Posted on 01/24/2003 3:31:41 PM PST by HAL9000
SBC Wants Your Money
How I, Cringely Readers Can Overturn an Unpopular Patent
This column is about U.S. patent 5,933,841, which was granted to the old Ameritech phone company in 1999, and is now owned by Ameritech's acquirer,SBC Communications. It is a patent you will be hearing more about because nearly every modern web page appears to violate it, maybe even this one. I HATE when that happens!
There are no villains in this story. The patent exists and was applied for on May 17, 1996. That was very early in the era of the commercial Internet, back when the top browser was still Netscape, and Internet Explorer did not yet have that name and was a pretty lame part of Microsoft's Windows 95 Internet Jumpstart Kit. You can find a link to the patent under the "I Like It" button on this page.
Called a "structured document browser," the patent appears to cover that very "I Like It" button. Specifically, the patent claims as Ameritech's original idea the concept of having elements on a web page that don't change, yet apply directly to other parts of the page that do change. That would appear to cover the line of blue buttons up there at the top of this page next to the date. "The Pulpit, I Like It!, Baloney, Old Hat," and the other buttons remain fixed on every I, Cringely page while the rest of the site changes around them. And most specifically, those changes in the page come in response to clicking the unchanging buttons. That what the Ameritech (now SBC) patent claims to cover. But the company goes further to claim links within frames or any links with one end static and enduring are covered by its patent.
A LOT of web sites are designed this way, perhaps a majority of them. Google, CNN, MSN and many other sites have either persistent buttons or what look to be file folder tabs, both of which are within the SBC patent claims. SBC probably considers hundreds of thousands -- perhaps millions or even tens of millions -- of web pages to be in violation. So what happens now? Well, from SBC's perspective, it is time to turn that patent into a moneymaker. The company is already approaching web sites it considers to be in violation. The first such site I heard of wasn't one of the big ones at all, but www.museumtour.com, a site based in Oregon that sells educational toys over the Net.
To its credit, SBC Intellectual Property was very polite in its approach to Museumtour, pointing out the existence of the patent, citing specifically how it believed Museumtour is in violation and offering to sell the company a license based on some percentage of gross sales. In my review of the documents there appeared to be no threat of legal action, but of course, that is implied in the whole communication. If there were no possible negative repercussions, why pay for a license?
As I said, there are no villains here. SBC probably came across this patent and realized that it could be the basis of an Internet tax, that the company had a good chance of getting license revenues from millions of web site owners and it is hard to blame them for that. They are, after all, in business to make money. The trick is to make the license not so expensive that web site owners will fight back or redesign. I have no idea what are the specific terms of the SBC license, but what if it averaged $1,000 per site per year and there were one million infringing sites? That is $1 billion per year in additional, high-margin revenue for SBC, a company that otherwise has a profit of around $7 billion per year. So an extra billion or two is a significant boost for the company.
It is hard to blame the company for enforcing its intellectual property rights. That's what patents are for in the first place. But I would like to be very sure that the SBC patent is valid before we all start to pay-up. You see patent searches for prior art -- examples of just this kind of links in web pages that were available before May 17, 1996 -- are rarely exhaustive. There may well have been such a page (perhaps many such pages) on the web long before Ameritech filed its patent, but the patent examiners and Ameritech's patent attorneys just missed or ignored them.
I think we should test this patent. SBC really ought to applaud our effort, because one possible outcome is validation of their claim. But I doubt that will happen. I really feel that there probably is prior art that was just missed and that the patent is invalid.
So here's the plan. If you are a web designer or were involved with the design of web pages prior to May 17, 1996 and can come up with an example of a page that would appear to violate the SBC patent but that was available for use before the SBC application date, then please come forward and show that the patent isn't valid.
For those of us who weren't involved in such issues back in 1996 or before, but who still want to take part in this exercise, a good place to start would be at the Internet Archive' Wayback Machine, where many old pages are stored. This, too, is listed under that allegedly illegal "I Like It!" button. Start searching the billions of pages in the archive, specifically looking before May 17, 1996. Unfortunately, the archive only goes back to 1996 and I was unable to find any offending pages using the Advanced Search feature, but your mileage may vary.
The Wayback Machine is a very useful tool. If you have noticed, for example, that there are some early columns from 1997-98 missing in the "Old Hat" archive on this page, most of those can be found in the Internet Archive. During some redesign way back when they were lost, and we might try to recover them for the next redesign that is coming this spring when we launch NerdTV.
Our best bets, then, for beating this patent are the memories and disk drives of readers. If you care about this and know someone involved in web design in 1996, ask them about this issue. It would be nice if we could find some prior art, though based on a percentage of gross revenue, I think the I, Cringely license would be free.
Changing topics, last week's column about the wacky idea of Microsoft building Windows on top of Linux caused a groundswell of resentment from the Slashdot crowd, which generally thought it to be not only a bad idea, but technically impossible. That is a bad idea I will agree with, for reasons that are mentioned below, but whether it is impossible is something that really comes down to how much effort is acceptable.
My claim that Windows XP has a windowing system and an underlying operating system was based on my understanding of its architecture and on an interview I did with Microsoft's Jim Allchin, who is sometimes referred to as the father of Windows 2000. I asked Allchin if the object-oriented nature of Windows 2000 was such that one windowing system or file system could be swapped out and replaced by another? He said it could. My understanding of the architecture is that Windows 2000 (and NT and XP) has a microkernel much like Mach and that server sub-processes like graphics and file service are brought in and out as needed. This modularity is what I was referring to and it can be seen in Windows 2000's POSIX compliance layer and Windows NT's OS/2 compliance layer, both vestiges of ancient DNA.
But a lot of the criticism came down to that very microkernel, since Linux doesn't have one. Linux has a great big old-fashioned kernel and the experts thought the idea of crossing that with XP or 2000 was just stupid. Maybe so, but MacOS X is another microkernel operating system that operates just this way precisely because it is based on the Mach microkernel, yet OS X also has the BSD API layer, which comes very much from the big kernel world. So it CAN be done. This unholy combination of Mach and BSD is what Apple calls "Darwin."
Grafting Windows onto Linux may be stupid, but it isn't impossible. But the strongest argument against it isn't technical at all but legal, as my old friend Brett Glass pointed out. Linux is released under the GNU General Public License, which allows you to use or change anything you like but not to charge for your changes. Clearly, that would be a problem for Microsoft. It would be much better, Brett argued, to do just what Apple did and adopt BSD, not Linux. That is because BSD has a much more friendly license that not only allows you to use what you like for free and change it as you see fit, but if you want to charge for those changes, that's okay, too.
Bill Gates would like that.
Or the help system supplied with Windows 3.x
Hmmm, it looks like www.bellsouth.com web site infringes on the SBC web page patent too. The same buttons consistently appear at the top of each page.
It's too bad that SBC gives the entire industry a bad name.
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