BT holds a U.S. patent that it claims gives it ownership of hypertext technology, the software that creates electronic links between digital files like text blocks and pictures. And it is suing Prodigy, claiming that the Internet service provider owes it millions of dollars in licensing fees for use of hypertext.
A victory would rearrange the digital landscape. It would mean that until 2006, when the patent expires, BT would have the right to a royalty every time a Web user clicked from one page to another. It would mean new licensing costs for software manufacturers who distribute via CD-ROM. “It certainly sounds overbroad,” says Rochelle Dreyfuss, who teaches patent law at New York University Law School.
But BT’s flanks are exposed. For one thing, it wasn’t until the year 2000 that the company realized the potential scope of the patent–24 years after its initial application, 11 years after the patent award and 9 years after the debut of the World Wide Web brought hypertext to the computing masses. For another, the term “hypertext” was coined well before BT’s application, by Ted Nelson in his 1965 book “Literary Machines.” Indeed, the patent–No. 4,873,662–nowhere uses the word “hypertext.” Instead, it speaks of “blocks of information” each divided in two with the first part displayed on a terminal remote from a central computer, and the second part out of view but capable of “influencing” the first–for example, by changing its format or color. As the British technology writer Wendy Grossman noted, that doesn’t even sound like hypertext; it sounds like another Web technology called cascading style sheets.
The biggest challenge to BT’s position is a grainy, ill-lit black-and-white film shot at a computer conference in December 1968. One key weapon in any attack on a patent takes the form of “prior art.” If a defendant can show that somebody else beat the plaintiff to the punch, the patent may be invalidated. In the 33-year-old movie, an industry pioneer named Douglas Engelbart demonstrated for the first time a scheme he called “structured information,” in which a computer displayed information in a nonlinear fashion. In his example, his evening commute home was represented as a graphic with such locations as the local grocery store serving as individual points along the way. Using a pointing device–this was also the first unveiling of what we now know as the mouse–he clicked on the word GROCERY and the graphic was replaced on-screen by that day’s shopping list. The point, Engelbart said later, was to have “information stacked on top in three-dimensional ways rather than linearly.” And it looked like hypertext.
Engelbart’s performance that day went down in technology history as “the Mother of All Demos.” And while the audience seemed more captivated by the mouse than by the idea of stacks of information, Engelbart had shown that it was possible to bring a new fluidity and flexibility to the display of information by computer. He had broken the tyranny of linearity. It was the foundation of multimedia.
Whether the Mother of All Demos is enough to invalidate BT’s patent is ultimately for a jury to decide, at a trial now scheduled to begin on Sept. 9, according to Robert Perry of the Manhattan law firm Kenyon and Kenyon, BT’s lead attorneys. He expects Prodigy (now owned by SBC Communications, a Baby Bell) to file a motion for summary judgement against BT, but that’s a high legal hurdle. In the end, says NYU’s Dreyfuss, a likely outcome is a narrowing of the scope of BT’s patent. In the 1980s and early 1990s, she says, the U.S. Patent Office “didn’t have very good resources for looking at software … The fact that these old patents are way too broad isn’t surprising. The examiners were novices.”
For the software community generally, the underlying issue is whether software should be patentable at all. While companies like Microsoft and IBM have argued that software is like any other intellectual property and deserves protection to create incentives for future research, other firms say software is peculiarly ill-suited to patent law. The patent policy of Oracle, for example, says that patent is “not appropriate for industries such as software development in which innovations occur rapidly, can be made without a substantial capital investment and tend to be creative combinations of previously-known technologies.”
But then Oracle goes on to say that it has been forced to seek patents for some of its software. Purely defensively, of course. And that leads to the question at hand in White Plains: what exactly is BT Group defending?
