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A Few More Thoughts on the Patents Issue by Tim O'Reilly
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Pizzo: So, in conclusion here, if you could wave a magic wand, what solutions do you see to this that would be long-term solutions rather than just patchwork?



Tim: Well, I'm not sure that I know yet what would be the complete solution because, for every solution I propose, there's usually a lot of issues. I'm not a lawyer, and I don't know this sort of thicket of -- it sort of feels like playing a rigged game. You know, if you come up with a solution, then you find out that somebody's already anticipated it, and they've worked -- this whole area, for example, of reexamination. You know, once you've submitted that prior art it's no longer able to be used in a legal defense. I mean, this is ridiculous. Somebody's basically rigged the system. But all that aside, in an ideal world I would love to see a requirement much stronger than Rule 56. I would actually like to see the patent office have an affirmative requirement that applicants search for prior art, not just disclose what they know. And I've heard what effectively amounts to a "don't ask, don't tell" kind of situation where people are literally trying not to know, which is the complete opposite of the purpose of the patent system. So make them search. And then secondly, I think it would be great to see some kind of mechanisms for public comment.

Now I know, when I talked to Director Dickinson before, he made the comment that, again, there were a lot of political issues around actually what you call "an opposition period," but I did get the sense that the patent office is very open to hearing from people in the form of public comment if we in the industry could in fact develop a mechanism for getting it to them. And I would like to see a lot more of that. I mean, when we have some of these patents that I see developers out there in the industry reacting to and saying, "This is ridiculous," I want to sort of -- I'd like to make it easier for developers to submit their prior art and say, "Come on, guys, don't do this to us." Because right now, it's sort of -- it's really a tax on the system. It's a tax on the ingenuity and the time of the developers to have to engage.

Pizzo: So are you proposing an open source trade association?

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Tim: No, not really. I think I'm more looking for something that would be sort of a central site. I don't want to sort of invoke Slash Dot because of course that goes into -- you know, has a lot of great virtues as a news site, but it also has suggestions of a lot of people just sort of ranting. But I'd love, for example, to have a public comment site where people could, for example, spread the word: "Hey, here's this patent that's being put up. Do you have prior art? Here's a way to submit it. Here's how you can participate more easily in the process." I think we could apply Internet tools to the process of discovering prior art.

Pizzo: But doesn't such a decentralized effort, a loose effort like that, really condemn it to failure? I mean, you've got very highly organized lobbies up against you that focus like a laser beam on these issues. If you diffuse the open source effort to basically a comment board, that's not going to put any pressure on anybody.

Tim: Ah, that's not necessarily the case because usually there are a few patents that people find particularly outrageous, and you can in fact -- I think that we could raise the bar. People know that they're being exposed to public scrutiny, and that they may be ridiculed in public -- they may have to back down. I think we could certainly make people think twice before filing the kind of overly broad patents...

Pizzo: I can honestly say, in all my years of covering Washington, I never met an elected official that was afraid of ridicule. I mean, it runs off their back like water off a duck.

Tim: Well, I'm not thinking of ridiculing elected officials so much as sort of public pressure on the patent applicants.

Pizzo: That hasn't caused Amazon to back down.

Tim: That's certainly true, but I think we haven't -- because Jeff did engage -- you know, we haven't gone all the way on that one. I think, as I was involved in that whole process, certainly people suggested to me that they had prior art, and one of the things, as Commissioner Dickinson mentioned, is, "Go file that and ask for reexamination." And I guess the question, really -- you get down to the question of, "At what point does the pain become bad enough for a particular developer or a particular company that they want to go do that?" And I guess my sense is really just to start building the tools to make it easier for people to fight bad patents and make it harder for people to file bad patents. And make an incremental improvement. I forgot who it was who said, "See everything, overlook a lot, improve a little," but it's that kind of approach. You know, try to make things visible. It's the power of the press, ultimately.

Who's Really Being Protected?

Find out what was discussed in our interview with the Patents Office Director and Tim O'Reilly.

Pizzo: Or, as I know your personal hero, Ross Perot, said --

Tim: Oh yeah, right --

Pizzo: "Measure twice, cut once." Well, anyway, listen, this has been a wonderful discussion, Tim, and I appreciate you staying on the line longer. I know you were busy today as well, you're out of town, so this is a conversation that's going to go on. We'll revisit it in a couple months and see if anything's moved. Thanks a lot, Tim.

Tim: All right, thanks.

Stephen Pizzo is an award-winning non-fiction author, and newsman for the O'Reilly Network.


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