Subject: Re: [Freesw]
From: "Tim O'Reilly" <>
Date: Mon, 14 May 2001 09:08:38 -0700

"Frank BENNETT (フランク ベネット )" wrote:

> Hmm.  I just took a quick look on Lexis for articles likely to address this,
> and found: Rai, "Addressing the Patent Gold Rush: The Role of Deference to PTO
> Patent Denials", 2 Wash. U. J.L. & Pol'y 199 (2000). The text of the article
> is available online via The gist of the
> author's argument is that the CAFC, by reversing key patent _denials_ appealed
> from the PTO by would-be patentees has triggered the current flood of business
> method and software patents.  This suggests that the court may be a
> greater enemy of the information commons than the PTO.

This confirms what I heard from Q. Todd Dickinson, the last PTO head. 
He said something like "We can't make it harder to grant patents.  When
we do, the CAFC shoots us down.  They want us to do exactly what we're
doing."  That being said, after all the public pressure, they did start
refusing more business method patents, so he's not entirely right.   But
it's almost certainly true that the CAFC is a harder nut to crack than
the PTO.

Tim O'Reilly @ O'Reilly & Associates, Inc.
101 Morris Street, Sebastopol, CA 95472
+1 707-829-0515, FAX +1 707-829-0104,