Subject: [srctran@world.std.com: PATNEWS: A critique of Jezz Bezos recent patent policy suggestions]
From: kmself@ix.netcom.com
Date: Fri, 10 Mar 2000 18:06:16 -0800

Greg Aharonian runs the PATNEWS internet newsletter on patent and
related IP issues.  Following is his repose to the "Tim and Jeff Show"
-- O'Reilly and Bezos's exchange on patents, particularly Amazon's
One-Click.

Greg has been campaigning for patent reform for ages, I find his take --
remarkably agreeable, though not completely aligned -- to be
instersting, strongly similar to my own opinions, with equal parts of 
pragmatism and idealism.

----- Forwarded message from Gregory Aharonian <srctran@world.std.com> -----

>From karsten  Fri Mar 10 12:28:02 2000
Date: Fri, 10 Mar 2000 12:15:10 -0500 (EST)
From: Gregory Aharonian <srctran@world.std.com>
To: patent-news@world.std.com
Subject: PATNEWS: A critique of Jeff Bezos recent patent policy
    suggestions
Reply-To: patent-news@europe.std.com

!20000310  A critique of Jezz Bezos recent patent policy suggestions

    In response to the protest of Amazon's software patents led by Tim
O'Reilly of O'Reilly Publishing (including a petition signed by over
10,000 people), Jeff Bezos proposed some changes to the patent system.
To save a bit of time from those calling me to ask what I think, what
follows is a critique of the protest itself, and Jeff's proposals.

    First, I find the protest against Amazon somewhat hypocritical.  On
a scale of 1-10, with 10 being the most obnoxious with software patents,
and 1 being the least obnoxious with software patents, I would rate IBM
a 10, Priceline/Walker a 7-8 (they need more years to catch up to their
patenting idols, IBM), Microsoft/Novell/Oracle 5-6 (they support the
fraudulent Software Patent Institute), and Amazon 1-2.  Amazon has a few
patents, asserts them much like everyone else with limited success, in short
kind of boring to follow.  In fact, if you ask the Barnes & Nobles lawyers
what upset them more, I bet it wouldn't be Amazon's patent assertions but
rather the faulty analysis of the district court judge that granted the
injunction in light of pretty good prior art that the Barnes & Noble team
presented.

    So if you are actually serious in wanting to protest software patent
abuse, protest the IBMs and Pricelines, protest a court system that has
problems dealing with technology, protest an apathetic patent bar, before
you protest Amazon.  I suspect many protesting Amazon's patents are upset
about something else about Amazon, but a) don't know how to express it,
and b) don't know much about patent practices and policies.  Their patent
then becomes a lightning rod for the wrong reasons.

    (NOTE: for the record, for most of the companies mentioned in this
    PATNEWS, I have worked for and against their patent interests.  I
    have worked for and against the patent interests of entities I have
    complimented, I have worked for and against the patent interests 
    of entities I have insulted.  How that turns into biases below is
    up to you.)

    That said, let's look at what Amazon is proposing in response to the
complaints.

         AN OPEN LETTER FROM JEFF BEZOS ON THE SUBJECT OF PATENTS

[.......  a few paragraphs of introductory material deleted .......]

"I also strongly doubt whether our giving up our patents would really, in
the end, provide much of a stepping stone to solving the bigger problem."

    GREG comment:  I agree.  If companies are expected to give up their
    patents to the degree that they abuse the system, Amazon would be
    way back in line.  Priceline could go first.  Their reverse auction 
    patent is much more invalid (in light of the prior art) than Amazon's
    One-Click and caused more market distortions.  And IBM would have
    to give up large chunks of its portfolio (go reread the March 17,
    1997 Business Week article on IBM's abuses).
                                    
"But I do think we can help. As a company with some high-profile software
patents, we're in a credible position to call for meaningful (perhaps even
radical) patent reform. In fact, we may be uniquely positioned to do this.
Much (much, much, much) remains to be worked out, but here's an outline of
what I have in mind:"
                                    
"1. That the patent laws should recognize that business method and
software patents are fundamentally different than other kinds of patents."
                                    
