Trolling for a tech showdown
The drama: A lawsuit by a patent troll who said he owned the rights to the “interactive web.” The troll says he’s owed some back rent for owning the Web we all use every day.
Dramatis persona: Tim Berners-Lee. Perhaps you’ve heard of him. He invented the World Wide Web.
Oh, to have been in Tyler. It was the stage for a showdown in one of the most bizarre patent troll cases ever, pitting (metaphorically if not in fact) expert witness Berners-Lee against some punk who wanted to make his name by taking out a very, very big gun in a shootout. The plaintiff, Eolas, claimed it owned patents that entitled it to royalties from anyone whose website used “interactive” features, like pictures that the visitor can manipulate, or streaming video. The claim, by Eolas’s owner, Chicago biologist Michael Doyle, was that his was the first computer program enabling an “interactive web.”
If Texas was still the Wild West this might have been settled at High Noon at some dusty, just O.K. Corral, with single-action Colt .45 revolvers. There was no gunplay, but for geekdom the calm morning testimony in an air-conditioned courtroom was just as exciting.
On Wednesday, Jennifer Doan, a Texarkana lawyer representing defendants Yahoo and Amazon, examined Berners-Lee for the plaintiffs, which include Google, Amazon and Yahoo. An excerpt from Wired‘s report:
When Berners-Lee invented the web, did he apply for a patent on it, Doan asked.
“No,” said Berners-Lee.
“Why not?” asked Doan.
“The internet was already around. I was taking hypertext, and it was around a long time too. I was taking stuff we knew how to do…. All I was doing was putting together bits that had been around for years in a particular combination to meet the needs that I have.”
Doan: “And who owns the web?”
Berners-Lee: “We do.”
Doan: “The web we all own, is it ‘interactive’?”
“It is pretty interactive, yeah,” said Berners-Lee, smiling.
The jury of eight deliberated for only a few hours before declaring the suit without merit, derailing what would have been an avalanche of suits that, at best, would have cost big Internet companies tens of millions to fight and hundreds of millions in damages if they lost.
We can only imagine that the jury retired, looked at each other, silently agreed this was prima facie madness, played a few hands of hearts for appearances’ sake and to prolong their service to score one of those fabulous free courthouse lunches, and then returned with a verdict.
If they had seen it the other way, the impact on our daily lives would have been pervasive. It could have made the Web economy unstable, in turn threatening innovation. It might have required you to pay a fee for uploading a video of your toddler for grandma to see. The mind boggles. It would be like being told that Central Park isn’t public property, but real estate owned by Donald Trump, who’d be happy to let you keep lying on the grass — for a price.
The decision really could not have gone any other way, given the truth-is-stranger-fiction narrative. This trial didn’t need a Perry Mason moment. It had an Alvy Singer moment. Here was, if not Marshall McLuhan, as close to McLuhan as we can get. The man who invented the Web was asked to defend his legacy to some jerk who was sullying it. This time the jerk lost.
But patent trolls are playing a lottery which, if it does pay off, can pay off hugely. The incentive to buy up patents by the bucket and then see if any apply to something as necessary as breathing — Turning that doorknob? Pay me!! — is too much for slime with money.
Patents are a vital part of the creative and free-enterprise process. If you can’t protect an idea that can be easily copied, then there is no incentive to invent. There is always going to be someone out there who can steal, develop and market your idea in the blink of an eye. Heck, even with decent enough patent, copyright and IP protections in the United States and European Union, this sort of thing happens anyway.
But patent law has been perverted by trolls. A company whose charter is to invest in patents and then assert they cover everything creates nothing of value. In the meantime, they cause untold trouble. Amazon had to fight a troll over One-Click, its innovation that reduced purchase friction so much it helped catapult the retailer into one of the most powerful forces on the Web. Sometimes there is justice, as when Righthaven — a company some newspapers hired to sue publications for copyright infringement — got its own comeuppance.
So, as the sun sets on another gunfight — er, patent law case — we can only hope that the black hats are in retreat.
PHOTO: World Wide Web founder Tim Berners-Lee delivers a speech at the Bilbao Web Summit in the Palacio Euskalduna, May 17, 2011. REUTERS/Vincent West