Apr 262007

Silly, Silly Patent Nonsense

Silly, Silly Patent Nonsense

Some news floated around the email marketing world yesterday that is potentially disturbing and destructive but highlights some lunacy at the same time.  I hope I’m getting enough of the details right here (and quite frankly that isn’t a joke, which it feels like).

Tom DiStefano of Boca-based PerfectWeb Technologies is suing direct marketing behemoth InfoUSA for patent infringement of a business process patent for bulk email distribution that he received in 2003.

I will first issue my disclaimers that I’m not a patent lawyer (nor do I even play one on TV) and that I have only quickly read both the legal complaint and the patent.  But my general take on this is that it’s more silly than anything else — but has the potential to be destructive at the same time.

Silly reason #1.  I’d like to go patent the process of blowing my nose with facial tissue predominantly using my left hand after a sneeze — will you pay me a royalty every time you do that, please?  That’s a short way of saying that I am increasingly finding that the patent system is deeply flawed, or at least very ill-suited to the way technology and Internet innovation work today.  For centuries, patents have been put in place to provide inventors adequate incentive to invest in innovation.  That made sense in a world where innovation was expensive.  It took a long time and a lot of capital to invent, say, the cotton gin or the steam engine.  It takes a long time and a lot of capital to invent a new life-saving drug.  But Internet-oriented business process patents are just silly.  It can take a guy with a piece of paper a few minutes to sketch out a business process for some niche part of the Internet ecosystem.  No real time, no real capital.  And worst of all, it’s generally easy to “design around.”  Disclaimers and all, this seems to be just such a patent.

Silly reason #2.  The patent was issued in 2003.  Really?  I’m not sure when the patent holder claims he invented the bulk email distribution process, but unless it was in the early 90s before the likes of Mercury Mail, First Virtual, Email Publishing, etc., then it’s highly likely to be “non-novel,” “obvious,” and conflicting with lots of “prior art.”

Silly reason #3.  Why wait four years to prosecute a patent that the inventor believes has been violated so obviously by so many (hundreds, maybe thousands) companies for so many years?  I don’t quite get that.

I’m not exactly seeing the David vs. Goliath here.

So here we go.  It will likely take months and millions before this thing gets resolved.  If our legal system doesn’t come through as it should, or worse, if InfoUSA punts and settles, this is going to cause big problems for many, many companies in the industry.

I hope our friends at InfoUSA are happy to dig in and fight to have the patent invalidated, although that’s expensive and time consuming.  And assuming that the patent holder is likely to go on a rampage of legal complaints against every other player in the industry — someone should tell Vin Gupta that we can all band together to fight this silliness.  We’re happy to help here at Return Path.