[Update: I recently heard from someone who says he conceived the idea of using a browser cookie to track people across web sites before me, but who said that he thinks I can still “safely” assume I actually worked out how to do it first. The USPTO doesn’t count you as the inventor of a patentable idea until you actually know how to do it. As I mention in the piece below, the “how” was non-obvious at the time; I was told “you could, in theory, if you had source for your server, hack in someway for it to send the cookie somewhere. There is no existing protocol for doing so.” But using a hack was unacceptable and the actual solution required none. Nevertheless, my take on it is that it was just one of those ideas whose time had come. And that it therefore would certainly have have happened with or without me; nevertheless, for whatever it may or may not be worth, I appears highly likely that I am first to have actually have done both, together, of: a) independently conceiving of why one should be made, and b) figuring out how to do it. There are reasons that in a 2021 jointly-filed legal brief, Google and Twitter called it “Robinson’s Cookie”. More on all of that below.]
My patent, number 5,918,014,[1] describes how to track user activity using browser cookies and has a priority date of Dec 27, 1995. The patent doesn’t claim anything about tracking cookies separately from a specific technique for choosing ads to present—my main focus in the days I spent on the patent was on a collaborative filtering technique, and advertising using a tracking cookie was a particular potential application of it. I developed the technique between Nov 2 of that year and the priority date. While the patent is focused on collaborative filtering in web advertising, soon after that, I became more focused on the tracking-based advertising opportunity in general.
The patent changed hands several times through the years, and Google is the current owner. As far as I know, it has never been used offensively. But it has been used defensively, most recently (as far as I know) in the case Twitter, Inc., et al. v. B.E. Technology, L.L.C (IPR2021-00485, filed Feb 24, 2021), in which Twitter and Google are using it to defend themselves in a patent lawsuit. In their petition[2] in that case, Twitter and Google repeatedly refer to the cookie tracking mechanism as “Robinson’s Cookie.”
My patent makes no attempt to claim the cookie-based tracking mechanism by itself, even though it describes it in enough detail that a programmer could implement it. Rather, at the time, I was looking for uses for a collaborative filtering technology I’d designed, and web advertising was an exciting one: collaborative filtering could potentially be used to recommend ads based on user-tracking data.
From the very beginning, people I talked to were sensitive to the potentially Orwellian nature of this technology. Because of that, much of the patent (filed a year after the provisional application that contained the original idea) is devoted to describing mechanisms to give users control over their data. (Again, none of that is claimed outside of the context of being used with my particular collaborative filtering approach.)
The reason I’m bringing this up now is that I’ve been noticing the wild happenings in the world of NFTs, where, for example, a NY Times column about NFTs sold for hundreds of thousands of dollars, and more recently, source code for the original World Wide Web was sold for millions. It occurred to me: I wonder if I could sell an NFT for the conception of cookie-based user tracking for web advertising, along with its written background story?
So, if anyone knows of proof of an earlier conception, please let me know, so that I don’t waste people’s time by presenting such an NFT.
Here’s the background story. Of course, I’d be happy to answer any questions.
In the ‘80s, I created a voice-based dating service that served New York City. Its name and phone number was 212-ROMANCE. It was basically personals ads available by phone. There were recorded ads, and users could leave voice mail messages on the system for people they were interested in, engaging in a two-way voice-mail conversion before phone numbers were given out. This was fairly unique because there were very few interactive phone systems of any kind at that time. I advertised it in NYC publications that ran personals ads, such as New York Magazine.
With printed personals ads, it’s easy to quickly scan them to find the ones most likely to be of interest. But listening to ads took real time, and the service charged by the minute. So I needed a way to make the ones most likely relevant to a particular user come out first.
I figured that if I kept track of which ads people responded to by skipping over, saving, or replying, I could order ads as follows: if person A generally likes the same ads as people B, C, and D, and if the latter users have responded positively to some ads person A hasn’t heard yet, those ads should be played first when person A phones in again.
So I built that into the system, and it seemed to work very well. Then I thought: why couldn’t I do the same thing for music or other things? So I spent a good deal of time working on a better way of making such recommendations than was used in 212-ROMANCE, which was very primitive although it worked well enough for that context. (I still have the 8086 assembly code and would be happy to share it if anyone is interested!)
In 1995, I was becoming quite interested in the internet and attended the 1995 Internet World conference in Boston. It ran from Oct 30 to Nov 2. In one workshop, the speaker was in charge of selling advertising for a Web site, and he discussed having to hire staff to act as “space salesmen.” It was expensive. The cost of obtaining advertising to run on a Web site was a significant barrier to doing business on the Web.
At the time, I lived in Bangor, Maine, a 4-5 hour drive from Boston. I always liked using that drive to think. On the drive home, which I believe was on Nov 2, I went over things I’d heard at the conference, trying to see if there was anything in my background that could be useful for solving any problems that were discussed there. After an hour or two, I thought about the advertising presentation and had the sudden “Aha!”: the recommendation algorithms I’d been developing could be used to recommend ads to people on Web sites! People’s activities on the Web could be tracked for data to feed into those algorithms! There could be a hub through which ads were distributed, which would eliminate the need for space salespeople!
