by Stephen Pizzo
05/24/2000 Part 2 of Tim O'Reilly's discussion with Patents Office Director Q. Todd Dickinson (Part 1 here).
Dickinson: Another key thing you have to remember is that Congress did pass something called the "Prior User Rights Defense," and I think this is important for your listeners to be aware of. If they have had a business method -- and it's limited to business methods -- if they have had a business method that they've been using that's a trade secret, and someone else comes along and patents it, the concern was raised about whether or not they would be blocked. And Congress specifically gave them a defense to infringement. So I think a lot of the concern people have about not being able to use the technology they developed may be addressed by this so-called "Prior User Rights Defense."
Tim: Well, that's somewhat helpful. I think though there is -- as I said, I really want to get across this feeling the developers on whom a lot of these advances depend are first off extremely cynical about the system. I talked to one developer who said, "I have my name on nine patents, and I think they're all a joke."
Dickinson: Well, then, he's committed a federal crime, because you have to execute a declaration that says you believe in the patentable invention. If he doesn't, then I urge him to commit them to the public domain and --
Tim: Effectively, you know, you've got people who are being compelled by their companies to have their name on patents and, you know --
Dickinson: They're not compelled to work for anybody, are they? It's a free country.
Tim: I suppose. But again, you know, you follow that logic and you can end up creating a lot of bad effects. I think the purpose of government is to figure out the best way to organize these things, not to create a situation --
Dickinson: That's a good comment, a fair comment. I'd only say this: We've had the patent system in this country for over two hundred and twenty-five years. It was one of the first laws written. It's served this country extraordinarily well, as technologies as varied as the cotton gin to the microprocessor have come along, and we have barely changed the basic standard of patentability. I think that's one of the great virtues of our system: We don't have to go back to Congress every time somebody with a new category of invention and a pressure point on some member in their district happens to have the opportunity to try to change things. I think that the arguments you made were made about polymers, they were made about automobiles, they were made about telephones, and they were made about telegraph, and the system survived very well, I think.
Tim: I would agree that the patent system has a lot of virtues.
Dickinson: I mean, these were small folks. Here's where I think we're missing the boat. The system has traditionally served the independent inventor and the small entrepreneur, the guy with a great new idea who otherwise would have that idea ripped off by a large entity. I had a call from a guy the other day who has a series of patents on a particularly important Internet technology -- his company's made the news fairly regularly on this -- and he said to me, "I've just entered into a very broad licensing agreement with a major corporation, a major media corporation." And he said, "If I had not had my patent portfolio, they would have just ripped me off. They would have stolen my technology. They would have used it to their own ends. They didn't do that because I've got some patents, and I'm building a business here in my small city in the United States. I've got two hundred employees who otherwise wouldn't have had jobs, who wouldn't have otherwise had stock options, because I've got this patent to protect my invention, my innovation," which, you know, apparently is worth something because this large corporation has entered into this large licensing agreement.
Tim: I understand that there are certainly cases like that, and I don't think it's sort of a cut-and-dried situation, you know, or I wouldn't be engaging in debate. I'd just be like Richard Stallman, calling for tearing down the whole system.
Dickinson: Well, Richard Stallman and Pamela Samuelson and other people have said over the years, "If we continue to patent software, the software industry will be destroyed." Pamela Samuelson had that in an article six years ago. Well, can anybody legitimately claim that the software industry has been in any way negatively impacted by the patent system in the last twenty years? No.
Tim: Absolutely. I think it has. I think --
Dickinson: No one has stepped up to the plate and demonstrated that. The stock prices of the software developing companies would certainly suggest otherwise.
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