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6.11.2004
Patents & Nonobviousness: The Miniseries (Part IV)
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Earlier episodes: Part I; Part II; Part III.
Orbitz, the online travel reservation service, emailed me an example of the kind of patent over-reach that is roiling the tech world.
"We have just been sued (again) by a patent claimant asserting that our Customer Care system, which uses the airlines' tracking of their aircraft, combined with our own evaluation of the weather, air traffic control, and current news events, to help forewarn travelers of delays, infringes their claimed patents relating to systems that track and report on the location of vehicles and things in transit. One patent's claims are so broad, I would suggest that the stationmaster's announcement of the arrival of a local Amtrak train would constitute an infringement."
The patent holder is ArrivalStar, and a look at its website is interesting. It holds 14 patents and has 14 more pending, and it says:
"Our patented technology connects vehicle location information with people, delivering automated status notification via telephone, wireless device and the internet. The applications are broad based and include the transportation, cargo, mail, service and school bus sectors."
ArrivalStar's page on licensing has this cheery warning:
"Note: It is ArrivalStar's strong belief - confirmed by expert opinion - that the reach of its patents is now such that most components necessary to implement a fully functioning notification system are comprehended by them. It is the company's policy to vigorously enforce its intellectual property rights wherever such enforcement is deemed necessary."
Now, perhaps I will be enlightened by ArrivalStar's lawyers, but how can these assertions stand? Unless the company has patented a slew of specific technologies and computer programs, it is staking out a claim to the very concept of tracking vehicle location and communicating this information, the obvious desirability of which (once it become technically possible) is a true no-brainer. To return to my Part II reference to the 19th century Tanner Brake case, this would be akin to patenting the abstract concept of applying brakes to two sets of train wheels at the same time.
The losers would be companies that are actually developing practical ways to track vehicle location, such as Orbitz, or Garmin, which is the leading company on public applications of GPS data. (Plus FedEx, UPS, your local school system, the U.S. Post Office, Wal-Mart, and so on and on.)
Note also that ArrivalStar is not an operating company. This is very important. So far, the tech world has escaped patent gridlock by following a combination of reciprocity and Mutual Assured Destruction (MAD). Inventions are cross-licensed wholesale, commitments are made to RAND (Reasonable-And-Non-Discriminatory) pricing, or to "commercially reasonable" terms, and the system works because the operating companies are both creators and users of patents and have a strong interest in avoiding gridlock.
A company like ArrivalStar is not in this system. It is solely a holder of intellectual property, so it has no interest whatsoever in reciprocity and reasonableness. (I don't know about this one in particular, but I am told that many of the specialized patent-holding companies are joint ventures between venture capitalists and vulture law firms, the same kind of opportunists who brought us the asbestos crisis.)
Mr. Justice Bradley -- where are you?
posted by James DeLong : 6/11/2004 09:47:23 AM
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