This idea really seemed like it had a lot of potential. I hadn’t heard anything like it before. I don’t think you’ll be surprised to learn that I was extremely excited during the rest of that drive home. But, I also had some uncertainty because I had never done any internet-related programming and had no idea how user activity could be tracked across different Web sites. I didn’t know if it was possible. I’m not sure whether I’d even heard of Netscape’s “cookies” at that point—I don’t think so—and I certainly didn’t understand how they worked well enough to know that they could form part of the solution.
That drive was at night, and the next day I started researching how the idea could be implemented. Over the next weeks, I investigated various aspects of Web programming, and the thing that seemed to have the most potential was Netscape’s cookie mechanism.
At first blush, cookies didn’t appear like they could help, because they could only be written or read from the internet domain from which they were written. So, if a cookie was written by, for example, a CGI at golfing.com, it couldn’t be accessed by a CGI at boating.com. It followed that the idea of having the servers for golfing.com and boating.com both accessing a central server at some other location to track user activity wouldn’t work; there was no way to know that the same user had visited both sites because any cookies written at one site would be inaccessible to the other.
But as I looked further into the general topic of Web programming, I noticed that a Web site running on one domain could invoke a CGI running on another domain. And there seemed to be no reason why that CGI, running on that other domain, couldn’t write its own cookie to the local computer. So, if Web pages running on golfing.com and boating.com each invoked a CGI running at adserver.com, then that CGI could know that the user had visited both sites. The cookie might be inaccessible to gofling.com and boating.com servers, but that didn’t matter because it would be accessible to adserver.com.
I asked about this idea in Netscape-related forums, to confirm whether I was right. One response said: “You could, in theory, if you had source for your server, hack in someway for it to send the cookie somewhere. There is no existing protocol for doing so.”
However, despite the apparent lack of understanding of this potential by at least some members of the Netscape programming community, when I had some tests run, it turned out that Netscape’s cookie functioned in exactly the way I hoped it would and thought it might! Again, I was quite excited. Since Netscape’s browser had 70%-80% of the browser market at that time, it would be very effective. And it seemed that, since Web developers were targeting the Netscape browser, more and more browsers would incorporate compatible cookie mechanisms in time so that Web sites incorporating cookies would be able to run in their browsers as well.
I figured that it wouldn’t be too long before other people came up with the same idea, and I believed that it would be possible to build a successful company around it, so I rushed to create a patent that would make it safe to talk openly about it. I was hoping I could get venture capital funding and wanted a provisional patent application filed that would protect the idea, at least as it related to my particular algorithm for recommending ads.
The result was that on Dec 27, 1995, I filed a provisional patent application, although my records show I had figured out how to do the piece of the patent embodied in the tracking cookie concept by mid-October of that year. As I mentioned earlier, the patent was written in such a way that the cookie tracking mechanism couldn’t be claimed separately from my collaborative filtering approach. While it disclosed how to track user activity across different Web sites by means of Netscape’s cookies, it was not a general patent on that. I don’t know whether it would have been possible to create such a patent, but I didn’t try.
In any case, I subsequently, and as quickly as I could, made contact with various east coast VCs. The responses I got are, I think, quite interesting in retrospect.
The first VC I met with was Ted Dintersmith of Charles River Ventures. I’d met with him a couple of times previously relative to my collaborative filtering technology. (And my relationship with Ted, and his with Jeff Bezos, eventually led to Jeff calling me out of the blue about that technology before Amazon had recommendation functionality. But that’s another story!) And I’d always felt like Ted was a truly good guy, and as generous and supportive as he could reasonably be—given that I was a lone programmer living in Bangor, ME, with no industry connections. (Everyone in the tech industry knows that VCs tend to invest in teams, not ideas, and there was no way I’d be able to present a proven team, or even myself as an entrepreneur to invest in. But Ted was still generous enough to meet with me a number of times.)
For a little more perspective before I present Ted’s reaction to the idea of a hub from which ads would be distributed to many Web sites in a targeted manner, I’ll mention that Ted was eventually ranked by Business 2.0 as the best-performing U.S. Venture Capitalist for 1995-1999. He was obviously competent.
While my patent only claimed the technology with respect to my collaborative filtering technology, I had written a white paper that discussed the far broader concept of hubs from which ads would be sent to many Web sites, targeting individual users based on the interests they’d displayed in the course of their Web browsing activities. Of course, today, that describes an industry worth many billions of dollars. Ted read it, and I met with him about it at Charles River.
I will never forget his response, which was startling enough to me that, 25 years later, I recall it pretty much word-for-word: “I don’t see how a lot of money could be made from this.”
