ALTOM: Technology moves too fast for law to keep up

July 20, 2009

Technologists don’t usually give the law a basketful of respect. From our point of view, the law is struggling frantically to stay within a hundred yards of our bleeding edge.

By the time the law gets around to speaking on a technical subject, the subject may not even exist anymore. Or some legal solution that worked for hundreds of years is brought into play and proves itself unable to deal with the modern world.

Witness the dismal situation at the U.S. Patent and Trademark Office. It’s been deluged by such a tsunami of ridiculous patents that it has hastily granted a good many without adequate study into prior art, and those of us with even a smattering of knowledge in the field can only roll our eyes and pray for reason to prevail someday.

Software patents are particularly controversial, with erroneous patents being routinely issued even when there are years of prior art that should have immediately invalidated the applications. Nothing in software is truly new. But there is always somebody who rushes to patent it, hoping to cash in before it’s invalidated.

Amazon has a patent on its one-click shopping method. Think of that: Amazon has patented the simple act of buying something online with a single click. According to published patents, Desmond Sargent claims a patent on the hyperlink. Brian Shuster maintains he invented pop-up windows. I wish he hadn’t, but that’s beside the point. Lawrence Lockwood wants us to believe he invented the acceptance of credit cards for online transactions. Andrew Payne, Lawrence Stewart and David Mackie maintain they invented the online shopping cart.

I have a patent application submitted for ugly toolbars. I know which multinational company I’m suing first. The Electronic Frontier Foundation is addressing this issue by challenging some of the more egregiously awful patents in court (w2.eff.org/patent/).

Then there are trademarks. Companies want to protect them from us, but we don’t pay much attention.

The term “netbook” is becoming ubiquitous for those cheap little notebooks that primarily surf the Web. Catchy. The problem is that “Netbook” is actually a trademark of Psion Teklogix (www.psionteklogix.com).

Psion doesn’t even produce the Netbook line anymore, but it’s still enforcing its trademark, at least where it can. Dell is convinced that Psion has given up its right to the trademark and is asking the patent office to cancel Psion’s trademark so Dell can use the word.

Even if Psion manages to hang onto its trademark, the effort could be a lost cause, just as kerosene, escalator and aspirin proved to be, having their trademark protection leached away because they became “genericized.”

It took many years for the trademark covering aspirin to vaporize. It happens much faster for today’s technologies. Google’s trademark lasted barely a year before becoming generic. When you “google” something, you’re technically making Google cry foul. Google is quite explicit in its guidelines that you should never, ever use “google” as a verb, but the company must know it’s hopeless by now. Adobe knows the same thing about its product Photoshop. Nowadays, we don’t alter photographs, we “photoshop” them. And Adobe is largely powerless to stop it.

When we give presentations, we’re “giving a powerpoint,” even if the product being used isn’t PowerPoint by Microsoft. A sharpie in most offices is just a marker, not a Sharpie from Newell Rubbermaid.

Sometimes we steal the trademark, mercilessly abuse it, then throw it away. Years ago, when we listened to taped music on the go, we always plugged into a walkman, and not necessarily the Sony Walkman. We don’t use the term much anymore. Executives in a bygone era would refer to their “dictaphones” without realizing they were cheapening the trademark owned by the Dictaphone company. The trademark is all but hollowed out, and the term is now passé.

Humble products’ trademarks are vulnerable because they’re so much a part of our lives. Windex, Wite-Out, Post-it and Scotch tape are all more or less generic terms today, and not just restricted trademarks of S.C. Johnson and Son, BIC Corp., 3M, and 3M, respectively. Dumpster is actually a trademark of Dempster Brothers, but you’d never know it when the command is given to take out the trash. You shouldn’t say “throw the frisbee” because it’s trademarked by Wham-O. When you say “jump in the jacuzzi” you’re imperiling the Jacuzzi trademark.

Xerox Corp. long ago lost effective control of “Xerox,” as the devices became so common that everybody “made xeroxes” no matter the copier manufacturer. Cops are eroding the trademarked word “taser,” owned by Taser Systems, and so are media outlets that generically announce that a suspect was “tasered.” Television announcers imperil Sony’s trademark of “JumboTron” every time they say, “Let’s look at that play on the jumbotron” if the screen isn’t a real JumboTron. Even doctor shows are mocking trademarks when they use “Adrenaline” for Parke-Davis’ brand of epinephrine.

The lesson here is that technology is utterly democratic, and the public is willful. Let the lawyers try to catch up with us.•

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Altom is an independent local technology consultant. His column appears every other week. He can be reached at taltom@ibj.com.

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