OYEZ, OYEZ ...

Justice Douglas was outraged. The Patent Office had been issuing a series of specious patents including ones for doorknobs made of clay rather than metal or wood, an oval rather than cylindrical toilet paper roll to facilitate tearing off strips, a method for exercising a cat by shining a bright light in front of it and making it jump around, and a method for buying goods with one click.

Whoa, Nellie, back the wagon up. The last two didn't make the list of the Honorable Justice, but they certainly have made a lot of other prominent lists.

What's wrong with the Patent Office? How can they possibly continue to issue such obvious, inane patents? Many people point to the need for reform of the patent laws ranging from abolishing patents altogether to a reexamination of patents, particularly business method patents such as 1-Click® buying on the Internet.

Bad patents are indeed the “debris of Cyberspace” as Lawrence Lessig says in a notable article in The Standard. This debris introduces noise in our intellectual property system: bad patents do not advance science; they retard it by confusing inventors and muddying the database of prior art.

Most reform proposals go along two lines:

• Patents are being issued according to the laws, but the laws are bad and should be changed.
• Patents are being improperly issued for non-obvious ideas and the Patent Office should change its procedures.

Richard Stallman and the League for Programming Freedom are proponents of the first view, advocates like Tim O'Reilly advocate the second. O'Reilly, for example, feels that obvious patents are being issued and, in a recent debate with Commissioner Dickerson, advocated a Slashdot-like forum to flame discuss obvious patents.

Any patent reform must go deeper. Yes, laws must change. Yes, procedures must change. But, the fundamental problem is a database issue. The patent database is one of only two explicitly protected by the U.S. Constitution (the other being the Census). The purpose of the corpus of patents is to advance the arts and the useful sciences. The grant of a monopoly on an invention, misguided or not, has one fundamental aim: to spread knowledge.

A MARKETPLACE OF IDEAS

Patents are the fuel for a marketplace of ideas, not some database product to be sold to the highest bidder. The SEC's EDGAR database is the underpinning for our financial markets: public disclosure makes the markets flow efficiently. Although the SEC was deadset against distributing EDGAR properly on the Internet at first, they turned around and this is now a fundamental tool for our financial markets. The symptoms of what is wrong with our patent system may be misguided laws and misguided procedures, but these all flow from an inefficient system for the distribution of information.

A patent is a link to prior art: it shows the state of prior art, and then documents a new invention. The patent then becomes an overlay on and a part of the overall database of knowledge. But, for many years patents were difficult to find. The previous patent commissioner fought tooth and nail against putting the data on the Internet. The current commissioner runs an on-line service, but the system is so limited that neither patent examiners nor the general public can make effective use of it. IBM runs a patent search system on the Internet, but this is an afterthought service, not an integral part of our patent system.

The problem with our patent system is not clueless examiners. The problem is a classic management bureaucracy coupled with an environment changing at the pace of Internet time. To borrow from the Cluetrain Manifesto, the Patent Bureaucracy has built a wall around the examiners, keeping the patent database controlled and the examiners without the means to communicate with their marketplace of inventors and inventions. The system for the distribution of patent information is not transparent and not efficient. It does not work and the result is bad patents and a lack of clarity in the definition of intellectual property.

Look at the question of obvious patents. How could they possibly be issued? Corporations filing a patent have no incentive to do a search of the prior art. To do so would only uncover inconvenient facts. Patent examiners have bad tools at their disposal and operate inside of a closed system. They do searches, but do not have the tools at their disposal to systematically find prior art relating to a proposed patent. They operate behind a wall. We can't see in, they can't see out. The system is not transparent.

The current system is no surprise. The Congress has given the Patent Office a charge to make money. The senior managers have taken that charge but forgot their basic duties. Patent examiners are on quotas to produce more patents, not better patents. The Patent Office boasts of the huge revenue they make on their patent database, although that revenue is dwarfed by patent filing fees and could easily be replaced by reducing the costs of patent distribution.

