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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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Tim: Well, let me put it this way. Right now, you know, we're in the middle of this, of a sort of a set of issues where if you trace back who are the big winners in the industry today, many of them, in fact almost all of them, are based on developments that came from outside their own walls. You know, they did not in fact invent the basis of their business. They have innovated on top of the work of others. Microsoft didn't invent the fundamental technologies in Windows -- they stole them from Apple, who stole them from Xerox.
Dickinson: Absolutely, and the reason they were able to steal them from Apple -- well, I won't comment on what they stole them for -- but the reason they were able to take those inventions without license was because the people didn't patent them in the first place. Where would Xerox be today if Xerox Park controlled that technology?
Tim: I think where Xerox would be today, it might be better for Xerox but it would not be better for us as a technological country. You know, the fact is that --
Dickinson: Well, you've got Xerox, or you've got Microsoft. Take your pick.
Tim: I don't think so, because you know Xerox basically owned those ideas but did not in fact exploit them --
Dickinson: Absolutely --
Tim: And the ability of other people to exploit ideas is, I think, part of the purpose of our whole patent system -- it's to get the ideas out there.
Dickinson: Anybody is free to make those choices that wants to. Nobody is twisting anybody's arm to file a patent application. If Xerox chose -- the Human Genome project is a good example, in the government. They have affirmatively chosen not to patent their discoveries. They've dedicated them to the public. I think that's a noble thing to do.
Tim: Right.
Pizzo: We'll just wind this up here with a last question. Do you see -- I mean, I was going to bring up the Human Genome Project as a comparison and say, look, the human DNA code has been compared to software, it's very comparable.
Dickinson: Well, I'll give you an even better analogy to it, because it was in a similar article on this topic in The New York Times. Samuel Morse -- the critical invention Samuel Morse invented was not his telegraph machine. There were many different machines and many pieces of hardware that would do the same function. What he invented was the Morse Code. That's what he got a patent on that was valuable. That was the software, and that's what started that industry.
Pizzo: Well, listen, I will let you go. I really appreciate it. You certainly give as good as you get.
Dickinson: Well, Mr. O'Reilly I've met before. He's a very nice man, and we've had a great discussion. I won't say that I'm not -- I know this is intended to be provocative. I won't say that I don't agree with many of the points that were made or the need, as I say, to get more prior art and to deal with expanded re-exam. Those are two key questions.
Tim: All right, well, thanks a lot. I really appreciate that comment. You know, part of the problem of course for us outside the Beltway is that we don't know all the levers of power. We don't know, you know -- another thing
Dickinson: Well, I'm only one mile inside the Beltway, and I'll maybe move outside it pretty soon.
Tim: But it is amazing when you visit Washington for the first time -- the sense of history, of how many -- you know, there's this big taffy pull, where there's all these forces pulling you in different directions.
Dickinson: Well, certainly history is very important in this office. I'm looking right now at the original patent model that Thomas Edison submitted to our office on the light bulb. He built a huge business out of it, G.E., and created a lot of jobs, and a lot of wealth, and a lot of success for this country. That's what the patent system is intended to do, is do the same thing for everyone else.
Tim: I have one other question for you. You mentioned Thomas Edison's light bulb, and it was terrific to see it there. It was the highlight of my visit. But I will have to comment that I was struck in visiting your office and the office of every congressman and senator who is involved in oversight of the patent system -- with the exception of Pat Lahey, none of you had a computer in your office.
Dickinson: I have a big computer in my office, I have a nice Micron computer, and it's right next to my light bulb, as a matter of fact. I use it every day. I'm a big user of e-mail, and --
Tim: Okay, good. Well, I guess I was overshadowed by all the congressmen and senators who -- you know, their staffs have them, but they don't. So I have a concern that people are not aware of the real issues of how software is developed, in fact we have a --
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Pizzo: Thank you very much.
Stephen Pizzo is an award-winning non-fiction author, and newsman for the O'Reilly Network.
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