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The Patents Are Coming
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DNS resolvers have been doing what this claim claims for a long, long time (since at least the mid 1980's.)
If one looks in the Unix/Linux/BSD configuration file /etc/resolv.conf one will often see a list of possible suffixes. If you try to do something that uses a non-fully-qualified domain name (FQDN), for example you say "ping foo", then the resolver will try out the various suffixes to see if it can find a domain name lookup that works. To my eye, that mechanism does what the claim claims. (The patent claim makes no statement about whether the search is in parallal or serial.)
(By-the-way, it is this search mechanism that new.net used.)
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The claim I posted is one of quite a few in the patent. I am inclined to doubt that DNS resolvers in the 1980's were doing such further steps as displaying the resulting list as an HTML form and providing the user an option to purchase items from the list.
But this mechanism is most likely on the list of things someone may need to argue should be combined.
The rational way for registrars to approach this problem is to build up as much of an invalidity case as they can on the broad claims (if indeed invalidating art can be found), and investigate the possibility of designing-around the narrower ones.
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I highly doubt VeriSign will enforce its new patent through the Courts, as it would probably be overturned, just as AOL's patent on instant messaging would be overturned. However, VeriSign may use it as an "obey us, do as we say, or else ..." type thing (perhaps to get more registrars on side with the WLS or what not). It could be a powerful blackmail mechanism.
(I am not a lawyer, nor am I even a law student. However, from following the news on this type of thing for many years, there seems to be enough precident to substantiate Professor Froomkin's hypothesis or mine.)
Best,
Doug
Doug Mehus
http://dmehus.posterous.com/ [posterous.com]
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Obviousness is a question of fact under 35 U.S.C. 103. Nothing is obvious in a vacuum. In this instance, you are going to have to produce a piece of prior art, such as a printed publication or evidence of use or sale from one year prior to the application date, which shows the invention substantially as claimed. Then, you are going to have to show that any differences between the prior art and the claimed method are modifications that would be made by one of ordinary skill in the pertinent art, in accordance with a known motivation to make such modifications.
Proving obviousness is more than a matter of having two parties asserting "tis" and "tis not".
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Yes. But.
While only a limited number of appellate decisions discuss obviousness in the context of software patents, there is some reason to believe that the court is imposing a rather strict standard. The first case involving the obviousness of a software-implemented invention is, perhaps surprisingly, a Supreme Court case from the 1970s. In Dann v. Johnston, [FN48] the Court held a patent on a 'machine system for automatic record-keeping of bank checks and deposits ' invalid for obviousness. [FN49] The Court took a rather broad view of obviousness in the computer industry, focusing on whether systems analogous to the patentee's had been implemented in computers before, rather than analyzing the precise differences between the patentee's program and the prior art programs. [FN50] The clear implication of the opinion is that if a reasonably skilled programmer could produce a program analogous to the patented one, and if there was motivation in the prior art to do so when the program was written, the patented program is obvious and thus not patentable.
...
The Federal Circuit has found software patents invalid for obviousness in two recent cases, Lockwood v. American Airlines [FN51] and Amazon.com v. Barnes & Noble. [FN52] Neither case opined directly on the ease with which computer programs could be produced, but both viewed obviousness as a rather substantial hurdle to patenting software. [FN53] In Lockwood, the question was whether the defendant's own system made the patented claims obvious. The system had been in public use, but American Airlines had kept the workings of the system secret. Nonetheless, because Lockwood's patent was claimed in broad functional terms, the court found that similarly broad functional disclosures in the prior art were sufficient to render the patent obvious. While Lockwood argued that the information provided was not sufficient for one skilled in the art to make and use the system, the court pointed out that it was as detailed as the information Lockwood's own patent provided. [FN54] Thus, the patent's meager disclosure of technical details indirectly contributed to the court's finding of obviousness. In Amazon.com, the court found Amazon's 'one-click' shopping feature to be obvious in view of certain references describing the desirability or feasibility of such a system in general terms, and one prior system that delivered data online in response to a mouse click. The court rejected arguments that the one-click feature was technically difficult to implement, relying on the fact that the prior art generally described such a system as both desirable and feasible. The court also gave surprisingly short shrift to Amazon's evidence of secondary considerations of nonobviousness. [FN55]
The likely result of the Federal Circuit's focus on high-level functionality is that improvements in programming techniques will be found obvious and thus not patentable in view of prior art that solved the same basic problem in a somewhat different way. This was arguably the result in both Dann and Lockwood, [FN56] and it seems to follow from the court's view in the section 112 cases that programmers are an extremely skilled bunch needing little or no guidance from the prior art in order to implement a new idea in software. While disclosure is a minimal hurdle for software patents, then, obviousness can be a rather tough one. [FN57]
Dan L. Burk and Mark A. Lemley, IS PATENT LAW TECHNOLOGY-SPECIFIC?, 17 Berkeley Tech. L.J. 1155, 1167-68 (2002)
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"In Amazon.com, the court found Amazon's 'one-click' shopping feature to be obvious in view of certain references describing the desirability or feasibility of such a system in general terms..."
