The Pizzo Files

by Stephen Pizzo

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Late last year, when the patent office granted a patent on its "One Click" online purchase system, it hit home: Software patents, especially patents on Internet software, are likely to have a profound effect on the future of the Internet, the software industry in general, and the Open Source community in particular. In this interview you will hear Patent Office Director Q. Todd Dickinson equate Internet/software patents with any other telecommunications industry issue, while O'Reilly Associates CEO Tim O'Reilly doesn't agree with him, with the legislation, or with the very idea that programmers can prove patentability.

Dickinson and O'Reilly disagree on nearly everything, in fact, from the degree of unique ownership of most Internet innovations to the possibilities of establishing "prior art" to resolve software-patent disputes. Read on or listen to the interview, as Stephen Pizzo tries to moderate between government lawyer/administrator Dickinson and Open Source advocate/writer/programmer O'Reilly.

Pizzo: Mr. Director, thank you very much for taking time to join us today. We have Tim O'Reilly on the other line, who's also going to engage in this conversation with us about Internet patents. It's an issue that hasn't gotten as much attention, but I would think that in the last few months you've felt a bit like Janet Reno during the Elian Gonzalez case, where nothing you say or do seems to be able to please either side.

Director Dickinson: (chuckles) You might think that. I couldn't possibly comment, as they say on television.

   Q. Todd Dickinson
Patents Officer Director
Q. Todd Dickinson
Tim O'Reilly
CEO, O'Reilly & Associates
Tim O'Reilly

Pizzo: Then, let me get the ball rolling here with just sort of a general question. Critics of Internet patents and software patents say, "Look, the Internet is as popular and as robust an environment today, only because it was really developed out in the open, with its various parts and pieces effectively in the public domain." And there's concern that as we drill down into that technology and start creating ownership pieces for particular people, we threaten to kill that golden goose. What's your response to that?

Dickinson: Well, I think several things. First of all, I think that the premise is not necessarily correct. There are pieces of the Internet which have been patented right along. Motorola's got some very important patents, for example, on a piece of it. Secondly, we will -- Our experience with the Internet has been very short, and as it exploded in the way that's exploded, I don't think it's unusual for people with any new technology like this to begin to innovate on it. People are inventing now on the Internet, and the first thing they do is sort of say, "Eureka, I've discovered a new way of doing something." And their second thought usually is, "Well, how can I keep myself from getting ripped off by others? How can I protect myself and allow this to be nurtured?"

Real Audio Quick Clips

listen Software patents
listen Who is the customer?
listen To patent or not patent?
listen Moratorium
listen Prior user rights
listen Who are the winners & losers?
listen More thoughts from Tim

Tim O'Reilly: My question, though, is whether the people who are actually filing the patents are actually inventing anything. In many cases, the scorn that I hear from my customers, the working developers out there in the industry, is that people are patenting trivial pieces that are well-known, that are sort of obvious to anybody of ordinary skill, and they are routine applications of Internet technology to fields that are well-known. Simply by adding "Internet" to it, you sort of say, "Oh, this is novel," when in fact it isn't. You know, if you ask any twenty developers to do this thing, eighteen of them will just kind of pull it out of their back pocket.

Dickinson: Well, if they can do that, then they ought to send it on in because we have a number of processes, as you know, Tim, to deal with this question of obviousness, both before and after the patent issues. Our goal here is to make sure we have the best access to the prior art that we've got to make sure that these patents aren't any broader than they need to be. We specifically don't have --

Tim: Can you explain to us a little bit how that works?

Dickinson: Ordinarily, the patent applicant prepares their own patent application. We have a system where the applicant basically drafts their own patent. They're also required, under a very stringent rule called "Rule 56," to supply to the office all the prior art of which they're aware that's material to the examination of that application. If they don't do that, they risk the patent being invalid.

Tim: My experience when I've talked to a number of people out there in the field is that Rule 56 says that they have to disclose prior art of which they're aware, and I literally talked to engineers who say, "Our lawyers don't want us to look for prior art, because if we don't know it we don't have to disclose it."

Dickinson: Well, that's why we're looking to try to tighten those rules up. The organized bar, as you can imagine, tells us that everything is just fine because they're worried about these same engineers coming back later in court and saying that their lawyers missed something or disclosed something they shouldn't have. The engineers should step up to the plate. They should disclose the art of which they're aware and they should tell their lawyers to --

Tim: But it's not a matter of they are aware. It's just a matter of searching. You don't actually require people to look for it.

Dickinson: I think there's a disconnect there, Tim. You just told me that all these folks, they have eight out of ten of these in their back pocket. If they've got them in their back pocket, they don't even need to do a search. If they're aware of invalidating prior art, send it on in.

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