(April 23, 2003) - In an odd twist, even though the WWW was conceived by Tim Berners-Lee in 1989 and the first public release of a WWW client and server was in 1991, such "prior art" (as it is known in patent circles) seems not to have discouraged New Jersey-based Charlie Northrup from claiming patent number 6,546,413 ["Access Method Independent Exchange Using a Communication Primitive"].

The result - for the US Office of Patents and Trademarks granted it after many years of deliberation - according to many commentators including Maureen O'Gara of LinuxGram, is that Northrup now holds the patent on nothing less universal than what we now call "Web services."

But is it really that simple? XML-J Industry Newsletter was quick to consult those "in the know" within the XML and Web services community...and they are apparently not in agreement that 1994, which is the year Northrup's patent application actually dates back to, is really early enough for this patent to apply to Web services.

The claim that Northrup's ideas on Web services are the earliest is "rot," according to Uche Ogbuji of Fourthought, Inc. Ogbuji calls it "a silly claim."

"Let us set aside the fact that you cannot patent ideas," he continues. "Patents apply to mechanisms (or, thanks to an execrable fumble by the US Supreme Court, to business processes). If [Northrup] had any mechanism that looked like Web services in the early eighties, then it would also have had an unmistakable resemblance to OS mailbox technology that was built into DEC machines as early as the late 70's. Web services are, despite the hype, such a mundane and generic technology that finding ancient roots of any Web services mechanism would be a matter of a quick stroll through the archives."

"Northrup's Claim Potentially Fatal to Web Services" - Tim Bray

Tim Bray, co-inventor of XML, is equally dismissive. "Charlie contacted me a couple of times," he tells XML-J IN. "I told him that in my view that patent should not have been granted, and would not stand up in court, due to having failed the 'obviousness' test. Clearly he disagrees."

Bray adds a very strong cautionary note. "If [Northrup] managed to enforce his claim the consequences would be disastrous; it would become impossible to have Open Source implementations of key pieces of the infrastructure. This would be harmful, perhaps fatal, to the grand plans of those who want to deploy Web services everywhere."

Veteran markup specialist Len Bullard isn't any more sanguine than Bray. "I can't understand such a patent," he says. "There is too much prior art and research in this field. Web services are coming about as a result of standardization, not innovation."

Bullard points out an odd precedent, on the other hand. "The patent on stylesheets held by Microsoft," he notes, "has never been challenged although the prior art again, is well documented. And the Sun patent on hyperlinking was the same kind of patent: bogus but unchallenged."

"Unfortunately," Bullard continues, "our patent system has come down to a contest of money, lawyers, and stamina because the patent office does not have the expertise or resources to verify obscure claims."

BEA's Tyler Jewell as usual takes a refreshingly honest and upfront view. "I find this quite humorous," he says. He hasn't read the patents, he notes, "so it's hard to comment on specifics" but he doesn't see this patent impacting the industry in the slightest.

"Web services," Jewell explains, "are as much a design philosophy and approach to business integration as they are a technology. No matter what patents exist, the methodology and philosophy of Web services will be used without penalty. As for the technology side of Web services, the specifications on which they are founded are supported by standards organizations that have legal licenses for them."

His parting shot is vintage Jewell: "Charlie's lawyers are going to have a devil of a time determining what Web services even are, much less figuring out how their patent remotely applies."

"If this means we cannot use UDDI, I'm all for it!" - Sean McGrath

Propylon CTO Sean McGrath is of a similar view: "Given the highly general definition of a Web service from the W3C - including as it does everything from a CGI script to a SOAP 1.2 uber-XML API, I don't see how a patent could stick."

In typically historical fashion, McGrath continues: "The concepts of algorithm invocation by means of function call probably goes back to Babbage. Everything since then is just bits-on-a-wire notations for achieving the same effect."

"As for the 'discovery' side of Northrup's DASCOA," says McGrath, "that is probably more amenable to patent fun. Frankly, if this means we cannot use UDDI, I'm all for it!"

Paul Prescod agrees with McGrath and the rest of the XML luminaries we consulted that most of the technology used in Web services is not innovative. "It primarily consists of new, standardized, XML-based syntaxes for concepts that were popular even in the 1980s," he says.

Web Services Journal editor-in-chief Sean Rhody agrees with McGrath too. "Not being a lawyer, I'm not qualified to comment on the validity of this patent, but given that most of the concepts can be traced back to ideas from other generations of computing, I find it highly unlikely that the patent will be upheld. If it is, it will be a disaster for the industry."

Prescod concurs, and points out: "If Charlie wants to be taken seriously he needs to clearly describe what standards he believes infringe and in what ways. Then he has to demonstrate that protocols like CORBA and DCE RPC do not constitute prior art."

Talking of CORBA, anyone who has actually read the patent tends to comment that it "reads like a description of CORBA," and it is well known that the Object Management Group started working on CORBA already in 1989 - so one might, like Prescod, argue that this is all the prior art needed to bust Northrup's application.

But when XML-J IN asked the OMG's president, Bill Hoffman, to comment his reply was "We just haven't had the opportunity to research this yet, so we can't comment at this time." Doubtless Hoffman was thinking that this may turn out to be a very controversial case and that, therefore, OMG would almost certainly need to do a full legal review before commenting publicly, since anything he said now could and would come back to haunt him and of course, his members.

"A Danger to the Economic Future" - Len Bullard

Len Bullard takes the trouble to explain that claims like Northrup's are "a danger to the economic future where integration of large complex technical systems depends on deeply detailed technical information."

So, while something needs to be done to change and improve our current patents system, Bullard's view is, "For that to become a political, and therefore, addressable problem, the pain of not solving it has to be felt where the money is and also unfortunately, a lot of money is being made by those same interests from the existing system, so who is going to bell the cat?"

The best thing he can see happening, he concludes, "is for the technical community itself to begin to develop solutions to the issues of research into prior art, for example, open online libraries of standard documentation in each field that will enable better discovery processes."

Fortunately, as Bullard notes wryly, "XML and the Web are ideal for precisely this kind of solution!"

For more background, see Maureen O'Gara's article on Northrup's patent claims.