Patent Problems

Jeff Bezos of Amazon.com Inc. is Time magazine's 1999 Person of the Year. "Unquestionably, the king of cybercommerce," and among the youngest to join that exclusive club (only Charles Lindbergh, Queen Elizabeth II and Martin Luther King Jr. were younger), Bezos has become a kind of hero of the Net. His success is a measure of the reward the Net returns to innovation. And his company is a symbol of that innovation.

But for a growing number of people, "Amazon.com" has a second meaning. When it filed suit against Barnes & Noble to defend its patent over the "one-click" technology, it stood for a different trend in cyberspace. This is the trend to patent cyberspace - the explosion of patents claiming rights to technologies, and hence to ways of doing business, on the Net.

One of this growing number is Richard Stallman. Winner of a MacArthur Foundation "genius grant," founder of the Free Software Movement, author of GNU - which made Linux possible - Stallman is not quite as rich as Bezos. Nor is he as young. But among founders of the Net, he has earned a certain respect as a man who speaks from principle.

In Stallman's view, we should boycott Amazon.com. The one-click technology, Stallman writes, is an "important and obvious idea for e-commerce." It should not be the subject of a patent. "Foolish government policies gave Amazon the opportunity [to get this patent] - but an opportunity is not an excuse. Amazon made the choice to obtain this patent, and the choice to use it in court for aggression."

You don't have to be against all patents to believe that there is a reason to be concerned here. For contrary to the it's-all-OK-sayers, there is something new about patents in cyberspace. While the old problems with patents remain - for example, can the patent office keep up with the pace of change - there is a new kind of patent that is sweeping technologists in the Valley. Yet we know nothing about the effect this patent will have.

This is the "business method patent," discovered by a federal court in 1998. It gives the holder a monopoly over a way of doing business that gets instantiated in technology. That's troubling enough in real space, where not all ways of doing business can be expressed in technology. But in cyberspace, there is no limit to the potential of this sort of patent. Every method of doing business in cyberspace by definition is instantiated in technology - code. So every method in principle becomes subject to a patent.

This a problem, because patents impose costs on the creative process, even if they also create benefits. They will move cyberspace from Nike-land ("Just do it") to lawyer-land ("Have you passed that by the lawyers"). And while these costs on balance might be worth it, there is no guarantee. It all depends.

Thus, the question that any rational patent system must ask before it launches a new swarm of patents: whether the costs outweigh the benefits.

Congress has not asked this question. Instead, this new monster was called forth from an old statute, reinterpreted by the Federal Circuit. So before any policy analysis has been made, lawyers have been scurrying about the Valley signing up technologists for this dole of government-granted monopolies. And long before anyone in Washington gets around to thinking about the matter, cyberspace will have changed. Lawyers will be regulating the coders; innovation will proceed only as quickly as the licenses can be sold. If they are sold.

There is no more important issue about cyberspace for Congress to address than this, and now rather than later. It is the Issue of the Year for 2000. The Net was not built on proprietary technologies; there is a good argument that this weed will choke innovation. But whether one believes that or not, Congress should address the matter - with full hearings, and possibly new legislation (on this Stallman agrees). This central issue about the future of innovation should not be left to the innovation of lawyers, the mandarins of our culture, pushing courts to see how "this" is just like "that."

And it should not be left to boycotts. For th0ugh I can understand how Stallman might call a company immoral for taking from the government's monopoly dole, the real responsibility here belongs to Congress. Amazon has shareholders; its management will act to maximize its return, given the legal opportunities available. And while its founder may have joined the ranks of "a pioneer, royalty and a revolutionary," Bezos is still a businessman. We don't leave public policy to business.

- Lawrence Lessig is Berkman Professor of Law at Harvard Law School.

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