The comments I've been getting have been very helpful—thank you all. One quick request, however. I got the sense from one commenter that he felt I might have been off in my facts. He asked whether I would be publishing my sourcework. The answer is an emphatic yes, but that doesn't mean I wouldn't love a correction now! That's part of the experiment here. I'm posting pre-polished copy. While I'll be scrubbing everything to within an inch of its life before publication, if you see that I've erred, tell me.
I'm going to jump right back in, though not quite where I left off. After my short history of the open source software movement I write about the fateful moment when Larry Sanger and Jimmy Wales decided to apply then-new Wiki technology to their online encyclopedia, which was called "Nupedia." The world, suffice to say, hasn't been the same since. I end the chapter with the passage reproduced below, which illustrates how mainstream open source principles have become, and what incredible promise their application holds for a wide range of fields, including one of our government's most moribund agencies, the US Patent and Trademark Office. Without further ado, here's the final segment of Chapter 3: From So Simply a Beginning:
From Peer to Peer to Patents
It’s funny how fate often turns on last-minute decisions. In late October 2005, the Berkeley political scientist Steven Weber was bringing some of the smartest people he knew into a Manhattan conference room to talk about the future of business. Weber and a co-author were writing a book about “open source methods of value creation” and wanted some heavyweights to “beat up our argument.” Invitees included a former adviser to Vice-President Al Gore, an editor from Harvard University Press, and various top executives at New York consulting firms. Then, just one day before the gathering, Weber’s host suggested he invite Beth Noveck, a professor at the New York School of Law and something of a provocateur in the legal fields. Weber vaguely remembered sharing bagels and lox with a smart, self-possessed woman at an Upper West Side deli a few years before, and extended the invitation. Noveck nearly turned Weber down. She was booked all day, she explained, but would try to stop by for an hour or two.
The following day dawned sunny and warm. Weber’s brain trust gathered inside a windowless conference room inside the plush offices of Monitor Consulting Group on Madison Avenue. Noveck showed up shortly after 11 AM. Weber sat her next to David Kappos, a lawyer who managed IBM’s patent portfolio. The two were soon engaged in an intense conversation. Noveck had recently created Do Tank, an online community of lawyers, scholars and students devoted to collaborative efforts at legal reform. Noveck was one of the legal field’s chief proponents of opening closed systems to public scrutiny, and the patent system was right in her cross-hairs.
It seems unusual that IBM would want to reform a system it has used to great advantage. The technology giant was awarded 3,621 patents in 2006—the 14th straight year in which the firm won more such concessions than any other company in the US. IBM spends roughly $5 billion per year in research, development and engineering , and its active portfolio exceeds 26,000 patents. But with such vast intellectual property holdings comes great expense. Since the early 1980s the number of patent disputes has tripled in the US, with the average cost of such litigation coming in around $2 million. Welcome to David Kappos’ daily headache. He didn’t have 26,000 patents. He had 26,000 targets for rapacious, frivolous, skull-crushingly complex lawsuits.
When the group broke up for lunch, Kappos and Noveck remained in the conference room, locked in animated discussion. Noveck had recently floated a radical proposal past a select group of colleagues: Put patent applications on a wiki, and invite the public at large to help guide the patent examiner. Applications would be posted online where anyone could read, review and comment on them. People with the relevant experience would be drawn to review patents in their fields of expertise, just as the community that tends the online encyclopedia, Wikipedia, self-organizes around areas of expertise. It would be, Noveck explained, a vast improvement over the current patent system.
The idea sounded familiar to Kappos, whose team at IBM was in fact discussing a similar approach. In recent years a consensus had emerged within the intellectual property field: The patent system was broken. The debate now revolves around how to fix it. Over 90 percent of patent applications are successful, giving rise to a rat’s nest of vague, overlapping patents. “We wind up in these fights over patents where we can’t tell what they mean, and the courts can’t tell what they mean, and even the patentees can’t tell you what they mean,” Kappos says. He and his team had come up with the idea of opening patents to peer-review, a system used by academic journals in which several organic chemists, say, are invited to comment on a paper written by one of their colleagues. But this didn’t go nearly as far as what Noveck was suggesting.
Noveck hadn’t taken her inspiration from academia, but the community production model employed by open source software as well as such contemporary Internet phenomena as Amazon’s user-generated product reviews, the online film database, IMDB.com and the Yahoo! Answers service, in which random people attempt—with surprisingly high rates of success—to answer your equally random questions. It’s hard to imagine any of these existing if it weren’t for a few steadfast iconoclasts propounding some very unorthodox ideas about how information should be produced and distributed. Such crowdsourcing efforts have essentially just adopted an open source approach to making products other than software. Noveck’s proposal was hardly the first to attempt to harness the wisdom inherently present in large, online communities. But it was one of the most radical because it aimed to overturn one of government’s most venerable functions—the awarding of legal protection for inventions and original ideas.
Kappos left the meeting intrigued, and a little scared. A few days later he called Noveck to continue the conversation and suggest they begin working together on the proposal. “I told her that we thought her plan was very powerful, but that we weren’t going down the road of asking the US Government to cede its sovereignty over granting patents,” recalls Kappos. Just the fact that the largest patent-holder in the world, IBM, and a Yale-trained law professor were discussing outsourcing patent review to the crowd was an indication of how far the model of production championed by the open source software movement had come.
