Referring specifically to recent attempts by telecommunications giant British Telecom (BT) to claim against licensing fees from US-based ISPs, Muscat said he is watching the case with interest, but is sceptical the telco will get its demands to stick.
-It has the potential to force some major changes in the industry," Muscat said. -But it would be impossible to enforce, even if it were entirely legitimate."
Upon seeing the gains made by companies like IBM thanks to efficient patent auditing, BT decided to do a little digging amongst its own patent collection. Eventually it came up with a near-enough-is-good-enough description of a hyperlink filed in 1976, but not granted in the US until 1989.
So while the patent has already lapsed in both Australia and the UK, it is still valid in the US, which gets Australian ISPs off the hook but may see BT able to claim licensing fees from hyperlink users via their US-based ISPs.
The story so far...
Patents are like little rewards you get when you come up with a good idea - if you are quick off the mark you get a pat on the back and a twenty-year monopoly on any product resulting from it.
On July 20 1976 BT, then known as The Post Office, took out a patent on an invention allowing a terminal apparatus to call information from a remote point via the public telephone network. While it was already possible to perform such a task by entering the page number of the corresponding data, BT's brainwave was -to ensure the simplicity of operation of the terminal" via a -storage means for storing a block of information signals".
That is to say - rather than type in or have to recognise the whole address for the information, this could be presented to them in a simplified format.
The wording in the patent abstract is along the following lines:
-Information for display at a terminal apparatus of a computer is stored in blocks the first part of which contains the information which is actually displayed at the terminal and the second part of which contains information relating to the display and which may be used to influence the display at the time or in response to a keyboard entry signal."
The application was granted in the UK and Australia in 1977, and credited to Desmond J Sargent. It was then left to collect dust along with thousands of other patents. The Teletext System, for which the patent was initially claimed, was eventually superseded by the Internet and the patent subsequently forgotten.
It just so happened that when Tim Berners-Lee was putting together standards like URL, HTML and HTTP at CERN in 1990, enabling Web surfers to connect to remote sites via user-friendly hyperlinks, seemed to make more sense than showing them the exact address they were linking through to. While the technologies were different, the principle was the same. Over a decade before anyone had even heard of the Internet, Sargent decided to make it easier to call up information remotely.
Space jump to 2001 when BT went riffling through what must be tens of thousand of patents and rediscovered its long-lost intellectual property. While the language is laboured, Australian IT patent lawyers Griffith Hack believe BT may well have a case.
Joe Seisdedos, IT patent advisor working with Griffith Hack suggests that the patent in the US is indeed valid and has been infringed.
-They are not trying to claim the structure of the Internet, just the idea of linking pages using simplified information," Seisdedos said.
BT's legal advice must have been along similar lines, as it approached the 16 largest ISPs in the US asking them to pay licence fees on the hyperlink services they were providing for their customers.
BT could do this because the granting of patents in the US has traditionally taken longer than it has in most countries. While the thirteen-year time lapse in this case is longer than the mean three-year wait, it was complicated by a Continuation of Service order which essentially allowed BT to extend the patent while it quibbled over the definitions contained therein.
When none of the ISPs seemed to take their request seriously, BT picked one of the smaller ISPs on the list, and Prodigy with its 3.1 million users ended up in court. As a result, the legal action could become a test case for the rest of the industry.
-ISPs are often the target of these kinds of attacks because they are easy to pinpoint," Seisdedos said. -And in this instance they may well have a case to answer."
According to Seisdedos, the case will consist of two parts -- one of which has already been completed.
-First they need to identify what the patent actually refers to, and then they need to show that it has been infringed," he said.
However, the latter part of the case -- set to take place in September this year -- will see BT forced to present its arguments to a jury.
-The general feeling at this stage is that there is no clear winner," Seisdedos said, pointing out that the preliminary finding has been one of limited infringement, or rather that hyperlinks went some way to infringe on the patent granted to BT in 1989. -BT may have trouble arguing their case to a group of 12 US citizens."
Apparently freed from liability for the last five years, Australian ISPs can sit back and watch the proceedings, which if nothing else will serve to rekindle the debate over international patent laws and their effect on IT innovation.
