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Author of Archie Challenges Alta Vista Patents
Hieronymous Cowherd writes: "The press release says most of it, but basically, Alan Emtage was surprised that CMGI was awarded patents on things he had already done. He's also willing to help those that get sued: 'Emtage has also put out an open letter to the programming community stating that he is happy to provide further information and assistance to anyone who is approached by CMGI in an effort to defend the patents in question.'" Talk about prior art -- as this release points out, "The first version of Archie released in 1989, with second and third releases in 1990 and 1993. Using FTP, a precursor to the HTTP protocol of the of the World Wide Web, Archie searched, or 'crawled,' public FTP sites, indexing their contents for easy access by Internet users. At its peak in 1995, there were over 30 Archie crawlers located around the world searching and cataloging millions of files."
Maybe this will start a trend. Big Corp. tries to patent important but universal method/solution, brilliant hacker says "step back, bitch", and pimp slaps them a few times.
He who joyfully marches in rank and file has already earned my contempt. - "Big Al" Einstein
When a company forgets to see if an original creator is dead before they try and steal their work. As of late, companies are either patenting things that are beyond stupid or things already done by other people, cept that most of the original creators are dead. Looks like CMGI made a slight mistake. Can you imaging the mood in the board room today.
CEO - "what! he's not dead? who the hell told me he was dead and that there was nothing to stop us?"
Johnson - "Umm, I did sir."
CEO - "Johnson, thats it, I wanted a piece of the easy money/stupid patant pie and you just blew it."
Johnson - " I take it I'm fired then sir?"
CEO - "No, I want you to go kill that guy first, then go and track down every signle geek that belongs to slashdot and kill them so that there will no longer be anyone that might know that this idea isn't original."
CEO - "Then kill yourself for being stupid."
Trying to be different, just like everyone else.
CMGI's Nov. 13, 2000 press release mentions that Altavista was awarded "four new patents for search technology" which cover:
"proprietary search technology in the areas of identifying and eliminating duplicate pages in an index, ranking results by degrees of relevancy, data structures for searching and indexing, and 'spidering' techniques that crawl the World Wide Web and play a key role in building an index."
I used the U.S. PTO's patent database, searched for the string "altavista" under the "assignee" field and came up with these two gems:
6,138,113: "Method for identifying near duplicate pages in a hyperlinked database"
and
6,112,203: "Method for ranking documents in a hyperlinked environment using connectivity and selective content analysis"
Has anyone found the other Altavista search engine patents in question? They might have been awarded to a different firm, then licensed to Altavista.
Sincerely,
Vergil
Vergil Bushnell
Insects and Grafitti Photos
but ...
Is it enough?
I'm not a lawyer, and certainly not a patent lawyer, but as I understand it there's a process called `predatory patenting' where a company will find a patent that it wants (something that was patented by somebody else), and then patent every possible application of the original patent. All patents reference the original patent.
Basically that means that if you want to use any of these applications of the original patent, you have to have the permission of all patent owners involved.
(Normally this is done in an attempt to make the original patent holder allow the company in question to use his patent without royalties. Unfair, but apparantly legal.)
Well, in this case, there's no original patent (the Archie author didn't patent the idea of `indexing') ... but if AltaVista patents every possible use of indexing (patent 1: indexing HTTP sites, patent 2: indexing intranets, patent 3: indexing internets ... patent 644: indexing Pokemon collections, etc.) then we may still be screwed. Only the original idea (indexing ftp sites, and gopher sites if the Veronica author comes forwards) would be truly protected by the `prior art'.
It seems to me the only way out of this legal sinkhole would be to convince the Patent Office to actually apply the two most important tenants of patent law - 1: prior art invalidates a patent application and 2: the idea must not be obvious to the layperson. Tenant #2 is just as important as #1.
In any event, I hope I'm wrong :)
In this feedback-based system, the more companies that notice somebody is getting away with something (eg: patents that are blantantly obvious gambits for market dominance) the more instances you will find of this behaviour. They all drive for the gap in the wall with whatever they can scrounge up, hoping to make it before the lights come on. So it's going to get worse before it gets better.
Why? Because "the system" learns. The sight of somebody getting away with looting an unprotected store during a riot is all the incentive you need to draw others into that activity. And the process of applying for patents (along with the other legal forms of attack on the common good) is not set up to handle the kind of things it has to. So it fails to effectively discern between patents of value and mere speculation. Stopping it is going to be painful, costly, and drawn out. The companies who will get hurt aren't the ones who have already done their thing, but the blundering morons to come.
The side-effect of all this happening is that by fighting to gain the legal high ground based on Intellectual Property, Copyrights, Trademarks, and Patents, we end up with a society that is being transformed at the very foundations: language. We are all victims, even the people in these corporations, of an undermining public speech. Holding back medecine from those who need it, holding back innovation because it isn't in the interest of the shareholders, forcing the market to bend to their will because they have the endorsement of what is supposed to be an organ of democracy.
This will continue as long as we allow it to.
We thieves, we liars, we vandals, and poets. Networked agents of Cthulhu Borealis.
The answer is potentially.
I'll try to answer this question in two parts.
1. First off, the US PTO has been soundly criticized for granting patents on software and business methods. While the rest of the world guffaws at the US PTO, the US government has been quietly attempting to "harmonize" patent examining procedures abroad.
For instance, on October 24, 2000, the office of the United States Trade Representative (USTR) drafted a Memorandum of Understanding between the U.S. and Jordan concerning IP protection. Here is provision #5 of the MoU:
"Jordan shall take all steps necessary to clarify that the exclusion from patent protection of 'mathematical methods' in Article 4(B) of Jordan's Patent Law does not include such 'methods' as business methods or computer-related inventions."