    GREG comment: I disagree.  To the extent one equates business method
    and software patents, in light of the Doctrine of Equivalents and the
    latest hardware/software codesign tools, one has to equate software
    and hardware/electronics patents.  Thus from a computational theory
    and statutorial point of view, it would be very hard to draft really
    effective laws to distinguish between these conceptually equivalent
    concepts.  Sure the flows of prior art are different, but that does
    not require changes in the patent laws, but rather the workflow
    practices of the PTO (which the PTO could have done years ago).

"2. That business method and software patents should have a much shorter
lifespan than the current 17 years -- I would propose 3 to 5 years. This
isn't like drug companies, which need long patent windows because of
clinical testing, or like complicated physical processes, where you might
have to tool up and build factories. Especially in the age of the Internet,
a good software innovation can catch a lot of wind in 3 or 5 years."

    GREG comment: Again I disagree.  First, in many areas of technology
    the effective lifetime of patents (measured by patent renewal rates,
    times for competitors to achieve workarounds/alternatives) is about
    seven years.  One could argue that with ergonomic Two-Click style
    interfaces, the lifetime of Amazon's 1-Click patent was less than
    a year, ending when the judge granted the injunction but said that
    anything beyond 1-Click doesn't infringe.

    Second, the analogy to drug companies is tricky to make.  Look,
    the software world is a fun game to play, just like in high school
    but with lots more money.  And now we have a new playground fight -
    software patents.  But it all pales in comparision to issues like
    what should the effective lifetime of AIDS drugs be, issues where
    people's lives are at stake, where entire countries are facing
    horrendous social consequences as diseases ravage their population
    because of limited ability to supply their citizens with patented
    drugs.  Internet world - GROW UP.  And frankly, the economics of
    drug R&D are uncertain enough to argue about how much protection
    they need through patents to give them incentives to develop the
    drugs.

"3. That when the law changes, this new lifespan should take effect
retroactively so that we don't have to wait 17 years for the current
patents to enter the public domain."

    GREG comment:  Both for shortening the lifetime of these patents,
    and applying the law retroactively, it is a political deadend.
    The second any such legislation is introduced, say by the Senators
    from Amazon's home state, Priceline is going to call its Senators
    from Connecticut, and IBM and Citibank (which is trying to patent
    to death the concept of electronic money) from New York, and ask
    them to put holds on the legislation, especially the retroactive
    aspects of any such laws.  There are a lot of deep pocket monied
    players in the world of software/Internet/business patents, and 
    it is going to turn into a Congressional feeding frenzy as 
    Congress promises to do a lot (and does little) in return for
    lots of campaign donations.

                                    
4. That for business method and software patents there be a short (maybe
1 month?) public comment period before the patent number is issued. This
would give the Internet community the opportunity to provide prior art
references to the patent examiners at a time when it could really help.
(Thanks to my friend Brewster Kahle for this suggestion.)

    GREG comment:  The idea of a formal opposition period (where the
    public can comment) has been discussed for over twenty years.  If
    there was a will for it, it would have happened years ago.  Again
    the large companies controlling US patent policy that prefer
    quantity over quality (like IBM) have fought such changes, and
    will continue to do.  Additionally, the PTO is not competent to
    handle the logistics of prior art handling for an opposition process.
    If it was, it wouldn't need public submissions of prior art, it
    would already be dealing with it itself.

To this end, I've already contacted the offices of several Members of
Congress from the committees with primary responsibility for patents to
ask if they would be willing to meet with me on this issue. Since some   
of them have previously expressed an interest in similar issues, I have
every expectation that at least some of them will want to talk about it.
I've also invited Tim O'Reilly to attend any such meetings with me. Tim
and I are also going to try to pull together some software industry leaders
and other people with an interest in this issue and an ability to help.

