New Weapon in Fight Against Bogus Patents

Top Open Source Leaders Endorse '' Initiative

Billions at Stake in Internet Patent Wars

May 08, 2001, 01:00 ET from and Foresight Institute

    ROCHESTER, N.Y., May 8 /PRNewswire/ -- During the 1850's Gold Rush, the
 honest prospector could at least rely on his trusty six-gun if the courts
 failed to protect him from claim jumpers armed with crooked mining deeds.  But
 for the modern-day Internet prospector caught up in today's intellectual
 property gold rush -- where exclusive patent rights to a new Internet
 technology or business method can be worth hundreds of millions of dollars in
 increased market share and market value -- the six-gun is not an option.  Nor
 in most cases are the courts, where the cost of fighting a bogus patent claim
 can easily top $1 million or more.
     But now there's a new weapon in the fight against extortionist patent
 claims -- one that could impact billions of dollars in online revenue and
 alter the competitive fortunes of a number of e-commerce enterprises.  In a
 surprise move endorsed by the top leaders of the open source movement, two
 organizations from seemingly-opposite sides of the Internet patent
 debate -- the intellectual property firm, and the open source advocacy
 group Foresight Institute -- have teamed up to launch, a new
 "defensive publishing" service designed to protect open source developers'
 freedom to innovate while also reducing the number of bogus patent claims.
     "This marks a real detente in the Internet patent wars," says David Kline,
 a business consultant and author of "Rembrandts in the Attic," a book on
 patent strategies for business.  "Despite their differing views on patents in
 general, both groups agree that the proliferation of bad patents is bad for
 everyone.  It stifles innovation, constricts the growth of e-commerce, and
 undermines the success and value of companies that have truly-legitimate
 patents.'s defensive publishing service offers the first
 practical solution to this problem."
     "Defensive publishing" refers to the release of software code or other
 innovation into the public domain so that others cannot later secure patents
 covering the same technology. Such public disclosure of invention -- known as
 "prior art" in legal parlance -- is vital to the proper functioning of the
 intellectual property system, since patents (and the monopoly rights that go
 with them) are, by law, supposed to be granted only to truly novel inventions.
     But due to the unprecedented increase in patent activity in recent
 years -- especially the controversial new practice of patenting fundamental
 Internet business methods -- the U.S. Patent and Trademark Office (PTO)
 concedes that it has been unable to search all the relevant prior art during
 its review of patent applications. According to a recent survey of
 intellectual property attorneys, in fact, 90 percent of those questioned say
 that the patent office is doing a poor job of examining prior art before
 issuing new Internet patents.
     "The problem is that the PTO doesn't have a comprehensive database of
 prior art for emerging technologies," noted a recent report in a leading
 e-commerce trade publication.  "So patents are being issued in large numbers
 without being properly tested."
     And as a result, say critics like Rep. Rick Boucher, R-Va., who has
 introduced a bill to outlaw many types of business method patents, a flood of
 overly-broad and even bogus patents is being issued and used by unscrupulous
 litigants to extort "royalties" from firms fearful of the high costs of
 defending themselves against a patent infringement suit, no matter how
     As one executive of a leading online travel company put it during
 testimony before a recent House of Representatives hearing: "The proliferation
 of these patents poses a serious threat to the growth of electronic commerce."
     Especially worrisome, say analysts, is the chilling effect that such
 questionable patents are having upon the work of open source developers, whose
 software forms much of the basic infrastructure of the Internet.  Because open
 source inventors have traditionally rejected patent protection for software in
 favor of a more collaborative, non-proprietary approach to innovation, they
 are especially vulnerable to having their development efforts crippled by the
 threat of costly patent infringement suits.  And this, warn critics, could
 endanger the future of the Internet itself. will finally help stem the tide of bad patents.  The new
 service will enable open source developers to publish a brief description of
 their software innovation in's OpenTech database.  Each disclosure will
 be time-stamped to establish "first to invent" precedence, digitally-notarized
 to ensure authenticity of the disclosure, and then maintained in the proper
 format for valid prior art.  Then, under agreements between and various