Nothing could be more antithetical to the way patents are currently granted in the U.S. Here’s a primer: An inventor has a bright idea. She downloads a patent application from the United States Patent and Trademark Office website. She fills out the application, attaches any applicable drawings, technical descriptions and supporting documents she deems necessary and sends it to the patent office. Then she sits down by her phone.
She has a long wait. If the patent seeker is lucky, she might receive a judgment on her application in four years—the average time between filing for a patent and a decision. The USPTO currently has a backlog of more than 1 million applications that haven’t even made it to a patent examiner’s desk. The examiners themselves are famously overworked and underpaid. There are currently a little less than 5,000 examiners employed by the patent office, and the number of patent filings has increased rapidly, reaching 400,000 by 2007. As a result the examiners are only able to allot 20 hours, on average, to reviewing even the most Byzantine applications.
When an examiner sits down with an application, he must first locate the relevant “prior art,” which include previous patents and any other published material that pertains to the application in question. If our inventor has an idea for, say, a musical toothbrush (don’t laugh—that’s patent 5044037), the examiner has to root through the agency’s database of seven million patents for anything that might make the musical toothbrush redundant.
That may be feasible when you’re talking about musical toothbrushes, but the job gets considerably more difficult when the patent involves an obscure improvement to an existing bit of programming code. Until 2005, the office did not consider training in computer science a qualification for USPTO employment. (Software engineers weren’t exactly banging down the USPTO’s door either.) So the patent office has had examiners schooled in organic chemistry attempting to evaluate an application that might well puzzle Bill Gates.
Not only does the public not have a window onto the patent review process; the patent reviewers don’t have access to the public. According to USPTO regulations, “a patent examiner may not consult an outside agent in the process of reviewing a patent.” The fear is that such contact could compromise the agency’s neutrality. Many departments within the agency even prohibit the use of the Internet as a source in patent review.
Generally speaking, the overworked and under-informed examiners have reacted in a predictable fashion, erring on the side of granting patents. This has created that Gordian knot of conflicting claims that make Kappos’ job so difficult. Capitalizing on this patent promiscuity, corporations have stepped up their filings. In 2005, the New York Times reported that Microsoft had raised its goal of filing from 2,000 patents a year to 3,000. Two of Microsoft’s patent applications that year included “System and Method for Creating a Note Related to a Phone Call” and “Adding and Removing White Space From a Document.”
But the effects of this patent glut are hardly comical. “There are companies out there for whom patent litigation has become a primary revenue driver,” notes Kappos. “They have patents they never intend to use that are only meant for extortion.” Such firms are commonly called “patent trolls,” and stories about them have entered the realm of legend: In March 2006, the patent-holding company NTP threatened to send executives around the world scrambling for pay phones when its suit against RIM, the maker of the ubiquitous Blackberry, nearly shut down the service. RIM paid NTP a $612.5 million settlement. Clearly, something needed to be done to reform the patent process.
Soon after their first meeting, Kappos ordered his attorneys to work with Noveck on her proposal to open the patent review process to the public comment. It was an unequivocal endorsement of the kinds of ideas that couldn’t have existed without open source software as an intellectual model. Although the plan seemed oddly radical for a company like Big Blue, in fact it conformed perfectly with the direction IBM had been moving in since radically retooling its core business model in the 1990’s. Where the company once protected its proprietary software with zeal, it now contributes thousands of programmer-hours to work on open source software projects—which bring in no revenue through licensing. It even donates some of its patents to the open source advocacy group Free Software Foundation. This is hardly philanthropy. According to the company, the income generated through providing “professional services” related to open source software has more than made up for the revenue it has lost through licensing proprietary software. The move has resulted in new innovations, new products and a greatly enhanced reputation for IBM within the tight-knit community of software programmers.
In December 2006 Noveck and Kapoos held a quiet, off-record meeting with some attorneys from the patent office. As it turned out, the patent office itself had been thinking about how it could tap the open source community. In 2004 President Bush had appointed Jon Dudas to head the USPTO, with the mandate of patent reform. The government attorneys told Kappos and Noveck that if they could arrange a meeting patent office would host it. In January 2006 IBM publicly launched the the “Peer-to-Patent Project,” a clever play on the term Peer-to-Peer, the popular file-sharing technology often used for illegal music downloads). The patent office, true to its word, hosted a symposium a few weeks later with some of the leading minds in intellectual property. Over the course of the year companies like Microsoft and General Electric agreed to participate in the trial project, which launched on June 15 of 2007. Though still a pilot project, Noveck has high hopes. By spring 2008, nearly 33,000 people had reviewed some 22 patents, and submitted 106 instances of prior art.
It marked a watershed moment for the open source movement. The most hidebound, secretive of government agencies had embraced the notion that, just maybe, more expertise can be found in a massive, public network than can be found in the anointed few. A brief 15 years before, the only people advocating such an approach had been a handful of obscure computer programmers, and even they could have never predicted that an unknown Finnish computer science undergraduate would revolutionize how everything from operating systems to maps to shoes are created.
But making a computer program is a lot different from, say, developing an open source map or creating a video news segment. The success of open source software depended greatly on the proliferation of affordable PCs around the world. Open source provided a blue-print for how people might come together to work—enthusiastically, competently, and without pay—on projects outside of software. But to bridge the gap between theory and practice the crowd would need tools, and the knowledge of how to use them.