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 IP.com, and the open source advocacy
group Foresight Institute -- have teamed up to launch PriorArt.org, 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. PriorArt.org'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.
PriorArt.org 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 IP.com'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 IP.com 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
The cost of the PriorArt.org 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 IP.com, which has agreed to sell
them to the open source group for only $20 each -- less than one-fifth the
regular $109 price that IP.com 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: "PriorArt.org 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, PriorArt.org has been endorsed by many of its top leaders
(affiliations listed for identification purposes only):
"Bravo to Foresight and IP.com 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
Slashdot.org, "Doing a defensive disclosure at PriorArt.org 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: "PriorArt.org 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 PriorArt.org service. "In a perfect world,
PriorArt.org would have little use," Professor Lessig noted. "But we live in
a lawyer's world, and PriorArt.org will be crucial to keeping the innovation
Indeed, the launching of PriorArt.org 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.
"PriorArt.org 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 IP.com'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 IP.com to launch PriorArt.org."
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 Amazon.com and
Priceline.com. 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."
IP.com is the leading provider of "defensive publishing" services that
enable inventors to protect their innovation from being patented by others.
IP.com'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.
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SOURCE IP.com and Foresight Institute