When is an idea truly original? Should it be protected from copycats at all costs? Will patent enforcement inhibit free enterprise and hinder consumer satisfaction? These questions are plaguing e-commerce law-makers and practitioners as Web businesses inundate the US Patent and Trademark Office with patent proposals. Internet activists have found a perfect example of this problem in Amazon.com's effort to enforce its patents on business practices such as one-click ordering and affiliate programs.
The trend of patenting business practices--rather than inventions--is a particular concern with which the Patent Office isn't equipped to cope. "The question to ask is, would any of these processes be developed if they weren't able to be patented? The answer is yes, so giving such patents protection doesn't really serve any public purpose," says Barry Parr, an analyst for market research firm IDC.
Amazon.com is by no means the only company encountering patent problems. eBay faces a lawsuit over its use of database technology. Microsoft has caused a furor by patenting some of its stylesheet technology. MultiTech Systems is suing Compaq, Dell, and Gateway over voice- and data-transmission patents. Priceline.com is suing Microsoft's Expedia.com over its reverse auction technique. And Yahoo! is dealing with a suit over its online shopping system.
The increasing muddle of legal issues tied up with the patent process is causing industry leaders to join the legislative fray. Amazon.com CEO Jeff Bezos responded to his critics last week by calling for legislation to reform current patent law.
Shorter Life Span
In an open letter posted on Amazon.com's Web site, Bezos called for several patent reforms but stated that he does not intend to give up his patents unilaterally. He suggested shortening the life span of patents from 17 years to 3 to 5 years. This would take place retroactively, so ideas currently under patent would reach the public domain as quickly as possible.
Bezos also called for a public comment period of perhaps a month before a patent number is issued, so that the Web community can provide prior art references, evidence of an idea's prior existence, to the Patent Office. He also said that he contacted several members of Congress to request meetings and push these reforms forward.
The motivation behind the letter came from a series of conversations between Bezos and Tim O'Reilly, founder and CEO of publishing company O'Reilly & Associates. O'Reilly started the dialogue by writing to Bezos and calling for Amazon.com to stop trying to enforce its patent on one-click shopping. Many of O'Reilly's readers had threatened to boycott Amazon.com.
A Great First Step
O'Reilly was full of praise for Bezos' response. "The reforms that Jeff has suggested would be a great first step towards rethinking the system," he writes. Nevertheless, O'Reilly is still deeply concerned about the danger of patents--and their strict enforcement--on Web innovation. "The free-wheeling development environment has given us both the Internet and open source tools like Linux, Perl, Apache, MySQL, Sendmail, and so on. This has demonstrated convincingly that there is enormous power in an open, shared platform where ideas are given away as the foundation for further innovations," writes O'Reilly.
Many industry insiders agree that the concept of companies taking out patents on their technology is not necessarily dangerous to innovation, but aggressive enforcement of those patents may be. The original U.S. patent law of 1790 intended patents to be used in unusual circumstances, swapping short-term monopoly rights for the chance to preserve technological information and aid innovation in the long term.
