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Whose idea is it, anyway? 'Bounty hunters' track the validity of patents

Patents have been essential to ensuring innovation. But the US may be fencing itself in by putting too many new developments under patent protection.

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Cella says his company gets smart people, not just databases, into the search. "People know what other people know.... The best way to check [for prior art] is not to check databases but to ask people. It's using the Net as a vehicle for communication, not for database searches. It's like a conference call with Einstein and Fermi and Watson and Crick, and getting to ask, 'Who did this first?'"

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It is one of the ironies of the information age that the search for prior art is not as systematic as it ought to be. Databases are expanding all the time, Cella acknowledges, but they're still falling behind in relation to the information available.

In the case of Duane and the Universal remote, the database that mattered was the one in the engineer's head: He was able to remember a published article.

Other bounties have been won by people who have worked with the "invention" in question, as built by someone else.

Frank Pita, a patent attorney in Research Triangle Park, N. C., won a bounty for identifying a network-routing chip as something he had worked with as a network engineer for IBM. He concurs with Cella on the value of vetting patents with people rather than databases. "There's such a vast amount of information out there. You could spend your whole life searching."

Clarke McAllister, an inventor in Eugene, Ore., won a bounty for identifying prior art in the case of a patent on an electronic ticketing system - a product like something he had invented himself, but had not patented, because business-method patents weren't possible at that time. He calls Bounty Quest "a way to get at the stuff that's hidden in people's closets and filing cabinets."

If Bounty Quest is helping people challenge patents already issued, "we're the front-end guys," says Tom Colson, chief executive of IP.com, another effort to help tame the intellectual property wilderness.

At IP.com, in West Henrietta, N.Y., the focus is "defensive disclosure," Mr. Colson explains.

Defensive disclosure lets a company make public innovations that it chooses not to patent, typically for reasons of cost, but doesn't want to lose claim to. Defensive disclosure, or defensive publishing, puts an innovation into the public domain - beyond the reach of the digital barbed wire, as Boyle would say. Everyone can use it, but no one can patent it.

Also about a year old, IP.com aspires to be "the world's publication office," Colson says - the first place outside their own databases that patent examiners look for "prior art." Typically, he adds, "they have an hour and a half to do a full search, and they have a zillion places to look. "

Back at the Patent Office, James Rogan makes clear that he welcomes challenges to patents as well as efforts to ensure their quality. "I don't get a cut in pay if a patent gets reexamined," he says. He also stresses that his office has taken steps to tighten up the rules on the particularly controversial business-methods patents.

But do strong patent laws really make that much difference?

Josh Lerner, a Harvard economist who has studied the effects of strong intellectual property law on innovation, has found that it doesn't matter that much. In research looking at changes in the patent laws of 60 countries over 150 years, he found that the impact of strengthening patent laws was really "very little boost to innovation." He suggests that "a real humility" is called for on the part of those trying to draw conclusions in this area.

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