Microsoft: FOSS Infringes Our Patents

Microsoft’s Brad Smith (General Counsel) and Horacio Gutierrez (Licensing) were recently interviewed in Fortune. According to the pair, open source software (FOSS) infringes at least 235 Microsoft patents. These include 42 patents infringed by the Linux kernel; 65 patents infringed by Linux GUI; 45 patents infringed by the FOSS Open Office suite; and 15 infringed by FOSS email programs.

Microsoft refuses to state which particular patents are infringed in an attempt to avoid retaliation from FOSS advocates. However, the statements certainly put Linux and its users under a dark cloud — potentially sufficient for a declaratory judgment action under MedImmune v. Genentech (2006).

Microsoft’s patent filing have ramped-up significantly over the past five-years, and the company will likely top the list of new-patent-owners in the coming years.

88 thoughts on “Microsoft: FOSS Infringes Our Patents

  1. I’m just a junior engineering student at the moment, and was curious if any of you know if it is ok for a patent attorney to patent his / her own invention. (I know if you work for the USPO you can’t, and wanted to know if same rule applies to registered patent attorneys). Thanks for any info.

  2. Software patents themselves are as much a joke as Microsoft’s threats. How can a company that has an nearly an entire operating system and core set of programs coded in a copyrighted language they themselves did not invent (C, C++, etc.) sit there and point the finger? Microsoft has publicly been accused of and found guilty of infringing on others copyrights and patents. It’s all ridiculous.
    Any software you look at more than likely has the work of someone else in it somewhere along the way, and it probably infringes on someones rights. Microsoft is just as guilty as anyone else, and the open source community would be wise to start a similar fear and doubt campaign on Microsoft, because in the end, they have a bottom line and stock holders to answer to and open source doesn’t.

    Linux is not going to pay to license a damn thing from MS, and MS knows it. Worst case scenario is the open source community has to come together and change their code, in a matter of months they’ll be in the clear. MS would be wise not to sue anyone or go after licensing, they’ll only open a can of worms on themselves. IBM, Unix, and many others could sue the hell out of MS.

    This reminds me a bit of the the Unix Wars and the Browser Wars all rolled into one.

  3. pds – like “just an ordinary inventor” says – the Constitution says that Congress has the POWER – that does not mean it has a duty or obligation to secure patent rights. Go back and reread Graham and John Deere which has an excellent discussion on the meaning of the Constitutional authority for a patent system.

    You also seek to draw a distinction between an idea and an idea reduced to practice. But if you look at some of the patents that get people upset – say MercExchange or Verizon they are basically a patent of an idea and the ‘reduction to practice” is simply the application of standard techniques to implement the idea. The guts of the patent is the idea and there is nothing significant or new in the reduction to practice.

  4. pds:
    While I whole-heartedly agree with your endorsement of a strong patent system, I’d suggest one minor clarification:
    The preamble to the “patent clause,” Article I, Section 8, Clause 8, reads: “The Congress shall have Power …”, so that taken together you have:

    “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

    What some people miss, including the Supremes in eBay, is that, if Congress does decide to secure patents as it has done, there is no option regarding “the exclusive Rights” – whether by ordinary injunction or otherwise, exclusive means exclusive, period.

  5. “What is it that makes you think that anyone, having had an idea, has a moral right to demand that no one else can independently have the same idea and use it?”

    An idea alone cannot be protected. However, I never advocated that ideas alone should be patentable. I wrote “ideas reduced to practice.” If someone has an idea for the greatest mousetrap in the world and reduces it to practice … then that someone should be able to protect that idea reduced to practice. If that person, himself/herself, was in a position that reducing that idea to practice would not otherwise be beneficial to himself/herself, then that idea would not be disclosed. If a product that took $1M to produce reduce the idea to practice and the first copy yet costs only $5 to produce a copy, then it is very unlikely that someone will invest the $1M to reduce the idea to practice since that person will lose money if the idea reduced to practice cannot be protected.

    Our patent system is designed to both encourage innovation and disclosure of that innovation. For those that have never met an independent inventor, you cannot imagine how much enthusiasm some of these people have to develop new ideas. Without the incentive of being able to obtain a patent, however, I believe much of that enthusiasm would be absent.

    BTW: I think the Chinese have shown that when patent rights are loosely enforced, there is a lot more copying go on than innovating.

    “Your analysis of the Constitution is faulty. The constitution REQUIRES protection of property rights; it PERMITS the granting of patents. There is nothing in the Constitution requiring the granting or protection of patents.”

    You should reread the US Constitution. Article I, Section 8 of the US Constitution specifically states the following:

    “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”

    I don’t read anything optional in that statement.

    As for property rights, you have to look to the Fifth Amendment before you find anything about property rights.

  6. This is a pointless debate if ever there was one. A drawing by Picasso is a unique expression of an idea. So is a stream of computer code isn’t it? A good patent claim, by contrast, contains within its ambit EVERY expression of a good idea. Every patent attorney knows that what is constantly happening is independent conception of neat ideas. To let another bee out of my bonnet: all this goes to show is that the Best Mode requirement is a crackpot one. What public policy requires is that an Applicant has to enable, over a range fitting with his claim scope, commensurate with the scope of the monopoly he demands. Like in ROW and now at last (Leibel was it?)in USA.

  7. Joe wrote:

    “It was disclosed in 1997 that public-key cryptography, including the RSA cryptosystem, was first invented at the British intelligence agency GCHQ in the late 1960s and early 1970s by Ellis and Cocks (for more information click here); however, in 1976, Diffie and Hellman independently discovered public-key cryptography and, in 1977, Rivest, Shamir, and Adleman independently discovered the RSA cryptosystem.”

    Joe, do you actually believe this ?

    I find it very hard to believe unless I see some hard evidence like a printed paper or document describing public key crypto and RSA algo as we know them today…
    They say it was a secret development, but hey, it’;s been almost 50 years, it’s not a secret anymore.
    Can you produce a reference to prove your point ?

  8. small inventor said

    “Let me tell you, my friend, that the mathematical probablity that some FOSS monkey writing code can accidentally infringe on e.g. RSA or Karmarkar patent is about the same as the probability that a bunch of real monkeys (from a jungle) typing some random crap on a computer keyboard can accidentally produce e.g. a Shakespeare’s sonnet”

    There are several problems with this. One is that while I am deeply sceptical about software patents I am actually not completely opposed to the idea. Another is that I was not talking about random events. Some one wanting to write a love song is not going to reproduce “Green Sleeves” but someone trying to solve linear programming problems might well reproduce Karmakar’s algorithm. So far as your example of RSA goes it appears that someone did invent it independently and earlier than the claimed patent:

    “It was disclosed in 1997 that public-key cryptography, including the RSA cryptosystem, was first invented at the British intelligence agency GCHQ in the late 1960s and early 1970s by Ellis and Cocks (for more information click here); however, in 1976, Diffie and Hellman independently discovered public-key cryptography and, in 1977, Rivest, Shamir, and Adleman independently discovered the RSA cryptosystem.”

  9. Little Lemonade Joe wrote:

    “What is it that makes you think that anyone, having had an idea, has a moral right to demand that no one else can independently have the same idea and use it?”

    Hey, Joe,

    You have previously appealed to statistics to try to prove your point that patents are different from copyrights because it is highly improbable that someone can independently reproduce e.g. some copyrighted song or novel..
    Let me tell you, my friend, that the mathematical probablity that some FOSS monkey writing code can accidentally infringe on e.g. RSA or Karmarkar patent is about the same as the probability that a bunch of real monkeys (from a jungle) typing some random crap on a computer keyboard can accidentally produce e.g. a Shakespeare’s sonnet

  10. “BTW, what is [it] about stealing someone’s else idea that does not violate a “moral right”?”

    What is it that makes you think that anyone, having had an idea, has a moral right to demand that no one else can independently have the same idea and use it?

    Your analysis of the Constitution is faulty. The constitution REQUIRES protection of property rights; it PERMITS the granting of patents. There is nothing in the Constitution requiring the granting or protection of patents.