    GREG comment: I always applaud any efforts to bring more attention
    to these problems, so my advice to Jeff and Tim is to get a better
    understanding of the politics and players involved with this issue
    before investing a lot of time and effort trying to effect change.
    Many of the software industry leaders they might think of inviting
    have been fighting software patent reform for many years.  In a
    sense, Amazon is picking a fight with Priceline, IBM, and many
    others.  I applaud them if they are doing so.
                                    
If done right -- and it could take 2 years or more -- we'll end up with
a patent system that produces fewer patents (fewer people will bother to
apply for 3 or 5 year patents, and fewer patents means less work for the
overworked Patent and Trademark Office), fewer bad patents (because of the
pre-issuance comment period), and even the good patents won't last longer
than is necessary to give the innovator a reasonable return (at Internet
speed, you don't need 17 years).

    GREG comment:  That would be nice.  But way too optimistic.  Look in
    1994, the PTO had hearings on software patent issues, and all of the
    complaints being made today about Amazon and others, and all of the
    solutions proposed by Amazon and others, were discussed at these
    hearings six years ago in 1994.  And NOTHING has happened since then
    to affect the quality of issued software patents.  The PTO has made
    no progress, the software industry has made no progress, the patent
    patent has made no progress.  Six years, and nothing.  I think Jeff
    is being optimistic here.

Bottom line: fewer patents, of higher average quality, with shorter
lifetimes. Fewer, better, shorter. A short name might be "fast patents."
Many have noted, and I too would like to point out, that given the laws they
operate under and the resources at their disposal, the Patent Office and
examiners are doing a good job and it's unfair to criticize them.

    GREG comment: Yes, it is unfair to criticize PTO examiners, but it
    isn't unfair to criticize PTO management, which while admittedly has
    its constraints it must work under, where it does have the ability to
    act, it has in too many cases waste opportunities and resources.
    The PTO supported the fraudulent Software Patent Institute (partly
    at industry's behest), and wastes too much money on its automation
    efforts - money that could be used to help the examiners.
                                    
On a related issue, to further try to help with the prior art problem,
I've also agreed to help fund a prior art database. This was Tim's idea,
and I'm grateful for it. Tim is poking around to find the right people
to run with that project.

    GREG comment: The expression of my fantasy.  But that's what it will
    probably remain as.  For the last fifteen years, I have been slowly
    building such a database, and not gotten an ounce of support.  In the
    1980's, such a database was more directed towards software reuse
    (a conceptually equivalent problem to that of patent obviousness,
    which neither community has ever recognized) which the government
    was spending hundreds of millions of dollars (led by the DOD) to
    study and develop.  Yet much like the Software Patent Institute,
    those in industry working with the government (and spending tax
    dollars) deliberately made sure nothing would happen, because any
    progress would affect them adversely (for example, the DoD was
    trying to save contracting dollars through software reuse, 
    something DoD contractors hated, so in its stupidity, the DoD
    gaves it software reuse R&D monies to none other than, well, the
    very same DoD contractors that didn't want reuse.

    Ironically, one of the DoD contractors involved with this waste
    was the government division of one of the companies fighting software
    patent reform, IBM.  I have been butting heads with these guys
    for over ten years.  And will continue to do so - there is some
    really strong subconscious force acting that has prevented this
    country from archiving its information processing resources from 
    the last fourty years.

    Besides, one of the best solutions part of this prior art database
    would provide, if offered to the PTO as a gift, would be destroyed
    by the PTO under their current policies (that's a future PATNEWS).

On an important meta-level, one thing to note is that this episode is
a fascinating example of the new world, where companies can have
conversations with their customers, and customers can have conversations
with their companies. I've been saying for 4 years now that, online, the
balance of power shifts away from the merchant and toward the customer.
                                    
Jeff Bezos

----- End forwarded message -----

-- 
Karsten M. Self (kmself@ix.netcom.com)
    What part of "Gestalt" don't you understand?

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