September 1, 2000

Patents vs. Antipatents

Author: JT Smith

By Grant Gross
Managing Editor

Two Internet veterans want U.S. patent reform to start with a free, Web-based database of patents and with the creation of "antipatents," which would give credit for non-patented inventions while preventing corporations from later claiming the idea.

In their essay "Transparent Patents," released Sept. 1, Media.org co-founders Rebecca Hargrave and Carl Malamud pitch several new strategies to the growing chorus of voices calling for patent reform.

The two even suggest the U.S. Supreme Court should nullify the "thousands of bad patents that have been issued for business methods."

"One of the frustrating things about people advocating changes in the patent laws is they don't understand that a great deal of damage has been done," Malamud says in a separate interview. "Thousands of patents have been awarded. The Supreme Court ... can certainly declare property to have been improperly granted in the first place. This is crucial to reverse the damage."

Management bureaucracy

Many Open Source advocates have been calling for patent reform for years, saying the current system has allowed large corporations to patent thousands of inventions that are unworthy, unoriginal, or already in the public domain.

"The problem with our patent system is not clueless examiners," Hargrave and Malamud write. "The problem is a classic management bureaucracy coupled with an environment changing at the pace of Internet time. The current system is no surprise. The Congress has given the Patent Office a charge to make money ... Patent examiners are on quotas to produce more patents, not better patents."

They add: "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 ... 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."

"Clueless" patents and antipatents

The pair advocates an easier-to-use database to replace the current fee-based patent system, which can cost several thousand dollars for the full feed. The loss of revenues would be replaced by the cheaper, Web-based distribution of all patent information, they say. "Patents are the fuel for a marketplace of ideas, not some database product to be sold to the highest bidder."

The authors also want a formal system for people to register their "antipatents." The process needs to be centralized enough so that those seeking bad patents cannot avoid it, Malamud says.

"Antipatents are simple, a registration mechanism for your open-source inventions," the two write. "Taking the time to document the antipatent prevents some clueless corporation from making it their property. Perhaps a handsome certificate, suitable for framing, can be sent with each antipatent for a modest fee."

Hargrave and Malamud also call for a formal way for the community at large to shout down "clueless patents." "Many people have suggested a period of comment by examiners or Slashdot-like community discussion," Malamud says. "We believe the right way to do this is a series of area editors who systematically combined the literature and compare it to patents. Then Slashdot-style commentary makes sense."

The two say these ideas could work in conjunction with those Open Source advocates calling for a total overhaul of patents laws or those saying patents are being improperly issued and the Patent Office should chance its procedures.

Momentum building

Malamud, who's been advocating patent reform since 1993, says he believes those calling for change aren't just tilting at windmills. "The momentum is building," he says. "Our hope is that one or both of our presidential candidates picks this up ... Our hope is that the Internet, instead of just sitting around and flaming, organizes itself and starts a coherent, strategically considered campaign to change the laws."

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