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Northrup's Latest Patent: Legitimate or Just "A Silly Claim"?
Northrup's Latest Patent: Legitimate or Just "A Silly Claim"?

(April 23, 2003) - In an odd twist, even though the WWW was conceived by Tim Berners-Lee in 1989 and the first public release of a WWW client and server was in 1991, such "prior art" (as it is known in patent circles) seems not to have discouraged New Jersey-based Charlie Northrup from claiming patent number 6,546,413 ["Access Method Independent Exchange Using a Communication Primitive"].

The result - for the US Office of Patents and Trademarks granted it after many years of deliberation - according to many commentators including Maureen O'Gara of LinuxGram, is that Northrup now holds the patent on nothing less universal than what we now call "Web services."

But is it really that simple? XML-J Industry Newsletter was quick to consult those "in the know" within the XML and Web services community...and they are apparently not in agreement that 1994, which is the year Northrup's patent application actually dates back to, is really early enough for this patent to apply to Web services.

The claim that Northrup's ideas on Web services are the earliest is "rot," according to Uche Ogbuji of Fourthought, Inc. Ogbuji calls it "a silly claim."

"Let us set aside the fact that you cannot patent ideas," he continues. "Patents apply to mechanisms (or, thanks to an execrable fumble by the US Supreme Court, to business processes). If [Northrup] had any mechanism that looked like Web services in the early eighties, then it would also have had an unmistakable resemblance to OS mailbox technology that was built into DEC machines as early as the late 70's. Web services are, despite the hype, such a mundane and generic technology that finding ancient roots of any Web services mechanism would be a matter of a quick stroll through the archives."

"Northrup's Claim Potentially Fatal to Web Services" - Tim Bray

Tim Bray, co-inventor of XML, is equally dismissive. "Charlie contacted me a couple of times," he tells XML-J IN. "I told him that in my view that patent should not have been granted, and would not stand up in court, due to having failed the 'obviousness' test. Clearly he disagrees."

Bray adds a very strong cautionary note. "If [Northrup] managed to enforce his claim the consequences would be disastrous; it would become impossible to have Open Source implementations of key pieces of the infrastructure. This would be harmful, perhaps fatal, to the grand plans of those who want to deploy Web services everywhere."

Veteran markup specialist Len Bullard isn't any more sanguine than Bray. "I can't understand such a patent," he says. "There is too much prior art and research in this field. Web services are coming about as a result of standardization, not innovation."

Bullard points out an odd precedent, on the other hand. "The patent on stylesheets held by Microsoft," he notes, "has never been challenged although the prior art again, is well documented. And the Sun patent on hyperlinking was the same kind of patent: bogus but unchallenged."

"Unfortunately," Bullard continues, "our patent system has come down to a contest of money, lawyers, and stamina because the patent office does not have the expertise or resources to verify obscure claims."

BEA's Tyler Jewell as usual takes a refreshingly honest and upfront view. "I find this quite humorous," he says. He hasn't read the patents, he notes, "so it's hard to comment on specifics" but he doesn't see this patent impacting the industry in the slightest.

"Web services," Jewell explains, "are as much a design philosophy and approach to business integration as they are a technology. No matter what patents exist, the methodology and philosophy of Web services will be used without penalty. As for the technology side of Web services, the specifications on which they are founded are supported by standards organizations that have legal licenses for them."

His parting shot is vintage Jewell: "Charlie's lawyers are going to have a devil of a time determining what Web services even are, much less figuring out how their patent remotely applies."

"If this means we cannot use UDDI, I'm all for it!" - Sean McGrath

Propylon CTO Sean McGrath is of a similar view: "Given the highly general definition of a Web service from the W3C - including as it does everything from a CGI script to a SOAP 1.2 uber-XML API, I don't see how a patent could stick."

In typically historical fashion, McGrath continues: "The concepts of algorithm invocation by means of function call probably goes back to Babbage. Everything since then is just bits-on-a-wire notations for achieving the same effect."

"As for the 'discovery' side of Northrup's DASCOA," says McGrath, "that is probably more amenable to patent fun. Frankly, if this means we cannot use UDDI, I'm all for it!"

Paul Prescod agrees with McGrath and the rest of the XML luminaries we consulted that most of the technology used in Web services is not innovative. "It primarily consists of new, standardized, XML-based syntaxes for concepts that were popular even in the 1980s," he says.

Web Services Journal editor-in-chief Sean Rhody agrees with McGrath too. "Not being a lawyer, I'm not qualified to comment on the validity of this patent, but given that most of the concepts can be traced back to ideas from other generations of computing, I find it highly unlikely that the patent will be upheld. If it is, it will be a disaster for the industry."

Prescod concurs, and points out: "If Charlie wants to be taken seriously he needs to clearly describe what standards he believes infringe and in what ways. Then he has to demonstrate that protocols like CORBA and DCE RPC do not constitute prior art."

