If HTML Were Invented Today, Someone Would Try To Patent It

from the patently-pointless dept

Another day, another silly patent application. John points us to a blog post about a a bizarre patent application to patent what the <script> tag is often used for. The patent application in question is for a method of <script> based remote JavaScript function call of web page. The blog post is by Brent Ashley who notes not only is the patent quite obvious, on a technique that the tag was designed to do and is used by many people, the actual code used in the patent application just so happens to have been copied directly from his own published code. So, not only are they trying to patent a patently obvious idea, they’re using someone else’s code to do so. Has anyone tried patenting HTML yet?


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Comments on “If HTML Were Invented Today, Someone Would Try To Patent It”

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54 Comments
Jerslan says:

Can you patent a language? I’d think that would need to be covered by copyright. Now the parser/interpreter/compiler for said language could be patented (and this has been done many times over by various people and companies). You can also patent specific processes using said code so long as they are non-obvious. But the language itself? I think not.

Gary Gex says:

Re: Re: Re: Re:

“Catch words, phrases, or combinations of linguistic words” cannot be patented. They do not fall into the Patent Act’s requirements for statutory subject matter since they are not useful; the law says they lack “utility.” The reason that the use of tags was considered to have utility in the patent at issue here is that the tags were used to accomplish a task in a program. (BTW, you cannot copyright slogans or small phrases, so you would not be able to copyright catch words, phrases, or combinations of linguistic words either.)

Gary Gex says:

Re: Re: Patenting a language

I hate to say it, but yes and no. As one poster correctly stated, one cannot patent English since it is a natural language. As to artificial languages, e.g. a new programming or scripting language, the actual language specification _by itself_ would be quite unlikely to merit protection. Thus, you will likely fail to get a patent if you merely submit BNF for a language, along with some additional description and a few claims. However, one probably can claim _uses_ of novel features of an artificial language if they have so-called utility.

Gary Gex says:

Timing and obviousness of the patent at issue

Without commenting on the actual validity of the patent, two observations: First, the issued patent claimed priority to a provisional “placeholder” application filed on Dec. 1, 2000 – this means that the patent examiner at the PTO evaluated the merits of the patent application based on what was available before that date. If the examiner did not find evidence that anyone was “doing” what the patent applicants claimed as of Nov. 30, 2000 or earlier, he or she would have come to the conclusion that it was novel. This seems to be shored up since Brent said, “Numerous people have ‘discovered’ and exploited the value in using the script tag to get code and data on the fly since that time.”

Second, Brent wrote, “It’s an obvious logical use of the functionality for which it was designed.” Apparently, this is where the obviousness assault should have been levied by the examiner. It could be that this is where any successful invalidity challenge in court would occur. Brent correctly notes that the patentee “has the upper hand;” an issued patent is presumed valid and can be found invalid in the face of clear and convincing evidence that it was not novel or it was obvious. This is a tough standard to meet, but note that more than one patent litigation has terminated very early if there is clear evidence of prior art which renders a patent invalid.

So, it could well be that this particular patent will not survive if challenged.

Gary Gex (user link) says:

Re: "year and a day" statutory bar

Phlatus asks if “thing could not be patented if it had been in common use for more than a year and a day.” In fact, according to the Patent Act statute 35 USC 102(a), if the invention was known or used by others in this country anytime before the idea was conceived of by the patent applicant, no patent should issue.

The year long “grace period” is what Phlatus is thinking of. This refers to the statutory bar 35 USC 102(b) which says you cannot get a patent if “the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.”

There are many other aspects to 35 USC 102, but that covers the question generally.

No one you'll listen to says:

no small phrases?

Gary Gex:BTW, you cannot copyright slogans or small phrases, so you would not be able to copyright catch words, phrases, or combinations of linguistic words either.

Can’t you trademark them tho? Like Pat Riley did with the phrase Threepeat?

BTW: I patented the trademark. oh, and cut and paste. yeah, that’s it.

Gary Gex says:

TM for no small phrases?

The question posed by Anonymous and “No One” is : “Can’t you trademark [short phrases] tho? Like Pat Riley did with the phrase Threepeat?” Yes, one can associate a phrase as a common law trademark designation with goods or services for sale without any governmental agency approval (TM vs. SM, respectively, plus some other categories not worth going into, like the Goodhouse Keeping seal of approval which falls into a different type of mark) . One can also seek federal trademark registration from the Patent and Trademark Office, which permits legitimate use of the ® symbol if the PTO grants you the mark. But the thing to remember is that a trademark is merely a device to permit vendors the ability to distinguish their goods or services from those of other vendors. Think branding. A strong trademark affords the right to keep others from passing off goods with your mark, but it is not the same type of protection afforded by patents; patents give the right to exclude others from practicing the invention, and is a stronger protection than copyright or trademark. That is one of the policy reasons why patents have a much shorter duration than copyright. On the other hand, trademarks can have potentially infinite duration, but if you don’t use it to sell your goods/services, you lose it.

brwyatt says:

I patent breathing and oxygen. Pay up or learn to hold your breath!

I can’t believe all the retardedness in this country from greedy little pigs trying to get rich by STEALING ideas and taking their use away from the people of this country. I remember back when stupid patents were just bad ideas. (like the toilet snorkel or the Fish Bath (From http://www.totallyabsurd.com/))

brent ashley (user link) says:

obviousness

I think the obviousness argument in this case comes down to this:

If the patent process is working properly, the general public’s first understanding of this technique should come from reading the patent itself, since it is the expression of a unique unobvious patentable idea.

The fact that this particular technique is in wide use and has been for 5 years means that either:

a) everyone’s knowledge of the technique has come from the revelations contained in the patent

or

b) it was obvious enough than many other people arrived at the same technique without having been exposed to the patent.

If b), then the patent should be found to be invalid by reason of non-obviousness.

As a person who has taken great interest in this field since 1998, I contend that b) is how it played out.

Nicholas C. Zakas (user link) says:

Did the patent examiner read the spec?

Here’s what the spec says:

The SCRIPT element places a script within a document. This element may appear any number of times in the HEAD or BODY of an HTML document.

The script may be defined within the contents of the SCRIPT element or in an external file…If the src has a URI value, user agents must ignore the element’s contents and retrieve the script via the URI.

So basically, this guy (or group) has now got a patent using a technology in the way that it was intended to be used: to load data from the server. This is a shameful oversight by the USPTO and opens the door for a rash of patent applications for using specific parts of a language for their intended usage. I, at this moment, am filing a patent application for using XMLHttpRequest to retrieve data from the server.

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