Attack of the Zombie Rembrandts

You may or may not remember the “Rembrandts in the Attic” thesis of business gurus Kevin G. Rivette and David Kline. Their idea, from the extremely popular 1999 book of the same name, was that companies’ untapped intellectual property was as valuable as if they had paintings by the Dutch master sitting neglected in their attics.

Rivette and Kline sent corporations around the world scurrying into the rafters of their intellectual-property portfolios to see what assets they might be able to cash in on. But it turns out the action is playing more like Night of the Living Dead, the classic 1968 horror film in which the “unburied dead” come back to attack the living with a vengeance.

So it is that in U.S. federal district court in White Plains, we now have a documented case of an attack by an exhumed, “undead” Rembrandt. This case finds the plaintiff, British Telecommunications, coming after Internet service provider Prodigy (with warnings to 16 other Internet firms as well), trying to enforce a partially decomposed, old hyperlink patent.

You read it right. British Telecom is claiming a valid U.S. monopoly on the ubiquitous system that links the pages of the Internet into that great worldwide Web. Every little hop you take online, the good chaps at BT want a piece of it.

So how did such a patent come about? Way back in the 1970s, BT’s forerunner, the venerable British Post Office, was working to develop text-based information services. In 1989, it won U.S. patent 4,873,662 for its invention of an “information handling system and terminal apparatus therefor.” The patent remains valid until 2006.

It is a doozy of a patent, no question about it. It claims proprietary right to the notion of a digital information storage, retrieval and display system in which one might use a given terminal to access “blocks of information” that actually reside at a central computer-a system BT wants to construe as a progenitor of hyperlinking.

Sure, it predates most of the standard computer protocols we now take for granted. However, it is hardly the first-ever imagining of such a system (more on this point later). Nor can the patent be said to have influenced the development of the World Wide Web: even BT doesn’t make that claim. After all, the company was so nonplussed by this patent it forgot all about it for 11 years.

In the end, though, none of these complaints really matters to patent law.

Why? Because the patent system clings to an outmoded winner-take-all model of invention and remains cowed by the elaborate legal apparatus we have evolved to enforce it. Who cares that the winner in this case might turn out to be a zombie of an idea resurrected by a company from out of the blue and returning to wreak havoc on an unsuspecting industry?

Showing some common sense, the judge’s preliminary ruling in this case will limit BT’s most expansive claims, but BT has vowed to plow ahead anyway. What irks me most about a legal case like this is not the legitimacy (or lack thereof) of BT’s claim, but the fact that it ultimately forces us all to accept the reductionist notion that one individual or team invented the hyperlink. What utter nonsense.

Indeed, there’s a litany of “prior art” that can bolster Prodigy’s case against BT. Many rightly note that hypertext and hyperlinks were developed by computer scientist Ted Nelson (see “Ted Nelson’s Big Step,” TR September/October 1998) and mentioned in his 1965 book Literary Machines.

But if you really want to understand how foolish this whole case is, read a 1945 article called “As We May Think” by wartime U.S. science advisor and MIT engineer Vannevar Bush. In this piece, published in the Atlantic Monthly, Bush outlines his vision for a machine called a “memex” that allows users to find information by pursuing associative trails that mirror the way people think. Bush’s memex wholly and completely anticipates the notion of the hyperlink.

Perhaps more notable, though, is that Bush lived in a time that was in many ways enlightened in its recognition that technologies evolve through a complex web of advances, discoveries and happenstance. In a separate, even more famous report called “Science: The Endless Frontier,” Bush noted that “New products and new processes do not appear full-grown. They are founded on new principles and new conceptions, which in turn are painstakingly developed by research in the purest realms of science.”

How is it we could have forgotten such a seminal lesson about the shared foundation upon which technologies evolve? I’m not sure. But I can tell you this: until we find a way in our intellectual-property system to acknowledge the multiplicity of antecedents for the inventions we incorporate into our lives, we will endure a very long night of the living dead when it comes to patent claims. In the meantime, I imagine we can all agree with BT about how important the hyperlink is. My advice: next time you’re online, click over to them at www.bt.com and give ‘em your two cents.