Talking of CORBA, anyone who has actually read the patent tends to comment that it "reads like a description of CORBA," and it is well known that the Object Management Group started working on CORBA already in 1989 - so one might, like Prescod, argue that this is all the prior art needed to bust Northrup's application.

But when XML-J IN asked the OMG's president, Bill Hoffman, to comment his reply was "We just haven't had the opportunity to research this yet, so we can't comment at this time." Doubtless Hoffman was thinking that this may turn out to be a very controversial case and that, therefore, OMG would almost certainly need to do a full legal review before commenting publicly, since anything he said now could and would come back to haunt him and of course, his members.

"A Danger to the Economic Future" - Len Bullard

Len Bullard takes the trouble to explain that claims like Northrup's are "a danger to the economic future where integration of large complex technical systems depends on deeply detailed technical information."

So, while something needs to be done to change and improve our current patents system, Bullard's view is, "For that to become a political, and therefore, addressable problem, the pain of not solving it has to be felt where the money is and also unfortunately, a lot of money is being made by those same interests from the existing system, so who is going to bell the cat?"

The best thing he can see happening, he concludes, "is for the technical community itself to begin to develop solutions to the issues of research into prior art, for example, open online libraries of standard documentation in each field that will enable better discovery processes."

Fortunately, as Bullard notes wryly, "XML and the Web are ideal for precisely this kind of solution!"

For more background, see Maureen O'Gara's article on Northrup's patent claims.

About Jeremy Geelan
Jeremy Geelan is Chairman & CEO of the 21st Century Internet Group, Inc. and an Executive Academy Member of the International Academy of Digital Arts & Sciences. Formerly he was President & COO at Cloud Expo, Inc. and Conference Chair of the worldwide Cloud Expo series. He appears regularly at conferences and trade shows, speaking to technology audiences across six continents. You can follow him on twitter: @jg21.

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Reader Feedback: Page 1 of 1

The trouble with this idea is that the USPTO believes its function in life is to grant patents, as many as possible. Inventors are their customers, and the more patents they grant, the more successful they consider themselves. They therefore have less than zero interest in weeding out bad patents, unless indeed they are so bad that they will be broken in court (which hardly ever happens).

Hey, I just noticed your article on bogus patents.

How about this:

An "open" project in the tech community, with participation from the USPTO, to screen prior art for patent-defeating capability. Then, the good
candidates are selected, and the prior art claim made for each.

And if there could be made a law forcing all patent-holders to return monies received due to lawsuits against patent violators, then it turns the whole "patent pending" fear onto the patent holders if they go about making a
bunch of patents and suing people, as this guy Northrop is doing.

Since the USPTO hasn't the capability, they should rely on the "peer review"
of the Internet community to provide "prior art" searching and screening to cut out the work they have to do. This then can more easily defeat bogus patents.

Cheers,

Graham

Hmm. A lot of the patent claims fit what the Netlib server does. Netlib has been serving files and information since 3/21/86. Originally it worked only by email.

For that matter, simple uucico/uux also fits the claims.

Netlib requests are sent to a server, which uses various means to produce a reply.

SMTP servers connect, exchange identity info, send/accept email, pipe through procmail to the C programs and shell scripts which netlib uses to send back the requested information.

It also was using uucp a lot back then, with some login and file transfer methods before reaching sendmail.

If that isn't interesting enough, Xnetlib is an X11 Windows system client for netlib. Created in 1991, and includes access to info in a database of performance data.

Source code http://netlib.bell-labs.com/netlib/misc/netlib
There also is a published paper about netlib in that "misc" directory.
See http://www.netlib.org/ also, and
http://www.netlib.org/utk/people/JackDongarra/

I do hope someone is researching the Noerthrup patent in depth
to determine what level of technical validity it has. The problem is in
this game, it could be a good patent. (I doubt it.) Note that Intergraph had to
battle Intel over the hardware patents for almost ten years. It cost
us our hardware division and a long time in the mud, but we won
and since then, it has been very lucrative. The issues of intellectual
property, bad patents, the USPTO system and resources, and software
vs other kinds of patents have to be treated as related but separate
issues. I've seen the whole range from 'this patent is bad' to 'patents
are bad' to 'if you love us you will give it to us so we can compete
against you on more equal ground without doing the research or
paying the dues to get into the business'. It seems that integration
of worldwide systems have to enable IP and equity and that isn't
easy to achieve. The mob-nopolists of the early part of the last
century did a wonderful job of getting 'good enough' systems into
a lot of hands for reasonable costs. Can we have a system which
demands ubiquity but also innovation and not account for the costs
of R&D to create IP? It seems that we want to catch lightning
bugs in a jar to light our rooms at night without punching holes
in the lid or understanding lightning bugs don't live a long time
anyway, so we'll be out there every night until summer ends.

len

A basic tenet of busines : there are two ways to make money- make something happen, or stop something from happening. Unfortunately, some shrewd but lazy business men of the opportunistic variety throw some poop into the ventilator hoping someone will pay them to stop.

