BT has 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 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 split into BT and the Post Office in the 1980s. It was intended to protect the GPO's teletext services such as Viewdata and Prestel.
The claim was subsequently ratified in 1989 by the official US Patent and Trademark Office (PTO).
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 appointed specialist intellectual property licensing firm QED to validate its claim, and recover fees for hyperlink use in the US.
Michael Hulston, QED's MD, said: "BT certainly has a valid patent, which it has a right to try to enforce in its shareholders' interests. It should 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 nothing." He added that QED was currently approaching US internet service providers on an "amicable basis" to ask for "a reasonable royalty".
QED's reception is likely to be stormy. Hyperlinks and hypertext are used by hundreds of thousands of US websites, making the potential size of BT's claim mind-boggling. Many in the US web community have hit back, saying BT's demands are ludicrous and unenforceable.
Others allege that the BT patent is invalidated by clear evidence of prior art - proof that someone else had the idea first.
US academic Ted Nelson's 1971 book Dream Machines, and its 1974 follow-up Computer Lib, are cited as the origin of the concept. Nelson even coined the word 'hypertext', say his supporters.
There are 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.
And it's not only Americans who are pouring cold water on BT's move. Eurolinux, a non-profit making alliance of European commercial software publishers, has offered BT 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 given it the right to strangle the development of the web and a lot of related technologies," add Eurolinux.
It is unlikely that BT's claim will go on to impair the development of the web, or seriously inconvenience US ISPs, but Eurolinux's main point is intact: BT's proceedings are yet another example of the wacky and dysfunctional world of hi-tech US patenting. Many examples illustrate that technology patenting in the US is seriously out of control.
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 invention commercially.
In the US today, this worthy idea has been turned on its head. The owner and enforcer of a patent is more likely to be a rapacious multinational seeking to beat off competition through aggressive litigation based on tenuous claims.
Hi-tech patents 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 often not other technology giants, but small startups, freelance programmers or even enthusiastic amateurs who have, usually inadvertently, strayed onto their patch.
This can 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 adequate to protect technology innovation, now only a patent will do. At the beginning of the 1990s, there were a manageable 1600 software patents issued by the PTO annually. By 1997, this was 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 being approved, even though they had no business being filed in the first place.
Protection of property is not applicants' only motivation. IBM makes some $1bn a year from royalties on its patents. The Linux developer community is at a disadvantage when competing with Microsoft, rendered vulnerable due to a 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 needs a drastic solution from someone with appropriate authority, perhaps the World Intellectual Property Organisation," he said.
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