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Traditionally, it has been a requirement that you actually invent
something *before* you patent it...
However, patents based on substitution of equivalents, like that
sought by Microsoft or already obtained by them in USPTO 6,662,341, allow
patent holders to establish patent claims *long before* the act of
invention. Also, patents of this style allow people to patent the
inventions of others -- in advance.
It works like this: You make a claim that is dependent on the use
of "HTML" or "XML" and are careful to avoid mentioning what version of
these things you are talking about. Then, as the definition of HTML or XML
develops over time, you find that more and more "fruits of innovation"
become encompassed by your claim every day. What your patent gives you is
a two decade, a priori, claim on ALL innovation and development in the
identified format *no matter who* is responsible for that innovation and
no matter what their motivation might have been.
Clearly, this is ridiculous and it should be viewed as
exceptionally anti-innovation and against the spirit and intent of patent
law. For instance, Microsoft currently seeks a patent on wordprocessor
files stored in XML and described using XSD. If they are granted that
patent, then it would make no sense for *anyone* other than Microsoft
employees to even consider trying to make XML or XSD any better suited to
handle whatever might be the unique issues related to word-processing.
Anyone who creates any general innovation in the realm of XML and
XSD should be aware that Microsoft would have a priori rights to exclusive
use of their innovation in the domain of wordprocessing for up to two
decades! Any innovation in this area would simply be a gift to Microsoft
and could result in no reward for the innovator unless it was "charity"
that Microsoft decided to give out. In fact, an innovator in this area
might actually be taken to court by Microsoft if they ever revealed what
they had done since the act of innovation might, in itself, disclose a
patent violation.
We need not fear that this *might* happen. It has already
happened. Many companies have patents whose claims contain references to
HTML, XML, etc. For instance, Microsoft already has USPTO 6,662,341[1]
"Method and apparatus for writing a windows application in HTML". Every
claim in that patent is dependent on HTML and every claim is something for
which there is abundant and ancient prior art -- if only one removes the
reference to HTML. Basically, what has been done here is the they have
slipped through a patent in a form that makes it look very limited (i.e.
they claim only HTML -- not all possible formats) but which is, in fact,
very broad. The claim is for HTML today and in the future... It patents
the not-yet-invented.
Perhaps what we should do is insist that W3C, etc. rename HTML and
declare that it will be renamed every year. Perhaps, we should have them
issue updates to all their specs and declare that referring to things as
"HTML" is not correct. You must refer to HTMLV40 or HTMLV401 or something
like that. Perhaps they should trademark their names and declare that
these names can only be used in patent claims if the inventor agrees to
pay royalties to W3C? Or, perhaps, we can just find a way to get this
business of patenting substitution of equivalents done away with.
bob wyman
[1] http://patft.uspto.gov/netacgi/nph-Parser?patentnumber=6662341
[As always, please be aware that this is *not* an "anti-Microsoft" post.
What they are doing, no matter how wrong it may be, is no different from
what many others are doing, have done, or seek to do.]
smime.p7s
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