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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."
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 :)
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
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.