Patently Absurd

Illustration by Melinda Beck

Which is the worst: the evil you know, the evil you don’t know, or the evil that’s been around so long no one pays attention to it anymore?

Two weeks ago, Tim O’Reilly issued a rallying cry in the battle over chilling Net-patents by attacking Amazon chieftain Jeff Bezos for his latest victory in a string of patent decisions. After a round of negotiations that would make the State Department proud, both parties this week claim to have forged an alliance that not only may ease some Net observers’ concerns about those patents, but could finally drag the U.S. Patent and Trademark Office kicking and screaming into the computer age.

The subject of the Net appeal from O’Reilly, head of the pioneering Internet publishing house of the same name, was Amazon’s patent on associate links, a device which, when clicked by Internet surfers, takes them from Site X to a specific item for sale on Site Y. If the surfer makes the purchase, Site X gets a cut from Site Y for the referral.

The Net has embraced the associate concept, and sites large and small have incorporated it into their business models. Now Amazon, fresh from last September’s award of a patent on one-click shopping (where a Web site, if it recognizes a shopper, can tally up an order with . . . oh, you get the idea), intends to be everyone’s one-and-only Site Y. Bezos told O’Reilly that, gee, if he doesn’t enforce this patent all those other Big Bad Companies will beat him up and take his lunch money. (Bezos characterized the patent as being not on the shopping concept per se, but on the pointing-and-saying-I-want-it-instant-gratification concept. Had I known that, I would have slapped a patent on the closest 3-year-old in FAO Schwarz. But I digress.)

O’Reilly and a lot of other people look at all this, quite rightly, as pissing in the Internet well. But after several lively conversations engendered by O’Reilly’s online stop-the-madness petition (signed by over 10,000 people), he now feels that Bezos is committed to improving the process. Not to voiding Amazon’s patents, you understand — enemies all around must be held at bay by any means necessary, even though Amazon says it will only pursue legal remedies against “the big guys,” whosoe’er they be. It’s the patent rules that need changing, and that’s the windmill — er, cause — that now becomes Jeff and Tim’s Excellent Adventure.

In an open letter to the Net, Bezos wrote movingly about his conversations with O’Reilly, and was refreshingly honest in saying that “while we’ve gotten substantially less e-mail on this issue than we have over several other lightning-rod issues in the past, I’ve spent a lot more time thinking about this one.” He talked about stepping up to the plate for changes in patent law, explaining that his company was in “a credible position to call for meaningful (perhaps even radical) patent reform” and suggesting several improvements (such as relatively short three- to five-year life spans for online business-method and software patents) to reflect the nature and pace of rapid industry innovation.

How encouraging. But don’t bust out the party hats just yet.

Dave Winer likes seeing the words “patent reform” in the headlines; if the Bezos-O’Reilly conversations have revived what had become a dead-yet-deadly issue, that’s good. But Winer, an industry stalwart since the ’70s, questions why Amazon filed for these patents in the first place.

The decision to file for patents on business methods such as one-click shopping and affiliate programs was put into motion, he suggests, by That relatively small service used patents to back Microsoft — you remember it — into major concessions on its method of online travel ticketing. Lawyers smelled blood in the water, and the rush was on: Patents, rather than innovation, would become the prime tool for Net competition, and thus began (in Winer’s words) “the first round of what will probably be the end of the Internet boom.”

The end? (But I haven’t got my private jet yet!) Winer predicts that if things continue as they are, “Everybody small will get acquired over this. I will not put lawyers on my development team, and that’s what’s pissing me off about this. I have to start thinking about doing that.” But good techies still beat good lawyers, don’t they, Dave? “I’m not sure about that,” he says.

Cui bono? Who benefits from all this? O’Reilly calls Bezos’ change of heart “absolutely a victory for the open-source community” and compares it to the developing awareness ã that led to the environmental movement. He hopes that the furor and its resolution “create a consensus that [patent madness] is a bad idea — that there emerges some alignment of industry self-interest with public interest.” Winer, meanwhile, strongly disagrees, arguing that “open-source is no defense. [Internet developers] are just as vulnerable” to lawsuits or loss of independence under the proposed “reforms” as without them.

The success of the Bezos-O’Reilly summit means little unless it spells change for patent-assignment methodology — whatever you think of Bezos, there are much nastier creatures bottom-feeding online. (Attention Amazon PR Department: I almost complimented your boss! Does this mean I’m off the blacklist? You only return my calls now to inform me that you won’t talk to me; I assume it’s ’cause I keep putting my foot up your ass. Please advise.) In other words, Amazon may be evil, but it’s the evil we know.

O’Reilly hopes to get the book behemoth working with the open-source community and others to impress on Congress the need for change.

But is change possible? The party you haven’t heard from in this column, the U.S. Patent and Trademark Office, is either — depending on your point of view — the catalyst or the battlefield. Bezos and friends are about to square off with an entity that has been screwing over inventors since before any of us were born. When contacted to ask the USPTO’s opinion of all this hubbub, that body wished to inform one and all that the system is working perfectly.

O’Reilly, new-minted diplomat, has his work cut out for him.


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