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Thomas Edison was a patent freak. He filed his first patent when he was just 21 and by the end of his life he had 1,093 patents to his name. Edison's patents ranged from his first in 1868 -- an electronic vote recorder, to his final patent in 1933, a simple gadget that held things still while they were being electroplated. Edison may have been the world's first patent compulsive. But, Edison was always ahead of his time. There he was, over a century ago, filing patents on, not just mechanical innovations, but aesthetic design elements as well, For example, his patent No. 69,068 -- a "Design for a Phonograph Cabinet" -- and an accompanying patent for a "Design for Phonograph Cabinet Speaker Grill" were not inventions as much as they were furniture. But never mind; if it came out of Edison's laboratory he put his brand on it no matter what form, use, or shape it took.
If he were still alive Edison would just love the virtual revolution. And, he would love the way the U.S. Patent and Trademark Office (USPTO) still hands out patents as though nothing has changed. As the virtual revolution left the remnants of the industrial age in its dust over the past decade, the USPTO hardly seemed to notice. But the widgets and physical processes that once made up the bulk of patent requests has quickly given way to patent requests on wispy ideas, lines of computer code, click-streams, and marketing gimmicks or "business methods." One might have thought that by the end of the last decade someone at the USPTO would have poked his or her head into the boss's office and announced, "Ah, excuse me sir, but I don't think we're in Kansas anymore."
But, no. Instead change began in the courts which ruled that companies could patent unique lines of computer code. That in turn opened the door for online companies to claim that they were first cook up some form of point and click doodad and therefore they had a right to own it. Amazon.com was first to actually step up to the plate, filing for and getting a patent on its "1-Click" online purchase scheme.
The granting of that patent sent shockwaves throughout the online and the Open Source community. They awoke to the reality that their beloved and valued wide-open virtual spaces were about to crisscrossed with barbwire fences as modern-day Edisons took ownership of it one innovation, one idea, one hunk of it at a time.
One person who worries about such things is Doc Searls, the editor of Linux Journal. Doc has been around the Internet since long before Al Gore invented it. He co-authored the bestseller, The Cluetrain Manifesto, and he has became so alarmed by the trend toward patenting virtual real estate that he has become a crusader against it. Doc sat down with us last week to share his thoughts, fears and ideas ... none of which he intends to patent.
Doc on Industrial Revolution vs. Virtual Revolution
In the beginning of the Industrial Revolution, the material world mattered a lot. Even Marx, who was a great opponent of capitalism, framed his arguments in material terms. But the world we have now is one that values immaterial things, and interestingly, it values their abundance and their ability to become abundant. And so on the one hand, we're framing a lot of these arguments about patents in what amounts to material terms that are embedded in the language of patents and the language of the patent office and the language that people use to talk about these things. And it's a box that we tend to stay in when we talk about this stuff. And I think what the hackers did by building the Net was build something that is not a box at all. It is infinite in all directions. On the one hand, if you build a fence across it, it's an extreme inconvenience, and on the other hand, it's something you can also route around. I think companies that patent aggressively in the long run are going to be routed around by the customer, and I think they're going to be routed around by the companies that implement the technologies and business practices that are close to whatever those patents are.
Doc on the Net as a place, not a thing
I don't think the Net is an industry, I think the Net's an environment. I think we're literally building out a new world, that's a second world that's of our own creation, that surrounds the physical world that's familiar to us. It's a social space. It's ours, it's not mine. It gives new powers to me, but it fundamentally is like the air that we breathe. And it's, the patent argument inside that is similar, I think in some ways, in trying to patent the ocean or patent the air. You can't, you know. It's absurd in the terms that those contexts present. Now, the aviation example is a good one in a way, but it also, it's also something that operates in three-dimensional space, where we really do need something, some form of regulation to keep things from crashing into each other. I mean just looking at air traffic control and the rest of it. As for patents on stuff with airplanes and so forth, that again is the world of physical property.
Doc on rethinking the whole notion of intellectual property
I happen to think that if we got rid of all intellectual property law, and all copyright law for that matter, and just simply said, "Anybody can do whatever they want, we all inform each other," that's the virtue of being human, you know? If I inform you, you're different. And if you inform me, I'm different than I used to be. This is something that came out in a conversation with Tim O'Reilly and I love it, and it's that we are authors of each other. And the Net creates a space where that can happen, and again I just don't think that's a context where the material notions that are really fairly in peak at this point around patents have a whole lot of relevance except as a kind of sport that people can get into and litigate against each other and the rest of it.
