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Internet Society Panel on Business Method Patents

10/23/2000

On Oct. 3, the Washington D.C. Chapter of the Internet Society hosted a panel on patents and the Internet at one of its regular meetings. Vint Cerf moderated the panel, which included:

  • Q. Todd Dickinson,undersecretary of commerce for intellectual property and director of the U.S. Patent and Trademark Office
  • Jay Walker, founder and vice chairman of Priceline.com
  • Tim O'Reilly, founder and president of O'Reilly Associates,
  • Lawrence Lessig, professor at the Stanford Law School and author of Code: And Other Laws of Cyberspace

A central issue that had been discussed was the question of "business methods" patents and whether their issuance hampers free development of the Internet, and whether it is appropriate protection for businesses and individuals who invest in that development. Dickinson defended the 583 business-method patents that office approved last year, including the most famous - Amazon's one-click buying. At the other end of the spectrum, Lessig called for a moratorium on business method practices.

For a summary of the panel discussion, see Grant Gross' report on NewsForge.

For more in-depth details, here's a transcript. Cerf opened the discussion with some remarks on the history of open Internet protocols before asking each participant to give a five-minute introduction.

Vint Cerf: Before I allow these gentlemen their five minutes, I am going to steal just a few myself. I want to mention something about patenting and the Internet and its origins. One of the things that is peculiar and interesting about the Internet history is that the TCP-IP protocols were never patented. In fact, they were made available as widely as possible to the public as soon as possible. In fact, it's a little unusual that this happened because it was funded by the U.S. Defense Department, and normally one would have expected, not only would these have been rather close held, but they could even have been classified, except that all the work was done in the open with university researchers, principally coming from the computer science departments.

The openness of those protocols and their availability was key to their adoption and widespread use. I think if Bob and I had not done that - if we had tried to, in some way, constrain and restrict access to those protocols, some other protocol suite would probably be the one we'd be using today and there would be some other thing called the Internet, or maybe called something else doing the same thing, with a different set of protocols. So, that openness was pretty important. The fact that it wasn't patented, I think, was very important.

It's also the case that the Internet Engineering Task Force, which was one of the standards-making activities that takes place under the auspices of the Internet Society, is also relatively resistant to the use of patented technology in the construction of Internet standards. This isn't to say that such patents are ruled out and there are any number of Internet standards that, in fact, rely on underlying patented technologies. An example would be things like IP over Ethernet, where Ethernet itself is a patented technology. But the principal goal of the Internet Engineering Task Force is to make its standards as widely available and as easily practiced as possible. And that generally dictates that they not be encumbered in any fashion, or, if in fact there is some patent encumbrance, that the holder of the patent make the technology available at a fair and reasonable - under fair and reasonable terms and conditions. But, it has happened in the past that the IETF working groups have tried to steer their way around existing patents in order to avoid any encumbrance at all.

The last thing I'd like to observe - and this is something that perhaps we can get into in the early stages of our discussion that Todd might be able to respond to - is that any number of software patents have been granted during the last five to 10 years and a number of them appear to be patents for what is well-known, widely known technology that every undergraduate knows. Now, I'm being unfairly extreme, but I want to make the point that the patent examiners in the office are not necessarily always well-versed in the history of some of the new technologies, particularly software, because software patents were a very recent entree into the arena of things that have been patented. So, it's an issue as we come to grips with patents and the Internet, because the Internet is really nothing without software and everything it does is based on somebody's programs that animate the Network. So, I consider that to be a serious matter of concern, if patents are all wrapped up in software and if we don't have widespread ability to make use of software in order to evolve the Internet.

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