Weaving The Web - Excerpt from Chapter 13 - Machines and the Web

This was written in 1999


I mention patents in passing, but in fact they are a great stumbling block for Web development. Developers are stalling their efforts in a given direction when they hear rumors that some company may have a patent that may involve the technology. Currently, in the United States (unlike in many countries), it is possible to patent part of the way a program does something. This is a little like patenting a business procedure: It is difficult to define when something really is "novel." Certainly among some patents I have looked at I have found it difficult to find anything that gives me that "ah-ha" feeling of a new idea. Some just take a well-known process (like interlibrary loan or betting on a race) and do it in software. Others combine well-known techniques in apparently arbitrary ways to no added effect- like patenting going shopping in a striped automobile on a Thursday. They pass the test of apparent novelty because there is no existing document describing exactly such a process. In 1980, a device for delivering a book electronically, or a device for online gambling, might have seemed novel, but now these things are just obvious Web versions of well-known things. The U.S. Patent and Trademark Office, ill-equipped to search for "prior art" (earlier occurrence of the same idea) in this new field, seems to have allowed through patents by default.

It is often difficult to know what a patent is about at all because it is written obscurely using language quite different from that which a normal programmer would use. There is a reason for this: The weapon is fear of a patent suit, rather than the patent itself. Companies cross-license patents to each other without ever settling in court what those patents actually mean. Fear is increased by uncertainty and doubt, and so there is an incentive for obscurity. Only the courts can determine what a patent means, and the legal effort and time involved dwarfs the engineering effort.

This atmosphere is new. Software patents are new. The Internet ethos in the seventies and eighties was one of sharing for the common good, and it would have been unthinkable for a player to ask fees just for implementing a standard protocol such as HTTP. Now things are changing. Large companies stockpile patents as a threat of retaliation against suits from their peers. Small companies may be terrified to enter the business.

The lure of getting a cut of some fundamental part of the new infrastructure is strong. Some companies (or even individuals) make a living only by making up patents and suing larger companies, making themselves immune to retaliation by not actually making or selling any products at all. The original aim of patents- to promote the publication and deployment of ideas and to protect the incentive for research- is noble, but abuse is now a very serious problem.

The ethos now seems to be that patents are a matter of whatever you can get away with. Engineers, asked by company lawyers to provide patentable ideas every few months, resignedly hand over "ideas" that make the engineers themselves cringe.

It is time for a change, to an ethos in which companies use patents to defend their own valid products, rather than serendipitously suing based on claims even they themselves would have thought applied. The threshold of "innovation" is too low. Corporate lawyers are locked into a habit of arguing whatever advantage they can, and probably only determined corporate leadership can set the industry back on a sane track. The consortium members have, at the time of writing, been delivering on what to do, but it is not clear what the result will be.

The Semantic Web, like the Web already, will make many things previously impossible just obvious. As I write about the new technology, I do wonder whether it will be a technical dream or a legal nightmare.

Extraction of web version Janet Daly, 1999
Excerpt Last modified: Fri Jul 23 00:23:19 EDT 1999

Original: Tim Berners-Lee with Mark Fischetti, HarperSanFrancisco, 1999