Software and Business Method Patents

An archive, in reverse chronological order, of essays, interviews, and talks relating to software and business method patents.

Disproving Idea Ownership — October 2000. The New York Times reports on BountyQuest, an online company where people "can offer rewards for information leading to the debunking of a patent." Despite their disagreement over Amazon's 1-Click patent, Tim O'Reilly and Jeff Bezos agree something's wrong with the patent system. And to help resolve the problems, they've both invested in BountyQuest.

I felt there must be information out there, but it was like looking for a needle in a haystack," [BountyQuest CEO Charles] Cella said last week. "If you could just get to the right person, it was probably sitting on their desk in their thesis. "You can hire people to sort through the haystack," he added, "but what we really need is a system that gets the needle to stand up and identify itself, to shout through the hay, 'Here I am.'

There was also a good Wired story on the BountyQuest launch, Cashing in on Bogus Patents.

The Net is so evanescent — there's no archive. It's very likely that there's not much evidence of that first use [of a given technology]," [O'Reilly] said. "But when you put out a bounty, you [encourage] people to search. It's quite possible that there will be a person who saved an archive of a mailing list from 1994" that contains the vital evidence of prior art.

Internet Society Panel on Business Method Patents — October 2000. Do business method patents hamper the free development of the Internet, or do they protect businesses and individuals investing in the development of the Internet? That was the topic of a recent Internet Society (ISOC) panel discussion on October 3, 2000, hosted by Vint Cerf, with panelists Larry Lessig, Tim O'Reilly, Priceline founder Jay Walker, and Patent Office Director Q. Todd Dickinson.

Vint Cerf:

Before I allow these gentlemen their five minutes, I am going to steal just a few myself. I want to mention something about patenting and the Internet and its origins. One of the things that is peculiar and interesting about the Internet history is that the TCP-IP protocols were never patented. In fact, they were made available as widely as possible to the public as soon as possible… The openness of those protocols and their availability was key to their adoption and widespread use. I think if Bob and I had not done that—if we had tried to, in some way, constrain and restrict access to those protocols, some other protocol suite would probably be the one we'd be using today…

This was also the tenor of my comments:

There is a pragmatic choice that we are making as an industry right now and that choice is whether we want to continue letting the goose lay the golden eggs or whether we want to slaughter the goose and see if we can do a little better that way.

Who's Really Being Protected? — An interview by Steve Pizzo of the O'Reilly Network with me and Patent Office Director Q. Todd Dickinson on May 24, 2000. I found the following exchange most disturbing:

O'Reilly: 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.

He later qualified his comment by saying that this would be OK only "if it was done over the Internet", but he failed to understand that he's really arguing that all ideas are property, and that by following that logic, one day the ideas used freely as tools by his profession could also be kept from free use.

The O'Reilly Network also published some followup thoughts on my visit to Washington.

Real leadership on the part of our government officials means rising above the voices of the lobbyists, the voices of the interested parties who are trying to get their advantage, and instead really trying to think about the public good.

The Internet Patent Land Grab — A CACM Viewpoint piece written in mid-April and published in the June 2000 issue. Summarizes what I'd learned from the Amazon patent debate and subsequent discussions with people more knowledgeable than I about the software patent issue. The CACM doesn't make this stuff available on the web, so I'm linking to my own copy. This piece pretty much echoes the "talking points" I took with me to Washington when I visited the PTO and the congressional oversight committees with Jeff Bezos in April 2000.

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, in general there seems to be a "don't ask, don't tell" approach, where companies don't look very hard, and the patent office 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.

Talking Points for My Visit to Washington — This was a document I wrote for myself (and shared with Jeff Bezos) in preparation for my visit to Washington with Jeff. This was a distillation of a more narrative version that I wrote first to get my thoughts in order. These documents give a sense of the conversations we had with Todd Dickinson and with the various members of the House and Senate committees overseeing the Patent Office.

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.

Steve Levy's March 13, 2000 Newsweek column — Based on his joint interview with me and Jeff Bezos about Amazon's one-click patent.

Pissing in the Well: The Amazon Patent Controversy — A link to an archive page on oreilly.com that includes my original open letter to Jeff Bezos on February 28, 2000, my summary of the phone conversation Jeff and I had after 10,000 people signed on to my open letter in 3 days, and several other followup articles.

The technologies that you have used to launch your amazing success would never have become widespread if the early web players, from Tim Berners-Lee on, had acted as you have acted in filing and enforcing this patent. Because, of course, you are not the only one who can play the patent game. And once the web becomes fenced in by competing patents and other attempts to make this glorious open playing field into a proprietary wasteland, the springs of further innovation will dry up. In short, I think you're pissing in the well.