Evidence may include a witness connected with the adult industry, who could testify that affiliate linking codes were present prior to BTG’s Sept. 1995 patent, according to FightThePatent.com’s Brandon Shalton.
BTG, a London-based patent acquisition and licensing company, filed suit during 2004 in U.S. District Court in Delaware against a number of U.K.- and U.S.-based corporations, including Amazon.com, Netflix Inc. and Overstock.com. The company has already settled with BarnesAndNoble.com.
According to BTG representatives, the company’s asking for unspecified damages and an injunction against continuing use of its tracking technology for affiliate programs. The company claims it patented the technology during 1995.
In one charge listed in the suit, all four companies are accused of infringing on a patent owned by BTG for tracking visitors as they travel to and from websites. The suit also states that Amazon.com and BarnesAndNoble.com infringed on another patent that attaches a navigational history to URL links between webpages. Should the case go to trial and if BTG wins, the ramifications could cost affiliate programs involved with the adult industry millions of dollars in royalty fees.
Shalton said Amazon has been searching for other evidence for almost a year to contradict BTG’s claims. Shalton and Amazon attorneys also have been searching for a “silver bullet” or evidence that would prove the idea is not original to BTG. Shalton said there is a person affiliated with the adult industry who may be able to testify the idea was not original and that he contacted Amazon’s attorneys about the unnamed individual.
Shalton said the judge presiding over Amazon’s case has requested the issue be addressed right away, in order to avoid a lengthy and costly trial.
Other evidence of an affiliate linking program prior to 1995 could include checks made out to affiliate programs.
If BTG wins at trial, the company could choose not to license the patent to certain affiliate companies, including those involved with the adult industry.
“That’s the really scary part about patents,” Shalton said. “[BTG] could actually just sue every affiliate program that uses links. BTG could have some moral agenda against the adult industry and say, ‘We won’t license this to them.’”