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VNU Net: BT and the 'funny old world' of patents

Jun 27, 2000, 16:42 (5 Talkback[s])
(Other stories by Guy Matthews)

By Guy Matthews, VNU Net

BT certainly appears to have a fight on its hands if it wants to profit from its hyperlink 'invention'. It attracted a hornet's nest of derision and threatened litigation last week when it announced that it intends to collect a royalty from every US internet service provider (ISP) for their customers' use of hyperlinks and hypertext - the universal technology that links web content through clickable symbols and highlighted words.

BT says that a patent covering the principle of hyperlinking was applied for in 1976 by the General Post Office (GPO), the then state-owned UK telecoms operator that was split into BT and the Post Office in the early 1980s.

It was intended to protect the GPO's investment in teletext services such as Viewdata and Prestel. The claim was subsequently ratified in 1989 by the Patent and Trademark Office (PTO) - the US government body responsible for granting patents.

Legal experts on this side of the Atlantic believe that patent number 4,873,662 may hold water, and that it gives BT a justified claim for recompense for hyperlink usage in the US, where it is valid until 2006. The patent has expired elsewhere. BT has appointed specialist intellectual property licensing firm QED to validate its claim, and recover fees for hyperlink use in the US.

Michael Hulston, QED's managing director, said: "BT certainly has a valid patent, which it has a right to try to enforce in its shareholders' interests. It should, in fact, be applauded for knowing what its assets are, and for trying to realise something from them. It would surely be of more concern if it was doing nothing."

He added that QED was currently in the process of approaching US ISPs on an "amicable basis" to ask for "a reasonable royalty".

A storm brewing
QED's reception is likely to be stormy, however. With hyperlinks and hypertext currently being used by hundreds of thousands of US websites, the potential size of BT's claim is mind-boggling. Many in the US web community have already hit back, saying BT's demands are ludicrous and unenforceable.

Others allege that the BT patent is invalidated by clear evidence of prior art - in other words, proof that someone else had the idea first.

Some cite US academic Ted Nelson's 1971 book Dream Machines, and its 1974 follow up Computer Lib, as the origin of the concept. Nelson even coined the word 'hypertext', claim his supporters.

There are even those who champion a paper published by another US academic, Vannevar Bush, called As We May Think. This saw the light of day in July 1945.

But it's not only Americans who are attempting to pour cold water on BT's move. Eurolinux, a non-profit making alliance of European commercial software publishers, has offered BT rather withering "congratulations" for "providing the world with a brilliant proof of the absurdity of software patent [law] as it stands in the US".

"BT's patent, by being so abstract and general, has actually given it the right to strangle the development of the world wide web and a lot of related technologies," the statement added.

It is unlikely that BT's claim will go on to impair the development of the web, or even seriously inconvenience the US ISPs it is aimed at, but Eurolinux's main point is intact: BT's proceedings are yet another example of the wacky and dysfunctional world of hi-tech patenting in the US.

There are any number of examples that illustrate the fact that, by any standards, technology patenting in the US is seriously out of control.

The principle of patenting an invention dates back to the US of the late eighteenth century, and is enshrined in the country's constitution. It was intended that patenting would protect poor but ingenious individuals from being exploited by big business by forcing a royalty out of any organisation using their patented invention commercially.

In the US of the present day, this worthy idea has been turned on its head. The owner and enforcer of a patent is less likely to be an individual and more likely to be a rapacious multinational seeking to beat off competition through aggressive litigation based on tenuous claims.

Hi-tech patents in particular are used by players such as IBM, AT&T, Sun Microsystems and Microsoft on a prodigious scale to fend off the tiniest threat to their intellectual property. The victims are not necessarily other technology giants, but small startup companies, freelance programmers or even enthusiastic amateurs who have, usually inadvertently, strayed onto their patch, often with lethal consequences.

This is able to occur thanks both to the parlous state of the PTO and a huge rise in technology patent applications.

Patently ridiculous
Where once the law on copyrighting was thought adequate to protect technology innovation, now only a patent will do. At the beginning of the 1990s, there were a manageable 1600 or so software patents issued by the PTO annually. By 1997, this was up to 13,000, and last year's figure was around 22,500.

The PTO, operating on the same resources as a decade ago and staffed by poorly paid civil servants, is scarcely able to cope. Frivolous patent applications from big companies that can easily afford the costs involved are consequently being approved, even though they had no business being filed in the first place.

Protection of property is not the only motivation for applicants. IBM makes an alleged $1bn a year out of royalties on patents that it owns. And Microsoft is using patents to ensnare the Linux developer community, rendered vulnerable through its refusal to patent its own work.

Tim Pearson, a council member of the ISP Association in the UK, and a vocal critic of BT's royalty claim, believes the patent problem is not confined to the US. "The mentality of 'patent everything' is spreading over here. The problem clearly needs a drastic solution from someone with appropriate authority, perhaps the World Intellectual Property Organisation," he said.

BT's chances of success in what appears to be a quixotic mission are not altogether remote, he added, thanks to the "funny old world" of patenting. But Pearson believed that the best chances of a solution to the underlying problem lie, ironically, in the oxygen of publicity generated by claims like BT's.

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