And so, a compromise was reached and the system of intellectual property involving copyrights, trademarks, and patents was developed over centuries of civilization.
But make no mistake about it: intellectual property is itself an artificial construct, a set of rules that we as a society attempt to apply to ourselves in order to maximize the benefit to society, to ourselves.
And that goal, to maximize the benefit to society, should never be ignored, as it's being ignored right now. People have been brainwashed into thinking that this artificial construct we know as "intellectual property" is real and natural, as Walker illustrates so well.
It's not. The sooner we all realize that, the better off we as a society will be.
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From the linked document:
Walker added: "The burden of proof is not for the people who defend property rights, but those who want to take them away."
Goddamn it, what a load of manipulative crap! It's frankly up to the people who allege a certain idea to be their idea, to prove that instead of smirkingly demanding that other people prove that it was stolen or blaringly obvious. I approve of valid patents, but vehemently oppose the idea that a fucking grant of privilege ought to just automatically be your problem unless you prove, at your great cost, that it shouldn't be your problem.
The patent system today is simply whacko, insane. It amounts to massive, legalized extortion against all of us for using our own damn ideas in routine, even trivial ways.
A truly excellent pizza parlor is a delight unto the heavens. Treasure the sauce and the toppings!
The law says that prior art and anything obvious to someone trained in the art are specifically not patentable. Storing someone's credit card number and shipping address, indexed by the cookie returned by their browser is obvious to any software engineer.
That's not, precisely, the law, and at least one federal District court has already rejected this "hand-wave" obviousness argument with respect to the Amazon patent. Time will tell whether or not the Amazon patent is invalid, but to date, no court of competent jurisdiction has considered prior art and allegedly obvious differences therefrom to be read upon by the patent claims.
The actual language of the patent act is this: "(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. "
Each word of Section 103 is rife with meaning, including the important difference between someone trained in the art and a "person having ordinary skill in the art." Obviousness is an important legal term of art filled with meaning that is trivialized by the casual -- "its obvious to me" -- remarks so often seen on Slashdot.
The cliche of blaming the patent office for not thoroughly investigating patent applications, particularly because some colleague after the fact thinks the solution was obvious, proves too much -- if you think there is art invalidating a patent -- set it forth. If you think there are arguments for invalidity, state them. Making non-falsifiable allegations that a patent is "obvious to me" is merely to engage in demagoguery.
It's the patent office's fault; they are over taxed and not thoroughly investigating patent applications.
Pot. Kettle. Black. It is as much the critics fault for not thoroughly investigating the actual legal bases for patentability before drawing conclusions about the inadequacy of the system, and for not actually themselves investigating prior art of specific issued patents they claim to be invalid.
Whatever may be said about Amazon's one-click patent, it is not patently invalid -- not only has the patent office so ruled, but so has at least one Federal District Court. The failure of the obvious "obviousness" test, is that it doesn't work for many patents that have been held to be valid. Next time, let's use actual standards, not ones we wish were substituted for the law.