Copyright ©2007 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

MICHELE NORRIS, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

ANDREA SEABROOK, host:

And I'm Andrea Seabrook.

Now, a new front in the digital culture wars. Microsoft is claiming 235 of its patents are being violated by distributors of free or open-source software. Fortune magazine reported this week that Microsoft is citing problems with the Linux operating system, which is used now by big companies like Wal-Mart and Goldman Sachs and others.

We're going to go deeper into patents in a moment. First, the author of that Fortune magazine article is Roger Parloff. He says Microsoft wants corporate users of free software like Linux to pay them. And Parloff says there are two things going on here: Microsoft has a real patent beef, and it's playing business hardball.

Mr. ROGER PARLOFF (Senior Writer, Fortune Magazine): Almost any piece of complicated software probably infringes somebody's patents at this point, and the way you deal with that in the business world is, big companies go to one another, and they sign patent cross-licensing agreements. And maybe somebody will make a balancing payment one way or the other, depending on who has the bigger portfolio and how it impacts and so on. But you can't do that with free software, and the people that write free software don't believe in patents, so they don't have their own portfolio to trade.

SEABROOK: Mr. Parloff, you write in Fortune magazine that Microsoft is casting a shadow over the free, open-source movement.

Mr. PARLOFF: Well, yes. Everyone is indirectly impacted by this, because there's sort of an ecosystem that produces free and open-source software, and it's not produced by a company, it's produced by hundreds or thousands of small developers and some big companies that get involved now, too.

But the smaller players, they obviously could not defend themselves in the event of a Microsoft lawsuit. So they'd felt more secure as long as big companies like Wal-Mart and Credit Suisse and Deutsche Bank were all, sort of, in the same position that they were in. But that's not true anymore, because the companies like Wal-Mart and Deutsche Bank and Credit Suisse have all signed up with Novell, and now they're protected, and so the little people aren't.

And the question is, will this intimidate them, particularly the developers, from continuing to work away at making this stuff? That's the concern.

SEABROOK: Thank you very much, Mr. Parloff.

Mr. PARLOFF: Thank you for having me.

SEABROOK: Roger Parloff of Fortune magazine talking about Microsoft's claim that free, open-source software including Linux infringes on 235 of its patents.

A dramatic rise in patent applications by technology companies like Microsoft is one reason for a logjam at the U.S. Patent Office. John Doll is the U.S. commissioner for patents.

Mr. JOHN DOLL (Commissioner, U.S. Patent and Trademark Office): The backlog right now is about 735,000 applications. By the end of this fiscal year, I expect the backlog to be close to 800,000 unexamined new applications.

SEABROOK: Eight hundred thousand applications for patents.

Mr. DOLL: Yes.

SEABROOK: How long has the backlog been this bad?

Mr. DOLL: Well, the backlog has been growing over the last several years. Part of the problem was - this is back in the '90s - we were not able to hire as many people as we wanted to hire, therefore the backlogs are growing. Now, what we're doing is playing catch-up, trying to hire as many new examiners as we can possibly hire and train, bring them up to speed to address the backlog.

However, I do want to add, though, that hiring is not enough to answer the question of the backlog. We need to take other measures.

SEABROOK: Like what?

Mr. DOLL: Well, some of the things that we're trying to do is we're going to limit the number of times that an applicant can ask for an application to be examined. We're going to try to improve the quality of the applications that are filed with the United States Patent Trademark Office. We're going to try to get applicants to focus the examination on a limited number of claims, so the examiner has a better opportunity to fully understand what the invention is and exactly how to address that particular improvement.

SEABROOK: Sounds like you're putting a lot of responsibility on the people filing the patents, then. Does that restrict the little guy?

Mr. DOLL: Well, no. It doesn't restrict the little guy. What we're trying to do is not place responsibility on the applicant but merely to encourage them, to coach them to file the best possible quality application that they can.

SEABROOK: I understand you guys are hiring more than a thousand new patent examiners a year - every year for the last couple of years anyway. How do you train them?

Mr. DOLL: Well, we have a training academy, a newly formed training academy that we just put into place last year to train the people.

SEABROOK: Sounds like it's a good time to apply for a job from you.

(Soundbite of laughter)

Mr. DOLL: Oh, it's a fantastic time to apply.

SEABROOK: And what does it take to be a patent examiner?

Mr. DOLL: Well, to be a patent examiner, you need a degree in science, engineering, computer science. We also have software, hardware, computer encryption that require some of the computer scientists, computer engineers. We also do business methods where we actually do examine methods of doing a particular business, and in those, we have people that have scientific degrees, but they also have a minor or extensive background in marketing, finance, insurance or one of the other areas that apply.

SEABROOK: So what's a patent examiner make?

Mr. DOLL: The average patent examiner makes around $86,000 a year.

SEABROOK: That's pretty good.

Mr. DOLL: Oh, it's a great place to work. It's great pay. It's flexible. And a primary examiner starts at $101,000.

SEABROOK: Wow.

Mr. DOLL: So it's a great job.

SEABROOK: Six figures.

Mr. DOLL: Yes.

SEABROOK: John Doll, thank you so much for joining us.

Mr. DOLL: Thank you very much.

SEABROOK: John Doll is the commissioner for patents at the U.S. Patent and Trademark Office.

NORRIS: We wondered just what kind of stuff a patent examiner might have to wade through. Now, anyone can file a petition asking for a patent, but to get one, the Patent Office requires that an invention be novel, non-obvious and -this is important - useful.

SEABROOK: The Web site freepatentsonline.com offers some actual patents that, well, you be the judge of their usefulness.

NORRIS: Now, it's clear that useful does not necessarily mean commercially viable.

SEABROOK: For example, patent number 5392735 is for a marine mammal communication device. It's a dolphin-sized keyboard that translates keystrokes into sounds for both humans and dolphins and perhaps whales and porpoises as well.

NORRIS: Patent number 7108178 is for a method of stopping a stolen car without a high-speed chase. It uses a barcode - oh, don't ask.

SEABROOK: 5107620 is for a shocking electric tablecloth. It's supposed to discourage bugs from visiting your dinner.

NORRIS: And then sizzle your plates. Patent number 70622...

SEABROOK: What's that number?

NORRIS: Patent number 76...

(Soundbite of laughter)

NORRIS: Patent number 7062320 claims it treats...

(Soundbite of hiccup)

NORRIS: ...hiccups. It's a glass that shocks you when you drink from it.

SEABROOK: Shocking. The beerbrella won patent number 6637447. Yes, it's what's it sounds like - it keeps the sun off your can of brew.

NORRIS: And this may be my favorite. Patent number 5443036 is for a cat exercise device. You move the laser pointer beam around the house and the cat actually chases after it. And I guess you can do that while sipping your brew. Now, this is surely useful and surely obvious.

SEABROOK: I have one of those. I didn't know it was patented.

NORRIS: I thought you were a dog person.

SEABROOK: You've got to see some of these things. Go to NPR.org and look at them, and thank goodness, Michele, we're hiring all those new patent examiners.

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