Thursday, May 18, 2006

The Internet and the WWW as Patent-Free viz. Royalty-Free Zones by Law

According to our interpretation of the Constitution of the United States, the Internet and the World Wide Web should be patent-free viz. royalty-free zones by law.

Our conclusion has to do with the fact that the basic communications structure and technology of the Internet and the World Wide Web were originally invented to serve the free and unfettered exchange of information, unburdened by patents.

In fact, the Internet was not only originally part of a federally-funded research program, but commercial use of the Internet was prohibited until the 1990's. See generally the Internet Histories at ISOC and the Wikipedia History of the Internet.

The "medium" that we call the Internet was first so called in the 1980's and officially defined in 1995 by the Federal Networking Council:

"On October 24, 1995, the FNC unanimously passed a resolution defining the term Internet. This definition was developed in consultation with members of the internet and intellectual property rights communities. RESOLUTION: The Federal Networking Council (FNC) agrees that the following language reflects our definition of the term "Internet". "Internet" refers to the global information system that -- (i) is logically linked together by a globally unique address space based on the Internet Protocol (IP) or its subsequent extensions/follow-ons; (ii) is able to support communications using the Transmission Control Protocol/Internet Protocol (TCP/IP) suite or its subsequent extensions/follow-ons, and/or other IP-compatible protocols; and (iii) provides, uses or makes accessible, either publicly or privately, high level services layered on the communications and related infrastructure described herein."

The Internet technically is a structure of interconnected computer networks, whereas the World Wide Web (WWW), invented by CERN and Tim Berners-Lee, is a global hypertext system of linked documents using the http protocol and operating (through networks) by means of Internet-connected devices such as computers, PDAs, and cell phones, etc.

The Internet is not patented, because it started as a government project. The World Wide Web is not patented, because in April, 1993, the directors of CERN - who could have patented the invention of the basic WWW technology - announced publicly for the sake of free and open information exchange that WWW technology would be freely usable by anyone, with no patent fees payable to CERN.

"Free Was the Key, Says Web Founder.

....Tim Berners-Lee, who received a €1 million ($1.2 million) cash prize for creating the World Wide Web, says he would never have succeeded if he had charged money for his inventions. 'If I had tried to demand fees ... there would be no World Wide Web,' Berners-Lee, 49, said Tuesday at a ceremony for winning the first Millennium Technology Prize. 'There would be lots of small webs.

Similarly, Vint Cerf, one of the founding inventors of the Internet responsible for the TCP/IP Protocol, in the year 2000 formulated the basic patent issues involving the Internet as follows:

"I want to mention something about patenting and the Internet and its origins. One of the things that is peculiar and interesting about the Internet history is that the TCP-IP protocols were never patented. In fact, they were made available as widely as possible to the public as soon as possible....

The openness of those protocols and their availability was key to their adoption and widespread use. I think if Bob [Kahn] and I had not done that - if we had tried to, in some way, constrain and restrict access to those protocols, some other protocol suite would probably be the one we'd be using today and there would be some other thing called the Internet, or maybe called something else doing the same thing, with a different set of protocols. So, that openness was pretty important. The fact that it wasn't patented, I think, was very important.

It's also the case that the Internet Engineering Task Force, which was one of the standards-making activities that takes place under the auspices of the Internet Society, is also relatively resistant to the use of patented technology in the construction of Internet standards.... the principal goal of the Internet Engineering Task Force is to make its standards as widely available and as easily practiced as possible. And that generally dictates that they not be encumbered in any fashion.... it has happened in the past that the IETF working groups have tried to steer their way around existing patents in order to avoid any encumbrance at all.

The last thing I'd like to observe - and this is something that perhaps we can get into in the early stages of our discussion that Todd might be able to respond to - is that any number of software patents have been granted during the last five to 10 years and a number of them appear to be patents for what is well-known, widely known technology that every undergraduate knows. Now, I'm being unfairly extreme, but I want to make the point that the patent examiners in the office are not necessarily always well-versed in the history of some of the new technologies, particularly software, because software patents were a very recent entree into the arena of things that have been patented. So, it's an issue as we come to grips with patents and the Internet, because the Internet is really nothing without software and everything it does is based on somebody's programs that animate the Network. So, I consider that to be a serious matter of concern, if patents are all wrapped up in software and if we don't have widespread ability to make use of software in order to evolve the Internet
."