This is like the idiot who thought he could patent the Y2K-related date windowing algorithm that was implemented in COBOL code dating back at least to the '60's. Ignore him and he'll go away.

I begin to wonder whether it is time to question whether in fact patents have reached such an absurd level as to render them meaningless. Rather than providing incentives to innovators to create new technology, the original purpose of such patents, they have become vehicles for stifling research and letting established moneyed interests develop monopolies based not upon the technical prowess of their innovation but upon the depth of their pockets.

Given the accumulative nature of programming in particular, you can effectively find "prior art" for most new technologies in works that go back to the beginning of the computer revolution. If this is the legacy of the proprietary software model, then their ultimate results will be the entire deconstruction of the software industry, which serves no one.

The United States should follow the lead of a number of European countries in limiting or eliminating outright the use of patents with regard to the intellectual property involved in software creation. It would have an immediate salatory impact upon the currently moribund software industry, and might actually insure that the people who create the software are more adequately rewarded for their efforts.


Your Feedback
John Cowan wrote: The trouble with this idea is that the USPTO believes its function in life is to grant patents, as many as possible. Inventors are their customers, and the more patents they grant, the more successful they consider themselves. They therefore have less than zero interest in weeding out bad patents, unless indeed they are so bad that they will be broken in court (which hardly ever happens).
Graham Fair wrote: Hey, I just noticed your article on bogus patents. How about this: An "open" project in the tech community, with participation from the USPTO, to screen prior art for patent-defeating capability. Then, the good candidates are selected, and the prior art claim made for each. And if there could be made a law forcing all patent-holders to return monies received due to lawsuits against patent violators, then it turns the whole "patent pending" fear onto the patent holders if they go about making a bunch of patents and suing people, as this guy Northrop is doing. Since the USPTO hasn't the capability, they should rely on the "peer review" of the Internet community to provide "prior art" searching and screening to cut out the work they have to do. This then can more easily defeat bogus patents. Cheers, Graham
Scot Wilcoxon wrote: Hmm. A lot of the patent claims fit what the Netlib server does. Netlib has been serving files and information since 3/21/86. Originally it worked only by email. For that matter, simple uucico/uux also fits the claims. Netlib requests are sent to a server, which uses various means to produce a reply. SMTP servers connect, exchange identity info, send/accept email, pipe through procmail to the C programs and shell scripts which netlib uses to send back the requested information. It also was using uucp a lot back then, with some login and file transfer methods before reaching sendmail. If that isn't interesting enough, Xnetlib is an X11 Windows system client for netlib. Created in 1991, and includes access to info in a database of performance data. Source code http://netlib.bell-labs.com/netlib/misc/netlib There also is a published paper about netlib in that "misc" d...
Len Bullard wrote: I do hope someone is researching the Noerthrup patent in depth to determine what level of technical validity it has. The problem is in this game, it could be a good patent. (I doubt it.) Note that Intergraph had to battle Intel over the hardware patents for almost ten years. It cost us our hardware division and a long time in the mud, but we won and since then, it has been very lucrative. The issues of intellectual property, bad patents, the USPTO system and resources, and software vs other kinds of patents have to be treated as related but separate issues. I've seen the whole range from 'this patent is bad' to 'patents are bad' to 'if you love us you will give it to us so we can compete against you on more equal ground without doing the research or paying the dues to get into the business'. It seems that integration of worldwide systems have to enable IP and equit...
steve rosen wrote: A basic tenet of busines : there are two ways to make money- make something happen, or stop something from happening. Unfortunately, some shrewd but lazy business men of the opportunistic variety throw some poop into the ventilator hoping someone will pay them to stop.
Dan Clamage wrote: This is like the idiot who thought he could patent the Y2K-related date windowing algorithm that was implemented in COBOL code dating back at least to the '60's. Ignore him and he'll go away.
Kurt Cagle wrote: I begin to wonder whether it is time to question whether in fact patents have reached such an absurd level as to render them meaningless. Rather than providing incentives to innovators to create new technology, the original purpose of such patents, they have become vehicles for stifling research and letting established moneyed interests develop monopolies based not upon the technical prowess of their innovation but upon the depth of their pockets. Given the accumulative nature of programming in particular, you can effectively find "prior art" for most new technologies in works that go back to the beginning of the computer revolution. If this is the legacy of the proprietary software model, then their ultimate results will be the entire deconstruction of the software industry, which serves no one. The United States should follow the lead of a number of European countries in limiting...
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