by Tim O'Reilly
Background: My protest against Amazon's 1-click ordering patent revealed that there is a huge grassroots revolt against the expansion of software and business method patents, especially with regard to the Internet. An open letter on my web site (which is targeted to Internet developers) produced 10,000 letters to Amazon on the subject in only 3 1/2 days. As a result, Jeff Bezos and I realized that there appears to be widespread concern with the direction the patent system is taking, concern that we want to bring to your attention.
The working programmers who are building the innovative new applications of the Internet--the actual inventors whom the patent system is supposed to protect--feel threatened by the expansion of software patents. The Internet industry was built on open standards, open source, and a great deal of imitation. Now, the rules are changing, as lawyers and big companies get involved, and the people who've made this one of the most exciting and dynamic industries out there today are worried. Tim Berners-Lee says: "the whole development and standards process ...is in a precarious state." At least in the Internet industry, and quite possibly in all of the software industry, it seems likely that the consensus among actual developers is that patents hurt rather than harm their ability to innovate.
Further, there is a general feeling that the people who are filing patents are quite often NOT the people who have actually made substantial inventions. Instead patents are going to companies that are adding small features to broader inventions that were put into the public domain, or have formerly been protected only by copyright. This is what has caused so much grassroots anger in the industry.
Even further, the actual individual "inventors" listed on many software patents don't believe that they are legitimate. As one well-known developer at a large software company remarked to me: "I have my name on 9 patents [including a prominent web patent] and I think all of them are a joke."
As a result of those letters, Jeff made a number of suggestions for reform, including development of a prior art database, a public opposition period for new patents, and a shortening of the term for software patents
In the month since my initial protest letter, and Jeff's response, I've had many letters and conversations about problems and possible solutions. Here's some of what I've learned:
One frequently cited problem is that the patent office doesn't require companies to proactively search for prior art. While some effort has been put into prior art databases, there seems to be a "don't ask, don't tell" approach, where companies don't look very hard, and the PTO doesn't have an affirmative requirement for applicants to search. What's even worse, it seems as though there are actual disincentives to knowing about prior art; because there are penalties if you knowingly ignore prior art, ignorance is the best defense. Further, once a patent is granted, there are substantial benefits to the patentholder, even if prior art is subsequently brought up as a defense against patent infringement.
In short, unless the patent office makes more rigorous search and disclosure by applicants a requirement, the industry is not likely to police itself. Based on Commissioner Dickinson's recent remarks, it sounds like there may be some openness to placing this burden on the applicant, and we'd really applaud that move.
Even if the PTO does require patent applicants to search for prior art, this is a difficult problem, because there are huge gaps in the record, and so much prior art is not in searchable databases. However, it would be possible to harness Internet era tools to enable public comment on existing and pending patents, and to provide leads for prior art searches. This might be a joint government/industry effort, and we are in touch with people who could contribute.
Beyond the prior art problem, though, the courts seem to have broadened the scope of what is patentable. Internet software is now sufficiently powerful that many techniques widespread in the physical world can be transferred to the Internet by anyone with a minimum of effort. For years, this was done without the aid of patent protection, on the grounds that much of what was being done was obvious. Now, because of favorable rulings by the courts and the PTO, companies are rushing to patent, with the result that companies are being granted patent monopolies on obvious techniques not by virtue of having invented them, but by virtue of having been the first to file.
There are two classes of offenders:
In either case, the system has become a huge tax on innovation, rather than the spur to innovation the patent system is supposed to provide, as resources are shifted from developing innovations to protecting them.
While it is difficult to definitively establish boundaries around "software" or "Internet" patents, it would be desirable to have a moratorium on the granting of business process patents as applied to the Internet. Just as there has been a moratorium on Internet taxation, this would allow the industry and the patent office more time to understand the scope of the problem and possible solutions.
As I'm sure the Senators, Representatives, and PTO Commissioner know much better than we do, a patent, once granted, is substantially protected by a presumption of validity that can only be overcome by "clear and convincing evidence". Further, in the case of a challenge, it appears that the patent holder is currently able to simply amend the patent, with the result being unappealable. This means that once patents have been granted, there is substantial risk that companies will be unable to use common techniques without payments to patentholders even in cases where prior art clearly exists.
One alternative, recently suggested, is to change the standard during re-examination from "clear and convincing evidence" to the lower standard of "substantial new question of patentability."
While there is a fair amount of scorn regarding some particularly egregious patents, and a low opinion of the PTO among many industry participants, those who are actually knowledgeable about the system generally feel that the PTO is simply strapped for resources, and within their constraints, do as good a job as they can. Based on this concern, there is a feeling that additional resources for the PTO would be desirable. However, there is some concern that because it draws its fees from patent applicants, there is an incentive for the PTO to regard applicants, rather than the public as its "customers."
Regardless of the final solutions, our biggest message is that all is not well in the Internet and e-commerce industry. The roots of innovation in what has been, up to now, an extremely vibrant area of the economy are seriously at risk. Decisions made -- or not made -- by those overseeing the patent system will have enormous repercussions for years to come.