  11. “Well that’s exactly the point, isn’t it? Adobe has monopoly on it. Prior to their assertion of this patent, it was VERY common… ALL graphical programs used for graphical design had this feature. Now only Adobe has it.”

    If what you say it true, then as long as you have some verifiable proof, which meets the requirements of 35 U.S.C. §§ 102, 103 then Adobe has an invalid patent. Even back in the 90′s, they had reference books. There must have been at least one reference book that had a screen shot (or even description) of the GUI you are asserting to be “VERY common” amongst “ALL graphical programs”. All it takes is a single anticipatory reference to invalidate the claims.

    You’ll have to excuse my skepticism, but I have long since lost count of how many times I’ve read someone claim “such and such” aspect of software was known long before patent 6,XXX,XXX was filed. However, for all those assertions, I cannot recall a single instance in which someone actually provided proof of that assertion.

    “Congress wisely decided long ago that mathematical things cannot be patented.”
    Let me guess, you are not a patent attorney. Congress never made such a decision. Moreover, mathematical things can be patented. The prohibition occurs upon the ***invention as a whole*** being directed to abstract ideas or rules of nature, and this prohibition is part of case law, not by statute (i.e., Congress).

    Actually, it appears that the above quote is from Donald Knuth. As apparent from the entire quote, his knowledge about patents is comparable to my knowledge of how to clone human beings.

    “It’s amusing to watch attorneys quibble over whether something is novel enough or not to be patented, forgetting that patents aren’t a natural or moral right but a fiction designed solely to promote the common good.”

    It was a fiction the founders of the USA deemed important enough include in the Constitution. BTW: Most property rights are legal fiction. Although you may “own” your car, somebody could break into it a drive it away and claim they own it. Think hard … what “fiction” helps to prevent everybody from taking one another’s property … it is something called “property rights.”

    BTW, what is about stealing someone’s else idea that does not violate a “moral right”? You cannot fill bottles with muddy water, slap a “Coca-Cola” label on it and sell it. Why should you be able to take the GUI someone else developed and use it in your own software? Is it your position that theft of ideas reduced to practice is OK?

    MM Free

  12. Hey Microsoft: I’M YOUR HUCKLEBERRY. Go ahead and identify a few of those patents so that I may invalidate them. He, he, he, he.

  13. The refusal to name the patents — and worse, the statement that if they did, Linux people would break the patents — indicates that this is pure FUD. Microsoft is positively inviting a Lanham Act suit against it.

  14. ” You took my words out of context and argued them in isolation”

    Actually I quoted them in context. It’s not my problem that in your effort to make some “other” point you made some strange statements about the patentability of thoughts.

    “I can see you will continue to do this”

    You stole my Magic Cue Ball, didn’t you? ;)

  15. “Is your maple tree support mechanism patentable?”

    Yes absolutely by todays standards- no doubt, the more so the more people care about what problem is addresses. This is exactly what UI patents and method patents and software patents are…

    Should it be? No.

  16. It’s amusing to watch attorneys quibble over whether something is novel enough or not to be patented, forgetting that patents aren’t a natural or moral right but a fiction designed solely to promote the common good. Software and method patents fail that test with flying colors. That’s why the luminaries I quoted said what they said.

    You can argue forever about how many angels are going to fit on the head of a pin, but the real issue is always going to be -is it good for society? The larger world, that is everyone who isn’t patent attorney or a beneficiary thereof, is going to adjudicate this issue by that standard and no other.

  17. ‘However, such a patent would be useless anyway – to be useful it sould somehow interact with the real world.
    “Software” patents , whether valid or not, describe something happening in the real world.’

    I live in the real world. I can see numbers and graphs on my spreadsheet, which I can use while sitting on my real chair. I can interact with these numbers and graphs. What part of this is not in the real world?

  18. >”Is your maple tree support mechanism patentable?”
    >No, of course not, if it stays entirely in the virtual reality.

    If novel and non-obvious, why not?

    “A method of virtually supporting a virtual tree in a virtual environment comprising…”

    If someone has a commercial interest in the virtual health of a virtual environment then why shouldn’t virtual solutions to virtual problems in that environment be patentable?

    I would be surprised if there aren’t already patent applications pending that relate to Second Life etc.

  19. “Is your maple tree support mechanism patentable?”
    No, of course not, if it stays entirely in the virtual reality.

    However, such a patent would be useless anyway – to be useful it sould somehow interact with the real world.
    “Software” patents , whether valid or not, describe something happening in the real world.

    It’s called a “utility patent”

  20. SoftwareVis:

    >>One- your post is 75% ad hominem…

    I’m afraid I don’t know the Latin for “the pot calling the kettle black”…

    My comments were not directed at you personally. This Adobe example seemed to me to be a classic example of a syndrome seen all the time in discussions of patents and software. I was genuinely seeking to shed some light.

    >>On the substantive things you tried to say, you’re just wrong.

    mmm-hmmm?

    >>The claim you cited (and which I linked you to) lays claim to the entire sphere of a floating tabbed palettes…

    That’s what patents try to do. The examination process is supposed to determine whether the claims are justified. The examination process for software patents has never been fit for purpose, that’s the problem.

    >>This is what is owned by Adobe. You cannot code THIS EFFECT … THIS END RESULT… in ANY other way without violating their patent. Period. End of story. Today. Tomorrow. Until the year 2014, at least.

    Correct. Original code is protected by copyright – a very limited right most useful against outright piracy. Patents try to monopolize all variants that achieve the same end in the same basic way. The tricky thing about patents is deciding how broad a monopoly is justified by the teaching provided in a particular patent application, when judged against the prior art.

    >>YOU SAID:
    >>”From my own experience, I wouldn’t say that’s “a UI device common in all programs”.”

    >>Well that’s exactly the point, isn’t it? Adobe has monopoly on it. Prior to their assertion of this patent, it was VERY common… ALL graphical programs used for graphical design had this feature. Now only Adobe has it.

    Well, the other important aspect of that point is timing. If all these programs had that feature before Adobe applied for their patent then the patent is invalid. If all these other people saw this feature in an Adobe product after the patent was applied for and thought “that’s a good idea, we’ll use that”, then that is strong evidence that it was non-obvious and therefore patentable. These things need to be decided on evidence, not personal opinion.

    >>I am a well-known PHOSITA in this area and let me assure you, you are not.

    The PHOSITA is a legal abstraction – you wouldn’t really want to be that person. I have no idea who you are, and you surely don’t know who I am.

    >>This floating palette is much less inventive than the original tree of files, which itself was just a visual expression of the underlying binary tree representing the structure of the disk. The point here, and in my imaginary conversation, is that, if this floating tab crap, and I use that word advisedly, is to be the threshold for patentability, then everything else I said in that conversation follows, since every single one of the millions of pieces that go into making the computer you’re reading this on were potentially patentable.

    What you actually said originally was:

    “Imaginary_Person:
    but that’s silly.. that means that every little bit of functionality on the UI could have been patented !

    SoftwareVis:
    yes exactly..the tree of files and folders, the fact that when you click on that tree, a folder’s contents are opened…. every button.. every scrollpane… the blinking cursor…the fact that when you arrow down, your insertion point goes down…all could have been monopolized…”

    Yes, historically a lot of important stuff that could, theoretically, have been patented, wasn’t patented. If it had been, the world would likely be a very different place now. That doesn’t mean that “every little bit” could have been patented. That is simply wrong. There is academic literature going back to the 50s and 60s that anticipates/renders obvious a lot of sophisticated functionality that didn’t see the light of day until the 80s or later.

    Software patents are a fact and there’s no sign they’re going away. I deliberately didn’t express a view as to whether that is a good or bad thing. The current situation with software patents is a mess, and that’s a fact whether you are pro- or anti- patent. The whole point of my post was that most of the “industry” people with strong negative views about software patents need to be a whole lot better informed about patents if they hope to make any kind of difference. Also, most of the “establishment” people need to understand the software industry (as a whole) better if they are going to deliver IP solutions that serve industry and society in a just and positive way.

    >>Finally, you know nothing about what the software industry needs, and you’re not qualified to speak on that issue. You have accomplished nothing in the area and contributed nothing.

