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
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
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
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
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.
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.