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Patently Ridiculous Claims

By Rob Pegoraro
Friday, February 9, 2001; Page E01

If you've ever wondered whom to pay for an invention as remarkable and revolutionary as the World Wide Web, British Telecom would like to make a suggestion: itself.

Last June, the telecommunications giant announced that it had uncovered a patent, applied for in 1976 and granted in 1989, that it claimed gave it rights to the hyperlink. Therefore, BT, said, it planned to seek licensing fees from U.S. Internet providers -- but not individual users -- for use of its alleged invention.

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This came as news to many Internet users, who had thought that Tim Berners-Lee had invented the Web, hyperlinks and all, in 1989. Or that Stanford University computer researcher Doug Engelbart had created a prototype of a hypertext system in 1968.

BT backed up its claims by suing Prodigy Internet on Dec. 13. Spokeswoman Andrea Paradine didn't specify what sort of fees the company was seeking but said the suit was simply sound business: "We have a . . . duty to our shareholders to exploit intellectual property just as any other company does." In a statement released after the suit was filed, Prodigy blasted the suit as "shameless" and "groundless."

Many onlookers agree with Prodigy -- and think BT never should have received the patent in the first place.

"It's hard to imagine that the company thinks they have any real claim," said Tim O'Reilly, president of the technology publisher O'Reilly and Associates and a vocal critic of recent patent practices.

At one level, who really cares what some other country's phone company thinks? The Web will continue to work, whatever happens to BT's suit.

But there's more to this. Fundamentally, it's about the freedom to innovate (my apologies to those sick of Microsoft bandying that phrase). Ian Jacobs, with the World Wide Web Consortium's communications team, put it simply: "The Internet and the Web grew up and have been successful in part because a lot of the technologies have been royalty-free." Anybody and everybody can experiment on and improve the Web without hiring lawyers or paying licensing fees.

The claims in BT's patent -- the enumerated list of the invention's workings -- don't actually seem to apply to the Web, as patent lawyers have noted. The claims specify a keyboard as the user input device, not a mouse, refer to communications only via a modem and stipulate a system based on one central computer. The Web we use today has little in common with that -- never mind the convincing arguments that "prior art," or earlier descriptions of the invention, predate this patent's filing by a decade or more.

But the lure of collecting rent off your competitors must be hard to resist. Last month, David Weatherell, the CEO of CMGi -- the owner of the AltaVista search engine -- told Internet World magazine that the company planned to capitalize on AltaVista's array of patents on Web searching. "We believe that virtually everyone out there who indexes the Web is in violation of at least several of those key patents," he said in an interview, adding that lawsuits were possible.

A spokesman for AltaVista said people had read too much into Weatherell's comments. "We wouldn't want to file a sweeping lawsuit against the world," said Jim Shissler. "We would not want to stifle innovation."

Louis Monier, one of two scientists who developed the AltaVista search engine in 1995, rejected the idea that the company had any sort of overriding patent rights in the first place.

"The claim of inventing search, crawling the Web, is not correct," he said in a phone interview Tuesday, citing such predecessors as Architext, Lycos, OpenText and WebCrawler. Monier, who left the company in 1999 and now works as a consultant, said any sue-the-competition strategy would fail: "All they're going to do is lose the last little bit of goodwill they have."

Critics such as Monier argue that these cases show something's wrong with how patents are granted these days. They see little room left for individual inventors in a legal regime dominated by large corporations using the patent system as a tort lottery.

"The fundamental innovations are free, but once people start fencing off pieces of it, you never know when you're going to step in a minefield," said O'Reilly. With Amazon.com CEO Jeff Bezos -- himself a big beneficiary of the patent system, thanks to Amazon's patents for its affiliate system and one-click shopping -- O'Reilly is backing a venture, BountyQuest, to uncover prior art that invalidates controversial patents. The management at the U.S. Patent and Trademark Office disagrees, pointing out its increasing efforts at researching software patent applications -- almost half of which it rejects.

The office's deputy commissioner for patent operations, Esther Kepplinger, said that patents can be reexamined on request and have been revoked if necessary. For instance, a patent granted to Compton's New Media for, essentially, the entire concept of multimedia was yanked this way in 1994. No one, however, has filed for a reexamination of BT's hyperlink patent.

Kepplinger said the concept behind patents is sound: "The patents that are out there [are] fueling the creations of other people" -- that is, people who can't copy an invention have to invent better alternatives to it.

But O'Reilly pointed out how recent patent-office decisions keep expanding the definition of what's patentable. If you can patent a sales pitch or lines of software code -- both of which embody specific business functions but are also essentially speech -- what's to stop somebody from patenting things like legal arguments? O'Reilly sees an unsettling destination: "As you start to go down that path, you're turning more and more of human interaction into property."

Living with technology, or trying to? E-mail Rob Pegoraro at rob@twp.com.


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