    >>You do, however, hope to see yourself and your kind set up by the government as a necessary and highly paid intermediary in the business of software. You’re a lobbyist. You desire that the law should force people to pay you a fee or tax before they can get on with the business of creating something useful. That is your contribution to the software industry.

    [sigh]

    (a) ad hominem pot/kettle
    (b) I have no idea who you think I am…

    I don’t have a personal vested interest in any of this. What I do have is a solid working knowledge of IP issues and how they impact on industry big and small. The patent system as we know it evolved to meet the needs of the Industrial Revolution. My own view is that it needs root and branch reform to meet the needs of a globalised information economy. That will take at least a generation and we haven’t even started yet. In the meantime, we need to make the existing system work better.

    That needs a grown-up debate, and it gives me no pleasure to say that there is little sign of such a debate ever happening.

  21. A thought experiment for the software patent question:

    Suppose there is a computer so powerful that it can model entire cities. This computer doesn’t really differ much from the computers that exist today, it’s just got a lot more umph. Now suppose you could put on a special suit and visit the modeled city of your choice, a la virtual reality.

    One day while visiting the model of your hometown, you notice a peculiar problem with maple trees in your old neighborhood. The trees seem to fall over and die in the slightest breeze. Ever resourceful, you invent a unique support mechanism to brace them against the wind, and that seems to fix the problem.

    When you return to the real world you try to reproduce your support mechanism but can’t—it seems to be geometrically impossible. Then you remember that the real maple trees in your real hometown didn’t ever fall over. You return to the modeled town to make sure that you weren’t imagining things, but the problem still exists there and your solution still works. Thus, you conclude that there is some difference between the real town and the computer modeled one.

    Is your maple tree support mechanism patentable?

  22. Malcom. I enjoyed our discussion, and will end it here. For the record — and I thought I was clear on this — I have not been discussing what actually *is* patentable according to current interpretations. I am well aware of the state of the law on this issue. However, I disagree with the court’s interpretation of the statutes as they are written, which doesn’t preclude a computer program or a method to carry out a series of steps that do not result in a physical transformation. This is a purely court-created restriction on patentable subject matter. I don’t believe a pure mathematical algorithm should be per se unpatentable, and I don’t think their rule is useful in distinguishing a natural law or scientific discovery from a man-made thing or process. You took my words out of context and argued them in isolation, rather than address my actual question. I can see you will continue to do this and there is no point in furthering our discussion. Feel free to respond, but don’t expect me to follow up.

  23. Just shut up, softwarevis..

    Apparently you haven’t advanced beyond the point of writing stupud user interfaces in your “creative” software career.
    Some other people created a whole bunch is stuff for you – things you use every day without even thinking that thay are all based on some fundamental mathematical ideas,
    algorithms if you want…
    When you shop on the internet say thanks to those guys from MIT who invented and patented RSA algorithm. Say thanks to the same guys each and every time you
    run a secure shell session to some remotely located Unix server
    When you talk on your cell phone say thanks to those guys from Bell Labs who invented all those vocoder algorithms etc. etc etc

    Pure math without concrete application is not patentable.
    But the actual way of doing something useful, with or without math, IS patentable, and will always be parentable, if it’s novel and non-obvious.
    That’s why it’s called a “utility patent”
    Try to get one for yourself after KSR decision or just shut up

  24. Gobnicks…

    One- your post is 75% ad hominem of which there is quite enough around here. For instnace, I merely said Abobe had a patent that covered them. You then expanded that statement into things I decidedly did not say
    “We see this over and over and over and over again whenever software patents are discussed: so and so has a patent for such and such which means that no-one else can do such and such when everyone knows that lots of people have been doing such and such since time immemorial.”

    I did not say any of that. You said that, then attributed it indirectly to myself.

    On the substantive things you tried to say, you’re just wrong.

    The claim you cited (and which I linked you to) lays claim to the entire sphere of a floating tabbed palettes, whereby the information which appears on one tab (of many) is transfered to a (floating) palette for the sake of ease of accessibility (some group of logically related functions are brought together (the tab) then front and center (the floating palette). This is what is owned by Adobe. You cannot code THIS EFFECT … THIS END RESULT… in ANY other way without violating their patent. Period. End of story. Today. Tomorrow. Until the year 2014, at least.

    YOU SAID:
    “From my own experience, I wouldn’t say that’s “a UI device common in all programs”.”

    Well that’s exactly the point, isn’t it? Adobe has monopoly on it. Prior to their assertion of this patent, it was VERY common… ALL graphical programs used for graphical design had this feature. Now only Adobe has it.

    Meanwhile, Adobe is only too happy to drink and drink again from the universe of results, techniques, know how, and ideas that they inherited along with everyone else which are nothing less than the fruit and gifts of the best minds in computer science over the 20 years prior to their own lecherous existence, that 20 years being the lifetime of the patents that those scientists did not seek out.

    I am a well-known PHOSITA in this area and let me assure you, you are not. This floating palette is much less inventive than the original tree of files, which itself was just a visual expression of the underlying binary tree representing the structure of the disk. The point here, and in my imaginary conversation, is that, if this floating tab crap, and I use that word advisedly, is to be the threshold for patentability, then everything else I said in that conversation follows, since every single one of the millions of pieces that go into making the computer you’re reading this on were potentially patentable.

    Here are the words of people who actually did the work you depend on:

    Congress wisely decided long ago that mathematical things cannot be patented. Surely nobody could apply mathematics if it were necessary to pay a license fee whenever the theorem of Pythagoras is employed. The basic algorithmic ideas that people are now rushing to patent are so fundamental, the result threatens to be like what would happen if we allowed authors to have patents on individual words and concepts. Novelists or journalists would be unable to write stories unless their publishers had permission from the owners of the words. Algorithms are exactly as basic to software as words are to writers, because they are the fundamental building blocks needed to make interesting products. What would happen if individual lawyers could patent their methods of defense, or if Supreme Court justices could patent their precedents?

    -Donald Knuth

    “…There is absolutely no evidence, whatsoever—not a single iota—that software patents have promoted or will promote progress…
    -Jim Warren (Autodesk) 1994

    “In the majority of cases in software, patents [affect] independent invention. Get a dozen sharp programmers together, give them all a hard problem to work on, and a bunch of them will come up with solutions that would probably be patentable, and be similar enough that the first programmer to file the patent could sue the others for patent infringement. Why should society reward that? … The programmer that filed the patent didn’t work any harder because a patent might be available, solving the problem was his job and he had to do it anyway. … Yes, it is a legal tool that may help you against your competitors, but I’ll have no part of it. It’s basically mugging someone

    -John Carmack (id Software) 2005

    “…SAP would not need patents to protect its investments and is collecting them only as a defensive weapon to prepare for litigation in the U.S…”

    -Prof. Hasso Plattner when Chair of SAP Board

    Finally, you know nothing about what the software industry needs, and you’re not qualified to speak on that issue. You have accomplished nothing in the area and contributed nothing.

    You do, however, hope to see yourself and your kind set up by the government as a necessary and highly paid intermediary in the business of software. You’re a lobbyist. You desire that the law should force people to pay you a fee or tax before they can get on with the business of creating something useful. That is your contribution to the software industry.

  25. “Suppose the scientific discovery involves a repulsive property of dark matter and the invention reads, “a method for calculating a repulsive force of dark matter, the method comprising: receiving a universal constant; receiving density of the dark matter; receiving a mass and a distance from a center of gravity of the dark matter; calculating result of a repulsive force equal to [insert formula here]; and generating an output comprising the result.

    I haven’t claimed a law of nature, just a method for calculating a value determined by the law. There is no prior art because I discovered the law. Why is or isn’t this patentable?”

    Without seeing the specification, I do not know what is meant by “generating
    an output comprising the result.”. Overall, the claim seems too broad to
    be enabled and reminds me of O’Reilly v. Morse. I don’t know of the utility
    of your hypothetical invention either.

    Having said that, to violate your claim someone has to practice all the steps. IF
    your hypothetical invention is new, useful, and nonobvious then I would suppose
    you could obtain a patent. This, of course, assumes your specification enables
    your claim.

