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Patent could push firms' buttons

A small Colorado firm specializing in electronic payments is the latest to be awarded a patent that it says covers push technology.

Major Internet companies using "push" technology to broadcast information on the Internet may be headed for trouble thanks to the U.S. Patent and Trademark Office.

A small Colorado firm specializing in electronic payments yesterday said it has been granted what amounts to a patent on push.

The patent, No. 5790793, covers "a method of communicating between computers [by] sending a message over a network, said message including at least one reference to a predetermined location at a first computer system; receiving said message at a second computer system; and decoding said message by retrieving data from said predetermined location automatically, without requiring user interaction."

The claim may be a mouthful, but it all boils down to push, according to patent owner NetDelivery.

"There's a whole list of companies whose technology automatically retrieves information across the Internet, and that's what the patent says you can't do" without infringing it, said NetDelivery chief technology officer Dave Ladouceur.

Push technologies in wide use include Netscape Communications' Netcaster, Microsoft's Channel Definition Format, and Marimba's Castanet.

Microsoft and Netscape declined to comment on the patent. Marimba did not return calls seeking comment.

NetDelivery is in the process of formulating a licensing program, Ladouceur said. Once the program is up and running, NetDelivery would approach companies that it thinks are infringing on the patent and ask them to pony up.

If they refuse? "NetDelivery will act to protect its intellectual property," Ladouceur said.

After a hyped infancy, push technology has entered a somewhat moribund adolescence. That decline, particularly in regard to broadcasting content as opposed to software updates, was widely acknowledged when PointCast withdrew its initial public offering this summer.

NetDelivery avoids the term "push" and instead describes its patented technology as "invited pull." But Ladouceur acknowledged that "invited pull" is substantially the same technology that most people refer to as "push."

NetDelivery is not the first company to claim a patent on push: Intermind made a similar claim last year.

Perhaps unsuprisingly, Intermind holds a dim view of the NetDelivery patent.

"In my opinion, it covers one very specific technology within the full spectrum of what might be called push," said Intermind vice president Drummond Reed. "Their patent focuses on the automated processing of a URL inside a message. They have a specific delivery architecture that is based on sending messages from a server that says, 'If this meets your profile, go pick it up.'"

Reed described Intermind's patents as "much broader" than NetDelivery's.

Intermind has submitted two push patent applications, both of which have reached the final stage of the approval process, but neither of which has been issued yet. The first covers the automated delivery of information over the Internet using metadata files, as does Microsoft's channel definition format. The second covers other uses of metadata to control information delivery, including the delivery of profile information from the client to the server so that content providers can glean profile data before sending out information.

Metadata denotes information about information, such as the descriptive tagging languages created with extensible markup language.

Intermind plans to license its patented technology once its patents are issued, Reed said.

Another company that claims to have a patent on push is V-Cast.

Whatever the breadth of NetDelivery's patent, at least one patent expert said it has a lot of potential.

"If the patent claims stand against the inevitable invalidity attacks, this could be a valuable patent," said patent attorney Craig Opperman of Cooley Godward. "Not necessarily because I know of people that are infringing it, because that's a much more difficult analysis, but because it seems to cover territory that could be commercially valuable."

Although he said the NetDelivery patent is "potentially huge," Opperman did note one weakness in the patent on which challengers might focus.

The U.S. Patent and Trademark Office requires inventors to submit all instances of prior art that the inventor knows about. So-called prior art, or instances of the same or similar inventions created before the filing of the patent, can be used to invalidate all or part of an infringement claim.

In the case of the NetDelivery patent, an international application was also filed, and in that application the patent examiner did find instances of prior art. Those instances were not included in the domestic application, according to Opperman, who said the omission might be explained by the fact that two separate law firms handled the two applications.

"They appear to have broken a rule," Opperman said. "Whether that makes any difference in the patent one can't tell. But it is a flaw. It's not incurable, but does smell bad."