Sam:  So, Steve, what's on your mind these days?

Steve:  Patents.  U.S. patents are designed to encourage innovation by allowing the inventor the rights to a design, process, product or whatever they have come up with.  And this makes total sense.  Giving people an economic incentive to innovate is the way to go.

But, no system is perfect.  And when it comes to internet-related patents, there are some really bad examples.

Amazon.com's "1-click" patent issued in 1999 is the one that most people are familiar with.  But there's a pending patent you may not be familiar with that may affect all of us as advertisers.  A patent on pop-under advertising.

Yes, you heard me right.  A patent on those windows that appear below the main page a visitor is viewing.  You must be saying "oh, so they're applying for a patent on the technology that generates the window, right (which is nothing more than a few lines of javascript)?"

"Enng!  Wrong answer.  Thanks for playing - try again."  The patent is for the concept itself - a window that is loaded behind another window so that when the first window is closed, the second window (usually an advertisement) appears.  It doesn't matter 'how' you generate the window.  It's the concept of a pop-under window that's being 'patented.'

Excuse Me???

"But wait," you say.  "That's like trying to patent clicking on hyperlinks on web pages.  It's a just something you can do with a browser."  And I'd agree with you.  And so would about 99.9% of the population.  And heck, even the patent office would probably agree with you.  But due to the number of requests it gets and the newness of the web in regards to reviewing and processing patents, there's a good chance it will be approved.  That is, unless, someone else can produce documentation that they were using it first.

This "pop-under" patent was published by the U.S. Patent office in May 2002.  It is expected they'll decide whether or not to approve the patent in 2003, or perhaps in 2004.

So How Will That Affect Me?

"If approved, what will that mean?"  It will mean that any company selling pop-unders (such as Guaranteed Visitors) are subject to the patent and would need to license the (ah-hem) "technology" from the patent owner.  I spoke with the pending-patent holder about four months ago to discuss licensing arrangements, as I was evaluating purchasing an advertising company that sold pop-unders.  At the time, the low end of the licensing came in at 10% of revenue.

Now, they may be dreaming, but if the patent is approved and they were able to charge 10%, who pays the price?  Well, the suppliers would obviously have to pay for the license, but it wouldn't end there.  They'll probably pass that on to the advertisers who are buying the pop-unders - that means me and you.  And will we be able to pass that on to our customers?  Not sure.  Depends on what you're selling or trying to do with the pop-unders.

So What Are You Trying to Say?

My point is this.  Internet patents can be issued for the silliest of things (like this one), but if they are approved, it will mean higher advertising costs for all of us.  Therefore, now is the time to figure out whether they work for you or not.  And if they do work for you, I'd lock in whatever pricing you can as who knows what the U.S. Patent office will decide - let alone when they decide.