Subject: Re: Patents and Amazon?
From: "Tim O'Reilly" <tim@oreilly.com>
Date: Sun, 12 Mar 2000 17:15:31 -0800



Rich Morin wrote:
> 
> At 11:44 AM -0500 3/10/00, Ben_Tilly@trepp.com wrote:
> >How seriously are people taking Jeff Bezos' comments?
> >
> >Does anyone believe that he has a chance?  Whether or not he does, what is
> >the likely impact on free software?  Are there any suggestions he should
> >take to Congress about patents that he has not considered?
> 
> Congress tends to listen to folks with pots of money; they also listen
> to movers and shakers in the e-commerce world.  Jeff is both, so there
> is a good chance he could get an audience.  The current software patent
> situation needs all the help it can get, so I'm taking the possibility
> quite seriously.

I've heard lots of feedback from people more knowledgeable about patents
that most of what Jeff proposed has been raised, and shot down, many
times before.  That being said, we're definitely getting on the radar. 
Jeff said he had a call from the Patent Commissioner the other day...I
haven't yet heard the details.  (Probably all the reasons why nothing
can change.)

That being said, I think that the most fundamental tool we have at our
disposal doesn't depend on changes in patent regulation or new laws, but
one something that is very much under OUR control:  we have got to
create some kind of prior art database that serves as an easily
searchable record of our collective memory.  This might include
technical papers from organizations like ACM, IEEE, and Usenix, as well
as various conferences, but it should also include searchable
documentation, usenet, and the web.  

Part of what needs to change is that we need to establish a milieu in
which searches of non-patent prior art are taken seriously, but then we
need to make it easier and cheaper to do those searches.  A document
base like the ACM's, which asks for $5 per document retrieved, just
isn't going to cut it.

I also think we could do a lot with the "comment period" thing. 
Apparently, this is already something that could be done, since patent
pending applications are apparently supposed to be made public 18 months
after the application (which is usually before the grant.)  And even
after grant, a site that allowed community comment on patents
(especially one that asked for supporting data rather than just
assertions) would provide both potential litigants and defendants better
means for assessing their chances of prevailing were there to be a
patent lawsuit.

But of course the biggest thing is to create an atmosphere of
uncertainty around the public relations cost of attempting to enforce
bogus patents.

I had a really interesting interview with a reporter from one law
journal (IP Law Weekly or some such), who told me all the reasons why
none of my suggestions would work, but who started to warm up when I
brought up allusions to the environmental movement; that just as they
had made people realize that there were certain common rights that
superseded individual property rights, so too there were rights
associated with the "internet commons" that has been built up by the
cooperative community over the last thirty years.  She ended up saying
"you may have really blown the top off this discussion this time" so I'm
hopeful.
> 
> Any work that can be done to organize lists of resources for such a
> hearing could be very useful.  Tim O'Reilly is probably the best guy
> to be handed this list, as he is quite clueful and likely to be part
> of the proceedings.

Yes, I'd definitely like leads on resources that we could tie together
to help make a critical mass that we could then try to establish a norm
for patent applicants and examiners to search before granting.

> 
> -r
> --
> Rich Morin:          rdm@cfcl.com, +1 650-873-7841, http://www.ptf.com/~rdm
> Prime Time Freeware: info@ptf.com, +1 408-433-9662, http://www.ptf.com
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-- 
Tim O'Reilly @ O'Reilly & Associates, Inc.
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+1 707-829-0515, FAX +1 707-829-0104
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