Patently Obvious

November 2nd, 2006

Douglas Crockford points out at the top of his blog that a patent was applied for in 2001 and awarded late last year covering using the <script> tag as a remote scripting transport.

Numerous people have “discovered” and exploited the value in using the script tag to get code and data on the fly since that time. It’s an obvious logical use of the functionality for which it was designed.

Of course, once a patent is granted, arguments about obviousness or originality can fall on deaf ears – the patent owner has the upper hand and it could cost you a lot to prove your case in court.

Beyond the obviousness, inspection of both the client and server side code for the patent reveals that most of it is copied directly from my JSRS library, published a year earlier, not only without attribution, but claiming it as their own “NetGratus Remote Scripting”. Of course, my license is very liberal, allowing reuse for pretty well anything, however it does say:

The only thing you can’t do is to restrict anyone else from using it however they see fit. You may not copyright it yourself or change the rules I have set on how it can be used.

So, if you’ve been asked to license this patented technology, I’d be happy to have a look at the particular code being offered for licensing and see whether it violates my copyright by restricting you from using it without a license.

Also, as Danne Lundqvist, veteran script tag advocate points out to the latest person who has independently had the script tag revelation, there are many reasons that the script tag is an inferior transport layer, not the least of which are the security implications as I pointed out just this week

The upshot is this: the script tag hack’s days are numbered. If you can change to XMLHttpRequest while waiting for JSONRequest, by all means do.

It’s rather ironic that the appearance of this patent will have had exactly the opposite effect that a patent should: Rather than the patent informing the world about a hitherto unknown invention, explaining its workings and contributing to the furtherance of knowledge, the patent in this case informs the masses of people who came up with the same obvious idea that they had better stop using this technique in order to reduce their liability regarding the injunctive power of the patent holder.

7 comments to “Patently Obvious”

  1. […] Another day, another silly patent application. John points us to a blog post about a a bizarre patent application to patent what the <script> tag is often used for. The patent application in question is for a method of <script> based remote JavaScript function call of web page. The blog post is by Brent Ashley who notes not only is the patent quite obvious, on a technique that the tag was designed to do and is used by many people, the actual code used in the patent application just so happens to have been copied directly from his own published code. So, not only are they trying to patent a patently obvious idea, they’re using someone else’s code to do so. Has anyone tried patenting HTML yet? […]

  2. What is this non sense? Does this mean that if someone uses the style attribute in a HTML tag and using CSS, creates a unique presentation in the html page? Nobody else is allowed to use that? Isn’t that what the tag is designed to accomplish? How can this patent get awarded? Anybody knows the process followed by the government to award a patent?

  3. Argh, this is exactly why I hate software patents. How can the USPTO actually accept a patent for a piece of technology that’s essentially being used the way that it was intended to be used. I wonder when someone will submit a patent for using XMLHttpRequest to retrieve data from the server. Reminds me of a while back when a museum tried to patent the use of a separate frame for navigating a web site. Oy.

  4. Without commenting on the actual validity of the patent, two observations: First, the issued patent claimed priority to a provisional “placeholder” application filed on Dec. 1, 2000 – this means that the patent examiner at the PTO evaluated the merits of the patent application based on what was available before that date. If the examiner did not find evidence that anyone was “doing” what the patent applicants claimed as of Nov. 30, 2000 or earlier, he or she would have come to the conclusion that it was novel. This seems to be shored up since Brent said, “Numerous people have ‘discovered’ and exploited the value in using the script tag to get code and data on the fly since that time.” (emphasis added)

    Second, Brent wrote, “It’s an obvious logical use of the functionality for which it was designed.” Apparently, this is where the obviousness assault should have been levied by the examiner. It could be that this is where any successful invalidity challenge in court would occur. Brent correctly notes that the patentee “has the upper hand;” an issued patent is presumed valid and can be found invalid in the face of clear and convincing evidence that it was not novel or it was obvious. This is a tough standard to meet, but note that more than one patent litigation has terminated very early if there is clear evidence of prior art which renders a patent invalid.

    So, it could well be that this particular patent will not survive if challenged.

  5. Thanks for the observations, Gary, very insightful.

    I have no information that there are any efforts being made to enforce the patent. It’s possible they too understand that at this point it’s quite easy to demonstrate that many people are using the techniques without having been exposed to the patent – i.e. it was such an obvious use of the constituent components that no exclusive published recipe was necessary.

  6. […] dynamic typeof() guy « Patently Obvious A Patent should pass a test of Obviousness November 5th,2006 […]

  7. Brent,
    I’ve blogged about this practice of what I call “patent parking” or “patent extortion” several times (the link is to the most recent one). We have a Patent & Trademark Office in the US that is “broken” – they simply do not have the resources or technical expertise to do the job right.