    As you have already pointed out, you are not claiming a law of nature but
    are attempting to claim a method of using the law of nature to achieve
    a useful, concrete and tangible result. The question in your case would probably
    still come down to whether your invention is useful and not obvious. This
    comes down to what is meant by “generating an output comprising the result.”

  26. To paraphrase “Apocalypse Now!” –

    “Man, the BS piles up so fast in the software patent debate you need wings to stay above it…”

    First, let’s take this Adobe patent as an example:

    “Tabbed panes are a UI device common in all programs. Adobe had a patent issued that covered them.”

    We see this over and over and over and over again whenever software patents are discussed: so and so has a patent for such and such which means that no-one else can do such and such when everyone knows that lots of people have been doing such and such since time immemorial.

    OK, if you want to know what a patent stops you from doing YOU NEED TO READ THE CLAIMS, not just the title or the abstract.

    If you want to know what the claims actually mean, you have to read the whole patent*, which is usually very boring and it’s no surprise that so few people who express opinions in these kinds of threads ever do.

    *In the USA, you also really need to read the whole file history of the patent application and even then you’ll probably still be guessing at how an actual court would interpret it.

    More often than not, if you read enough of the patent to get a reasonable idea what the claims mean, you will realize that the patent is not as scary as you thought/were told.

    Look at claim 1 of the patent in question:

    United States Patent 5,546,528
    Johnston August 13, 1996

    1. A method for combining on a computer display an additional set of information into a group of multiple sets of information needed on a recurring basis, comprising the steps of:
    establishing an area on the computer display in which the group of multiple sets of information is to be displayed, the area having a size which is less than the entire area of the computer display;
    providing within the area a plurality of selection indicators, [each?]one associated with a corresponding one of the multiple sets of information; and
    selecting a second of the multiple sets of information from the group for display within the area by activating a selection indicator [any one of them?]associated with a corresponding [any?]one of the multiple sets of information, whereby the second of the multiple sets of information is substituted within the area of the display for the first [no antecedent basis for “the first”]set of information; and
    combining the additional set of information, displayed in a different area of the display from the established area[the “additional set” is already displayed in an area different from the *tabbed set*], into the group of multiple sets of information so that the additional sets of information may be selected in the same manner as the other sets of information in the group.

    First then, this claim has a some glaring clarity issues that should never have got past the examiner, but nothing so bad as to stop us understanding what it’s really trying to say.

    It does NOT cover all kinds of “Tabbed panes [that] are a UI device common in all programs”. The claim requires that “an additional set of information” displayed on one part of the screen be combined with, for example, an existing tabbed group displayed on another part of the screen.

    (There’s a second independent claim in similar terms that covers removing a set from a tabbed group.)

    It DOES cover (loosely speaking) giving a user the ability to drag and drop individual floating toolboxes/palettes/whatever in and out of tabbed groups.

    From my own experience, I wouldn’t say that’s “a UI device common in all programs”.

    How clever an idea it was in 1994 (when the patent was first filed), or how difficult it is to implement, I’m not qualified to judge, but it’s plainly not the prima facie travesty of justice it has been painted as.

    Next, as is again typical in these kinds of discussions, wild extrapolations are made from a premise that is wrong to begin with:

    “Adobe “owns” that effect of tabbed palletes… now now now… I know what you’re thinking, so let me have an imaginary conversation with and draw all this out..

    Imaginary_Person:
    but that’s silly.. that means that every little bit of functionality on the UI could have been patented !

    SoftwareVis:
    yes exactly..the tree of files and folders, the fact that when you click on that tree, a folder’s contents are opened…. every button.. every scrollpane… the blinking cursor…the fact that when you arrow down, your insertion point goes down…all could have been monopolized…”

    WRONG! Anything that is “novel” may be potentially patentable, but the patent system has recognized for decades that not everything that is “novel” deserves a twenty year monopoly. Which is where “obviousness” comes in and where the “person having ordinary skill in the art” comes in and where software patent quality goes out the window, because (a) the obviousness criteria for software inventions haven’t been developed over many years of case law as they have for other technologies and (b) the prior art, against which novelty and obviousness must be judged, has not been documented in the same way as it has for other technologies.

    A grown-up software industry needs grown-up IP rights just like any other industry. It’s not gonna get them without a grown-up debate.

    “He who knows and knows he knows: he is wise – follow him.
    He who knows and knows not he knows: he is asleep – wake him.
    He who knows not and knows he knows not: he is simple – teach him.
    He who knows not and knows not he knows not: he is a fool – shun him.”

  27. “it was the Supremes that said “Anything under the sun made by man,” not me.”

    Sure, they said those words. But every serious person knows that they didn’t mean “thoughts” when they said “anything.”

    “if you opened your mind for a few seconds”

    I don’t need to open my mind, my friend. It’s wide open and so are my eyes. You said that a patent that covered thinking a certain thought was “clearly unenforceable.” But if allow myself to step into the fantasy world (i.e., your world) where the Supreme Court said that thoughts are patentable, then it’s far from “clear” that a patent on thoughts is “unenforceable.” Have you not heard of brainprinting? Have you not heard of electroshock?

    “I never suggested that facts are patentable, nor thoughts,”

    Oh please put the goalpost down now. You wrote:

    “[Information] is “an article of manufacture” end of story. True, that medium could be a person’s brain, and a person could therefore potentially infringe a patent by thinking a particular series of thoughts. Such an act of infringement is clearly not enforceable, but why is that a problem?”

    So yes you did suggest that thoughts were patentable. If you want to retract the statement as one made in error, please be my guest. We all make mistakes.

    “why can’t a Beauregard claim be realized as “words on a page”? A machine readable medium can be a piece of paper, and the machine can be an OCR device. ’nuff said.”

    I’ve made this point myself on this blog dozens of times. Beauregard is a bogus case and Beauregard claims are bogus claims and someday in the not-too-distant future (10-20 years) we will say buh-bye to such claims.

    I’ll let Mr. Bellie take a stab at your brain teaser re the dark matter before I weigh in …

  28. Malcom:

    >> Thoughts are “articles of manufacture” under 101? No, I think not. But go ahead and file your brief with the Supremes. They’ll chuckle along with me.

    Maybe so. But it was the Supremes that said “Anything under the sun made by man,” not me.

    >>LOL!!! Up above we are told that thoughts are “articles of manufacture” (“end of story”!!!). Now we are told that infringement by thinking a series of thoughts is “clearly” not enforceable.

    Validity and enforceability are two different things. There are lots of patents that are valid and yet unenforceable from a practical standpoint. That is what I was referring to, and if you opened your mind for a few seconds, you would have realized this from the example I gave.

    >>*Ahem* You can’t patent facts. You can’t patent words on a page. You can’t patent your patent application itself.

    I never suggested that facts are patentable, nor thoughts, nor “words on a page,” per se. You are putting words into my mouth and then refuting them. But since you brought it up, why can’t a Beauregard claim be realized as “words on a page”? A machine readable medium can be a piece of paper, and the machine can be an OCR device. ’nuff said.

    Mr. Bellie:

    Suppose the scientific discovery involves a repulsive property of dark matter and the invention reads, “a method for calculating a repulsive force of dark matter, the method comprising: receiving a universal constant; receiving density of the dark matter; receiving a mass and a distance from a center of gravity of the dark matter; calculating result of a repulsive force equal to [insert formula here]; and generating an output comprising the result.

    I haven’t claimed a law of nature, just a method for calculating a value determined by the law. There is no prior art because I discovered the law. Why is or isn’t this patentable?

  29. I’m just curious how many people here actually read the article referred to. Based upon the article, it appears that Microsoft has no intention of suing based upon these patents.

    Instead, like most companies in a patent-rich environment (the semiconductor field is another), they are trying to cross-license with other companies who have patents which MS products likely infringe.

    As for whether or not “software” is statutory subject matter, I don’t think anybody could honestly argue that software does not fall directly in the broad category of “technology.” Also, I think software, as technology, is very different from “abstract ideas.” As such, I believe that software should be considered statutory subject matter.

