The Dangers of Limiting the Flow of Ideas

To the Editor:

In an item in your February 17 Technology column (“New Technology Coalition Shares Patented Approaches”), Harry Gruber, chief executive officer of Kintera, asserted that business-method patents “have … been around since the founding of the country.”

While it is true that method or process patents have been recognized since the first Patent Act of 1790, business-method patents were generally disfavored and quite rare until the late 1990s, when the United States Court of Appeals for the Federal Circuit overruled past limitations on such patents and opened the flood gates to their usage. One has but to look at the number of applications for business-method patents at the U.S. Patent and Trademark Office to see that they have increased exponentially and without precedent since the infamous 1998 court decision.

Moreover, Mr. Gruber also misses the point by making such a generic statement. While some method or process patents may spur innovation in particular fields (e.g., database processing or financial-fund management), the field of philanthropy has not traditionally required patents to be innovative or successful. He also fails to recognize the danger that overprotecting intellectual property could cause to nonprofits and educational institutions that are already strapped financially. The last thing nonprofit funders will want to see organizations like the Red Cross, United Way, and American Civil Liberties Union spend money on are patent licenses when they could be using such funds to provide additional services to the public.

Mr. Gruber also stated that “most people believe that intellectual property promotes innovation and creativity, and is the fundamental basis for the free world.”

While one may question whether the entire free world depends on intellectual property, it is true that intellectual property does generally promote innovation and creativity. However, the general and generic nature of his statement belies its underlying premise. The question is not whether intellectual property promotes innovation and creativity but rather whether granting such exclusive rights to companies like Kintera is worth the cost to the public. For every patent granted, numerous companies are shut out of using a new technology.

Perhaps some inventions are so powerful and useful to be worth this anti-competitive effect, but we should not simply assume this is the case. Mr. Gruber makes this assumption for us in his statement and, by doing so, imposes his viewpoint on the entire world of philanthropy. I would suggest each of us in the community make up our own minds as to whether or not such grants actually improve the state of giving and service in America.

Jason Schultz
Intellectual Property Staff Attorney
Electronic Frontier Foundation
Washington