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?
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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