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March 26, 2004 -- (WEB HOST INDUSTRY REVIEW) -- In astonished postings to Web hosting discussion forums last week, several hosting providers announced that they had received letters from a party representing Stateline, Nevada-based Ideaflood Inc. (ideaflood.com). The letter stated that Ideaflood has patented the idea of assigning users subdomains, such as AutomotiveWidgets.hostingcompany.com.
According to the discussion postings, the letter said that, since Ideaflood has patented the concept, further subdomain service for customers would require the purchase of a license through Ideaflood.
"We have utilized this idea for years," wrote the letter recipient, Sergei Geler, owner of San Francisco-based Freehomepage.com, in a posting to WebHosting Talk (webhostingtalk.com) "Isn't this general knowledge? How can it be patented?"
In an interview with WHIR, Geler indicated said he is already taking steps to protect himself and his small business. "I'm not sure how enforceable this patent is," he says. "But I know that the company that services the back-end of my services has been providing subdomain name hosting well before this patent was issued, which was in 1999. I hope that small business owners who do not have extensive legal support are not being targeted. I have contacted the company that services back-end for my company, and they informed me that their legal counsel is in the process of preparing a defense and that my service will be under the umbrella of their guidance."
Ideaflood did not respond to repeated requests from theWHIR for comment. But the revelation has sparked much discussion among Web hosts about the legal framework behind such a development - not to mention the enforceability of Ideaflood's intent. After all, if they can go after user subdomains, what's next, Host-provided email accounts?
"This is like Al Gore claiming he invented the Internet," wrote one discussion group participant. "Somebody help me here... Am I reading this wrong or am I going to have to pay royalty fees to somebody to be a Web host?" wrote another.
The sense of outrage and caution was palpable, given the stakes.
"This is a patent on what is an obvious 'thing' to do," says Gary Harris, owner of Toney, Ala.-based Dixie Systems LLC (dixiesystems.com), who found an online version of the claimed patent. "It's not a new idea, or new concept, or even a rebuild of an old concept in a new way. It's just a patent on the automatic creation of subdomains. If they really want to go after someone, they should go after the companies selling the software that allows them to do this. But this company apparently just goes after the small fish who don't have money to fling at lawyers." Harris suggested better public dissemination of patents during the request process, so more people can see it (and raise objections) before it's given the green light by government officials.
Ideaflood secures many Internet-based patents, according to its own Web site. It describes itself as an intellectual property holding company. On Feb. 10, 2003, it announced that it was looking for a buyer for its "Patent No. U.S. 6,389,458, covering exit traffic on the Internet," which is "one of the most widely infringed patents ever issued by the U.S. Patent & Trademark Office." Ideaflood also has claimed patents on addressee-defined mail addressing systems; managing ownership of virtual property; aggregating information over a wide-area network; and a host of other Internet-based methods, systems and practices.
Web host industry representatives question whether everything they do can be patented and sought for licensing compensation.
Christopher Falkowski, a legal specialist in these topic areas for Bloomfield Hills, Mich.-based Rader, Fishman and Grauer (raderfishman.com) says a number of key requirements must be met to obtain a patent, whether that patent is in the area of Web hosting operations or any other technical field: The invention must be new or novel. It must be non-obvious. The persons claiming the patent must be the inventors. And the patent application must be filed within one year of a public disclosure or sale.
"The short answer is that there are no special rules for Web hosting patents," Falkowski says. "The challenge with Web hosting and other IT-related patents is that the determination of what is novel and non-obviousness requires a good search, and it can be difficult for the U.S. Patent and Trademark Office to conduct searches where so much of the prior art is not in the form of a patent." This pretty much puts the Web host in the position of having to battle in court if the patent holder want to enforce its rights.
"Respond," says Susan Kohlmann, an intellectual property litigator for the New York-based firm of Pillsbury Winthrop (pillsburywinthrop.com). "Never ignore a cease and desist letter, even one that you believe is ill-founded. Rather, we would suggest responding by seeking more information - only then can you assess the validity of any claim they might have, and, if the claim is valid, whether the licensing fee is appropriate or some other negotiated solution makes sense."
Much of the problem is that the Patent and Trademark Office often grants patents on software without investigating fully what related technology is in the public domain, says patent lawyer Mary Dicig, of the Chicago-based firm, Schwartz Cooper Greenberger and Krauss (scgk.com).
"Business method patents that cover software programs weren't legal until a few years ago," Dicig says, "so there is no comprehensive way for the PTO to search for software and computer-related technology that's already been invented, other than that described in patents and published applications. For instance, if the patent office didn't know about WordPerfect 1, it could issue a patent on word processing because it has no way to know that word processing was already invented."
Says Eric Prager, a Seattle-based partner at Darby and Darby (darbylaw.com), an intellectual property firm: "Yes, you can be sued. And you probably will be. Many industries face the same issue. Patents take years to work their way through the U.S. Patent and Trademark Office. Industries, especially in the information technology space, often develop more quickly than the applicable patents come to light. This can be a rude awakening for companies that have not already factored into their business plans the likelihood that someone will come knocking with a patent they may infringe. Lots of great inventions seem obvious in retrospect. About 30 years ago, one of our clients realized that if you attach a small pom-pom to the back of a short tennis sock, the sock won't slip down into your tennis shoe. The idea sounds obvious, but designers had wrestled for years with the problem until our client solved it. He patented the idea - and retired."
Read Back Issues of WHIR Magazine
October 2009 - Web Hosting's All Star Team
This has been, for us, one of the most interesting, exciting and challenging build-ups to an issue of the magazine yet, Web Hosting's All Star Team. The balloting process was our first experiment with a kind of user participation we're planning to do a lot more with in the months to come. We had thousands of ballots submitted, with hundreds of write-in suggestions and a demonstration of user engagement that has us feeling super positive about the project.
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July 2009 - What am I Worth?
One of the interesting luxuries of working on a project like the printed WHIR magazine is that it allows us to play with things like our point of view from one issue to the next. In recent months we've been giving added attention to the kind of practical and applicable advice aimed at smaller hosts and resellers. This issue carries on with that point of view, asking, in our cover story, "what am I worth?" It's a complicated question without a clear-cut answer.
About This Issue | Read Digital Edition
May 2009 - The Blueprint for a Small Web Host
I was a little surprised by how difficult it became to see this idea through. We set out to assemble a blueprint for a small hosting business, but butted up pretty quickly against the general impossibility of covering all the territory that was out there to be covered. The basic constraints of a printed magazine, and the less-than-infinite amount of time we had available forced us to face the fact that we could never produce an exhaustive guide to starting a hosting company.
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