This article first appeared 12 March 2000 in the New York Times Magazine. On March 2 the Commissioner of Patents and Trademarks, Q. Todd Dickenson, called the editors and then the Times’ lawyers in an attempt to block publication. On March 9 (after the magazine had gone to press) Jeff Bezos, the chairman of Amazon.com, proposed that patents for software or business models expire after three to five years, and that the change be retroactive, covering his company’s patents.
hen 21st-century historians look back at the breakdown of the United States patent system, they will see a turning point in the case of Jeff Bezos and Amazon.com and their special invention: “The patented One Click® feature,” Bezos calls it.
Not everyone who knows Bezos as the newly minted billionaire founder of the world’s leading Internet retailer knows that he’s also an inventor, but he is. It says so on U.S. Patent No. 5,960,411, “Method and system for placing a purchase order via a communications network.” Every good invention needs a story, and Jeff Bezos has one for one-click ordering. He’s laying it out in federal court, where, at the height of the holiday shopping season, he won an injunction forcing his chief competitor, Barnesandnoble.com, to add deliberate complication to its ordering process.
In ways that could not have been predicted even a few years ago, the patent system is in crisis. A series of unplanned mutations have transformed patents into a positive threat to the digital economy. The patent office has grown entangled in philosophical confusion of its own making; it has become a ferocious generator of litigation; and many technologists believe that it has begun to choke the very innovation it was meant to nourish.
The one-click story starts like this: A young man founds a company called Amazon.com in the obligatory garage, with a bit of money raised from his family. Soon his tiny crew begins selling books online. Customers use a “shopping cart,” and when they click on it with the mouse after they’ve finished making their choices they get a list of items they’ve selected for purchase. From there, they can enter instructions for payment, shipping, gift wrapping and so on.
But Bezos knows (he’s not the first to use the shopping cart method) that many carts are abandoned in their virtual aisles by customers who decide they just don’t have time for all this. So Bezos decides (“sometime prior to May of 1997,” he says with the help of his lawyers) to offer a shortcut: letting customers choose an item with just one muscle twitch, one click of the mouse button, and use a shipping address and credit card number on file from a previous purchase. He orders his software developers to “make it happen.” And so they do. Amazon applies to the government for a trademark on the name “One Click” and a patent on the . . . well, on what, exactly? Not the idea, because pure abstractions may not be patented. Not the program code, because copyright law protects this.
Last September Amazon received its patent, and instantly sued Barnes & Noble over its similar Express Lane. In December Amazon won an injunction forcing its competitor to insert a superfluous mouse click. (“Please be sure to click this button,” Barnes & Noble begs plaintively. “If you don’t, we won’t get your order!”)
The one-click injunction capped a burst of skirmishing in 1999 — the start of what promises to become furious, wide-ranging courtroom warfare — over who will control electronic commerce. As the year 2000 begins, few of America’s e-commerce leaders are not targets of patent litigation. The battles will determine whether the essential tools and building blocks will continue to spread rapidly through the community of software designers and Internet pioneers, or whether they will be cordoned off as the private property of particular companies. Amazon just got a new patent for a system of letting Web sites refer customers in exchange for commissions — its “affiliate” program. Sure enough, Barnes & Noble has a nearly identical affiliate program. So do thousands of other online merchants, now feverishly calling their lawyers yet again. Can Amazon really own this? For better or worse, the struggle will redefine our understanding of what an invention is in our complex, technocratic age.
Patents have long served as a fundamental cog in the American machine, cherished in our national soul. We are the land of Thomas Edison and the Wright Brothers and Alexander Graham Bell, where Congress is empowered by the Constitution “to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Hence the patent office, charged with the enforcement of a Faustian bargain: inventors give up their secrets, publishing them for all to see and absorb, and in exchange they get 20-year government-sanctioned monopolies on their technologies.
This arrangement fueled industrial progress in the early United States, but during the short span of the internet revolution the system has begun to disintegrate — by growing out of control. The United States is issuing patents at a torrential pace, establishing new records each year, and it is expanding the universe of things that can be patented. Patents began in a world of machines and chemical processes — a substantial, tangible, nuts-and-bolts world — but now they have spread across a crucial boundary, into the realm of thought and abstraction. Software and algorithms used to be unpatentable. Recent court decisions and patent-office rule-making have made software the fastest growing patent category, and companies are rushing to patent the most basic methods of doing business. “This is a disaster,” says Lawrence Lessig, a Harvard law professor and cyberspace expert. “This is a major change that occurred without anybody thinking through the consequences. In my view, it is the single greatest threat to innovation in cyberspace, and I’m extremely skeptical that anybody’s going to get it in time.”