In other words, the US government is attempting to export its penchant for granting lousy patents to other nations.
2. Second, consider an international convention is currently being negotiated between representatives of 47 nations. The Hague Conference on Private International Law's "Proposed Convention on Jurisdiction and Foreign Judgements in Civil and Commercial Matters" -- or "Hague Convention" is an attempt to render legal judgements between nations enforceable. If the Hague Convention is ratified by member nations, the following scenario may occur:
Multinational Corporation X (native to Britain) patents a fundamental web standard in the United States, where such patents are allowed. X sues its competitors (who reside in nations that do not tend to grant such patents) in a U.S. court, and under the Hague Convention, is able to make the judgement enforceable in other countries -- even if those other countries do not allow patents on web standards. Imagine what the Hague Convention might do to increase the liability of international Free-Software developers.
The U.S. PTO recently solicited comments from the public about the Hague Convention and its effect on patents and intellectual property. You can read the comments here. My organization also has a page on the Hague Convention here.
I hope that helps answer your question about the enforcement of U.S. patents abroad. Sincerely,
Vergil
Vergil Bushnell
Insects and Grafitti Photos
The PTO has lots of technical people, and few lawyers. The PTO has hundreds of PhDs. Sure, they hire hundreds of people with less than Ph.D. level degrees, but then, I don't expect that every critic of the work they do has one either. Hey, if you want to solve the problem, here's some info on becoming an examiner.
The shortcomings of the PTO have more to do with the time given to examine applications, and the money spent on examination, not the smarts of the examiners. Money is short in part because Congress is using the PTO as a piggy bank. Fees go in, and instead of putting all the money into making patents, Congress sucks about a quarter of the money out for other things.
It seems to me the only way out of this legal sinkhole would be to convince the Patent Office to ...
Stop there. The USPTO doesn't get involved with the conflict once the Patent is granted. The courts have to do that. A Patent is a 'right to sue,' and only the suits themselves can resolve the Patent.
[stock rant on the subject]
Patents are not about who is right, or who is first; patents are about who can sue.
The US PTO is a money-making service for the government, and this fact is why it operates as it does.
There is a misconception that it is the central duty of the PTO to form a blockade against granting patents. The PTO can and will block applications where there's heavy similarity with prior art or existing patents, but that's really just a guideline to using the service, not the core function.
The PTO's purpose is to grant patents for a fee, and it's wholly suited to do so.
The application vetting process of the PTO is a cost center for the operation of the PTO. This is akin to saying that customer service is a cost center for the operation of AT&T. It is required, but they'll cut costs as much as they can get away with.
To fix the patent application vetting process, two things must happen:
At the minimum, if the PTO would publish the abstract for each patent application at the time of filing, then third parties could submit "helpful" arguments against controversial applications. The PTO needn't publish the details, just the abstract; the PTO can then weigh obviousness against challenges without incurring the costs of doing all the searching themselves.
Once a patent has been granted, the Patent Office does not get involved in disputes; that is a matter for the courts.
[end of stock rant on the subject]
[
Once again, let me emphasize that it is simply pointless to speak about patents in the abstract. The abstract and general subject matter of the patent simply does not inform the question whether a patent is infringed or invalid. The bottom line is the specifics of the patent claims asserted and a particular apparatus or method usage alleged to infringe. Until you get to the details, you aren't saying anything interesting at all.
With respect to the article:
"Though I'm not a lawyer, the patents being 'defended' by CMGI/AltaVista include basic concepts that were incorporated into the Archie system years before the World Wide Web even existed," said Emtage.
It is clear that Mr. Emtage is not a lawyer. His statement has almost nothing to do with whether or not a particular patent is infringed or invalid. A patent that includes "basic concepts" incorporated into the prior art is not invalid therefor as a matter of law. If the prior art includes "basic concepts" elements A+B+"a blue C", and a later patent claims A+B+C+D, or even A+B+"a green C", the patent claim might well be valid. The devil is in the details, and the article offers none.
"Archie was crawling and indexed FTP sites with fairly sophisticated algorithms even as I was sitting at Internet Engineering Task Force (IETF) meetings with Tim Berners-Lee while he created the World Wide Web," Emtage continued.
For all we know, the patents in question may have already cited, directly or indirectly, to this very prior art. The issue is not whether the patents relate to pre-existing technology -- this is true of virtually EVERY PATENT EVER EVER. The question is whether the prior art was patentably distinguished in a particular claim. Note that the more significantly the prior art is distinguished (read limited), the less "dangerous" is that patent -- the less signficantly the prior art is distinguished, the more likely the patent would be invalid. And this analysis must be performed claim by claim. The broadest claims of a patent might be invalid, and the narrowest not infringed, while one remains that is both valid and infringed. As noted, the devil is in the details.
Talking about this stuff in the abstract is meaningless -- its just whining. Let's get to particulars. Name the patent and the prior art in question, then we can start talking. Until then, we are all spitting in the wind.
You can also see AltaVista's Brief History sixth paragraph). Archie FTP, AltaVista HTML.
The ad that I got for this article was for "Alta Vista Search Engine 3.0"
--
Free Software: Like love, it grows best when given away.
Even worse is the fact that when I was discussing a patent with a patent attorney, I was advised that I should not even think about doing a prior art search so that if there was a conflict with prior art, I could deny any assertion that my patent was knowingly improperly filed. I was actually discouraged by my attorney from learning if my idea had already been invented.
Not only is the system royally f**cked up, but it appears to be getting worse, by design.
Regards,
Ross