The Pizzo Files

Doc Searls: Patently Absurd?

by Stephen Pizzo

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Thomas Edison was a patent freak. He filed his first patent when he was just 21 and by the end of his life he had 1,093 patents to his name. Edison's patents ranged from his first in 1868 -- an electronic vote recorder, to his final patent in 1933, a simple gadget that held things still while they were being electroplated. Edison may have been the world's first patent compulsive. But, Edison was always ahead of his time. There he was, over a century ago, filing patents on, not just mechanical innovations, but aesthetic design elements as well, For example, his patent No. 69,068 -- a "Design for a Phonograph Cabinet" -- and an accompanying patent for a "Design for Phonograph Cabinet Speaker Grill" were not inventions as much as they were furniture. But never mind; if it came out of Edison's laboratory he put his brand on it no matter what form, use, or shape it took.

If he were still alive Edison would just love the virtual revolution. And, he would love the way the U.S. Patent and Trademark Office (USPTO) still hands out patents as though nothing has changed. As the virtual revolution left the remnants of the industrial age in its dust over the past decade, the USPTO hardly seemed to notice. But the widgets and physical processes that once made up the bulk of patent requests has quickly given way to patent requests on wispy ideas, lines of computer code, click-streams, and marketing gimmicks or "business methods." One might have thought that by the end of the last decade someone at the USPTO would have poked his or her head into the boss's office and announced, "Ah, excuse me sir, but I don't think we're in Kansas anymore."

But, no. Instead change began in the courts which ruled that companies could patent unique lines of computer code. That in turn opened the door for online companies to claim that they were first cook up some form of point and click doodad and therefore they had a right to own it. was first to actually step up to the plate, filing for and getting a patent on its "1-Click" online purchase scheme.

The granting of that patent sent shockwaves throughout the online and the Open Source community. They awoke to the reality that their beloved and valued wide-open virtual spaces were about to crisscrossed with barbwire fences as modern-day Edisons took ownership of it one innovation, one idea, one hunk of it at a time.

One person who worries about such things is Doc Searls, the editor of Linux Journal. Doc has been around the Internet since long before Al Gore invented it. He co-authored the bestseller, The Cluetrain Manifesto, and he has became so alarmed by the trend toward patenting virtual real estate that he has become a crusader against it. Doc sat down with us last week to share his thoughts, fears and ideas ... none of which he intends to patent.

Doc Searls interview at a glance

Doc on Industrial Revolution vs. Virtual Revolution

In the beginning of the Industrial Revolution, the material world mattered a lot. Even Marx, who was a great opponent of capitalism, framed his arguments in material terms. But the world we have now is one that values immaterial things, and interestingly, it values their abundance and their ability to become abundant. And so on the one hand, we're framing a lot of these arguments about patents in what amounts to material terms that are embedded in the language of patents and the language of the patent office and the language that people use to talk about these things. And it's a box that we tend to stay in when we talk about this stuff. And I think what the hackers did by building the Net was build something that is not a box at all. It is infinite in all directions. On the one hand, if you build a fence across it, it's an extreme inconvenience, and on the other hand, it's something you can also route around. I think companies that patent aggressively in the long run are going to be routed around by the customer, and I think they're going to be routed around by the companies that implement the technologies and business practices that are close to whatever those patents are.

Doc on the Net as a place, not a thing

I don't think the Net is an industry, I think the Net's an environment. I think we're literally building out a new world, that's a second world that's of our own creation, that surrounds the physical world that's familiar to us. It's a social space. It's ours, it's not mine. It gives new powers to me, but it fundamentally is like the air that we breathe. And it's, the patent argument inside that is similar, I think in some ways, in trying to patent the ocean or patent the air. You can't, you know. It's absurd in the terms that those contexts present. Now, the aviation example is a good one in a way, but it also, it's also something that operates in three-dimensional space, where we really do need something, some form of regulation to keep things from crashing into each other. I mean just looking at air traffic control and the rest of it. As for patents on stuff with airplanes and so forth, that again is the world of physical property.

Doc on rethinking the whole notion of intellectual property

I happen to think that if we got rid of all intellectual property law, and all copyright law for that matter, and just simply said, "Anybody can do whatever they want, we all inform each other," that's the virtue of being human, you know? If I inform you, you're different. And if you inform me, I'm different than I used to be. This is something that came out in a conversation with Tim O'Reilly and I love it, and it's that we are authors of each other. And the Net creates a space where that can happen, and again I just don't think that's a context where the material notions that are really fairly in peak at this point around patents have a whole lot of relevance except as a kind of sport that people can get into and litigate against each other and the rest of it.

Doc on creating level playing fields, not battlefields

I think, for example, a problem that Microsoft had is that there are two different metaphors you can use or that they use to understand the market. One is sports and the other is war. And I think they didn't know the edge between one and the other. You know one talks about a level playing field, the other one talks about all is fair, and they were in an all-is-fair territory.

Doc on business process patents

We need to at least begin to agree that business processes -- these things that are called business processes -- and software itself is something that it is really stupid to patent because it works better if we all own some of this stuff than if only one of us owns some of it. The Internet would never be here if it was up to companies working alone to do it. It never would have been here. And that's the context we need to look back at it and say, "Well, we get these benefits from nobody owning this stuff. Can we apply that in this case?"

Doc on whether calling a time-out to Internet patents

Actually, that would be a very good idea. I hadn't thought about that, but I think it's a terrific idea. Have a time out, like you give a three-year-old. [Laughs.] I've got a three-year-old so we're threatening him with timeouts from time to time.

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