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NSI and Register.com at end of ridiculous lawsuit

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The Net's two biggest registrars of domain names are being sued for infringing an email and domain name patent granted last month.

The lawsuit, filed yesterday in California, claims Network Solutions and Register.com are liable for selling, specifically, .name domains. It claims undisclosed monetary damages and an injunction against the sale of any more domains.

US patent 6,671,714 - "Method, apparatus and business system for online communications with online and offline recipients" - is owned by Frank Weyer and Troy Javaher, both of Beverly Hills in California, was filed in November 1999 and approved on 30 December 2003.

Frank Meyer is a patent lawyer who is heading the case himself and who recently set up the company Nizza Group to act as prosecutor. He has told the press that he is hoping to work with the two registrars and licence his naming method rather than prevent the sale of domains.

No wonder, because the only way this patent case will ever be won is if the US court system is as hopelessly incompetent as the Patent Office.

The patent and the lawsuit are disingenuous and purport to be different things at different times according to which situation the patent owner finds himself in.

Ship of fools

That the Patent Office was fooled into thinking what was contained in the actual submission was accurately reflected in the abstract and summary of claims is distressing, but far from a one-off as numerous recent lawsuits have shown.

This sentence from the submissions sums up what the patent claims to be: "The invention allows online users to communicate with each member of a given group regardless of whether or not the member has an existing internet presence... [it] does so by setting up a database of contact information for members of the group... providing means of communications between the created internet presence and the member recipient."

Fine. Except what is then described as patentable is no more than an explanation of the domain system on which the Internet is built. Whoever reviewed the case clearly has no idea of how the Internet works and so was misled by cleverly constructed semantics.

The core of the patent is a so-called method of assigning URLs and email addresses to a specific group. Each member will have a URL in the form "name.subdomain.domain" and an email address in the form "name@subdomain.domain". This, it is claimed in the patent, lives outside the current Internet infrastructure: "The present invention overcomes the limitations of the prior art by providing a method, apparatus and business system that allow a user to quickly communicate online with a member of a particular business, professional or other group regardless of whether the member has an internet presence (e.g. e-mail address or website) and without the user needing to know or find the internet address for the recipient."

It is clever double-speak, but double-speak all the same. All the patent describes is a way in which the existing Internet infrastructure may be used to give a certain result. If this is patentable then there is no reason why the way in which companies provide their employees with email addresses like joe.bloggs@company.com cannot also be patentable. It is no more than the logical application of pre-existing technology.

Red herring

The fact that the lawsuit specifically focuses on the ".name" domain is also nothing but a red herring. There is absolutely no difference between the .name domain and any other top-level domain such as .com or .net.

It is ironic that just a day before the lawsuit, the company behind .name started to sell second-level domains - i.e. joebloggs.name - whereas previously only third-level domains were for sale - joe.bloggs.name. The second-level domains are not included in the case, Meyer has confirmed, only the third-level domains.

Is there any difference between a third-level patent and fourth-level patent? Could a fourth-level URL and email address be considered contained within a third-level? If so, why should a third-level not be contained within the normal second-level situation that exists as the Internet as we know it?

Alternative root company New.net lives on fourth-level domains. It sells domains with alternative endings such as .shop and it sells them on top of its new.net domain. So, "clothes.shop" is really "clothes.shop.new.net". An email to Joe at the domain will be joe@clothes.shop.new.net - but typed in as joe@clothes.shop.

Is there anything special about third-level domains? Not in the slightest. The UK domain system operates almost entirely on third-level domains i.e. you buy your chosen name with two dots already in - TheRegister.co.uk, BBC.co.uk.

And what of all the hundreds of ISPs that offer as a service the inclusion of a subdomain on your acquired domain? How many company intranets and websites use subdomains as an effective break between sections?

The BBC's news site for example is http://news.bbc.co.uk. Subdomains are a vital part of the Internet but require some technical know-how to implement them on your server. This is why many companies let you "buy" subdomains on your system where in fact you are paying them for the technical hassle.

Does this patent give two Californians the right to dictate what you are allowed to do with your own domain? It would appear so.

Even though the patent appears to give some justification for believing so, you simply cannot connect two everyday parts of the Internet infrastructure together and claim that if such a combination exists in a certain format, you possess it.

Mr Meyer has cleverly achieved the patent by arguing one way and then representing the end effect another. But what he is in fact doing is claiming ownership over the workings of the Internet.

Straw and camels' backs

What he is hoping however is that NSI and Register.com will not want the hassle and expense of going through the US law courts, especially when, thanks to the recent Eolas lawsuit decided against Microsoft, there remains a slight risk that the US courts will decide in his favour.

Far easier for the registrars to offer a tiny percentage on sold domains that they will barely notice, but which will make the patent owners rich men while sitting on their sofas.

It is our sincere hope though that the two registrars fight the case and so set some legal precedent against the series of increasingly ridiculous patent cases that are coming out of the US.

If this case does go to court and is dismissed out of hand (as it should be) there would be a case for the company that owns .name - Global Name Registry - to sue Mr Weyer and Mr Javaher for malicious damage to its business.

President of GNR, Hakon Haugnes, told us he was looking at the case "very carefully" but feels certain the patent is not enforceable and applies equally to all top-level domains. He is currently trying to reassure the smaller registrars that from yesterday had received a big boost from the sale of the new .name domains.

This will not be the end of uncomfortable and incorrect patent claims but this is certainly one that can be squashed and so hopefully will be. And, with luck, it may even nip this patent madness in the bud. ®

Related link
Patent no. 6,671,714

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