Wednesday, Jul 9, 2008
The story of BountyQuest begins with Amazon.com. In February 2000, the giant bookseller announced it had been granted a patent for its affiliate system. Bezos had already earned criticism for patenting the technique of one-click shopping, but the idea that he could also protect the concept of rewarding business associates who refer customers through a hyperlink struck many as absurd.
The Net reacted with electric ire. A week after Amazon won the affiliate patent, more than 1,300 people united at NoWebPatents.org, threatening to boycott Amazon unless it gave up its strategy of patenting "obvious" and widely used technologies. At the Web site run by book publisher O'Reilly & Associates, visitors posted about 3,500 responses to CEO Tim O'Reilly's critical open letter to Bezos. Amazon's own discussion boards brimmed with anti-patent messages.
At first, criticism focused on Amazon for what many felt was overreaching behavior. But over time, the patent system itself became the favored target. Taking their lead from documents like Pamela Samuelson's 1994 Columbia Law Review article "A Manifesto Concerning the Legal Protection of Computer Programs" -- which argued that software patents threatened to hinder innovation -- programmers and free software leaders began to turn the fight against bad patents into a crusade. Software patents "obstruct software development, and prohibit free software," explains Richard Stallman, founder of the Free Software Foundation.
"The only software patents that are not bad are the ones that will never be enforced," he adds.
Even those who took a more moderate line agreed that patent applications should only be issued after intense scrutiny -- particularly in regard to exploring whether previous solutions, or prior art, already existed. According to critics who included Greg Aharonian, publisher of the Internet Patent News, the U.S. Patent Office didn't take its job seriously enough. Computer-related patent applications spiked to 15,606 in 1998, up from 9,250 in 1997, reported Aharonian. But rather than increase the number of examiners to handle the load, the office seemed content to simply do less research.
"On average, issued software patents are missing three or four prior art examples that should have been cited," Aharonian said in a March 2000 interview. "Examiners don't know how to search effectively."
The Patent Office, then and now, denies Aharonian's claims. "There is no way that anyone can determine what art an examiner considered without looking at the file wrapper," says Brigid Quinn, a PTO spokesperson, referring to the complete body of documentation that accompanies each patent award. "Greg did not do that."
In the Patent Office's defense, Amazon's affiliate patent, and InTouch's two downloading patents -- cite at least a dozen sources, many of them available online.
But in an odd twist, by March 2000 Jeff Bezos had added his name to the list of agitators for change. In a letter posted on Amazon.com, he slammed the patent system and suggested several changes. Specifically, he sought the creation of 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.
"Bottom line: fewer patents, of higher average quality, with shorter lifetimes," he concluded. "Fewer, better, shorter. A short name might be 'fast patents.'"
Enter Charles Cella, a practicing patent attorney. Cella didn't believe that the entire system needed fixing, nor was he necessarily opposed to the idea of software patents. He simply figured that there was a market opportunity in helping patent examiners determine what innovations really were novel and unobvious enough to deserve protection.
"There are a lot of bad patents out there, and there are a lot of valid patents out there," he told Salon in October 2000. "What needs fixing is the system of prior art."
Cella obtained investment from both Jeff Bezos and Tim O'Reilly, thus guaranteeing media attention and street credibility. And at first, all went well. Patent lawyers said they were willing to give BountyQuest a try. Free software geeks and civil libertarians welcomed the idea. O'Reilly even gave the site a high-profile kick-start, by agreeing to pay $10,000 to anyone who submitted prior art that invalidated Bezos' one-click shopping patent.
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