BBC NEWS | Technology | Patently absurd

The intellectual property land grab has gone too far, argues technology consultant Bill Thompson.

Sony has just given a small US company something in the region of $8m.

I wish they'd do the same to me, but it seems unlikely.

The reason that Forgent, a little-known Texan computing company, has been the recipient of this corporate largesse is that they say they own a patent on a key component of the Jpeg image format, and Sony has been cowardly enough to simply send them a cheque instead of challenging this claim.

Jpeg is one of the most widely used ways of representing an image as a sequence of bits that can be stored on a computer hard disk; and most digital cameras, many websites and lots of phones, PDAs and scanners use it.

Most of the photos on this site are Jpegs - you can tell because the file name ends ".jpg".

Sony has shelled out because their digital cameras, phones and PDA use Jpeg and they were asked for the money by Forgent, who hold a US patent, number 4,698,672, that seems to cover some of the key parts of the Jpeg standard.

Share price worries

Under patent law Forgent is entitled to charge anyone using their invention, and so they have been approaching any company that makes Jpeg-processing software and asking for money - serious money - or they will take them to court.

This may mean paying more for your paint programs or internet access

Bill Thompson
Since outstanding lawsuits, even those without any merit, can seriously affect a company's share price, Sony and one other as yet unnamed Japanese electronics company have shelled out.

Others are apparently thinking about it.

This does not mean that you will have to pay Forgent if you want to put a Jpeg on your website, but the company that writes the software you use to create your image, or the browser that displays it, would have to pay a licence fee - assuming the patent stands up to scrutiny.

This in turn may mean paying more for your paint programs or internet access as these costs are passed on to the end-user in the traditional way of the market.

The patent involved covers the way that some pretty complex mathematics are used to make a Jpeg file smaller.

Community response

These compression techniques are certainly "inventions" as far as patent law is concerned, and few people would argue that they should not be patentable as it took a lot of skill and effort to figure them out.

Patent law is there precisely to protect this sort of creation and to ensure that inventors are able to protect their work once it is published.

As might be expected, the discovery that a key part of the web was being claimed by a company nobody has ever heard of provoked some trenchant comment.

Slashdot, one of the main discussion sites for technical net users, had over 1,200 posts about the topic within a matter of days.

Already people are being asked to look for evidence that the techniques covered by the patent were already published and in use before it was granted.

If this "prior art" is accepted then the patent will be invalidated - and presumably Forgent will have to pay any licence fee income back to those foolish enough to pay up in advance.

Patents as commodities

There is more going on here than the question of whether Forgent's patent is valid.

The case raises much wider issues about what we mean by "intellectual property" and what sort of ownership and control should be allowed online.

Forgent used to sell videoconferencing equipment but has recently seen its sales fall off.

Facing bankruptcy, the board decided to abandon its core business and instead make money from acquiring and licensing intellectual property.

It is treating patents like a commodity, as if they were cocoa beans or iron ore.

In this case the patent was only acquired when Forgent bought another company, Compression Labs, who filed it back in 1986.

Web history

This sort of asset-stripping may be legal but it is deeply unpleasant - and it goes against the spirit of the internet and of the open standards which make it possible.

It is highly likely that Forgent's patent will be thrown out

Bill Thompson
Tim Berners-Lee did not patent the world wide web because he realised that its strength came from its openness.

Forgent is only interested in money.

It is made even worse because the Joint Photographic Experts Group (Jpeg), which drew up the standard for image encoding and compression that bears its name, was set up explicitly to establish an open standard that would not require any users to pay licensing fees.

The companies that contributed ideas to the group all agreed to make their work available freely, and the result was a standard which was widely adopted precisely because it came without complicated licenses or the need to make payments.

Forgent, in its money-grubbing approach to intellectual property, is deliberately undermining this valuable work.

Other offenders

It is acting like a farmer who, realising that anyone can graze their sheep on the local commons, puts one hundred sheep there when everyone else only has one or two.

His sheep will thrive this year, and he will grow rich - but next year the common will be a muddy field incapable of supporting any livestock.

It is highly likely that Forgent's patent will be thrown out because the techniques it covers were already well-known when the patent was granted.

However, this is not the only example of companies milking their patents without any thought of the wider impact - BT is still active in the US courts trying to enforce a patent on the linking that holds the web together, and more examples will emerge as companies facing bankruptcy try to milk what few assets they have.

We need to retain our sense of the internet as a public space where all stakeholders have an interest, not just the shareholders of parasitic patent holding companies.

If we cannot do this then we will all suffer, even as some grow rich.