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Stake A Claim

In the Internet gold rush, the U.S. Patent and Trademark Office is the lone barrier to technology infringement. Does it know what it's doing?

If any government office were immune to scandal, you'd think it would be the U.S. Patent and Trademark Office (PTO). But with recent court decisions allowing for business-model and software patents, many are crying foul, saying basic business functions of the Internet are being patented. And with issuances of Internet-related patents increasing from 648 in 1997 to 2,193 in 1998, the PTO is still catching up . . . and some invalid patents are slipping through.

We've recruited Jeffrey R. Kuester, a partner with Atlanta-based Thomas, Kayden, Horstemeyer & Risley LLP, and chair of a committee on patents and the Internet for the American Bar Association's Intellectual Property Law section, to help us wade through this new frontier.

Why are business models--which are ideas and not tangible products--patentable?

Copyright laws only protect original expressions that are not dictated by function. In addition, an "idea/expression dichotomy" in copyright law prevents copyrights from protecting anything on the "idea" level.

It takes so long to get a patent, and technology is moving so fast. What protection can entrepreneurs have during the "patent pending" stage?

Putting "patent pending" on your Web site will, in many ways, provide a quasi-practical protection, in that people may think it's patented. And even if they know it's just an application, the information at the patent office, at this time, is confidential. If people can't figure out what the patent is covering, they might think it covers everything on the Web site. It's more of a bluff than anything else, because you can't sue anyone until you get a patent.

What's the PTO doing to meet the demand in this area?

It's attempting to hire more people with technical skills. [It could also benefit from] database access to prior technologies.

Once the office has issued an invalid patent, no one else will get that or anything close to it. So it's a self-correcting problem, but at least initially there are probably a larger number of invalid patents.

Some say Internet patents do away with open standards and will thwart development. Are those valid arguments?

Our committee isn't addressing that issue because it's a fundamental assault of our government's patent system. Patents encourage development--they give people incentive to spend a lot of time and money in researching and developing these great new ideas.

Contact Source

Thomas, Kayden, Horstemeyer & Risley LLP, (770) 933-9500, jeff.keuster@tkhr.com

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This article was originally published in the January 2000 print edition of Entrepreneur with the headline: Stake A Claim.

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