February 12, 2001, 4:33 PM — Every now and then Network World Fusion Executive Editor Adam Gaffin copies me on a gem that he's dredged up from the bowels of the news. Mr. Gaffin recently sent me the following item that appeared in the Bay City Times news section of Michigan Live on Jan. 20:
"Last summer, the folks at Albie's Foods here started making crust-free peanut butter-and-jelly sandwiches for their customers. Just before Christmas, an executive with an Ohio food company ordered Albie's to bag 'em. Robert V. Vickers wrote to Albie's explaining that his company, Menusaver, Inc., holds the patent for crustless PBJ and plans to preserve its exclusive rights to the lunchtime staple."
Yes, folks, Menusaver holds the patent, awarded in December 1999, for the "sealed crustless sandwich." Patent No. 6,004,596 states: "The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed between the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings therebetween . . ."
Right.
We all understand the point of patents to protect an inventor's intellectual property rights, but a patent for a "sealed crustless sandwich"? This is what the patent system is for? So any proto-geek in a virtual white lab coat can flash on the obvious and then get to legally hold the rest of the world for ransom over something that the patent office should have thrown out without a moment's hesitation?
Let me give you another equally ridiculous example of "intellectual property": NetZero holds a patent on pop-up windows showing advertisements being used in the context of supporting free Internet access. At the end of December last year, NetZero filed a lawsuit against Juno Online Services for allegedly infringing the patent. Crazy. And don't get me started on Priceline's collection of patents.
It is one thing to have a patent and quite a different thing to defend it. When it comes to figuring out the tiny details of whether a product or service has violated a patent, that's where the devil is. For example, Budget Rent A Car's use of a reverse auction is the basis of a Priceline patent suit which, to the best of my knowledge, has yet to be resolved.
Now when the thing being patented is something that took real intellectual investment to create, then patents and their defense make complete sense. For example, Sun has finally forced Microsoft to settle in the case of Microsoft's illegal (under the terms of the license) modification of the Java syystem. Microsoft quite blatantly violated the license to improve Java's performance under Windows.
Sure, Microsoft dressed up their "improvements" under the banner of making things better for users, but at the heart of the issue was the effect Microsoft's changes made -- they essentially broke the Java model of write once, run anywhere by making some technical aspects of Microsoft's version of Java Windows-dependent.
The settlement terms: Microsoft loses its Java license and has to pay Sun $20 million (not much of a fine for Microsoft -- that's probably about the scale of a rounding error in Microsoft's coffee budget).
Even so, there's a good chance that Microsoft will go and develop a Java clone and in the process it is going to have to be careful it doesn't infringe any of Sun's patents.
Building something "like" Java will be a lot harder than making something almost but not exactly quite like a sealed crustless sandwich.
