At first sight, this extraordinary legal action against most of the digital world's leading lights might seem one of a kind:
Interval Licensing LLC ("Interval"), a Paul G. Allen company, filed a complaint today in the U.S. District Court of the Western District of Washington against major internet search and e-commerce companies alleging that they have infringed on four patents held by Interval. The eleven defendants are AOL, Apple, eBay, Facebook, Google, Netflix, Office Depot, OfficeMax, Staples, Yahoo, and YouTube.
Interval Licensing holds patents of Interval Research, the former company founded by Allen and David Liddle in 1992 to perform advanced research and development in the areas of information systems, communications, and computer science. The patents in the lawsuit cover fundamental web technologies first developed at Interval Research in the 1990s, which the company believes are being infringed by major e-commerce and web search companies.
But I believe that at its heart, Allen's move springs from the same motivations that lie behind Larry Ellison's equally surprising attack on Google.
Allen's lawsuits look like classic patent trolling. There are just four patents involved, all incredibly broad. This means that on the face of it, probably every company involved with Internet activities "infringes" on them. Take, for example, this one:
The invention facilitates and enhances review of a body of information (that can be represented by a set of audio data, video data, text data or some combination of the three), enabling the body of information to be quickly reviewed to obtain an overview of the content of the body of information.
What is described, as the accompanying drawing makes clear, is essentially most Web pages, with information drawn from various sources being brought together. The trouble is, the filing date for this idea is 5 December 1996 and I – along with several million other early Internet explorers – was routinely using this stuff from 1994.
So far, so conventional. But where this action differs is that Paul Allen's company filed the original patents nearly a decade and a half ago: this is not a case of a company buying up old patents and then using them to attack big companies with the aim of being bought off. Indeed, this difference forms an important part of Allen's justification for the legal cases:
"Interval Research was an early, ground-breaking contributor to the development of the internet economy," said David Postman, spokesman for Paul G. Allen. "Interval has worked hard to bring its technologies to market through spinning off new companies, technology transfer arrangements, and sales of its patented technology."
These key patents are fundamental to the ways that leading e-commerce and search companies operate today.
"This lawsuit is necessary to protect our investment in innovation," Postman said. "We are not asserting patents that other companies have filed, nor are we buying patents originally assigned to someone else. These are patents developed by and for Interval."
The trouble with that line of attack, of course, is that it's complete nonsense. Interval Research was not an "an early, ground-breaking contributor to the development of the internet economy": I was there, and they had zero impact whatsoever, as far as I can recall. Allen may indeed have invested money in an attempt to "innovate" in this area, but the patents cited in the action are certainly anything but that, since they are all trivially obvious and seem vulnerable to piles of prior art (I certainly have plenty of relevant screen shots in my ancient 1995 book "The Internet with Windows", which precedes them.)
But you don't have to take my word for it that Allen's Interval contributed nothing to the Internet economy back then. The indefatigable PJ has put together another splendid Groklaw post (including the full text of the complaint), which has a short except from an interview from 2002, with Terry Winograd, who worked at Interval Research, in which he admits:
Interval got completely sideswiped by the Web. It was started just before the Web. In fact, my first exposure to Mosaic was through a summer intern at Interval. All of a sudden all of the money and talent and everything else got sucked into the Web. It dried up the pool there, to some extent. It's hard to know what would have happened if the timing hadn't been that way. Interval was looking at devices, at things people use, and at the home, and not looking at putting commerce onto the Internet.
That is, Interval was actually not only trying to come up with something completely different from the Web (which it was unaware of until well after everyone else), but in any case was "not looking at putting commerce onto the Internet" - in flat contradiction to what the press release now claims when it says: "Interval Research was an early, ground-breaking contributor to the development of the internet economy."
That's just one oddity. Another is the absence of Amazon from the roster of those named in the complaint. Why miss out the company that more than any other is associated with ecommerce? Surely, if anyone infringes on Interval's patents, it will be Amazon?
The reason for this might be that Amazon is actually the best counterexample to all of Interval's claims. It was provably doing all the things that Interval claims it "invented", and long before patents were even applied for. Against that background, suing Amazon would, of course, have been suicidal from a legal point of view.
But that still raises the larger question of why on earth Allen is doing this to anyone? As is well known, he is not short of a bob or two, so it can't simply be for the money. Similarly, why did he wait for over a decade before blasting away at most of the top Internet players?
This is where I think the Ellison connection comes in. Allen's action is part of the collective insanity which has gripped senior management at most computer companies. As more and more of these crazy software patent actions are announced and wind their way through the courts (or are quietly settled after much public tub-thumping), so the pressure on managers to join the feeding frenzy grows. It's that old feeling that many of us get when some new fad takes off – that we might be missing out on something big, and that whether we think it's really a good idea or not, we had better pile in now before it's too late.
What we are witnessing is a tragedy of the software commons, as holders of ridiculously broad patents try to claim their share of what they perceive is a whole lot of money going for free through the patenting and then licensing of of key, and hence, obvious ideas. In their heart of hearts they probably know that they don't actually have any right to that money, but are driven by their fear of being the last one holding out against the mob mentality. And of course, for many companies, this tendency is ultimately self-defeating, because they are just as likely to end up as victims of the trends as victors that enjoy the spoils, as Microsoft is finding to its cost.
Beyond underlining the manifest lack of justification for these suits, Allen's move offers a deeper lesson. Even if Interval really did come up with lots of innovative ideas for ecommerce, its undeniable failure despite that fact shows that having ideas is not what really counts: it's the effective implementation that counts.
And that, too, is one of the key problems of the current patent system. It does not reward the people who actually turn ideas into real inventions that you and I can enjoy, but allows those who nominally thought something up literally to monopolise that entire idea for many years – even if they couldn't work out how to turn it into something useful – by stopping those who independently and successfully implement that idea from deploying it.
There are some who see Allen's move as a cunning ploy to expose this systemic dysfunctionality by suing practically everyone for totally trivial ideas that were obvious and in wide use in order to force the USPTO's hand.
Sadly, I don't think that's Allen's intention – he doesn't exactly have a track record of altruistic crusading in this way. Moreover, I don't think it will work as a way of expediting reform. Most people in the world of computers know that the patent system is broken: we don't need yet more demonstrations of it.
The net result of this latest move will be simply to enrich lawyers, impoverish companies, and generally to impede innovation. Which means that the biggest losers in all this will be – as usual – commoners like you and me.