    What I think what confuses many people is the phrase “software,” which many construe to mean is just the written lines of code that creates the software. However, as I’ve noted in another thread, software is almost always claimed as either (i) a series of steps or (ii) a system having functional elements, which perform these steps, and in so doing, interact with one another.

    MM free

  30. “Mr. Bellie — Where does it say in §101 that an invention must have a reao, tangible, and concrete result? I agree with your assessment of “most software patents” but I haven’t yet heard a rational explanation as to why software shouldn’t be patentable.”

    First, I believe software absolutely should be patentable. The prohibition
    on software is only that it can’t be a series of steps that are not useful.
    The thing about “useful, tangible, and concrete
    result” comes from the State Street bank decision and is an attempt
    to help define inventions that are useful.

    “First, if expressed as a method, 35 USC 101 has no restriction as to whether the method involves a physical transformation or not. This is a silly judge-made rule that is unnecessary and illogical. Its purpose is to avoid patenting of pure mathematical algorithms. But where in the statute are these prohibited?”

    35 U.S.C. 101 requires an invention to be both new and useful.
    The silly judge made rule is to enforce 35 U.S.C.
    101 by making the invention useful. As for a requirement of transforming
    matter, see MPEP 2106 where it states that if the invention
    is directed toward a judicial exception (such as an abstract idea) it needs
    to either transform an article to a different state or thing OR otherwise
    produce a useful, concrete and tangible result. i.e. it needs to be useful.

    “And, even if it is related to a scientific discovery, why should it suddenly become patentable simply because it is claimed as a computer program the spits out a result on real, physical, and concrete, paper?”

    It doesn’t; it depends on what the scientific discovery is. Is the scientific
    discovery a way to get 1000 miles/gallon of gas. This would likely
    be patentable. If it is a law of nature, it is not patentable because
    a patent would effectively remove the laws of nature from the public domain.
    102 prohibits patenting when the invention is known or used. The key here
    is used.

  31. “Information cannot possibly exist outside some medium. Think about it. Since it is necessarily a physical thing that cannot exist outside some medium, it is “an article of manufacture” end of story.”

    Thoughts are “articles of manufacture” under 101? No, I think not. But go ahead and file your brief with the Supremes. They’ll chuckle along with me.

    “True, that medium could be a person’s brain, and a person could therefore potentially infringe a patent by thinking a particular series of thoughts. Such an act of infringement is clearly not enforceable, but why is that a problem?”

    LOL!!! Up above we are told that thoughts are “articles of manufacture” (“end of story”!!!). Now we are told that infringement by thinking a series of thoughts is “clearly” not enforceable.

    Yes, I suppose some people do live in alternate universes. If we listen to the fundamentalist Bush appointees hailing from Regent University, we might learn that “facts” are simply “deeply held beliefs” and if we simply adopt the “correct” “worldview” we will discover that up is down, black is white, 2+2=5, the earth is 6,000 years old, and humans were “clearly” designed.

    *Ahem* You can’t patent facts. You can’t patent words on a page. You can’t patent your patent application itself.

    People may wish it were otherwise and there are three easily discernable reasons for this: some people are wankers and some people are really greedy and some people are both.

  32. Sorry to get off on a tangent here, but there is something I have been wondering in this regard:

    Mr. Bellie — Where does it say in §101 that an invention must have a reao, tangible, and concrete result? I agree with your assessment of “most software patents” but I haven’t yet heard a rational explanation as to why software shouldn’t be patentable.

    First, if expressed as a method, 35 USC 101 has no restriction as to whether the method involves a physical transformation or not. This is a silly judge-made rule that is unnecessary and illogical. Its purpose is to avoid patenting of pure mathematical algorithms. But where in the statute are these prohibited? Under 101, you can’t patent a scientific discovery, and sometimes mathematical discoveries are expressed as a mathematical equation (e.g., E=Mc², defining a relationship between matter and energy). However, we have never had difficulty in the past distinguishing a naturally occuring rock that is a scientific discovery from a patentable material, why is it so hard to distinguish an otherwise patentable algorithm from a scientific discovery such as E=Mc²?. And, even if it is related to a scientific discovery, why should it suddenly become patentable simply because it is claimed as a computer program the spits out a result on real, physical, and concrete, paper?

    A more metaphysical argument is necessary when considering a claim to simply “a computer program” in that one has to accept that information per se is a physical thing. A computer program is a set of instructions and can be broadly characterized as information. Information cannot possibly exist outside some medium. Think about it. Since it is necessarily a physical thing that cannot exist outside some medium, it is “an article of manufacture” end of story. True, that medium could be a person’s brain, and a person could therefore potentially infringe a patent by thinking a particular series of thoughts. Such an act of infringement is clearly not enforceable, but why is that a problem? There are plenty of patents out there that a person could infringe in their backyard or garage by performing a series of steps, and there is no way to enforce the patent against these individuals. The infringing activity occurs in the privacy of the person’s home, which is sacrosanct. The only available potential infringement is maybe for inducement of some organization for encouraging such infringement.

    I would love to see why I am wrong about this.

  33. “Molgen’s claim is based on the principle that everything a computer seems to be doing (i.e., what would be written in the process claim in a human-readable way) is at the most basic level a series of mathematical operations on 32-bit number sets.”

    I still don’t buy Mr. Molgen’s argument. As long as the result is real, tangable, and concrete, process
    claims implemented in software can be every bit as inventive as an article of manufacture. Nobody
    is patenting the mathematical operations on 32-bit number sets per se. If you want to look at it that
    way I would say that software would be an example where all the elements (operations on 32-bit
    number sets) are known in the art and that each element does nothing more than it did before
    (0×1+0×1 still = 0×2) but that the end result of the whole is better than the sum of the parts.

    Of course, I still think that many software patents are junk.

  34. This will only work for Microsoft as a Fear, Uncertainty and Doubt campaign.

    I’m not concerned about the Linux kernel at all for several reasons.

    The first Linux kernel version is from 1991 and it’s history is well documented. You can download every version from http://www.kernel.org. Most if not all of the patents will have been filed later than 1991. So Linux might well be itself prior art for a larger number of the 42 patents.

    And there is the UNIX kernel itself, which has been distributed as source code to a number of universities worldwide since the 1970s. Linux actually uses a lot of the methods of concepts of UNIX.

    This leads also to another argument: UNIX worked already in the seventies, when the USPTO didn’t accept any software patent applications. So it will always be possible to have a Linux version, which doesn’t infringe on any of the Microsoft patents. Almost all of the fundamental concepts are computer science 101 and are described in numerous text books. (I have most of the classic texts in my private library.)

    It could also well be that Microsoft’s own products are prior art to their own patents. Microsoft sold for a long time a UNIX product called Xenix, which has been based on the AT&T sources.

    It is also telling that Microsoft doesn’t want to tell, which patents are violated by Linux. If they are so in favour of the patent system, why don’t they start to sue the infringers to get their rights. I guess lack of legal resources and funding cannot be the problem. Might it be a weak case?

  35. FOSS is willing to call MS hand anytime itd like to lay them down. FOSS will flush their claims away, it has nothing to worry about as MS has never played straight.

  36. What I don’t understand is why everyone seems surprised about Microsoft’s announcement.

    Come on…As I wrote earlier today, Microsoft is just finally confirming what everyone already knew. Pubpat did an exhaustive study a few years ago that found 283 patents that potentially read on Linux. Just a few months ago, Richard
    Stallman himself was quoting that study and suggesting that the reality is that Linux probably infringes more than that now!

    So, Even if 50 percent of them are absolute crap… well, that’s still a lot of patents to deal with. The real story hear is what does it mean for the future of the GPLv3, the Free Software Community, the Open Source Community, and the proprietary software community.

    link to blog.actonline.org

  37. I use OpenOffice. A quick check of the OpenOffice.org site tells me that many of the volunteers are outside the US. Those inside the US are just that, volunteers.

    Who does MS sue? Those outside the US are untouchable, and those inside the US are suitable only for injunctive relief. So MS sues. The volunteers stop, but someone else steps in to replace them. The OOo community is pretty much unstoppable by MS.

    But, Sun is also a part of OpenOffice.org, sort of. Sun may be willing to take on MS, Sun may drop their limited sponsorship, or Sun may be untouchable because they are not the infringing party (depends on what is in StarOffice).

