Patent threat looms over dynamic web pages

Patents cover the way in which dynamic web pages are served

Former web acceleration company EpicRealm has filed lawsuits against 13 companies for allegedly infringing on two patents that cover the way in which many dynamic web pages are constructed and served.

The Texas-based company filed the first lawsuit seeking to enforce its patents last April against Speedera, a provider of internet and content acceleration services. Speedera has since been acquired by Akamai, the market leader in the web performance market. 

EpicRealm started going after end users in May, when it filed a lawsuit against six companies including dating websites eHarmony, It's Just Lunch and FriendFinder.

In early August a second group of six organisations were served with writs, including Herbalife, a maker of dietary supplements, and Macerich, a shopping mall operator.

If the patents are upheld in court, they could apply to "most modern e-commerce sites involved in dynamic web page generation and caching", according to Ira Rothken, founder of the Rothken Law Firm that is representing FriendFinder.

"My view would be that [the patents], if found valid, would be narrowly construed to a very rare architecture, otherwise it is likely that many major e-commerce sites that use a separate page server would have to pay a royalty," he explained.

Rothken claimed that the patents are invalid because of 'prior art', a legal term indicating that somebody else invented the technologies covered in the patents before EpicRealm.

The legal expert also argued that the patents do not apply to the technology used by FriendFinder because the website only employs a load balancing technology without any dynamic web page generation or separate page server.

Rothken further suggested that EpicRealm is merely out to collect licence fees from companies that want to avoid the legal costs.

According to the case's legal file, EpicRealm has dropped charges against It's Just Lunch without prejudice to facilitate settlement negotiations.

Representatives from eHarmony and Akamai declined to comment. It's Just Lunch, Herbalife and Macerich have not returned phone calls seeking comments at the time of going to press.

The two patents, referred to as 554 and 335, are related and were awarded in 1999 and 2002.

Documents filed with the US Patent and Trademark Office reveal that they describe methods for "creating and managing custom websites" and "managing dynamic website generation requests ". 

A website is normally served by a web server that builds the page when a visitor goes to a website. The web server collects all the elements of the web page from databases, spreadsheets and other data sources and creates a page that is served to the user.

The EpicRealm patent describes a technology where a page server is added to the system serving up the page that performs several tasks.

It enables a process called 'connection caching' where the system remembers the fastest way to retrieve information to optimise the website's performance, for instance when one page server has already logged in to another server.

The page server can also act as a data cache, serving up data that is frequently accessed by web surfers. This eliminates the need for the web server to retrieve the latest information.

The page server also acts as a load balancer, allowing the system to divide peak demand among multiple machines or to simultaneously format pages on both the page and web server.

Lastly, the patent covers a technology referred to as 'dynamic tags' that allow for the creation of websites where only portions are dynamically changed, eliminating the need for a web server to format an entirely new page.

While the last part of the patent is similar to Dynamic HTML (DHTML) technology, the patent does not cover that technology by itself.

Kevin Meek, a partner with Texas law firm Baker Botts, which specialises in intellectual property cases and represents EpicRealm, said: "Dynamic content means that the content did not exist when the request is received [by the server]. DHTML is just the protocol. You have to do the whole architecture [to infringe on the patent]."

Meek downplayed concerns over how broadly the patent could be applied. "Some websites are going to apply and some are not," he said. "Saying that they apply to all dynamic websites is just silly."

Daniel Ravicher, executive director of the Public Patent Foundation, who looked at the case at vnunet.com's request, was also dubious about how broadly the patent could be applied.

He explained that, in addition to the patent itself, additional information is provided by the 'file wrapper' that is often not publicly available.

"Unfortunately, no competent analysis of the patent claims can be performed without a detailed review of the patents and their file wrappers, which would take a large amount of time and money," Ravicher said.

EpicRealm used to operate as a web caching provider that served websites with large amounts of traffic. The company used so-called edge servers, computers at satellite locations that were closer to users and could therefore serve them faster.

The company's customers included online radio station Sportstalk.com and online training provider WebCE.com. But EpicRealm ceased operations early in 2003 and now operates mainly by enforcing its patent portfolio.

EpicRealm does not currently operate a website and its office in Dallas does not have a listed phone number. The company's chief executive, Kent Hill, declined to comment for this story and referred all questions to his lawyer.