The litigation is spreading fast. Multi-Tech Systems is suing the three leading PC makers, Compaq, Dell and Gateway, over patents on transmitting voice and data. A St. Louis patent broker is suing Yahoo over a “method of effecting commerce in a networked computer environment in a computerized system” — that is, shopping online. Another start-up, Priceline.com, has patented its Internet version of an ancient auction technique, the name-your-price “reverse” auction, and is suing Microsoft’s Expedia.com travel service. Microsoft, meanwhile, has infuriated much of the internet community by patenting a well-known “style sheet” technology just as it was being adopted as standard by the World Wide Web Consortium.
Sightsound.com is suing at least one music retailer and demanding royalties from others over a patent on selling audio and video recordings online. A California software company is suing eBay over database technology. Two professors at the Massachusetts Institute of Technology are suing the Ask Jeeves search site over two patents on handling questions in natural language. A Boeing software engineer has patented a basic method of correcting the century in dates stored in databases and sent a threatening form letter to 700 of the nation’s largest corporations (including The New York Times), demanding one-fourth of a percent of their total revenues, on the assumption that they probably have used the same method.
This is just the beginning. Patents marking off broad swaths of electronic commerce will soon be pouring from the patent office, unwelcome surprises to whole categories of new entrepreneurs. In the last few months, companies have gotten patents for keeping calendars on the World Wide Web, for downloading Web pages at regular intervals, for storing documents in databases, for “real-time shopping,” for auctioning cars, for creating profiles of users; for search engines, for payment systems and for variations of every other fundamental gear and lever in the theoretical machinery of online business.
For that matter, the most trivial slices of off-line life are winning patent protection: for example, a technique for measuring a breast with a tape, to determine bra size; and one for executing a tennis stroke while wearing a kneepad (U.S. 5,993,366: “The tennis racket is swung toward a tennis ball so as to hit the tennis ball with the racket. . . .”) Many of these patents are harmless. Most are narrower, when read carefully, than they sound at first. Others are multimillion-dollar lawsuits in embryo.
Each of these patents is a tiny masterpiece of logic and disputation. Each represents, by definition, a restraint on trade, a layer of regulation, expensive overhead in the free-market economy. The exclusive rights conveyed by a patent translate into higher prices for consumers. The Supreme Court saw the downside more than 100 years ago. “It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country,” the court wrote. “It embarrasses the honest pursuit of business.”
Patent lawyers and officials argue that each represents a good idea and that good ideas deserve to be rewarded; but does every good idea deserve a 20-year government-sponsored monopoly?
“We like to say right to exploit,” the commissioner of Patents and Trademarks, Q. Todd Dickinson, says cheerfully.
Patents legendarily protect the lone inventor, the pioneering genius in a garage, against the predation of big companies. In reality the opposite has usually been true. As basic industries like electricity, telephony and broadcasting developed in the 20th century, the great corporations learned to create arsenals of interrelated patents to use as sword and shield. “The wise people, with good patent lawyers, patent a whole system,” says Thomas P. Hughes, a historian of technology. Although small companies can get patents, the big companies can afford to litigate — when it comes into court, guess who’s going to win?” Absurd patents can be fought and overthrown, but to challenge a patent costs, on average, more than $1 million.
“Even under traditional patent rules, many of these software patents will turn out to be bad patents,” says Lessig at Harvard, “but in the meantime they create these little mafia monopoly holders who can go around demanding, with a federal court behind them, that you pay up or we’ll shut you down.”
Patent battles have become a strong catalyst for mergers, reducing competition in various domains. The largest corporations, with gigantic patent portfolios, routinely enter into cross-licensing agreements with their largest competitors. Companies without portfolios of their own have to pay cash, representing a hidden tax within the high-tech economy, and the costs are skyrocketing: revenues in the United States for patent licenses were about $15 billion in 1990; eight years later they had soared to more than $100 billion. I.B.M. alone took in well over $1 billion from licensing last year and received a record 2,756 new patents.