    Hmmm. Sounds like this may be MS stirring up FUD, again. See link to en.wikipedia.org

  38. Folks:

    One thing to keep in mind is that if MicroSoft holds a commanding marketshare position in an area in which they try to assert IP (generally considered to be 60% +), they can fairly easily get booted out of any patent infringement suit by filing an appeal with the Federal Trade Commission for violation of Anti-Trust statute. This is the curse of getting to big in the area of IP. Just a thought.

    Dennis – do you care to comment on this. I read about this in detail years ago, perhaps my information is out of date.

  39. Microsoft would do away with patents if they could (e.g. their amicus brief on KSR/Teleflex), in order to steal whatever ideas they can glean from the small companies. Monopolies are much more powerful than patents.

    This is a scare tactic to get Open Source people to step up their efforts to stop patents.

    Microsoft is very cunning in their manipulation of the Open Source community.

  40. The FOSS movement is an alliance between (1) The religionists, who think all proprietary softare is immoral; and (2) Significant corporate players who have adopted a business model of turning the operating systen into a commodity so they can get more money from selling hardware, proprietary applications, services, and Internet aps that attach to the OS.

    Linux could solve any problems with Microsoft patents quite easily by offering (1) Cross-licensing, whereby Linux gets to use MSFT IP and MSFT gets to use Linux code free of the GPL; (2) Side payments, if the cross licensing does not reflect the value of the IP. And IBM, HP, Sun, etc., can certainly afford payments.

    The fundamental point is that the moral superiority of the open source movement is a joke, a con foisted on the gullible. This is a competition between two different business models, and they should be left to fight it out in the market. Which means that the FOSS people do NOT get to claim that only their model is legitimate.

    As to patent quality – that is a different issue. Obviously, if MSFT’s patents are not good, they should go down (as should those belonging to IBM, the world’s largest patenter, I believe). But MSFT supported the petition for cert in KSR, and it has just been nailed on the MP3 matter, so it is not pushing junk. It is, I imagine, patenting everything it can under the current standard, but so is everyone else, including all the corporate supporters of FOSS.

  41. I’ll just let observers judge our responses as they are. Nothing you said responds in any meaningful way to either my thesis or my example r the problem I illustrated. Your comment that “nowadays” most things have already been invented is highly laughable and ironically reminiscent of the infamous and perhaps apocryphal quote, well know to readers of this blog, supposedly made by Charles Duell and at any rate always used to illustrated just how myopic and moronic people can be:

    link to quotationspage.com
    and here
    link to archive.adaic.com

    and double irony on this blog:
    link to patentlyobviousblog.com

  42. 2softwarevisualization:

    Your ignorance shows..

    patents are for 20 years.

    Internet (DARPA net) was in existence long time ago, e-mail too
    Even WWW is getting old.
    It is pretty hard nowadays to come up with some truly novel and original concept
    which can become indispensable. Most of those UI patents have a validity problem
    If somebody comes up with some really novel way of interactng with computer that person deserves a patent. But I hate to tell you it’s not gonna be you – you need something else besides the ability to crank out trivial code

  43. Yeah I’ll put up….and this is the last time you’ll post under the handle “anonymous agent”, one of your many, many many aliases…

    OK I’ll post.. and then we’ll hear no more from “anonymous agent” but a new person will appear.. with a new handle… saying the same old things “small inventor’s need sw patents ” junk….. denying reality in the same old ways using the same words… I think we all know who I am talking about here…the same voice accusing me and everyone else of being amateurs in my own field..

    well, unfortunately for you, I DO know what I am talking about…just like I knew exactly what I was talking about in the Verizon v Vonage fiasco….
    Here’s the patent:
    link to patft.uspto.gov

    Every SINGLE claim is about displaying information in such and such a way… end patent. It’s a joke.

    Here’s the press that followed it:
    link to macobserver.com
    link to thinksecret.com

    Here’s the wiki entry
    link to en.wikipedia.org

    and a web page specialized to GUI interface patents:
    link to cptech.org

    read it and weep.

  44. Mark, that’s what tends to happen when you get a patent discussion between people who don’t know patent law. To borrow one of their own sayings, GIGO – garbage in, garbage out.

    OTOH, there were a few salient points. I doubt very much if Microsoft has 65 GUI patents that are infringed by open source code. As others have rightly said, GUIs originated with Xerox PARC, and even quite old GUIs that pre-date MS Windows look much like those of today. Just run any of the emulators that are available and look at GEM on an emulated Atari ST, or look at Amiga Workbench. Microsoft was still pushing command line DOS when these were around. It was also quite correctly pointed out that the Linux Kernel is old enough to pre-date any unexpired patents, although obviously it is not unchanged in that period.

    Any valid patents that Microsoft do have in these areas will be for very minor incremental improvements, if indeed they are valid. Even then, there is the problem of who to sue, and on what theory.

    Despite the inacurracies, there is a lot of truth to what has been said.

  45. SoftViz -
    You wrote:

    Tabbed panes are a UI device common in all programs. Adobe had a patent issued that covered them.

    What is the patent number?
    Have you read the claims? What do they say?

    This is what I mean by IDIOTS characterizing patents WITHOUT READING THE FREAKIN’ CLAIMS !!!!!!

    Tell me, genius, what is the priority date of this appliaction ? (i.e. when was the first filing)

    GET YOUR FACTS STRAIGHT BEFORE YOU BLAB !!!

    What is the number of the patent ????

    My angry tone is because this stupidity (i.e. discussing what patents ‘cover’ with NO, absolutely NO, reference to the claims) is quite common in:

    a) business press;
    b) among academics (especially CS academics);
    c) among open source hippies.

    (b) and (c) are harmless idiots. (a) actually damages the patent system because people listen to this nonsense.
    So SoftViz – give us the NUMBER before you blab !!!

    My prediction – either:

    a) the patent is invalid; or
    b) the patent is about some obscure aspect of the tabbed panes that is trivial to design around.

    I’m waiting … PUT UP OR SHUT UP

  46. Sanpa,
    You’re not getting it, and understandably so, since it’s absurd, therefore I post an easy example :

    Tabbed panes are a UI device common in all programs. Adobe had a patent issued that covered them. Adobe then targeted Macromedia, a competitor. Adobe won. Fast forward five frames worth of “software patents are bad for competition and innovation” and Adobe now OWNS Macromedia, their former competitor.

    link to turdhead.com

    Now, Macromedia did not have the problem that they weren’t clever enough to “code around” the patents because the code wasn’t patented… the end effect was!

    Get it?

    It’s a joke, but it’s real!

    Adobe “owns” that effect of tabbed palletes… now now now… I know what you’re thinking, so let me have an imaginary conversation with and draw all this out..

    Imaginary_Person:
    but that’s silly.. that means that every little bit of functionality on the UI could have been patented !

    SoftwareVis:
    yes exactly..the tree of files and folders, the fact that when you click on that tree, a folder’s contents are opened…. every button.. every scrollpane… the blinking cursor…the fact that when you arrow down, your insertion point goes down…all could have been monopolized…

    Imaginary_Person:
    but this extends not just to UI widgets and their parts but also to protocols ! The internet..!

    Softwarevis:
    Oh yes every last bit of it, and Sanpa, there are MILLIONS and perhaps BILLLIONS of distinct bits of pieces of ideas involve, all patent material.. all of which could have been fought over and litigated and monopolized….

    Imaginary_Person:
    But nothing would have gotten built! Think of the licensing involved ! The time, the cost!

    Softwarevis:
    There is little doubt that, had this regime been applied to software and the internet from the start, the internet today would be the high-priced providence of multinationals about which the average Joe knew little, save for the issuance of some corporate flack about how it was not a rumor, it had been built, yes, but it was a great technological feat of Corporation AdobeMedia and it had been created at astronomical (licensing) expense and would probably be cost prohibitive for for mass consumptions for many years to come…although they were looking into licensing it for businesses within a few years… yes, email did exist, it was the private property and invention of AdobeMedia and they were looking into potential licensing deals for that technology too…

    Get it?

