From: Dennis Wicks
To: Ask Tim
Subject: Software Patents: If You Can't Lick 'Em . . .
Tim,
I was reading over some of the material concerning the amazon.com 1-Click patent. I've also been reading some info about various types of software licensing. Somewhere along the way, a thought occurred to me:
If you can't lick 'em, join 'em! If some number of programmers and designers started patenting as many original and innovative ideas as they could come up with, it would surely put a crimp in some other people's activities. But a second step is required. As soon as the patent is granted, it should be placed in the public domain for all to use.
I was also wondering how differently things might have progressed if Amazon had used the resources expended on the patent filing and law suit on brainstorming and developing new marketing features instead.
Regards,
Dennis
Hi Dennis,
The problem with the idea of "If you can't beat them, join them" is that filing a patent is a non-trivial activity, taking a substantial amount of developer time in addition to the legal costs. It's thus a tax on the system.
It also wouldn't help very much, since the patent office doesn't have the resources to do a great deal of due diligence before granting new patents in any case. Especially in software, it's easy for a patent applicant to use different language for what is really the same thing as an existing patent. This is one reason why the patent office just churns them out, figuring that patent holders can fight it out in court. And in fact, most patent disputes are settled by cross-licensing, which is why the patent game is tilted so heavily towards large companies with large patent portfolios.
And of course, in theory, the mere act of publication of an idea (including its use in free software) provides "prior art" that should prevent the patenting of an idea already in use. Unfortunately, as I've written at length elsewhere (see for instance Jeff Bezos/Tim O'Reilly on Patent Reform), the patent office does not require applicants to search for prior art. Making a thorough prior art search a requirement of any patent application, with serious penalties for knowing lack of disclosure, would be high on my list of recommended changes to the patent system.
That being said, there are a number of proposals for free software equivalent patent pools. For example, see OpenPatents.org. Free software developers who do own software patents should certainly think about joining with other patent holders into one of these pools.
Regarding Amazon, I don't think that they diverted a lot of resources toward the patents. They have continued to put an awful lot of resources toward innovation. They continue to be one of the most innovative e-commerce sites out there. Given the overall climate of big companies filing lots of patents and trying to extract a tax from companies who have fewer patents, a company of Amazon's size probably does need to protect its innovations with patents.
My beef with Amazon was that I thought it was dirty pool to use a patent offensively when they had received so much benefit from piggybacking on the work of others. I do think that Jeff got the message, and I doubt very much that we'll be seeing other Amazon patent lawsuits. In fact, even Amazon and Barnes and Noble eventually settled. (Unfortunately, the terms of the settlement have not yet been revealed.)
Tim
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