Those lone inventors are out there nonetheless, dreaming of the patent that will make them rich, and they are a familiar species of fraud victim. An entire industry of invention promoters promises to help inventors get patents, usually charging thousands of dollars in fees that are virtually never recouped.
At first, the awarding of a patent was special — a profound and unusual act. Under the original patent law of 1790, the examiners who met to consider each invention were none other than the secretary of State, the secretary of War and the attorney general: Thomas Jefferson, Henry Knox and Edmund Jennings Randolph awarded the first, on July 31 of that year, for a process of making potash, for fertilizer. They issued two more that year. Gradually the patent system grew and became associated with the American inventive spirit. Patents created an unparalleled storehouse of how-to data about technology and a pipeline for sharing that information.
They also became a source of prestige and distinction; after all, to be an inventor was to be a patent holder, and vice versa. “The patent system added the fuel of interest to the fire of genius,” said Abraham Lincoln, himself the proud holder of U.S. Patent 6,469 (“Device for Buoying Vessels Over Shoals”). Even so, it took 46 years of growing bureaucracy and accelerating output to produce a total of 10,000 American patents. Now the patent office issues that many patents every three weeks.
A single examiner can approve a patent, without review from supervisors or the commissioner. “If an examiner allows a case,” one examiner says, “not even the president of the United States can force him to change his mind. Then there’s the Supreme Court, and they’re kind of busy.” Each examiner is a specialist, meant to be familiar with the landscape and the “prior art” background for particular types of technology.
But for the ethereal new realms of software and business methods, especially, the system has broken down. Through most of the young history of software engineering, the state of the art has been carried around in the heads of programmers working late nights in offices strewn with soda cans and pizza boxes, not in academic journals suitable for indexing and perusal by patent examiners. Examiners give most weight to their own database, anyway, treating the six million existing U.S. patents as a sort of filing cabinet of all human knowledge.
“The U.S. Patent Office is just not competent to examine software patents,” says Gregory Aharonian, a consultant and publisher of a widely read patent newsletter. “Eighty percent of software patents effectively cite nothing from the computing literature. To me it’s a kind of contempt.” He contends that the patent office has neither the time nor the expertise needed to distinguish good patents from bad. “It’s a cold war,” he says. “It’s just people playing legal games.”
The patent office has become a place where the essential politics — the checks from contending interests — are out of balance. The voices heard daily at the patent office belong to people who like patents, want patents and rely on patents for their living; their creed is, the more the better. Officials measure their own performance in terms of their output. It’s as if they were a manufacturing company turning out product.
Meanwhile, the dollars-and-cents reality of running the American patent office has also encouraged the patent explosion. In 1991, the patent office was cut off from general tax revenues and required to subsist entirely on fees for its operating budget. The political argument was that customers should pay for government services. Thus, officials think of their fee-paying patent applicants as their customers: the more the better, again. Examiners know that their year-end bonuses depend on productivity. Each morning, as Commissioner Dickinson arrives at his Crystal City office, he walks past a framed poster bearing the motto “Our Patent Mission: To Help Our Customers Get Patents.”
It’s virtually forgotten that government’s customers also include the rest of the nation, the citizenry at large, whose fortunes depend on the agency’s judgments and policies.
With the advent of computing, human invention crossed a threshold into a world different from everything that came before. The computer is the universal machine almost by definition, machine-of-all-trades, capable of accomplishing or simulating just about any task that can be logically defined. Even more so with cyberspace — everybody’s computers, connected — the universal machine to the nth degree. Take any real-world procedure or activity; transfer it to cyberspace; and now we have an activity that seems both new and technological.
But patents played no role in the early history of personal-computer software. Microsoft, founded in 1975, received its first patent in 1986 — for a sort of hinged box. Another two years passed before it got its first computer-related patent. I.B.M. and some other companies were patenting software, but they had to engage in a careful sophistry to do it: making sure to say that a program was an apparatus or a system and that it was “embodied on a computer-readable medium.” Applicants and examiners employed a mutually understood pretense that machinery was still involved.
The biggest battles over intellectual property in the software business focused on copyright. Apple sued Microsoft in 1988 for copying the “desktop metaphor” and other main elements of Windows, and Lotus sued Borland in 1990 for copying menus and discover-command sequences in its spreadsheet software. Both defendants had clearly copied something, but it was not the actual code; it was something vague, in the nature of “look and feel,” and ultimately the courts ruled in favor of the defendants.
