Against Intellectual Monopoly

the current system of both patents and copyrights. In the case
of patents, there are a variety of proposals to make the patent system less
vulnerable to submarine patenting, and generally to tighten up the system
so that a patent has some real connection to innovation and is not merely a
claim to someone else's invention. In the case of copyright, a major priority
is to make sure that all the abandoned and orphaned works do not forever remain unusable because they are under copyright, and the copyright
holder is dead, has disappeared, or is in any case untraceable.
    For both patents and copyright, a fundamental priority is to prevent the
public domain from shrinking further and, when possible, to push back the
tight fences that are progressively enclosing it. This means, on the one hand,
opposing new proposals for the extension of copyright term and coverage
beyond those established by the 1998 DMCA and CTEA. On the other hand,
it also means taking proactive actions to defend from rapacious hands what
is growing in the public domain and needs to be nurtured. Private economic
initiative can be extremely useful along this dimension, and the recent Open
Innovation Network initiative, led by none other than IBM, is a wonderful
case in point.16
    Briefly described, the Open Innovation Network has been formed by IBM,
Philips, Sony, and two large Linux resellers, Red Hat (a Linux distributor
we discussed in an earlier chapter) and Novell (another successful Linux
distributor, which we forgot to mention). The Open Innovation Network
has been set up as a foundation that aims to buy Linux-related patents from
holders and to create a pool of intellectual property it can then license for
free. Probably more important, though, is the commitment, which is part
of the Open Innovation Network's charter, to sue anyone who tries either to
attack Linux, claiming some parts of it violate an outstanding patent, or to
dismember it by attempting to patent bits and pieces of it. Patents controlled
by the Open Innovation Network will be freely available to anyone agreeing
not to assert their own patents against other users who have signed a license with Open Innovation Network when using software related to Linux. That
a hundred such networks blossom should be the motto!

    Let us continue looking into other short-run improvements to the burden
of intellectual monopoly. Jaffe and Lerner document in great detail how
the patent system, as it is currently implemented in the United States, is
broken." They make numerous proposals to make frivolous patents more
difficult to get and enforce. We support these proposals in principle - and
while we might disagree over some of the details, we expect that were we to
debate the matter, they would convince us on some points and we would
convince them on others.
    One proposal in particular is to allow patents to be challenged before
they are granted. This would allow real evidence to be brought to bear on
the issue of prior art - something the U.S. Patent and Trademark Office
seems to know little about, as the thousands of patents on how to swing
a swing and peanut butter and jelly sandwiches suggest.18 Realistically,
however, few individuals or firms would be likely to monitor the patent
system carefully enough to identify bad patents, or to incur the expense of
providing the public good of challenging bad patents. Quillen, Webster, and
Eichmann examine the rigor with which the U.S. Patent and Trademark
Office carries out its examining activities and compare it to those of the
European and Japanese patent offices.19 They take the opposite approach
from Lerner and Jaffe, suggesting that the patent office is not the appropriate
place to reach decisions concerning patentability. They conclude by asking
this:
    Why should we not go to a registration system and avoid the expenses of operating
an examination system.... [S] houldn't we abolish continuing applications so that
the USPTO will be able to obtain final decisions as to the patentability of subject
matter presented in patent applications and avoid having rework imposed upon it.
Finally, so long as the USPTO grants a patent for virtually every application filed,
are the courts justified in adhering to the clear and convincing evidence standard
for overcoming the statutory presumption of validity?20
    It is striking but true that either of these proposals, although they go in
opposite directions, would be