 patent offices worldwide, this comprehensive database of open source prior art
 will be made available to patent examiners during their review of all new
 patent applications.
     The cost of the service?  It will be free to open source
 inventors. Officials at the non-profit Foresight Institute plan to raise funds
 to buy "disclosure vouchers" in bulk from, which has agreed to sell
 them to the open source group for only $20 each -- less than one-fifth the
 regular $109 price that charges for larger-sized commercial
     That's the sort of dollars and cents that makes sense for open source
 developers: rather than spend $1 million-plus to fight a bad patent after it's
 been issued -- an impossibility for most independent inventors -- they can now
 try to prevent the patent from issuing in the first place.
     As open source leader Eric Raymond put it: " stops bogus
 patents before they start!"  Raymond, one of the early founders of the open
 source movement, is president of the Open Source Initiative and author of the
 classic treatise outlining the open source movement's philosophical
 underpinnings, "The Cathedral and the Bazaar."
     Surprisingly, given the often-fractious nature of the open source
 movement, has been endorsed by many of its top leaders
 (affiliations listed for identification purposes only):
     "Bravo to Foresight and for making it easy to do defensive
 disclosures for open source," declared Brian Behlendorf, leader of the open
 source Apache Project and co-founder and chief technology officer at
     Added Jeff "Hemos" Bates, co-founder of the open source community site, "Doing a defensive disclosure at enables the patent
 office to see that patent applications on [already-existing open source] ideas
 should be denied."
     And as Lawrence Rosen, executive director of the Open Source Initiative,
 put it: " will prevent third parties from unfairly claiming patent
 rights they don't deserve."
     Even the renowned professor Lawrence Lessig of the Stanford Law School has
 lent his support to the service.  "In a perfect world, would have little use," Professor Lessig noted.  "But we live in
 a lawyer's world, and will be crucial to keeping the innovation
 commons alive."
     Indeed, the launching of comes at a critical juncture in the
 development of the Internet.  For in today's knowledge economy, patents and
 other forms of intellectual property have been transformed from mere legal
 instruments into strategic business assets that can enable firms to strengthen
 their market position, outflank competitors, and increase their profitability
 and overall commercial success.  With intellectual assets now accounting for
 roughly 75 percent of every dollar of market value of the S&P 500, in fact,
 they have become the chief drivers of corporate value and competitive business
 advantage on the Internet today.
     No wonder then, that Internet patents -- and especially bad Internet
 patents -- have become so controversial today.  The competitive success of
 more than a few Internet firms -- not to mention the health of the emerging
 e-commerce economy itself -- depends upon the patent system rewarding only
 genuine, and not bogus, inventions.
     " will help restore the integrity of the intellectual
 property system, which despite its flaws, has proven itself to be vital to our
 nation's economic prosperity," says's chief executive Tom Colson.  "By
 helping to weed out bad patents, we'll not only be helping to protect open
 source development -- which is some of the most important innovation on the
 Net -- but also enhancing the success of firms with truly-valid patent claims.
 It's a win for everyone."
     To those who insist that the patent system should be eliminated rather
 than reformed, however, Foresight Institute President Christine Peterson has
 this to say: "We can criticize the patent system all we want, but it still
 won't change the fact that bad patents exist and that something has to be done
 -- and done now -- to reduce the very real dangers they pose to open source
 inventors.  That's why we've teamed up with to launch"
 Sums up author David Kline: "There's a lot of money, a lot of stock market
 value, riding on the legitimacy of patents today -- just ask and  Anything, therefore, that helps reduce the number of invalid
 patent claims and helps restore the legitimacy of truly-valid patents has got
 to be good for business, consumers, shareholders, and investors."
     About is the leading provider of "defensive publishing" services that
 enable inventors to protect their innovation from being patented by others.'s publishing services are easy to use, inexpensive, and provide
 inventors with a wide range of disclosure options.
     About Foresight Institute
     Foresight Institute is a non-profit educational organization devoted to
 the advancement of nanotechnology and open source software development.
                     MAKE YOUR OPINION COUNT -- Click Here

SOURCE and Foresight Institute