Success Has a Thousand Litigants

Up to the mid-'90s, managing content was easy. Records managers cataloged documents, locked them up, and when their retention period expired, destroyed them. The main threats were fire and water. Today, content comes in thousands of electronic formats, including email. Content's central importance is attracting a new threat: patent litigators, the modern Willie Suttons, because—as Willie famously said about robbing banks—that's where the money is.

Unless you love curling up with books about string theory and dark matter (I admit I do), patent law is not something you pay attention to. I can't comment on the merits of patent litigation cases, but from a lay perspective, two cases illustrate the danger. As I write this column, the U.S. Patent and Trademark Office has just rejected all NTP claims against RIM, the company behind BlackBerry handhelds. This means that, barring further legal challenges, our BlackBerries will not "go dark." NTP's challenge is but one example of patent disputes threatening our content.

Some, like Jim Balsillie, chairman and co-CEO of RIM, argued in a December Wall Street Journal editorial that this case was about lust for money, not about patents or law: "The United States Patent Office has now soundly rejected all of NTP's patents on at least three distinct grounds in its rulings."

A similar struggle is brewing about a series of standards which are increasingly intertwined with content: XML. North Carolina-based Scientigo claimed last year that it owns two patents covering a fundamental concept behind XML: packaging data in a self-defining format, allowing it to be correctly displayed wherever it travels.

To me, Scientigo's claim to a "fundamental concept" seems iffy. In the 1970s, I helped develop a tag-based text-processing system that allowed authors to create once, then publish to HELP, printers, and to a typesetting system with different "styles." Our team based this system on concepts in similar UNIX tools, ROFF and TROFF. Collectively we called these systems "Runoff," meaning that after you authored a properly tagged text file you could "run it off" to different kinds of files or devices. In the late 1960s, Charles Goldfarb led an effort at IBM to develop GML, a Generalized Markup Language. In the 1980s, Goldfarb went on to help develop another standard called the Standard Generalized Markup Language (SGML), the precursor to XML. XML's parentage clearly extends back several decades.

To understand patent issues better, I spoke with Bruce Sunstein, co-founder of Bromberg & Sunstein, LLP, a Boston-based intellectual property firm. Sunstein shared his views on the credibility of this threat to XML. So how likely is it that XML and its related standards—and with them our content—might be held hostage to litigation? Sunstein believes that if you look at the earliest references to Goldfarb, father of GML and SGML, the Scientigo claim looks like fluff. Using tags is not new. Sunstein also observed that patents must be able to be applied in a practical way. "Samuel Morse," said Sunstein, "tried to patent the means for communications to be effective over a distance, whether by sounds or by electromagnetism, but the patent office wouldn't let him have that patent. It was too abstract." If an application is very detailed, it is more likely patentable. If it covers just one idea that was in use earlier, then the application is usually denied. The salient point is that Scientigo patents can only include ideas that were new in 1997 and not earlier. Thus they'll have to show that their ideas weren't available elsewhere (GML, Runoff, or SGML, which go back to the 1960s).

What can we do to assure that the patent system does not function as a source of entrepreneurial hold-ups? Many of us are for limited government, but a good argument can be made for more staffing—more attorneys and engineers—for the U.S. Patent and Trademark Office. Congress has increased funding for the Patent Office, but it still takes nearly 33 months to begin reviewing applications in the category "Computer Architecture, Software, and Information Security" including systems dealing with electronic content. Late last year, the acting Patent Office commissioner John Doll was reported as saying that with 1.3 million cases in the backlog, and years to take a first office action, you've got to ask the question, "Is the patent system still actually working, or are we just stamping numbers on the applications as they come through?"

What defense do we have against the neo-Suttons? We have very little leverage other than grassroots vigilance and support for our patent system. Avoid the simplistic thought, as Shakespeare put it, to "First, kill all the lawyers." Remember: Einstein too worked in a patent office, and he advised that everything should be kept as simple as possible, but no simpler.