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Who's Really Being Protected?
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Tim: Well, you know, this is the kind of thing that I think is part of the problem, too. There's a set of people who care about this rule, working the patent system to their advantage, and meanwhile there's this great field of people outside who are doing very creative work who don't know about the system, who don't know that people are working behind the scenes to steal their livelihood.



Dickinson: What's very intriguing to me is that -- do you know the community, the constituency that was most worried about expanding re-exam, who succeeded in actually getting -- I know you've called for having pre-grant opposition, pre-issuance opposition -- this same constituency was able to get into the legislation over our opposition statutory language that strictly forbids pre-grant opposition. That was the independent inventor community, the small inventors, the little entrepreneurs who were so scared about the IBMs of the world beating them up with these systems that they made sure in their world that these kind of restrictions are in there. That's why it's so ironic to hear you now say, "What we need is expanded re-exam, and we need pre-grant opposition." Less than six months ago, the small entrepreneurs of the world were saying we didn't. I'm confused.

Tim: Well, let me ask this question. When I hear "the small entrepreneurs of the world," I understand that there is a group. I don't know who makes up that group, you know, what lobbyist they've hired or any of that stuff. I just know there's a huge group of people who are my constituents, if you like, that --

Dickinson: They weren't heard last year. They weren't heard in November when this bill passed the Congress, that's for sure.

Pizzo: Maybe we need a Million Software Engineer's March.

Dickinson: The kinds of things that kept us from having expanded third-party re-exam -- and you heard them, you heard Beverly Selby, one of their key lobbyists, directly attack Mr. Bezos in print about this matter. This is the small entrepreneur, the independent inventor, who's deathly afraid of these kind of processes. I think they're wrong, but they're the ones that influenced this legislation. They're the ones that organize the Internet. They're the ones that sent thousands of e-mail messages to members of the Congress just less than six months ago.

Tim: Part of this, I kind of wish this had gotten on our radar earlier. Let me ask you another question, just about software patents in general.

Dickinson: Sure.

Tim: Are you a lawyer by training?

Dickinson: Yes, I am.

Tim: How would you feel if a lawyer was able to patent an argument?

Dickinson: If it was new and non-obvious, I wouldn't have a problem with it at all.

Tim: And the ability to basically extract a royalty from other lawyers for using that same legal argument?

Dickinson: As I say, if it's new, and if it met the statutory standards for patentability (and that's the key question here), and it was incorporated into software in some form, that wouldn't be a problem.

Tim: No, not in software. Just in actual, in court.

Dickinson: Well, I don't want to deal in hypotheticals. The courts haven't dealt with that question.

Tim: Well, how about a basketball player invents a new move. Should that be patentable?

Dickinson: Moves aren't patentable subject matter.

Tim: Why is that?

Dickinson: They may be copyrightable subject matter, as dance is, but they're not patentable subject matter.

Tim: So I guess what I sort of see from the perspective of somebody who's a writer -- and I've written software as well -- software and writing are actually very, very similar arts. You know, in one case you're writing, for example, a set of instructions for a human being, and in the other case, you're writing a set of instructions for a computer. I think it's appropriate for a copyright to cover software.

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