I hear you. The thing with patents relating to domain name registration systems is that, in patent terms, it has not been very long that more than one party has been thinking about domain name registration systems. It was only from September 1995 forward that anyone thought about charging money for domain name registrations.
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Personally, I'm getting pretty much fed up with intellectual-property people of all sorts... they've all taken enormous liberties with the scope of their claimed property rights, to the detriment of freedom and true innovation.
* COPYRIGHTS: Congress has steadily extended their duration (recently upheld by the Supreme Court), so that works created in the 1920s and later might never go into the public domain. This is being done largely to protect Disney characters (some of which were created in the '20s and would be public domain by now under the laws in effect at that time), though, ironically, Disney has benefited greatly from the availability of public domain stories from earlier centuries which they can adapt into movies (e.g., Snow White, Beauty and the Beast, The Little Mermaid). Meanwhile, laws like the Digital Millennium Copyright Act criminalize reverse-engineering around protection measures, even when it's done to enable fair use protected by law.
* TRADEMARKS: Originally intended to protect consumers from marketplace confusion and deception, they have been expanded to the point where companies can claim to own common English words in all of their possible uses, and gain a pre-emptive right to grab them in any new namespace that is devised.
* PATENTS: The USPTO has been granting patents to the most mind-numbingly obvious concepts, as long as they involve computers or the Internet. The true innovators of the Internet have mostly let their inventions be used freely without attempts at claiming IP rights to them; now a whole swarm of parasites has descended to try to profit from gaining proprietary rights to things that ought to be free for all, and the government has gone along with them.
Is there any solution to all of this, other than lining up all IP lawyers against a wall and shooting them?
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Is there any solution to all of this, other than lining up all IP lawyers against a wall and shooting them?
Well, I hope so. The traditional alternative is to get involved in politics, or at least donate money, so that more sensible people get elected and make better laws. Starting "WIPOwatch" wouldn't hurt either...
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Sadly, both the Democrats and Republicans tend to side with copyright holders now and support the extension of the term of a copyright. It used to be that you could elect a Republican if you were against such things, but that isn't so anymore. I suppose there are always Libertarians, but the chances of one getting elected are slim.
Best,
Doug
Doug Mehus
http://dmehus.posterous.com/ [posterous.com]
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Gentlemen (& Ladies),
This patent issue, where the US Gov't is issuing rights on global public developments, is one of the reasons for the general distrust/dislike of the US Citizens by the people outside of the USA.
How many of these techniques originated outside of the USA? The US Patent office should be much more careful in its checking of who invented the techniques. Even if the technique was developed in the US, if the technique has been public domain why should the rights be granted by one local Government to one corporation? At the very least giving the sole rights of a public facility to one sole commercial organisation often degrades its potential.
Verisign (or it's components) for a long time held a monopoly on the .com addresses, anyone who had to deal with them will remember those nightmares of poor service. When the .com was opened up to international registrars life became a lot easier for us all.
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There's *shedloads* of prior art for this. I mean, just take a look at CentralNic's 'Ferret' application which we've had since late 1999 (see here [centralnic.com]). --
CTO, CentralNic Ltd. [centralnic.com]
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If the patent was filed in 1998, why is a 1999 event relevant?
That said, why isn't gopher relevant prior art?
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The critical date for prior art under 35 USC 102(b) is difficult to determine. The application is based on a provisional filed on August 15, 1997. On the assumption that the provisional supports the claims, then the 102(b) bar date would be August 15, 1996. That's one of the things that makes the patent people more fun than the trademark people - it takes us a lot longer to show up.
