Marimba and BackWeb, fierce competitors in the arena for automated delivery of software and data over the Internet, announced they have received key patents covering their technology last week.
But as part of what appears to be a wider trend in the industry, push isn't turning to shove.
The companies, both formerly known as "push" technology pioneers, said they are more interested in selling their software than getting locked into years of messy legal wranglings over patent infringements. And patent lawyers said they are far from alone.
Internet start-ups are rushing to file applications with the U.S. Patent Office covering their technology or method of doing business over the Web, but very few appear to be willing to use those patents as weapons in court. Patrick Long, an intellectual property and patent attorney at Chicago law firm Long & Long, said there is an increasing recognition that they may not hold up under strict scrutiny for prior art, or be worth the cost of a lengthy battle.
As a result, the patents make better marketing fodder than legal documents.
"The U.S. Patent Office is being inundated with software applications right now, and they are making decisions without a strong knowledge of prior art," Long said. "There's also the realization that by the time you fight your way through the courts, the technology may be worthless. This industry is moving so fast."
Long said that does not mean you can paint a wide brush over Internet patents as toothless. He said their value as a defensive mechanism and corporate asset is well worth the trouble and cost of proceeding.
Marimba's patent, No. 5,919,247, relates to technology embedded in the company's Castanet product and covers a process for "distributing software and data over corporate intranets, extranets and the Internet."
BackWeb's patent, No. 5,913,040, covers its "polite agent" technology, a competing system for software and data delivery that takes advantage of periods when a network's bandwidth is being underutilized.
According to Robert Currie, vice president of engineering at Marimba, the company has another five applications under review but isn't gearing up for an infringement suit.
"We don't have any plans with respect to that right now. We see it as a way to validate and protect our technology," Currie said. "It's part of the due diligence any company should undertake."
Marimba may have good reason for its soft stance. It has found itself at the other end of the table, being slapped with a patent infringement suit by Novadigm in March 1997.
At that time, Chief Executive Kim Polese derided Novadigm's action, saying it was a tactic used by companies that have otherwise failed to execute in the marketplace. The case is ongoing.
Patents have become a hot topic in the Internet community, with World Wide Web inventor Tim Berners-Lee warning earlier this year that they posed a danger to the universality of the Web.
While it seems that danger has not yet surfaced, Carl Oppedahl, a patent specialist at law firm Oppedahl & Larson, said it may be just a matter of time.
Patents that are being filed in increasing numbers today will provide an extensive prior art library for court decisions in the future.