    The corporate types likes what the technological types and publicly-funded scientists create— and then thy want to own it all for themselves and choke all the money out of it, just before they kill it or get it into the state described above, which is essentially killing it.

    Get it? It’s about getting YOURS while you CAN and screw larger society and their interests….

  47. Good Lord there is so much ignorance on display on this thread. Looks like slashdot (which I generally like), not a patent blog.

  48. Sanpa-
    yeah but if it’s a matter of law that you can’t do such a thing, it doesn’t really matter how hard or easy it is… you have to grasp this underlying reality- you are not PERMITTED by law to code around patents.. in fact, that expression- ‘coding around patents’ is an oxymoron.. coding around patents has a shorter name by which it’s better known- infringement.

    That’s what software patents DO. They monopolize an end-effect. They monopolize a destination irrespective of how you got there. You have to let that sink in. That’s what Verizon’s patents are… no piece of them were anything ordinary…. literally, a claim was that they store some information in a database and retrieve it later. That’s the claim. No kidding… Dennis said that , well a jury found it valid.. and, yeah, that’s because under law it IS valid…

    No one or group is going to code their way out, around or through the implications of software and business method patents. That’s why they call it the law. It imposes unnatural restrictions on otherwise possible events.

  49. Damon,

    I realize how software patents work (I was a patent litigator before becoming an academic). When I say “code around a patent” I mean read the patent and find a way to code that doesn’t infringe whatever technology is being claimed. The kernel existed before these patents did, I am guessing there is a way to circumvent them. I’m not saying it will be easy to fix without losing functionality, but if anyone can do it, it is this community. After all the infighting that has come with creating GPL v.3, this might be what it takes to bring the group back together.

  50. Patent Attorney:

    I agree that coding around a bunch of patents (assuming they are even valid) won’t be easy. But nothing will bring the free/open source community together more than a Microsoft threat. Whether a programmer pragmatically embraces open source and GPL v.2 (the Torvalds camp), or believes that FOSS is a moral imperative and supports GPL v.3 (the Stallman camp), chances are they don’t want to see Microsoft win.

    -Sapna

  51. …this whole silly thread is another reason software patent and biz methods should be unpatentable subject matter under 101.

  52. Sapna Kumar said:
    the community will code around them..

    WRONG ! .. because what is patented is NOT code. It’s the performance of some abstract function- an effect, an ends, that has been given monopoly status. There is NO code you can write in ANY WAY to perform the same function which will not infringe. The USPTO gives out patents on abstract ideas so long as those abstract ideas in some way control something about a computer…. it’s no the methods or means to achieve an end which are covered by the patents.. it’s the ability to achieve those ends in anyway whatsoever on a computer….

    And yes, this is travesty that needs to be looked at by Congress lest the EU bury the US in inovation…

    Jim said :
    What astounds me is that Microsoft can, with a straight face, suggest that 65 interface patents have been violated. Didn’t they cop much of the interface design (in Window’s initial and subsequent iterations) from Apple?

    Yes and DOS (the OS that gave MS it start with IBM) is a complete, and I mean COM-PLETE and TOTLA rip of an early competing OS called CPM. Literally, it’s a line for line rip of CPM with the only difference being tha tMS uses a C prompt and CPM used a B prompt…
    confirm this here: link to en.wikipedia.org

    The problem is that patents weren’t widespread back then.. it was just understood that , like mathematical facts and abstract ideas, software which is inherently and necessarily derivative for a variety of deep-seeded reasons (want to try to sell a user interface that no one has seen before?… want to try to find a new way to iterate through a binary tree NOT using depth first search? ) and that progress would just stop dead in its tracks if patents were filed and upheld.

    OF course, MS is a corporation and their only mandate is to make money, even if it destroys everything else in the the software (and adjacent academic ) world.. because that’s what a corporation IS, an entity with a single mandate- to serve its shareholders interests by making money for them…and that’s ALL.

    RodrigoC:
    I do think that they’d rather see software patents done away with altogether (see ATT vs. Microsoft).

    This is not the normative opinion amongst industry watchers. MS pushed hard for patents and uses them against not just Linux…Linux is a huge threat to MS and MS probably (certainly) sees patents as a way to kill Linux, since software patents at 60 grand a pop to fie through an attorney and a million per claim per patent to litigate are only really accessible in the numbers needed to write software (scores and scores) to multinationals…..

    Essentially MS’s game is- destroy small innovative challengers through the implicit threat of patent litigation (stick) and buyouts (carrot). Reach a state of MAD with mega-corps… IBM is not a threat to MS and neither is Novell…. it’s smaller companies (that MS usually buys) , that they’re afraid of…. it takes MS 10000 dollars to write a line of code to small companies .50 cents…. it’s ot such an advantage to be a 10 ton behemeth in software development.. then there’s the corporate politics and backstabbing of the great by the threatened merely-adequate that goes on and the layers of management… it’s not conducive to innovation, not to mention that an innovative person can make 1000 time the money MS is offering its employees and everyone knows it….

    So it all adds up to a monopoly desperate to hang on to what they have and looking into the future and seeing it doesn’t have to include them and probably won’t … that’s when they start reaching for that jar of lawyers on the shelf….

  53. Dennis,
    Great Blog and great topic. Any type of posting about Microsoft or open source seems to be accepted by some people as if you criticized their religion. Keep it coming.
    -Damon

  54. “Ironically
    enough, I think that the few software patents that do involve mathematices (such as RSA) are
    probably the stongest. These are still process claims but are infinitely more valuable than
    a simple claim directed to an interface component.”

    Exactly.

    The strongest “software” patents are those advancing the state of math in some particular technological field.
    RSA is a good example, another example is Karmarkar, or some early speech compression patents coming from Bell Labs (then Lucent , and now Alcatel…)

    Also, it helps to remember that software is equivalent to hardware.
    Everything can be implemented entirely in software on a general purporse computer or entirely as a specialized hardware circutry, e.g. ASIC or FPGA
    Open source folks either don’t understand this simple fact of life for lack of broader education or (which is more likely) pursure their own selfish agenda

  55. Molgen’s claim is based on the principle that everything a computer seems to be doing (i.e., what would be written in the process claim in a human-readable way) is at the most basic level a series of mathematical operations on 32-bit number sets.

    Also, to anonymousAgent, despite what you may have read in some Power Point presentations, hardware and software are different. True, they can both implement the same functionality, but the economics of reproduction are vastly different. See link to features.linuxtoday.com for a (somewhat older) summary of RMS’s position on “free hardware.”

    And because patents aren’t as draconian as copyrights, we should be happy? Yes, patent laws could be worse, but they could be better, too.

  56. The article indicated that in 2002, MS filed 1411 patent applications. I seriously doubt that many
    of these are particularly strong patents.

    Question: If MS were to supply the patent numbers they believe are being violated, do they
    have to act (sue) to preserve their rights? Otherwise, would their failure to act in any way be
    construed as “permission”. (I’m not a lawyer)

    Also, Moglen seems off base in his broad claim that “software is a mathematical algorithm and as
    such is not patentable”. Some
    software may involve mathematics in the end, software patents are simply process claims. In
    most cases (99.999%) software patents don’t have anything to do with mathematics.
    I used to work for a large software firm and I would say none of the patent
    applications we filed were even remotely mathematical in nature. Ironically
    enough, I think that the few software patents that do involve mathematices (such as RSA) are
    probably the stongest. These are still process claims but are infinitely more valuable than
    a simple claim directed to an interface component.

  57. ‘That’s like a poker player saying “I win” without showing their cards (code).’

    More like how you should play poker: Get the other one to fold to your bluff… Saying “I’ve got you beat” by making a huge bet…

    Now let’s just hope that noone folds to this obvious bluff

  58. While I wouldn’t quite use his language, I rather agree with anonymousAgent. Microsoft doesn’t really have a history of loving patents (other people’s patents in particular) and I do think that they’d rather see software patents done away with altogether (see ATT vs. Microsoft). On the other hand, a frontal attack on the patent system on their part would be unwise, because they are not a popular corporation.