And, with a major exception I’ll come to soon, people I talked to about the concept generally responded the same way. The main reason seemed to be a mindset where they assumed that advertising on the internet would always be the same way it was at the time I was pitching the idea, and the same way advertising had worked from time immemorial. For instance, in the world of magazines, people subscribed to particular magazines because of their interests, and advertisers placed ads in the magazines that seemed to have some alignment between the demographics of the magazine. A golf magazine was the place for ads for golf clubs and for non-golf items that would appeal to the golfer demographic.
Imagining that ads would be targeted at the individual’s interests, without necessarily paying attention to the demographics of the Web page he was currently visiting, seemed to be a leap that many people just couldn’t make at the time. I doubt that anyone reading this will even be able to relate to that as a possible hesitation. But I heard it over and over. And it’s a phenomenon I’ve witnessed over and over with respect to many things, especially in the very early days of the internet, when people were told about possible implications of the technology: They just couldn’t see that the internet could lead to fundamental changes in the workings of well-established industries.
One VC, Ollie Curme of Battery Ventures, was the only one I spoke with who immediately saw the potential. It’s undoubtedly not a coincidence that he had also been a speaker at that same Boston Web conference (he didn’t attend the advertising session). He was far more attuned to the possibilities of the internet than most people were at the time.
During my meeting with him, he kept on saying: “What a great idea!” He seemed to absolutely love it. He couldn’t have possibly given a response I would have experienced more positively. Of course, since a lone guy from Bangor without an entrepreneurial success story behind me, he wasn’t going to invest millions of dollars in me. But he did the next best thing. He introduced me to someone who had been a CEO of a major CAD/CAM company. It seemed very clear that if this CEO wanted to run a company based on this concept, Ollie would be inclined to be the lead investor.
I met with this CEO several times. In the end, he told me something that would echo a lot of people’s feeling, at the time as well as years later, about this kind of advertising mechanism: He said that he thought it was an idea with potential, but he didn’t want to devote the rest of his career to spying on people. So he turned down the opportunity.
His response was prescient, but he wasn’t the only person who responded that way. At some point in 1996, I went to a conference where I informally talked to other attendees about the concept, one of whom was the president of a direct-mail marketing company. We were standing in the crowded main atrium of the conference venue. Suddenly, he got down on his knees in front of me, raised his hands into the air, and repeatedly bowed all the way to the ground, chanting, “You are Big Brother! You are Big Brother!”
Meanwhile, as I expected, other people did independently come up with the same basic concept. Some of them involved entrepreneurial teams with far better track records than mine. Battery Ventures eventually funded at least one of those teams.
Ted Dintersmith did end up helping me out in a different way, by introducing me to someone who invited me onto the founding team of a company that did fairly well, giving me my first substantial entrepreneurial experience.
DoubleClick eventually bought my patent, and then they were purchased by Google, which is why Google owns it now.
I’m sure some readers may be wondering how I feel about the way tracking on the internet has played out. Has the prediction “You are Big Brother!” been fulfilled?
When the idea occurred to me, I naively saw a future in which people would be presented with ads they’d be interested in, instead of ads they are not interested in. I saw that as a good thing. After people like the Big Brother chanter responded as they did, I became aware of the privacy issues. That was between the time I filed a provisional patent application, which discussed using the tracking cookie to get data to recommend ads based on interest, and the time I filed the regular patent application. The regular application, therefore, had a ton of ideas relating to privacy. It had means for people to have control over their information, only giving advertisers as much information as they happened to want to give in order to improve the correspondence of ads to their actual interests.
Now, features very reminiscent of the ones I described in my patent appear on practically every web site when you are given the choice to accept all cookies or modify cookie preferences. This is definitely a very good thing!
One thing I didn’t foresee at all back in the ’90s was the degree to which web pages would be bloated and made intolerably slow by advertising and tracking mechanisms. It just didn’t seem like it would require a ton of code to be running locally; I envisioned the heavy lifting being done on the servers.
In the end, I believe that the downsides to the tracking cookie, as they have played out in the real world, are much worse than the upsides. But, if companies had put in privacy-protecting features from the beginning, and kept the computational load on the servers, and protected those servers adequately from hackers who would want access to the data, then things would have been different. But human nature being what it is, that was almost certainly an impossible dream.
[Update: an earlier version of this post requested any evidence that anyone could find of someone inventing the tracking cookie before me. I deleted that request because no one came forth with anything, I can’t find anything, and in the legal brief I mentioned, Google and Twitter called it “Robinson’s Cookie”. If they couldn’t find anything earlier with their legal resources, I think that’s enough due diligence.]
[1] https://patentimages.storage.googleapis.com/c3/d4/40/239073914fa7fc/US5918014.pdf
[2] https://s3-us-west-1.amazonaws.com/ptab-filings/IPR2021-00485/3 See, for example, the top of page 40.
[3] https://www.w3.org/Conferences/WWW4/BOF.html