The subsequent result of those considerations for the W3C, which produces standards for the World Wide Web, has been the WC3 Royalty-Free Patent Policy, which "governs the handling of patents in the process of producing Web standards. The goal of this policy is to assure that Recommendations produced under this policy can be implemented on a Royalty-Free (RF) basis."

The engineers have thus understood that the Internet and the WWW must be patent-free viz. royalty-free zones in order for these mediums to work the way they were intended to work from their "free" inception. Why then is the legal community lagging behind in understanding this elementary fact and in granting the Internet and the WWW this patent-free and royalty-free status by law, thus removing the possibility that patents encumber this medium?

If thousands of Internet and WWW inventors produced the basic foundations of the Internet and WWW system without encumbering patents, then what possible reason is there in the law to grant patents to lesser "inventions" by morally reprehensible institutions who now try to profit from that essentially public domain system by encumbering that system with patented technology used in connection with that free system, for which the patenting institutions pay nothing and without which their own technology is totally worthless.

USPTO Seeks to Modernize

In recent postings we have been pretty hard on the United States Patent and Trademark Office (USPTO) as well as on the US legal community and judiciary under the logic represented by the old tale about the U.K.-educated Greek farmer on a country road hitting his unmoving mule over the head with a large club. A passing English tourist could not resist injecting the comment that "Sir, you are not going get that mule to move by doing that!", to which the Greek farmer had retorted in perfect Oxford English, "Madam, I know that. I am just trying to get his attention".

We see at the USPTO website online that the USPTO is in fact trying to enter the 21st century. However, proposed new rule changes and more and more patent examiners is not the epitome of the desired solution. Unchecked, every institution tries to increase the scope of its powers and the realm of its influence, and in this regard the USPTO does not differ from other institutions. Increasing the staffing of the USPTO is not the solution. The proposed new rule changes merely shuffle around current practices and will be of little practical assistance if the underlying law and judicial decisionmaking is faulty.

To improve the current intolerable over-inflated patent situation in the USA, what needs to be done is for Congress and the courts to diminish the scope of patent protection to accord with the U.S. Constitution and thus, indirectly, to curb the USPTO's powers and importance, thus ultimately reducing the number of patents filed each year. This can only be done by limiting patent protection to actual products and by eliminating patent protection for software, hardware configurations, ideas, methods and systems of doing something, for which, in our opinion, the U.S. Constitution does not provide a basis for patent protection.

In addition, we would make the Internet a patent-free zone by law, for the reasons given in our next posting.

USPTO Seeks to Modernize

In recent postings we have been pretty hard on the United States Patent and Trademark Office (USPTO) as well as on the US legal community and judiciary under the logic represented by the old tale about the U.K.-educated Greek farmer on a country road hitting his unmoving mule over the head with a large club. A passing English tourist could not resist injecting the comment that "Sir, you are not going get that mule to move by doing that!", to which the Greek farmer had retorted in perfect Oxford English, "Madam, I know that. I am just trying to get his attention".

We see at the USPTO website online that the USPTO is in fact trying to enter the 21st century. However, proposed new rule changes and more and more patent examiners is not the epitome of the desired solution. Unchecked, every institution tries to increase the scope of its powers and the realm of its influence, and in this regard the USPTO does not differ from other institutions. Increasing the staffing of the USPTO is not the solution. The proposed new rule changes merely shuffle around current practices and will be of little practical assistance if the underlying law and judicial decisionmaking is faulty.

To improve the current intolerable over-inflated patent situation in the USA, what needs to be done is for Congress and the courts to diminish the scope of patent protection to accord with the U.S. Constitution and thus, indirectly, to curb the USPTO's powers and importance, thus ultimately reducing the number of patents filed each year. This can only be done by limiting patent protection to actual products and by eliminating patent protection for software, hardware configurations, ideas, methods and systems of doing something, for which, in our opinion, the U.S. Constitution does not provide a basis for patent protection.

In addition, we would make the Internet a patent-free zone by law, for the reasons given in our next posting.

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