Inventor of the World Wide Web and head of the W3C, Tim Berners-Lee, has taken the unprecedented decision to actively fight a patent case, claiming it will undermine the Internet and wipe out huge swathes of Net history.
Berners-Lee is well known for his robust defence of open, royalty-free standards as the only way to progress with the Internet, but in the case of US patent 5,838,906, he has written personally to the director of the US Patent and Trademark Office, James Rogan, to insist he review the awarded patent.
"Removing the improperly disruptive effect of this invalid patent is important not only for the future of the Web, but also for the past," Berners-Lee writes. He goes on to argue: "The practical impact of withholding unrestricted access to the patented technology from use by the Web community will be to substantially impair the usability of the Web for hundreds of millions of individuals in the United States and around the world."
The letter also refers to an extensive document put forward by the W3C to dispute the patent's validity. The W3C claims that there is extensive "prior art" with regard to what the patent covers i.e. someone had already stuck the flag on the summit. It says, among other things, that the "EMBED" tag that the patent claims ownership of was put forward in HTML+ meetings a year before the patent was filed.
The patent itself - enticingly titled "Distributed hypermedia method for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document" - was filed in October 1994 and approved in November 1998. It effectively claims rights over any form of content embedded and run inside a single webpage.
While many media applications run in external viewers these days - think the separate RealOne player - Mr Berners-Lee is concerned that by making all inline content apps subject to patent, it would effectively wipeout millions, billions of webpages that form the history of the Web.
How? Because the people that own the patent, Eolas Technologies Inc, decided they would use their patent to sue Microsoft, claiming infringement in Internet Explorer. In August, a judge agreed and awarded Eolas $521 million. Microsoft is currently appealing the decision but it has already made clear it plans to redesign Explorer to bypass the patent.
Berners-Lee is no friend of Microsoft, particularly since Explorer regularly steamrollers over the W3C efforts to build international standard consensus by including its own proprietary features. However in this case, he is infuriated by companies attempting to claim ownership of parts of the system he helped build just to sue other companies and build a fat bank balance. If Explorer does change, it will not be backwards compatible - another nasty precedent that W3C is desperate to avoid.
However, there is also a wider point and argument here. The whole issue of software patents recently came up in Europe as the EU debated whether to change its laws in order to come into line with the US and Japan. They are starting to be used as weapons and will soon have worldwide reach.
While there are many good arguments for patents and trademarks in this field, the main examples recently (SCO's Unix argument, for one) have been used only for negative or damaging reasons and not as drivers of innovation and protection, as their supporters claim.
It is hard to see how anyone in the world, save Eolas, benefits from a wide-ranging and general patent covering how content is dealt with within browsers. Worse than that, the patent office is regularly accused of passing patents and trademarks without due care and attention, particularly with regard to the nebulous and intangible software market.
But the law is the law and Berners-Lee's request that the patent be reviewed could be a vital test case. It could also demonstrate a shift in the W3C's approach to protecting the Internet through benign and persuasive influence to becoming an active, aggressive organisation towards those companies whose self-interest overrides the wider health of the Net.
Only recently, the W3C made a strong statement against the use of any code, protocol, etc that had a patent on it. W3C standards, was the message, will be royalty-free, not matter what.
The US Patent and Trademark Office will take around 90 days to decide whether to launch a formal re-evaluation of the patent. It could prove to be a turning point in the Net's history. ®