• Patently Absurd

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    A
    June 2000 press
    release from TeleDynamics Group
    – a small company in Clearwater,
    Florida – announced that their "latest patent could very
    well create a major explosion in demand for our service." TeleDynamics
    is one in a growing chain of companies to queue up for governmental
    privileges in the form of an absurdly broad patent protection. In
    the case of TeleDynamics, the new patent may well give the company
    an ownership claim in one of the most common Internet business practices.
    According to Monte Sims, the company's CEO, the patent "applies
    to virtually any activity" during which data is collected about
    an individual and automatically provided to a third party. Such
    data collection – which is a source of dismay to privacy advocates
    – has been used by mom-and-pop websites as well as Fortune
    500 businesses since the mid-90's. In short, anyone who gathers
    user information over the Internet or by means of a toll-free telephone
    number could be in violation of patent law. Wired
    News

    reports that TeleDynamics
    , who intends to vigorously enforce
    its legal monopoly, "envisions a lucrative future loaded with
    licensing deals based on the new patent award." The "lucrative
    future" comes with government guarantees.

    This
    news comes fast on the heels of a letter, which British Telecom
    (BT) dispatched in June to the top ISPs in the United States. The
    letter informed the ISPs that they needed to license the technology
    of hyperlinks – the colored Internet text that connects a user
    from one webpage to other sites with the click of a mouse. Hypertext
    has been aptly called "the connective strands that hold together
    the World Wide Web." BT is claiming a patent right in the very
    structure of the WWW.

    Although
    it is heartening to see the U.S. Patent and Trademark Office being
    vigorously attacked for granting overly broad patents, TeleDynamics'
    grab at government privilege has caused nothing near the uproar
    occasioned by a similar bid on the part of Amazon last year. In
    September 1999, Amazon successfully patented its "1-Click"
    service through which customers can shop without having to enter
    shipping and billing information with each new purchase. Amazon
    lost no time in bringing a patent-infringement suit against its
    major competitor Barnes & Noble.com Inc. In response, a widespread
    and spontaneous customer boycott of Amazon was promoted across the
    Internet. Although it is not possible to assess the "invisible
    hand" impact of the informal boycott, perhaps it is reflected
    in Amazon's recent decline in sales.

    The
    enforceability of sweeping patents such as those accorded to TeleDynamics
    and BT is still in question. The prospect of their freezing effect
    on Internet business and technological development, however, raises
    a more fundamental issue. Are patents a valid form of intellectual
    property or merely a governmental grant of monopoly?

    A
    patent involves identifying and using a law of nature or a fact
    of reality, neither of which have been created by the discoverer.
    For example, no one created the principles of electricity although
    many have patented specific applications of those principles. Often,
    the patent occurs because a field of endeavor has reached a stage
    that makes certain inventions or other breakthroughs almost inevitable.
    It is not uncommon for two people to independently develop extremely
    similar applications. The most famous example of simultaneous discovery
    may well be calculus, which was independently developed by both
    Newton and Liebnitz. The 19th century libertarian Benjamin
    Tucker captured the objection to one man being granted a patent
    on the development of principles that should be open to all when
    he wrote: "The central injustice of… patent laws is that
    it compels the race to pay an individual through a long term of
    years a monopoly price for knowledge that he has discovered today
    although some other man… in many cases very probably would have
    discovered it tomorrow."

    Intellectual
    property attorney, N. Stephan Kinsella, has described some of the
    standards applied to patents. He writes, "The Supreme Court
    has identified three categories of subject matter that are unpatentable,
    namely u2018laws of nature, natural phenomena, and abstract ideas.'
    [Diamond v. Diehr, 1981] Reducing abstract ideas to some type of
    u2018practical application'…is patentable, however." To be patentable,
    inventions are required to be novel, to have utility, and be non-obvious.
    Novelty means that the invention has not been anticipated by a prior
    application or existing knowledge. Non-obviousness means that the
    application should be inventive over and above what is obvious to
    anyone skilled in the patent's area at that time.

    Do
    the current patents being claimed over Internet methods and procedures
    fulfil such requirements – for example, the requirement of inventiveness?
    Consider BTU's monopoly ownership claim over hypertext. BT patented
    the technology of hypertext in 1989 although it permitted other
    companies to use it royalty-free for a decade. But the technology
    of hypertext and its specifics had been discussed in other sources
    for some fifteen years before BT snatched at the monopoly. In 1974,
    computer visionary Theodor H. Nelson published the now-classic "Dream
    Machines" in which he used the term u2018hypertext' to describe
    "forms of writing which branch or perform on request; they
    are best presented on computer display screens." Nelson even
    provided diagrams that could be used in textbooks today. BT is merely
    riding the crest of popular wave: companies who claim ownership
    in applications they did not invent.

    Whether
    or not you agree with the propriety of intellectual property, the
    current patents being approved by the U.S. Patent and Trademark
    Office are absurd and destructive. In its model of patents, 18th
    century America broke with tradition. Historically, patents were
    grants of privilege awarded by a ruler to an elite who were either
    u2018favorites' or who were willing to pay the requisite bribes. By
    contrast, the purpose of the American patent was to extend protection
    to every single person, without privilege, so individuals could
    rise through merit and inventiveness. By granting patents to those
    who have not invented applications or whose applications were anticipated
    by technology's state-of-the-art, the U.S. Patent and Trademark
    Office violates the purpose of American patents and returns to the
    days of royal privilege.

    July
    20, 2000

    Wendy
    McElroy is author of The
    Reasonable Woman
    . See more of her work at ifeminists.com
    and at her personal website.

    Wendy
    McElroy Archives

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