For books, copyright law protects actual text, not ideas or plot; the law had to figure out what that meant for this new form of expression, software. Some software authors in the 1980’s tried to extend their copyright protection beyond the literal code, to elements at higher levels of abstraction: a common phrase was “structure, sequence and organization.” Ultimately the courts held that copyright law did not cover these broad elements. The computer industry itself was divided; so was the Supreme Court, which split 4-4 in refusing to overturn the Lotus v. Borland ruling.
Patent officials like to suggest now that those cases might have ended differently if Apple and Lotus had patented their innovations. The decisions “tilted the system away from copyright,” Dickinson says. “People shifted and started to use the patent system.”
As the software industry began flooding the office with applications, the system came around to a view of software programs as machines. They are machines, in a way. “Anything that can be done in hardware can be done in software,” says one examiner. “We’re not using gears; we’re using some other mechanism, some other means.” But they are machines without substance — incorporeal machines, machines made of imagination and “logic” and “bits.” The patent office used to require an exact model of every invention it considered. Edison’s original light bulb is sitting in Commissioner Dickinson’s office. The models accumulated until the government ran out of storage space and abandoned the requirement. No one will be building models of these new phantasms of bits.
One more crucial court decision came in July 1998: the State Street Bank appeal. State Street had been sued for infringing a 1993 patent for an intricate computerized strategy of managing a multitiered portfolio of mutual funds. A federal court in Massachusetts found that the real subject of the patent was not a “machine” but a business method in data-processing garb, and declared the patent invalid. Did Einstein invent his formula, E=mc2, or was it there all along, waiting to be discovered? He couldn’t have patented it, the Supreme Court has stated: such laws are “manifestations of nature, free to all men and reserved exclusively to none.” Judge Patti B. Saris cited that principle in the lower-court State Bank decision, noting some other key precedents: “Mental processes, and abstract intellectual concepts, are not patentable, as they are the basic tools of scientific and technological work.”
Saris decided that the so-called invention was no more than a way of calculating: “The same functions could be performed, albeit less efficiently, by an accountant armed with pencil, paper, calculator and a filing system.” The patent gives its owner a monopoly, she pointed out: “patenting an accounting system necessary to carry on a certain type of business is tantamount to a patent on the business itself.”
But the Court of Appeals reversed that ruling in 1998 and reinstated the patent, finding that software — even if it merely manipulates numbers, juggling them and transforming them into other numbers — produces something tangible. A powerful conclusion, in a digital age, and it opened the floodgates.
There is a sense of infinite regress to the argument, a feeling of abstraction upon abstraction, words like “algorithm” and “formula” and “process” and “method” defined and redefined circuitously, if not circularly. Judges and lawyers have devoted millions of words to the nuances. Maybe the trajectories of culture, economics and technology have reached a point where a distinction between idea and machine can no longer be sustained; where no bulwark of logic, but only the mist of undecidability, separates E=mc2 from the light bulb.
By the time of the state street decision, Amazon’s application had been working its way through the patent office for nearly a year. Barnes & Noble, late to the internet business and lagging far behind Amazon, had redesigned its site yet again. Its new Express Lane looked to Bezos like a clone of his one-click system. Indeed, anyone examining the faces these sites present to the world might conclude that Barnes & Noble has copied a lot more than just one-click ordering. Both sites let customers post reviews of books; both display an average of the customer ratings in the form of one to five stars. They both list books that “customers who bought this book also bought.” In October 1998 Amazon filed a “petition to make special,” asserting that an “infringing product” was already on the market. Barnes & Noble didn’t know that at the time; pending patent applications are kept secret.
In Crystal City, the examiner, Demetra Smith, was studying a small selection of prior art — a few earlier patents and articles from the computer trade press — trying to make sure she understood the difference between Amazon’s invention and earlier shopping-cart systems. The key to the one-click system is actually quite simple. If a customer has shopped at Amazon before, credit-card and other information is stored in the company’s computers, and meanwhile the customer’s Web browser has stored a special file called a “cookie.” That’s how the browser knows, when the customer returns to Amazon’s site, to display a personalized message: “Hello, Todd Dickinson! (If you’re not Todd Dickinson, click here.)” Cookies were already widespread in e-commerce, and the examiner had among her papers a 1996 description of how Netscape’s software implemented them.