Gopher did not:
(a) accept user input containing a domain name and a plurality of domains (i.e. a requested SLD and a selection of TLDS)
(b) transmit a request for a search of the domain name to each of the DNS servers associated with the plurality of domains
(c) receive search results from each of the DNS servers associated with the plurality of domains indicating, for each of the specified domains, whether a domain name record exists for the domain name in the specified domain; and
(d) display the search results.
Gopher did searches and displayed results, but you have to be a lot closer than that that. And, of course, we are looking at only one claim of a number of claims of varying scope. Gopher certainly did not display such results as an HTML formatted checklist and allow the user the option to purchase any of the displayed domain names, as noted in other claims of the patent.
Do you remember what Domain Name registration looked like in 1997! [archive.org]
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In August-November of 1995 I wrote the systems for NetNames (www.netnames.co.uk) that did exactly what NetSol are claiming they invented.
A Dec 1996 version is still around at archive.org
http://web.archive.org/web/19961224130952/http://w ww.netnames.co.uk/
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My understanding (IANAL) is that prior art always counts if it's one year (or more) before the filing date. The provisonal only matters in that it establishes a date of invention, (prior art counts if it's before the date of invention, even if that's only one month prior to filing).
The patent was filed 1998-08-13, so anything prior to 1997-08-13 counts (if I'm right).
Since all a registry would need to do to beat this is locate a server in a country that doesn't recognize software patents and relay it's queries through the box, I don't see much comming of this patent other than I'll will towards Verisign if they attempt to enforce it.
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No. The provisional application establishes an effective US filing date that is applicable to all claims finding support in the provisional. Now, on the assumption that the claims are supported in the provisional, the 102(b) date for prior art is one year prior to the filing date of the provisional application (as that is the effective US filing date).
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Too bad you didn't have it in 1996, when it would have some relevance to the validity of this patent. Yes, your 'Ferret' application is a prime example of an infringement of this Verisign patent.
Since you immediately recognize the relevance of the patent claims to your "Ferret" application, but you don't seem to appreciate that "late 1999" is well past the effective date of this patent, this could be the first time I have ever seen anyone admit patent infringement on a public bulletin board.
For willful infringement, you can multiply monetary damages by 3X, and pay Verisign's attorneys' fees.
But don't feel too bad. It is beyond clear that pretty much every registrar performs the patented method, so it may be a while before Verisign gets around to suing you.
Of course, turning back to 1997, one might have thought, "Hmmmm.... I have a monopoly business that someday might be opened to competition... Now, what might I do to 'welcome' the competition but eventually gain an advantage..."
This, by the way, is hardly the only Verisign patent application that has been in the pipeline. If you think about everything they were doing in the late 1990's, and the fact that they were the first and only ones doing it...
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"Most registrars to not use DNS servers to check availability of domains. "
That is a very good point, however it is important to understand a few things about how to interpret patent claims.
Thing 1 - Avoiding infringement is not a game of wordplay, but one of substance. One can be found liable for infringement even if one literally avoids a feature of the claim, under the Doctrine of Equivalents by which a claim element may be understood to embrace the use of other elements which are not substantially different.
Thing 2 - The starting point for interpreting what might be included within the language of the claim is the specification of the patent itself. A patentee is entitled to be his own lexicographer, and it may well be that the what they mean by "DNS Server" is understood within the text of the patent to have a meaning that is not in exact correspondence with what you might otherwise think it means in a vacuum. Patents do tend to often be written by attorneys who are not sensitive to the nuances of meaning among various technical terms (although all US patent attorneys are required to have at least the equivalent of an undergraduate degree in one of a specified set of technical disciplines).
But, yes, you have a very good point.
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If I read the claims correctly, each one of them involves the user specifying not only a domain name, but a list of domains. If the user doesn't specify a list of domains, it's not covered by the patent. IANAL, but it looks to me like any web site that does not ask the user for a list of preferred domains (or maybe countries) is not covered by the patent at all. Looking up the domain name in all TLDs is the loophole.
Chrischeck out Center for Responsible Nanotechnology http://CRNano.org
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The way that most registrars do this, though, involves a check-off list of TLDs to search. Even absent that feature, though, if the "submit" button takes the user input and a form set of TLDs, the claims might be interpreted broadly enough to cover that type of situation.
Besides, Verisign may have been smart enough to have filed a continuation application before this one issued, so that they could tweak the claims if need be.
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