From: Bill Higgins
Subject: BountyQuest Subverted?
Dear Mr. O'Reilly:
You indicate that you hope that this site [BountyQuest] will improve the patent system by establishing a forum for posters to seek prior art in return for a monetary reward. I am concerned that patentee-bounty posters in particular will take advantage of the site in litigation. I can envision a patentee posting a bounty, seeking the number of registered hunters, and using the failure of all of those hunters to produce prior art to their advantage at trial. I'm not sure this is the result that you seek in light of the recent public discussion between you and Mr. Bezos. I am interested in what you are doing to prevent at least patentee-bounty posters from taking advantage of your site in this way. Of course, the possibility for misuse of your site in this way also discourages defendants in patent infringement suits from posting bounties.
Good question, Bill. First off, I'll say that almost any technology can be used for good or for ill. There may well be a number of unintended consequences to the BountyQuest system, but I don't think that the one you mention is the most likely one. Now, IANAL (I am not a lawyer), but it seems to me that the failure of BountyQuest to come up with prior art would not be useful in court--it's no more damning than the failure to come up with prior art by other means. Far more likely is that a patent holder would post a bounty, and use submitted prior art to:
- Strengthen the patent by adjusting the claims to take the prior art
- Decide to be less aggressive in pursuing the patent if it was clearly bogus.
As you can see, both of these situations are good for the patent holder, but one is also good for the prospective licensee or "infringer" as well. The outcome depends to some extent on the nature of the art that is found. If you're totally against all patents, then the first outcome is bad. If you accept that patents are sometimes OK, having more valid patents is always a better outcome.
Now, in the case of software, I remain concerned about whether patents should be applied at all, but if they are going to be applied, I'd still like them to be more solid rather than less. BountyQuest isn't a complete solution, but I think it can do a lot of good.
One thing that BQ could possibly do, BTW (and I'm cc'ing people on this mail), would be to identify bounty posters as "Patent Holder, Party Under Threat of Patent, or Public Interest." Even if BQ did so, it would be extremely easy for a lawyer to act as a "third party" claiming "public interest," as happens so often in political fundraising and the like. But still, it might provide a kind of moral suasion that would help. I'll let the BountyQuest folks answer further.
Charles Cella, BountyQuest CEO, and Jim Ward, V.P. Development, respond below:
From: Charles Cella
Thanks for your comments on BountyQuest. We do expect that some parties will use their BountyQuest experience as evidence that a patent is valid, although the primary use will be to weed out bad patents that threaten people's operations. After all, there are many patents that do represent real innovations. The problem right now is that it is hard to tell good patents from bad ones, which is what we're trying to address by tapping into a large community of people who are most likely to know who did what first.
From: Jim Ward
I predict that there will be various market solutions that will emerge which will provide real improvements in the ability to find information of all kinds. BountyQuest hopes to be one of them.
If so, I would expect that people involved in legal proceedings should be expected to take advantage of them as part of "due diligence." BountyQuest certainly seeks to become a standard of practice, or, more precisely, offer a value so great and obvious that anyone involved in patent litigation would, in fact, be remiss not to use us. We still have a ways to go to get there, but it's a worthy goal.
Until we have a large and active enough group, a null result on BountyQuest is not very powerful. (As they say, absence of evidence is not evidence of absence). However, if every relevant expert in the world did look at a BountyQuest posting, and no prior art were found, that would be a strong statement that the patent represents real innovation, and should strengthen the standing of the patent. That's fine with us. BountyQuest is not just about invalidating bad patents, it's also about validating good patents.
Is there something wrong with any of this? I believe that we will all be better off if there is better information available, and if the parties involved make use of it. This is my "truth will win out" bias, I suppose.
I'm not an attorney either, so forgive my naiveté if I'm missing something obvious here.