As far as the examiner could see in the papers before her, no one had talked about using cookies to let customers skip past the whole shopping-cart checkout process, so in a sense Amazon’s idea was, in fact, new. Still, she could see the basic elements in a patent that Lucent Technologies filed just a few months before Amazon, describing “user identifiers” sent back and forth on a network. She noticed a comment that the identifiers help a company “to recognize a returning user and, possibly, provide personalized service.” Just what Amazon does! The next step seemed obvious — in the patent office’s technical sense of the word. “It would have been obvious to one having ordinary skill in the art at the time the invention was made,” she ruled tentatively, “to include various command mechanisms for a single user action in order to execute the user’s request.”
Obviousness is the key problem. Every patent examiner’s work is about making fine distinctions: between two new applications on the same theme; between an old patent and a new refinement. Is that “ergonomic topographic toothbrush” novel enough to merit a new patent of its own? These are delicate enough questions when the subject is real stuff. Patent examiners can sink their teeth into concrete details like a “detachable and replaceable bristle head.” With software, where the nuts and bolts are vaporous and intangible, questions of what’s obvious and what’s novel begin to float in the wind.
In any event, the burden of proof is on the examiner to show that an application must be rejected. Her subjective judgment is not allowed — only actual references in published literature. “People send in some really strange stuff for patents, and I have no choice but to issue it,” says one examiner. “I can’t say, ‘Gee, that’s obvious to me.’ “Evidence of obviousness “has to be out there and public and in the same detail.”
Amazon’s lawyers argued and negotiated, agreeing to drop some claims in their application and amend others, and they followed the examiner’s directions for reworking their drawings (margins incorrect, numbers too small, lines too irregular), and in the end, like most patent applications, this one was approved. After all, examiners are motivated to issue patents, not to hinder them. U.S. 5,960,411 grants Amazon exclusive rights to its method of placing an order “in response to only a single action.” Also, “wherein the single action is clicking a button.” And “the single action is speaking of a sound.” And wherein a user “does not need to explicitly identify themselves.” And “the single action is selection using a television remote control” or “a pointing device” or “depressing a key on a key pad.” Amazon has itself pretty well covered.
Then again, hundreds of new e-commerce patents will be issued in the coming month, just about all to Amazon’s largest and toughest potential competitors. Until they are issued, neither Amazon nor anyone else will know whether it is infringing them — perhaps with an innocent and obvious bit of homegrown programming.
Amazon claims that it spent thousands of programmer-hours on its one-click method, but the patent system doesn’t care about that. In determining what may and may not be patented, the law does not distinguish between inventions that require expensive research and inventions that amount to a momentary flash of insight. A new drug that costs 10 years and millions of dollars of research gets the same protection as a bit of programming that comes to a lone hacker in a dream. In purely economic terms, this is inequitable and perhaps even dangerous.
“We’re not talking about Thomas Edison inventing the light bulb,” says Lessig. “We’re not talking about Monsanto spending tons of money on some chemical whatever. We’re talking about people taking ways of doing business and, because they put it into software, they say, ‘This is now mine.’”
Amazon won’t say how many patents it has pending. The one-click patent isn’t its first, as it happens; Jeff Bezos got one in February 1998 for “a method and system for securely indicating to a customer one or more credit card numbers that a merchant has on file for the customer when communicating with the customer over a nonsecure network.” The method is this: show the customer only the last few digits of each credit card number. Many companies use this very method, of course.
All around, hopeful entrepreneurs are treasuring new patents like geese ready to lay golden eggs. Stephen D. Messer, for example, is building an Internet business called LinkShare around a patent he got in November on managing referral fees for traffic between affiliated Web sites. His sister, Heidi Messer, a lawyer who is now LinkShare’s president, encouraged him to apply for the patent on his idea. “When he told it to me, I thought it was profound,” she says.
He’s a believer in patents now. “Without the patent system, I never would have done what I did,” he says. “Without the patent system you create a world where pirates have the advantage and pioneers are penalized.”
As for one-click ordering, a final verdict could be years away, and in the meantime, online merchants will have to be careful. Mothernature .com already has one-click remedy packs. Safe Harbor has one-click ordering of digital video products. Are they patent infringers?
“I think the beauty of the patent law is, it encourages innovation, because it says, look, we challenge you to come up with a better way,” says Heidi Messer.
“Somebody out there,” says Stephen, “I guarantee you, probably sitting in a garage right now, has an idea that does zero-click.”
