Since it seems obvious that the US Patent Office is overwhelmed and the system is apparently broken and in crying need of some reforms -- though it's not at all clear what exactly should be done -- this looked like a positive sign. So I contacted Dan Ravicher, who is Executive Director of the Foundation. He graciously agreed to respond to a few questions, and his interview with the INQUIRER is printed below entire and verbatim:
Q: What made you decide to leave a prestigious law firm like Patterson, Belknap to practice public interest law?
A: I've always wanted to be a public interest patent attorney, because helping others brings tremendous personal satisfaction and practicing patent law provides constant intellectual challenge. This fall I secured the requisite financing, making it the right time to start the Public Patent Foundation.
Q: Your initial statements in establishing the Public Patent Foundation are on your website (at http://www.pubpat.org):
The Public Patent Foundation protects civil liberties and free markets from illegitimate patents by providing those persons and businesses otherwise economically, politically, and socially deprived of access to the system governing patents with representation, advocacy and education.
The Need for a Public Patent Foundation
Many patents granted by the U.S. Patent and Trademark Office are illegitimate; meaning they should have never been issued. They issue, however, for several reasons, including that the Patent Office was not aware of significant prior art (knowledge already in the public domain). Illegitimate patents injure the public because they can be used by private actors to preclude activity that would otherwise be permissible, if not desirable. This causes prices for goods to be artificially high, the advancement of science to be thwarted, and civil liberties to be inappropriately restrained.
Most people still do not realize how significantly illegitimate patents are assailing both their freedoms and their wallets. Free speech, privacy and other individual liberties are increasingly being threatened by illegitimate patents, especially as daily life becomes more technologically dependent. Similarly, the pharmaceutical and information technology industries are full of markets hampered by illegitimate patents. Unfortunately, the interests of the public to be free from illegitimate patents are not being adequately represented. As such, there is great need for the Public Patent Foundation.
Q: So do you believe that the patents process is broken, in a sense, in terms of its missions to both promote industrial progress and serve the larger public interest?
A: No two ways about it, the United States' patent system is in crisis. That's not just my opinion; it's also the opinion of the Director of the Patent Office and many, if not most, patent attorneys. When at least half of all patents should never have been granted, and when the average cost of resolving a patent dispute is anywhere from $2-4M and up, there is no other conclusion to come to than that the entire system is critically flawed.
Q: How do you view patent law and practice as having evolved in the US, from the original intent of the framers of the Constitution to recently?
A: From the get-go, the patent system has been one characterized by schizophrenia, with periods of anti-patent fervor followed by periods of special interest capture. The only thing that steadily changes over time is the increasing impact patents have on both the economy and everyday life due to the advance of technology. However, if Thomas Jefferson knew that there would be subject matter protectable under both copyright and patent law, he'd turn in his grave. Those systems were intentionally created to be separate from one another, and the overlap now possessed by software is categorically contrary to the framer's original intent.
Q: Did you have any particular patents in mind, or patterns of patent abuse, that motivated you in establishing the Public Patent Foundation?
A: The Public Patent Foundation is most concerned about the impact life science patents have on public health and information technology patents have on civil liberties and small businesses.
Q: Do you think that the US Patent Office or its mandates need reforms?
A: Any government agency that fails to do its job right half of the time is an abomination. But, blaming only the patent office fails to recognize the role Congress and the Courts have played in making the Patent Office's job more difficult to do. Reform is necessary at every level and with every player in the system.
Q: Do you think that Open Source software will face legal challenges in terms of patents, as opposed to strict copyrights? Why do you think so, and why might this, if it occurs, be potentially harmful to the commons?
A: I've always believed the threat to Free / Open Source Software posed by patents is much less than feared in the community, mostly because the remedies for patent infringement make it less attractive a cause of action than copyright and because free software, by definition, is built to advance and overcome bugs, including those posed by patents. Compared to the proprietary software space, where patent cases get filed all the time, the lack of any free software patent infringement defendants stands in stark contrast.
Q: Do you suspect that closed-source software companies will use their patents and legal resources to fight Open Source software in the courts?
A: Those companies most likely to be sued for patent infringement are those that are either posing the largest competitive threat to a patent holder or are reaping significant profits from the allegedly infringing activity. Well, those same companies are also likely to be fairly large and capable of dealing with any patent threat. For instance, IBM or HP are more likely to get sued for patent infringement than Apache or the kernel developers, because suing a small group or individual is not worth the cost of litigation for a patent holder. Thus, since the larger members of the Free Software community are the ones most likely to be sued, the Free Software community would be adequately represented.
Q: Should Open Source software developers follow Red Hat's example and apply for defensive patents, and if so, will your organization help them so it becomes more affordable to protect software from patent predators?
A: The Public Patent Foundation's mission is to help protect small businesses from wrongly issued patents and unsound patent policy in ways other than assisting them in applying for their own patents. Fighting fire with fire usually just leaves everything burned.
Q: What impact might developments within the EU have on US patent law?
A: To date, the EU has had little impact on US patent law, which I don't expect to change unless corporations practicing in the EU begin to experience marketably better results under that patent system.
Q: Do you have any comments on the SCO related litigation now underway?
A: Having agreed to a trial date in 2005 and having not sought any preliminary relief, SCO seems to have brought this action primarily to get press. While they have been wildly successful in achieving their goal, they have also caused the marketplace to educate itself about Free Software, which is a tremendous benefit to the community.
Q: Is there anything else you'd like to say about the Foundation, your goals for it, or how you foresee it operating?
A: The Public Patent Foundation looks forward to serving the community.
Sign up for INQbot – a weekly roundup of the best from the INQ