Doc on creating level playing fields, not battlefields
I think, for example, a problem that Microsoft had is that there are two different metaphors you can use or that they use to understand the market. One is sports and the other is war. And I think they didn't know the edge between one and the other. You know one talks about a level playing field, the other one talks about all is fair, and they were in an all-is-fair territory.
Doc on business process patents
We need to at least begin to agree that business processes -- these things that are called business processes -- and software itself is something that it is really stupid to patent because it works better if we all own some of this stuff than if only one of us owns some of it. The Internet would never be here if it was up to companies working alone to do it. It never would have been here. And that's the context we need to look back at it and say, "Well, we get these benefits from nobody owning this stuff. Can we apply that in this case?"
Doc on whether calling a time-out to Internet patents
Actually, that would be a very good idea. I hadn't thought about that, but I think it's a terrific idea. Have a time out, like you give a three-year-old. [Laughs.] I've got a three-year-old so we're threatening him with timeouts from time to time.
Continue to next page for full transcript.
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Pizzo: Thanks for joining us today on this issue. Give us your real quick take on this, because I know you've said, you've written reams on this, and you've decided that it was such an important issue and you knew virtually nothing about it, you went out and educated yourself on it and became what we used to call in the Marine Corps "a latrine lawyer." So why don't you give us your take on this.
Searls: Yeah, patents and trademarks and all that kind of stuff, it's the kind of stuff that always bored my butt off and I've never wanted to pay attention to it. I've attended classes on licensing, and in the open source world licenses mean a lot. You know, there's the GPO and the OGPO and the Mozzilla license and the ESP license, and I just generally ignored that stuff and tried to pay attention to things that I actually care about and where I can have an influence. But it was so interesting to me that when the Amazon patent came down; this is something they applied for years ago. It's not like the distance between the intent and the achievement was really quite large and it was quite clear to me that on the one hand it was a proforma move on Amazon's part and on the other hand it was a very healthy response on the part of the open source community to something that was, that was inherently, somewhere between distracting and actually threatening. And so when I started reading about it and where patents came from, for example, in our country. The very first -- I don't even know what the title was -- but the guy who was in charge of the first version of the patent office was Thomas Jefferson. And Thomas Jefferson had very very ambiguous feelings and thoughts that he articulated about the nature of property and about the nature of intellectual property, or that form of intellectual property that we could patent. And I think in many ways that is embodied in the patent system.
In those days, in the beginning of the Industrial Revolution, the material world mattered a lot. Even Marx, who was a great opponent of capitalism, framed his arguments in material terms. But the world we have now is one that values immaterial things, and interestingly it values their abundance and their ability to become abundant. And so on the one hand, we're framing a lot of these arguments about patents in what amounts to material terms that are embedded in the language of patents and the language of the patent office and the language that people use to talk about these things. And it's a box that we tend to stay in when we talk about this stuff. And I think what the hackers did by building the Net was build something that is not a box at all. It is infinite in all directions. On the one hand, if you build a fence across it it's an extreme inconvenience, and on the other hand, it's something you can also route around. I think companies that patent aggressively in the long run are going to be routed around by the customer, and I think they're going to be routed around by the companies that implement the technologies and business practices that are close to whatever those patents are.
| "I think what the Net is for is for all of us, not some of us." |
But, I kind of come at it from two directions. One is I think in the long run that it's going to be resolved by the terms of the people who have the broadest scope of interest, and that is the scope that will be of interest to all of us. But in the meantime, we're going to have a lot of really productive arguments about what are patents for, and they will be framed ultimately I think in what the Net is for, and I think what the Net is for is for all of us, not some of us, and I think what makes it great is that it's something that nobody owns and everybody can use and most critically for the hackers anybody can hack on, anybody can improve it. And that's something that when it's fully mature patents aren't going to run in the credits.
Pizzo: Well, do you think, Doc, that actually it's the other way around, maybe? Just being a devil's advocate for a moment here, I see a lot of similarities between the early aircraft industry, when the Wright brothers and Curtis and those folks were just trying to figure out how to keep that piece of machinery in the air, and it was sort of almost a hobby and then it became a vocation for some people and it really wasn't until, you know, well after the first world war that people started to have commercial thoughts about aviation. And during those early years, everybody shared their knowledge and it was very much like the Net, it was a very open source kind of community. Once commercial applications became clear, then the next phase kicked in and people started to patent pieces of those airplanes and we have the airline industries that we have today because of it. Do you think maybe that's what's going on here, though? Maybe the Net is not as special as we all would like to think it is, that it's just simply another industry that's maturing and moving up to that phase.