Heidi laughs. “Telekinetic!”
Telekinesis would be worth patenting. Meanwhile, much of the value of the patent system lies in the disclosure of technologies that might otherwise be hoarded as trade secrets. But when Barnes & Noble decided to implement one-click ordering, its programmers did not need to see Amazon’s patent. The software techniques are transparent. Any Internet company with a decent programmer at hand could imitate Amazon’s system without breaking a sweat and without copying its actual code.
This isn’t rocket science, in other words. I say as much to Commissioner Dickinson. He is unruffled; evidently he has heard it before. “We don’t patent only rocket science,” he says. “We patent football-helmet mailboxes.” And indeed they do. Sportsbox Inc., aka a couple of guys in Richmond, Kentucky, owns the patent for mailboxes built in the shape of football helmets; before you make one, you’d better get their permission.
Dickinson, who practiced as a corporate intellectual property lawyer for 25 years before taking over the patent office, says the law prohibits him from discussing any particular patent. (The patent office forbids its examiners to speak to the press at all, and the examiners who did talk about their work for this article insisted that their names be withheld.) Still, he can’t resist revealing some pride in the progress of the Amazon case so far. “It’s interesting because it’s one of the first Internet patents to come to at least one conclusory stage of the litigation process,” he says. “A federal judge found that the patent was sufficiently valid to issue a preliminary injunction, which is a rather extraordinary thing, right in the face of the Christmas holiday season. I thought that was kind of amazing, to be honest, and tends to suggest that the patent has validity.”
In making her preliminary finding that Barnes & Noble infringed the Amazon patent, Judge Marsha J. Peckman in Seattle did not have to examine the underlying software code. Just how Barnes & Noble implemented one-click ordering doesn’t matter. Any single-action ordering system violates Amazon’s exclusive rights, she found. She also expressed a public-interest argument: “Innovation will be discouraged if competitors are permitted a free ride on each other’s patented inventions,” she declared.
The commissioner agrees. “The patent system has done its job for two centuries of protecting and nurturing and rewarding innovation. The system has worked.”
But the digital revolution worked without patents. The great bursts of technological innovation of the past two decades, the rise of personal-computer software and the spread of the internet, took place in a freewheeling and competitive climate, with ideas bouncing at light speed from one place to another. A little head start in this world goes a long way; in the digital economy, “first movers” gain a tremendous and possibly long-lasting advantage, without extra government fortification. The greatest successes, like Microsoft and America Online, had nothing to do with patent protection. Amazon did not need patents to grow from Jeff Bezos’ garage to its current pre-eminence.
Only Congress can now return the patent system to its time-honored role as a catalyst for innovation, rather than a concentrator of economic power. “For limited times,” the Constitution says — and the generations of technology pass much more quickly now than they did in 1790. We want to reward inventors with a head start, not a lifetime entitlement. “Perhaps on the internet, patents should last one ‘Internet lifetime,’ which is about two years,” says Greg E. Blonder, a longtime researcher and vice president at Bell Labs and now “entrepreneur in residence” at AT&T Ventures.
This is a crowded and densely packed world; when a software engineer at I.B.M. comes up with a new idea, it’s usually safe to bet that hundreds of software engineers in cubbyholes around the world are thinking along the same lines. Blonder himself has more than 60 patents to his name: toys, consumer electronics, software and business methods. He often gathers technologists for daylong brainstorming sessions; typically, these groups produce hundreds of useful “ideas,” of which perhaps one in 10 turns out to be truly novel. “Problem is,” Blonder says, “had I gathered together a different group of a dozen people, they’d come up with practically the same list. Arguably, any idea generated so easily and frequently is both obvious and a dubious candidate for a 20-year government-sanctioned monopoly.”
Patents should be the exception, not the rule, he says. “As to my own business-process patents, well, as long as everyone in town is carrying a gun, I have to be armed as well. But I’d be glad to see the system change.”
One thing is certain: the modern Internet entrepreneur is not a species in need of extra government incentives. If one-click ordering had not been patentable, surely Jeff Bezos would have invented it anyway in May 1997, put it to work in September 1998 and seen it copied in subsequent years by Barnes & Noble and thousands of other Internet merchants, all learning from his success, to the benefit of consumers. Surely he would have become a very rich man; and his future success would depend on his ability to continue outperforming his competitors, and to continue innovating.