Internet Society Panel on Business Method Patents
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Todd: That's an excellent - I've been a patent practitioner my whole career - that's an excellent question. Oliver Windell Holmes once said that a patent is the most complex legal document that there is and, in some ways, he's right. Part of it is a function of a recognized nomenclature and so, because the law specifically allows and has always allowed, this is the phrase of the law: the applicant will be their own lexicographer.

People have used that opportunity, I think their lawyers have used that opportunity, to try to frame the invention in ways that make it a little harder to research. I wish, and I've said this to Tim and to others, I would hope that - I would like the Internet industry to try to come up with a common nomenclature. I am chemist by background and we stabilized our nomenclature over a 100 years ago by international convention and it's relatively well enforced, so maybe that's partly the software industry's need to develop a nomenclature. The other part is the lawyer's fault. I'm a lawyer. That is our fault. We do indeed attempt to - our job very often is to broaden - get the broadest protection we can and still get it past the office and so it is, indeed, a taffy pull and part of that is also an attempt later when these may be litigated to provide a certain amount of wiggle room, though the courts have been - I have to say this - the Court of Appeals of the Federal Circuit has been narrowing the doctrine of equivalents over the last few years which I think takes some of that away. And part of it is just the fact that a body of law has built up around what certain words mean in patent applications.

The difference between comprising and consisting of in a patent claim transitional language is night and day, but to the nonskilled practitioner it probably doesn't make a lot of sense.

Vint: Are there any other attacks that want to be mounted in one direction or another? No. I have to tell you that a rather significant stack of these questions are targeted at Todd, but so we want to spread the - let me raise one curiosity - one of the interesting things about innovation on the Internet I think is a consequence of the fact that when you pulled up a Web page, you had the ability to say View Source and that meant people could see what the HTML code or now XML code was that produced the image that you're looking at or the other effects that you're looking at and people copied that. They would copy each other's pages and they would learn how to write Web pages that way. That sort of goes against some of the notions of trying to control and patent and restrict the use of at least, let me call them programs, written in HTML, or the Web pages written in that descriptive language. In fact, it deliberately prevents it in some sense because it makes it so obvious and so easy to duplicate. I wanted to ask whether that's significant at all in terms of the rapid rate at which people have been able to put things up, try new things out on the network and is that relevant to this discussion about software patents? Does HTML fall into the software framework at all, or XML?

Larry: Well, I certainly think it's extraordinarily relevant because what it's demonstrating is that there's a different model of innovation and development that has taken off and we ought to pay attention to it. Now, you can say, I have all the time in the world to sit around and try to figure this out as a professor, but I think there's something extraordinary here to say that, look, we don't have time to figure this out, we ought to just race ahead with what we've been doing. Right, Mr. Dickinson, you hold a position that Jefferson held in the very beginning of his administration, one of the most skeptical patent people, who was constantly struggling to figure out how far patents should go. And when he spoke about them, he spoke about them not with the second great mistake lawyers have done, not with the word intellectual property, he spoke about government backed monopolies.

Patents are government backed monopolies and it chills me to hear you talk about congressmen calling you and talking to you about whether you ought to be issuing another government-backed monopoly, but I think if we started talking about it like this, then the urgency to start figuring out whether this is doing us any good becomes a lot more real because we didn't need government backed monopolies to create the greatest set of innovations that we've seen in the last generation, two generations and it's quite clear government backed monopolies will increase the cost of innovators, not just people who are going to file for patents, but everybody who's got to now have a lawyer sitting next to them as they code their stuff to figure out what they can do.

Now, in the face of radical changes that we see that we're making, the idea that you can say, "Oh, look we're too busy to sit down and figure out whether it's going to do any harm," seems to me extraordinary. This is the most important part of this economy and the idea that you don't have time to figure it out before you launch the Challenger, that really seems to me to be an extraordinary indictment of our government-backed monopoly issuing office.

Jay: They could go to the dictionary and find every word in every one of your books. All the words are there. Everything ever written is in the dictionary, it's just the sequence that matters. You know, when you look at what has happened, the idea of protecting people's written words in copyright has led to an enormous explosion of innovation. The recombination of words in incalculable combinations forever and ever have enriched everybody in this room. Every author who has ever sweated and labored to create a book did so in part because he knew he would not be taken from in his arrangement of words. Now, we're all free to write words and give them away voluntarily to society. If you do, congratulations, we appreciate it. However, society has no right to take your words and your labor simply because it's part of the great explosion of the written word, of the book, of learning, of the university, whether it's your thesis or not.

We historically have seen periods of enormous explosion in creativity that parallel - the Internet. OK. We have seen periods where innovation has flourished at enormous levels historically and we have learned from history that property typically encourages innovation. Why? Because humans are economic animals, except for economists. Humans are economic animals, and as economic animals, we want incentive, we want reward, we want to be able to control what is our property and created, which is not to say we should not have debate - and let me get to that issue - but in a world that is changing rapidly, the economist and the researchers will spend time researching and debating and that is the nature of a free society, but the society cannot stop during that period.

Property, the first of the three debates I argued, I would argue is beyond reproach and the burden of proof is not on those who would need to say property should be but on those who say property should not be because historically societies that did not respect property rights, all right, ended up in the dust bin of history. And societies that respected property rights moved forward aggressively.

Larry: Jay, you're a lawyer right?

Jay: No, I am not a lawyer. That's a terrible thing to say. Damn it. I am a businessman. Do I look like a lawyer? He called me a laywer. That's rude.

Larry: This will be very brief. Jay, patents and copyright are not property in the sense that your car is property, and this is just ideology to say it is. Our tradition is a tradition that says what you call intellectual property is a balance between government-backed monopolies to create incentives and limits on those monopolies to guarantee that the stuff that you produce comes out into the information commons as quickly as possible. The original conception of what you now rally around and call property is not the protection for your car. I have no fair-use right to use your car. I have no right to get in it and drive it around the block, but anybody has a fair use right to take my book and that's the conception of the framers, not the conception of property in the way that you think of property for your car.

Jay: Let me make just a couple of points. No, there is not a fair--not everyone has a fair use right to take your book. Some do and some don't. There is no fair use in the patent system either today. Two points: you made the point, why don't we stop everything when a new innovation comes along and make a policy determination. What I said was - I didn't say that I was not making that policy review - we are, I said we were, and I said we came out where we came out with the Business Method Initiative. That policy review occurred and will continue to occur and it will be fine-tuned and if Congress wants to get into the debate, that's good, too, and if we see additional abuses, we'll take additional steps, but we've come to where we've come to strike the right balance and we've made that review internally inside the office. But to say that when Vint and Bob came up with the Internet, they were supposed to come to the patent office and say, I've come up with a new technology, will you please make an analysis of whether or not the patent laws should apply to it or not and take a period of time to figure that out before we move forward, is not realistic. You have to, we have to, do both things simultaneously. That's what we do. We've made that policy determination and this is where we've come.

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