ANTIPATENTS AND CLUELESS PATENTS

The key to solving this problem is to use the obvious: the concept of the hyperlink (a non-patented invention). The patent database must be properly linked into the overall database of knowledge that is now instantiated on the World Wide Web. Part of this is the duty of the Patent Office: they have a constitutional duty to make their data available in the most effective means possible. They also have a duty mandated by the U.S. Congress under the Paperwork Reduction Act. A patent database that meets the spirit of the Constitution, the intent of Congress, and the realities of Internet time would be:

• Properly Engineered. Try automating your patent searches today and you will quickly reach a max users limit.
• Massively Distributed. Try FTPing the entire patent database and you will find you can only get a few years of abstracts.
• Linked Into the Real World. Try communicating with a patent examiner today and you will find the task almost impossible.

But, the process needs to go beyond the Patent Office. Specifically, we propose two mechanisms that will go a long way towards reducing this “industrial pollution in cyberspace:”

• Antipatents. A database that systematically documents non-patented inventions with the aim of preventing some corporation from later claiming the idea.
• A Clueless Patent Database. A DMOZ-style community effort to build pointers between obvious or unoriginal patents and the prior art that documents the invalidity of those patents. This effort centers around a series of editors, each responsible for a class or subclass of patents.

Method for Making Trouble. Other voices speak out on the issue of patents.

Antipatents are simple, a registration mechanism for your open-source inventions. Taking the time to document the antipatent prevents some clueless corporation from making it their property. This system can be quite simple: a CGI script and a webmaster. Perhaps a handsome certificate, suitable for framing, can be sent with each antipatent for a modest fee. The DMOZ-style database is a little harder to pull off, but certainly not impossible. Tim O'Reilly advocates a Slashdot-style discussion for pounding on a few bad patents, but the discussions will be much more fruitful if a series of area editors cull the prior art and the emerging patents and lay the groundwork. Simply pounding on a few prominent bad patents like 1-Click® may be gratifying but it doesn't take the place of the solid foundation that a DMOZ-like effort would provide.

One of the most disturbing aspects of the current system is the thousands of bad patents that have been issued for business methods. Even if Congress decides to change the laws, these previously issued patents will stand and only future patents will be affected. A systematic documentation of how out of control the business methods patents are would give the Supreme Court the fodder they need to declare that the patents were improperly granted. One bad patent may or may not impress the Supremes, but systematically documenting 100,000 bad patents would definitely do the trick.

From these three efforts—a significantly more aggressive distribution of the patent database, an Antipatent registration system, and a DMOZ-Style Clueless Patent Database—much more fundamental reform can emerge. The proposals are all politically neutral: people wishing to abolish patents can work alongside people who simply feel that a few procedural tweaks will do the job. Transparency in the flow of information is the key. Linking the patent database into the rest of the prior art turns the patent database from a wall around inventors into a tool for spreading knowledge. And, if the knowledge that is spread pertains to misguided patents, then reform is that much easier.

Justice Clark, in Graham v. John Deere Co., 383 U.S. 1 (1966), said “innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must 'promote the Progress of . . . useful Arts.' This is the standard expressed in the Constitution and it may not be ignored.” It is time for the Patent Office to listen to the Constitution.

In Internet time, the number of patents issued has been growing. The patent database defines an ever-wider swath of property, walls around ideas. But, the walls around the patent office prevent information from flowing out and, just as importantly, clues from flowing in. The walls must go.

other voices
05/24/00		Debate - Tim O'Reilly and the Commissioner of Patents engage in discourse.
04/27/98		Flame - A letter to Vice President Gore prods the bureaucracy into action.
04/23/99		Analysis - Lawrence Lessig tells us what is wrong with the Patent system.
05/27/98		Soundbite - Constitutional, legislative, and economic soundbites on why the Patent Office should do the obvious.
07/21/00		Cat - Karn and his cat do something useful.
06/29/92		Constitution - The annotated constitution.
12/01/99		Walls - The Cluetrain Manifesto.
02/28/91		Manifesto - The League for Programming Freedom.
10/01/96		Extreme Measures - Eminent domain as a technique to neutralize one particularly bad patent.
02/01/96		Radio - Patents almost killed the radio stars.
10/18/99		I, Patent - Greg Aharonian's bustpatents.com is an outgrowth of his long-standing work to reform the patent system and is particularly good on patents relating to biotechnology.
12/15/98		Absurd - Absurd Patents.
03/12/00		E-Patent - James Gleik, long a commentator on absurd patents, sounds off again.
04/08/00		War - The Economist on the global patent wars.