More patent nonsense

As you read this I shall be packing my bags and moving to the US - a country that nurtures talent, rewards innovation and, more importantly, hands out patents like toffees.

My plan to profit from the bleeding obvious formed late last month, after learning that AT&T had filed a lawsuit against eBay.

AT&T asserts that eBay's PayPal service acts as a trusted intermediary, facilitating payments between buyers and sellers over the internet. Not much argument on that point, except that AT&T goes on to argue that it patented the concept in 1994.

The result was US patent number 5,329,589: "Mediation of Transactions by a Communication System". Never mind that Western Union began transferring other people's money by telegraph 132 years ago - AT&T's business method was deemed to be new and non-obvious enough for a patent.

While eBay's lawyers wrestle with AT&T, they must also work on their appeal in another case. In August eBay was ordered to hand $30m to start-up MercExchange after being found guilty of infringing US patent 5,845,265: "A method and apparatus for creating a computerised market for used and collectible goods". MercExchange filed its patent application on 7 November 1995. And eBay was founded to provide, er... a computerised market for used and collectible goods, on 4 September 1995.

And then of course there is the infamous Eolas patent, number 5,838,906, covering the seemingly not very large leap from applications embedded in documents to applications embedded in web pages. Microsoft found itself on the wrong end this patent and lost in court, prompting the W3C to cry foul and the US Patent & Trademark Office to mumble that it would look again at the patent.

We may not be able to patent such things in Europe, but of course that does not mean Europeans are immune to the effects. UK firms that do business in the US must join the game, for example, while the economic viability of UK products can be undermined if they can't be offered in the US without attracting royalties.

Often, patent disputes hinge on proving that a supposed invention actually existed beforehand. This can be tricky if the innovation seems obvious in hindsight. The advice from some patent attorneys is therefore to file claims early and often. It is possible to submit cheap provisional patent applications - incomplete claims that nonetheless prove useful if another party subsequently gains a patent for something you rely on.

Back here, the European Patent Office (EPO) is pondering moves that would expand the usefulness of the patent system. In October it published research showing that many firms are failing to gain benefit from patents in two ways: first by not seeking protection for their own inventions, and secondly for failing to see the patents of others as a source of competitive intelligence.

The EPO report concluded that "most companies have no idea what patent information can do for them" and that the EPO should make patent information easier to use, understand and to access.

So that is the germ of my patent application: a computerised searching system for uncovering market intelligence in patent documentation. Not original, clearly. Obvious? Probably. But neither hurdle seems insurmountable.

And then I'll sue Google.