Sunday, Sep 7, 2008
The Amazon CEO's plan for patent reform is not all new, but it's not all bad, either.
Mar 16, 2000 | When Amazon CEO Jeff Bezos laid out his proposals for reforming the patent system last week, patent experts reacted with the same lack of enthusiasm the bookseller's competitors showed when it won a patent on its customer-referral program. After all, Bezos' plan, like some of his company's e-commerce patents, did not sound all that novel to people familiar with the subject.
"This is really nothing new," says Randy Lipsitz, partner at Kramer, Levin, Naftalis and Frankel. "He's not the first person to have spoken out against the patent system." In fact, he's not even the first to introduce the main ideas of his proposal: to create a special set of laws to govern software and business-method patents, to shorten the life span of such patents and to create a database of prior art to help educate the Patent Office about existing innovations. (He may, however, be one of the few to suggest patent reform while trying to quell the public outcry against his own company's patents -- Amazon's patents on 1-click purchasing method and affiliate program for customer referrals have been roundly criticized for being obvious "inventions" that shouldn't have received patents.)
In a 1994 Columbia Law Review article titled "A Manifesto Concerning the Legal Protection of Computer Programs," Pamela Samuelson, an intellectual-property expert and law professor at University of California at Berkeley, called for a new kind of legal structure to protect software developers' rights -- something more protective than copyright law, but less so than traditional patents. Essentially, Samuelson argued that the strong, wide protection of patents threatened to hinder technical advances in the field. Given that software is typically built in pieces, with different developers contributing new programs or elements that work on top of existing software, patents on the underlying software could deter newcomers from building on it; to do so they generally have to pay a licensing fee or risk a lawsuit. According to Samuelson, such strong software patents are contrary to the Constitution, which empowered Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
Samuelson also tackled the time-limit issue that Bezos brought up in his proposal: While the "Manifesto" did not propose specific software patent time limits, in testimony before Congress, Samuelson says she and her co-authors suggested that a fair life span for software rights protection would be "in the neighborhood of three years."
The law provides for 17 years of protection, because it is trying to ensure that the inventors of costly inventions, such as pharmaceutical drugs, can recoup their investment before their patent runs out. But software is not nearly as complicated or expensive to produce, and there's a theory commonly espoused by patent attorneys that the software world moves about five times faster than the industrial one that the patent system was designed to protect; as a result, software-related patents, including those covering business methods, deserve only one-fifth the protection. Besides, software is likely to be long outdated by the time 17 years have passed.
"Internet technology is advancing so rapidly that a three-to-five-year term would -- its proponents would argue -- have the same practical effect as the current 20-year-from-filing term," says Timothy Shea, a Boston patent attorney. In the proposal Bezos posted to the Amazon site, he also argues that "fewer people will bother to apply for three to five year patents," if only because the return on investment -- patents can cost anywhere from $25,000 to $100,000 -- doesn't justify the cost.
But the Patent Office isn't buying such arguments. "Limits on patent life spans exist in the form of re-registration," says Brigid Quinn, a spokewoman for the Patent Office. "After four, seven and 11 years, patent-holders are required to pay a maintenance fee. If they don't want 17 years of protection, they simply don't have to pay the fee."
And if Bezos thought his newfound desire for patent reform was original, well Jeff, it's been around. "Since the 1950s the courts and the Patent Office have been grappling with whether or not software could be patented," Samuelson says. Patents typically cover mechanical inventions and processes, but in theory they don't cover ideas; the question is whether software is a process or an idea. So far Congress, which is the only body that can change the law, hasn't weighed in on the subject. "In the political environment of the United States, it's always been an uphill battle."
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