Searls: Well, first I don't think the Net is an industry, I think the Net's an environment. I think we're literally building out a new world, that's a second world that's of our own creation, that surrounds the physical world that's familiar to us. It's a social space. It's ours, it's not mine. It gives new powers to me, but it fundamentally is like the air that we breathe. The patent argument inside that is similar, I think in some ways, in trying to patent the ocean or patent the air. You can't, you know. It's absurd in the terms that those contexts present. Now, the aviation example is a good one in a way, but it also, it's also something that operates in three-dimensional space, where we really do need something, some form of regulation to keep things from crashing into each other. I mean just looking at air traffic control and the rest of it. As for patents on stuff with airplanes and so forth, that again is the world of physical property.
You know, quite frankly, I mean I'm going to go step way out here, I happen to think that if we got rid of all intellectual property law, and all copyright law for that matter, and just simply said, "Anybody can do whatever they want, we all inform each other," that's the virtue of being human, you know? If I inform you, you're different. And if you inform me, I'm different than I used to be. This is something that came out in a conversation with Tim O'Reilly and I love it, and it's that we are authors of each other. And the Net creates a space where that can happen, and again I just don't think that's a context where the material notions that are really fairly in peak at this point around patents have a whole lot of relevance except as a kind of sport that people can get into and litigate against each other and the rest of it.
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Pizzo: Well, don't you think, Doc, that the ball is already in play? The Amazon patent put that ball in play, and even people who feel as strongly and similar to what you just voiced are already back in Washington as we speak talking to the people who are making these laws or planning to make these laws, and are prepared to make compromises.
Searls: Yes, I know, and I come at this in two different directions. One is there is the idealist in me that says in the long run I think this is what's going to happen. This is the direction that nature is going to go with, like predicting the next ice age. But in the meantime, we need to be talking about patents and why they're here and what makes them good and what makes them bad and how we frame our understanding of things. I think for example a problem that Microsoft had is that there are two different metaphors you can use, or that they use, to understand the market. One is sports and the other is war. And I think they didn't know the edge between one and the other. You know one talks about a level playing field, the other one talks about all is fair, and they were in an all-is-fair territory.
| "The Internet would never be here if it was up to companies working alone to do it." |
In a similar way with patents, we need to at least begin to agree that business processes -- these things that are called business processes -- and software itself is something that it is really stupid to patent because it works better if we all own some of this stuff than if only one of us owns some of it. The Internet would never be here if it was up to companies working alone to do it. It never would have been here. And that's the context we need to look back at it and say, "Well, we get these benefits from nobody owning this stuff. Can we apply that in this case?"
And, you know, the Amazon case is wonderful because -- I happen to think Jeff Bezos is a great guy and he's doing the right thing, and god bless Tim and Jeff for having that conversation which frankly I think is thriving the whole patent conversation since then. It's been, a profound effect.
Pizzo: Now a similar conversation is going on about taxation of the Internet. Some of the same basic arguments are being made that it's a unique environment and taxing it will stifle its growth -- of course that's all on the e-commerce side. But in that particular argument, the solution now being put forward is a moratorium, a five-year moratorium. Would you suggest the same solution here? Just a time out?
Searls: Yeah, I would. Actually, that would be a very good idea. I hadn't thought about that, but I think it's a terrific idea. Have a time out, like you give a three-year-old. [Laughs.] I've got a three-year-old so we're threatening him with timeouts from time to time.
Pizzo: Because in the brief conversations I've had with the Patent Office it's become very clear to me that this whole explosion has caught them up short. They didn't see it coming. They really don't understand -- they understand it's serious, very clear, they're very sensitive about it, but they really don't understand its parts and pieces.
Searls: And the degree to which they do understand it, it's framed in essentially material terms, which is made even more complicated by the, you know, the State Street versus who ever it was decision a couple years back which just opened the flood gates in patents -- though to be fair both, the Amazon patents in question and all of the Priceline.com patents that have been issued so far I think were all prior to that, but suddenly there's been this land rush into a wide open space, and I think a moratorium is a good idea because, you know, we're watching a world build itself and it's still all volcanoes, you know. I mean, where is the land going to be? Where is the water going to be? Is it going to be land and water? I don't think it is.
A friend of mine had a great metaphor for it. He said that the Internet is like a giant sphere where every molecule looking across the inside can see every other one, and you don't want anything in the way. It's a space that's ours in the middle, and the clearer it is, the better we can communicate with each other and the more we can do in there.
Pizzo: Well, of course all of this could have been avoided if Al Gore had just patented it when he invented it.
Stephen Pizzo is an award-winning non-fiction author, and newsman for the O'Reilly Network.
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