Who's Really Being Protected?
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Tim: I'm not sure that it's a database solution. Jeff and I have talked about this as well. I think in some ways people need -- you know, you need to go out and reach out to the community of experts on the Internet, rather than looking just at documents. I can give you a couple of examples. You know, I was actually the first person to ever do any kind of Internet advertising.

Dickinson: Well, bring your lab notebooks on in and we'll take a look at them.

Tim: Yeah, I understand, but I'm just telling you how hard it would be --

Dickinson: I have to deal with prior art that's tangible. I can't deal with it when it's only in your head. We're not equipped to judge the veracity of what an individual person would say. We have to use documents and other hard evidence in order to prove the case.

Tim: Obviously we didn't file any patents, this was in the era before people were trying to do these Internet land grabs, but it came up, for example, just in some historical documents. Hot Wired, for example, is claiming that they were the first people to do Internet advertising in 1995, and I said, "No, we were doing it in 1993." But it took us a fair amount of time to find our own documents, and there's no way that any kind of patent office search of databases would turn that up. But if for example --

Dickinson: If you've got those documents now, and you believe a patent is issued that those documents in any way implicates or invalidates -- as I say, we've got several mechanisms for sending it on in. Send it on by re-exam, you can even just put it in the file if you want. We have a process for putting it in an individual file so that if anybody goes to enforce that patent, then they would have a major problem. You could send it to the patent owner and say, "I would warn you not to try to enforce this because you run a risk of --"

Tim: In fact we have been involved in some of those cases. We're -- a lot of our early Web work, we've actually put up an archive of software which was the first Web browser.

Dickinson: Absolutely, I think that's a great idea. I would encourage you to continue to try to develop any mechanism including the Web sites that would bring additional prior art that's good and valid prior art to the surface, so we can make sure the quality of these patents is as high as we can make them, and I applaud you for doing that.

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•  Part Two of this
A Few More Thoughts
   on the Patents Issue by
   Tim O'Reilly
Tim: Yeah, I think that that's a good approach. However, I do really feel that you're putting the burden of proof on the defendant.

Dickinson: That's the way the law is written, I can't help that -- then, if you want to change the burden, then you need to go to Congress on that, too. But again, I don't think they're in a mood to deal with new patent reforms this year. They just got through with them last year. It should have been raised last year.