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Patent Lawsuits Aimed At Big And Small Operators Threaten Web Freedoms

Publication Date: 
April 18, 2012
The Guardian
Charles Arthur

Professor Mark Lemley's paper on the notion of "lone inventor" patents is referenced by the following article by Charles Arthur of the Guardian.

In the first week of February, Sir Tim Berners-Lee stood in front of a jury in east Texas. His task was daunting: he had to invalidate a set of patents claimed by a company called Eolas and the University of California. If he failed, almost everyone running a website with moving pictures or streaming video would have to pay a stipend to those two for each use.

Berners-Lee famously didn't patent the world wide web when he invented it as a method of tying together data from different locations on the internet. The web – confusing though it might seem – is a layer on top of the basic "internet" connection that comes into your home or office or smartphone. When asked in court why he hadn't patented his idea Berners-Lee said: "The internet was already around. I was taking hypertext" – what we see now on web pages as blue links – "and it was around [as an idea] for a long time too." (That's true: the idea of hypertext to "join" disparate pages was put forward by Ted Nelson in the 1960s.)


... The idea of "lone inventor" patents is a false one, argues Mark Lemley of Stanford Law School. In a paper he points out that inventions are often "in the air", and sometimes different inventors file the same idea almost simultaneously: "We should be denying patents on the vast majority of the most important inventions, since most seem to involve near-simultaneous invention." While patents were initially applied to physical items, business growth in the last 30 years has led to companies and individuals seeking to win them in the US for software alone. Although software code is protected by copyright, patents have been seen as offering better legal rights. The US Patents and Trademarks Office (USPTO) has issued patents for software, something that has been resisted in Europe, and has led to a transatlantic split in patent practice.