Re: [ga] GoDaddy: "We adamantly oppose the WLS as proposed and intend to use any means available to block its implementation"

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

>
> Other registrars who support competition and innovation should take the
> time to voice their position on this important appeal.

This exercise becomes entirely moot if SnapNames' two US patent applications
manage to issue with claims as broad as the ones they are attempting to
obtain.

These are just a few of the claims from U.S. Published Application No.
20020091827.  The "claims" of a patent define the "thing" or "process" that
is protected by the patent, and which the patentee has the right to exclude
others from doing:
------------

1. A method for effectuating a succeeding registration of a domain name for
an interested entity following the expiration of a prior registration of the
domain name, the method comprising the steps of: receiving from an interested
entity a request identifying a domain name having a registered status; and
automatically: determining an expiration date for the status; defining a time
period for checking the status based on the expiration date; periodically
checking the status at a predefined frequency within the time period; and
when the status indicates that the domain name is registrable, requesting
registration of the domain name for the interested entity.

2. The method of claim 1 further comprising the steps of: automatically:
predicting an earliest moment of registrability for the domain name based on
the expiration date; and increasing the frequency of said checking, proximate
to the predicted earliest moment of registrability.

3. The method of claim 1 wherein said checking includes pinging a registrar.

4. The method of claim 1 wherein said checking includes substantially
contemporaneous pinging of multiple registrars.

5. The method of claim 1 wherein said checking includes pinging a registry.

---------

Now, this application was filed on November 1, 2001.  If it issues with
claims this broad, then Dotster, GoDaddy, Enom, et al. are going to have to
stop their domain snagging systems immediately.  It is very likely that
SnapNames will contact them when the patent issues to provide notice of the
patent, and these registrars will then be liable for triple damages and
attorney's fees if they continue to operate their domain re-registration
systems.  The base measure of damages can be SnapNames lost profits based on
the infringement, or the actual profit made by the infringers.

If this patent application issues as a patent, it will not matter whether WLS
is approved by ICANN or implemented by Verisign.  The objective of
sole-source provision of expiring domain name services will have been
reached.

Or will it?  One interesting unlitigated area of patents relating to methods
implemented on the internet is the inherent territoriality of a U.S. Patent.
In other areas, a U.S. Patent prevents the export of parts to another country
which, if assembled here, would otherwise infringe the patent.  Similarly, a
U.S. Patent can prevent the import of a product made abroad by a process
which is patented in this country.  "Manipulated bits" have, thus far, not
been considered as to whether they might constitute an imported product of a
patented process.  Of course, when you have the opportunity to draft the
claims, you might consider whether you can write the claims to necessarily
cover the actions conducted in this country - i.e. writing the claims from
the registry's perspective.  But SnapNames' patent counsel does not appear to
have done that.... yet.

Getting back to that November 1, 2001 filing date... You or someone you may
know might be aware of an article or other publication, or public use of this
technique which occured prior to November 1, 2000.  If you do, then hang onto
your evidence of such use, because it will be one of the few ways that the
patent could be rendered invalid after it issues.

For example, who on earth was this guy:
http://www.dnso.org/clubpublic/ga/Arc09/msg00235.html
"We have been offering this service since August 2000"

Googling usenet on this topic is left as an exercise for the reader.

I gather that my previous kettle-banging on the subject of the pending patent
applications must have been too obscure.  So, if the *real strategy* for
obtaining sole-source control of expiring domain names is still not apparent,
let me know if any of the above information needs to be clarified.

John Berryhill
U.S. Patent Attorney Reg. No. 36,452







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