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Last Updated: Monday, 26 July, 2004, 11:53 GMT 12:53 UK
Patent spending: How the net is being trade marked
Dot.life - where technology meets life, every Monday
By Mark Ward
BBC News Online technology correspondent

Former patent clerk Albert Einstein, AP
Patent clerks have a tough job
Patents that threaten the way we use the web are being targeted in a new campaign.

Do you want to own part of the world wide web?

I don't mean your own domain, or a web server in a rack or a piece of ancient computer technology used in the net's forerunner Arpanet.

I mean some of the software that makes the web what it is today, such as the code behind video streaming, pop-up windows or the technology that lets you use a credit card online.

The rights to those three basic ways of web life have been snapped up by other people, but with some ingenuity - and money - you too could patent your own slice of web life and cash in.

Cash cow

Owning a patent is a very strong way to protect something you consider to be your own says George Godar, a technology partner at law firm DLA.

"A patent is a contract with the state and the state says that if you disclose the invention and make it public it will grant you a monopoly for 20 years," he says.

One-click online shopping
Online shopping carts
The hyperlink
Video streaming
Internationalising domain names
Pop-up windows
Targeted banner adverts
Paying with a credit card online
Framed browsing
Affiliate linking
This means that even if someone else comes up with the same idea independently, because the state says you own it, you can charge them licence fees or sue them to force them to stop using it.

By contrast, copyright is much weaker, because to get any legal hold over someone using your idea you have to prove that they copied it.

"But," says Mr Godar, "if they can show it was independently derived it's a complete defence."

Software stake

Typically, large firms take out a patent and take steps to protect it because of the huge amounts of cash they invest in research and development of new products.

Of late, patents have started to be granted on software and the basic ways millions of us do things on the net.

This is possible thanks to a couple of US court decisions that let organisations patent the novel ways they do business.

The most famous of these was Amazon's patenting of its one-click online shopping system.

"In the internet world, first mover advantage is critical to a lot of business methods," says Jason Schultz, a staff attorney and former patent lawyer who now works for the Electronic Frontier Foundation (EFF).

Da Vinci's clockwork car, AP
Some inventions are way ahead of their time - Da Vinci's car
"If you can get a patent on it you can close the door behind you and be the only one out there doing a particular thing," he says.

Amazon sued - and later settled with - fellow bookseller Barnes and Noble over its use of one-click shopping. Now, Apple's iTunes is one of the few licensing that Amazon-owned innovation.

More recently, it has been individuals who have been seeking, and getting, patents on some very broadly used technologies such as video streaming and using a credit card online.

They can do this, says Mr Schultz, because the sheer number of patents being applied for is overwhelming the investigators who scrutinise the applications.

The 3,000 examiners at the US Patent and Trademark Office handle around 300,000 applications per year. By comparison the UK's Patent Office handles about 30,000 per year.

Examiners have about 10-15 hours to scrutinise each one and decide if it is sufficiently different to the others.

Unless it has a good reason to reject an application, says Mr Schultz, the government has to grant it.

Net gains

This plus the fact that prior art in the computer world is not well documented and patent lawyers working on contingency, has led to a flood of software patent applications granted to individuals.

iTunes for Windows screenshot, Apple
Apple licences one-click shopping for iTunes
Many of these patent owners are now pursuing small net-based firms for infringement of their invention.

Although business methods cannot be patented in Europe, the granting of these patents could hit people running web operations here that serve an international audience.

Defence against such an action typically costs between $500,000 and $1m (US), which usually leads the small firms to settle rather than see if the patent actually has any merit.

Patents granted on the same innovation in different parts of the world could mean web firms paying several times to use the same technology. Such "royalty stacking" could prove expensive, says Mr Godar.

The EFF has now begun a campaign to name and shame the most "egregious" patents that threaten to harm life on the net.

It ran a campaign to find the most outrageous and from the 200 it turned up selected the 10 most wanted.

Now it is conducting prior art searches and soon hopes to challenge some of the overly broad patents that have been granted.

Sadly, says Mr Schultz, for those that have already paid to use these technologies there is little hope of them getting their money back.

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