    On the other hand, to keep irking the Open Source community like this every three months is a lot more effective (certainly in Europe) as it keeps an army of citizen lobbyists on the boil, unwittingly acting on Microsoft’s own behalf…

  59. “People like Joe need sympathy, because they are so damn aloof they trip over their own big feet when their feet are not stuck in their mouths.”

    Can we get some funnier trolls, please? This is just sad.

  60. Joe Smith,
    In terms of “not going to be cheap”, the “Open Source Gurus – Software Should Be Free People” like giving away work for free anyhow. Then they show how cool they are – maybe even they can charge for consulting to support what they give away for free.
    Well here’s another chance to show what hot-shots they are – code around the patents – no big deal, they take pride in coding for free anyhow.

    Also, it may be easier to find prior art than to invalidate the patents.
    If the patents are CRAP, it shouldn’t be too difficult.
    If they’re legitimate, so then code around.

    And stop whining – I am sure the troubles of coding around and/or finding prior art are MUCH less than:

    a) the troubles of single mothers who are sued for copyright infringement for donwloading songs on KAZA;
    b) the troubles of business owners who go to jail for being busted with illegal copies of Windows or Office in their shop.

    Copyrights are MUCH MORE draconian than patents.
    But copyrights are easily avoided by big rich companies who merely pay armies of programmers to re-read what was already there (i.e. reverse engineering). This is why copyrights give MINIMAL protection for start-ups who want to compete with BSA giants.

    But you won’t listen to any of this. You’ll get off on whining and saying how all software patents stop freedom (drug patents stop ‘freedom’ of destitude cancer patients to procure generic plugs but Open Source Hippies NEVER whine about this because they have this stupid “software is a religion attitude” – for some crazy reason, hardware, which is equivalent to software, is not considered a religion by Open Source Hippies)

    —-
    NOTE – As you can see from above, M$ is not going to recover any damages here.

    M$’s agenda is (yes Virginia, M$ is NOT a company where ‘what you see is what you get’ – they ARE clever and they DO have hidden, or not-so-hiddden agendas) is as follows:

    a) keep the “Patents are Bad” issue on the front burner (see c)
    b) annoy Open Source Hippies because M$ thinks they are fun to annoy. Throw some FUD into Linux. Also, this law suit costs them next to nothing in M$ dollars.
    c) co-opt the business press against patents some more (who sympathize with big rich companies like banks, IBM, etc that make a LOT of $$$$ for free from your free work) so they write more IDIOTIC anti-patent articles that, for example, parse a patent by reading ONLY the title INSTEAD of the CLAIMS and then saying something like “oh, M$ patented XML in 1998″; “M$ patented virtual memory in 2001″ because the TITLE of the patent is something like “XML parser” even though the claims are very narrow and claim trivial subject-matter.
    c) the same Brad Smith spends most of his time funding “Patent Fairness” lobbyists to eliminate the chances of recovering any types of damages for patent infringement.

    Useful idiots like the Open Source Hippies are QUITE useufl for M$’s REAL AGENDA – dismantling the patent system, so they can steal other people’s work with impunity, and ‘incorporate it’ into Windows.

    Then no need to fear from startups (and mid-size companies) with “Disruptive Technolgoy” – M$ HATES technological advance which may upset their monopoly apple-cart – they want to be able to add ANYTHING to Windows and just milk the monopoly ad-infinitum.

    Bill Gates should write all Open Source Hippies a THANK YOU letter – but he won’t, because he isn’t such a thankful kind of guy.

  61. Note Microsoft’s reluctance to disclose which patents are supposedly being infringed. If Microsoft makes a concrete claim of infringement, there’s something to work with. Until then, they can be ignored.

    We’ve seen this before, with “Open Source Risk Management”, which was selling infringement protection. Back in 2004, they claimed that “Linux infringed 283 patents, 27 of which were owned by Microsoft.” Three years later, there’s been no disclosure of the supposed infringements, and we don’t seem to be hearing anything more of that claim.

    It’s unlikely that there are any serious infringements in the Linux kernel. UNIX-type operating systems have been around for over thirty years now, and the early patents expired long ago. For newer Microsoft patents, there’s probably prior art.

  62. ‘Ms. Kumar makes an interesting point about “coding around,”‘

    With 42 patents allegedly infringed by the Kernel and 65 by the GUI, coding around (and avoiding every other patent out there in the process) is not exactly going to be easy or cheap.

  63. “Perhaps I am mistaken, but before going to court, doesn’t MS have to send notices of infringment?”

    You are mistaken. MS can file a complaint at any time. Cease and Desist letters are not required, but they are great intimidation tools.

    What can MS do?
    1. Ask for an injunction (most likely)
    2. Ask for damages – but of what? Open source normally does not charge (other than Red Hat and a few others), so no damages based on revenue. Lost sales? Ha. Try to prove that MS lost sales from FOSS.

    Can MS go after users who are patent infringers, the same way as copyright infringers? Nope. There is a different sent of incentives. Copyright infringement allows collection of statutory damages for each offense. That can add up to a lot for each user. Patent infringement does not have statutory damages, so all MS could do against a user is seek an injunction. Very expensive for MS.

  64. Perhaps I am mistaken, but beforegoing to court, doesn’t MS have to send notices of infringment? If and when this happens the FOSS community will either challange the patent with pior art or design around the patent in the notice.

    Once the patches are available, what happens to those who do not install the patches? Will we see a MPIAA type crusade against individual users?

  65. Beware anyone who hates Linux and thinks this is good news, if Microsoft succeeds here, the price for Windows will go up, not down. Competition lowers prices. Lack of competition raises them.

  66. If anyone posting comments has any actual information that might be helpful in thinking about this issue, I’d be quite interested.

    Ms. Kumar makes an interesting point about “coding around,” but I think that’s only relevant to the question of the value of an injunction. As long as developers have infringed MS patents in the past, MS can ask for damages.

    As Dennis notes, MS’s interest in patents is somewhat recent. Nathan Myhrvold’s testimony to the House Judiciary Committee provides further detail on this.
    link to judiciary.house.gov

  67. “lest Anoynmousagent take you too serious.”

    But I intended him to take me seriously…

  68. Always consider the source: I proffered my 2 cents argumentum ad hominem lest Anoynmousagent take you too serious.

  69. No Joe No

    Arguments ad hominem are a sign of weakness.

    You should go back and note that the person I was responding to was quoting an expert as saying that the Verizon patents were probably invalid. Those would be the same patents that are the basis of an injunction to effectively destroy a multi billion dollar business with millions of customers.

  70. Anoynmousagent, Not to give Joe much mind, Joe is incapable of judging patents, because Joe is too smart, and Joe can not dummy-down to do anything ordinary. Braggarts like Joe can not and should not judge other’s achievements. Joe is so far above ordinary that he hasn’t even a toe on the ground. People like Joe need sympathy, because they are so damn aloof they trip over their own big feet when their feet are not stuck in their mouths. You got to discount what Joe says — the air up where his head is at is so thin he’s just dizzy.

  71. anonymous agent

    I don’t hate patents in the abstract. I don’t even hate all “software” patents. I hate a system that issues garbage patents on software and then tells the world that to protect themselves from extortionate claims and injunctions we have to run out and spend a million dollars of our own money. I hate a system which could issue the Teleflex patent that was at issue in KSR. I hate a system that issued the “Buy It Now” patent to MercExchange.

    “BTW Greg Aharonian said that many of the Verizon patents were probably invalid”

    Someone forgot to tell the Judge and jury in the Vonage case. It is not as though you need an expert to say that the idea of interconnecting voice traffic on the telephone system and the internet is obvious.

  72. Code around? Only if the patent is not obviously flawed/fraued :-).
    + Does prior art exist?
    + Is the patent likely to be defined as obvious w/ the new SCOTUS ruling?

    Speak truth to “power” or power-pretenders.

  73. “BTW Greg Aharonian said that many of the Verizon patents were probably invalid, and that the Vonnage priopr art searcher was not so competent.
    Greg Aharonian advocates a strong patent system with PROPER prior art brought in front of the examiner.
    He blaims USPTO managerial incompetence for the lack of good prior art brought to Examiners.
    Greg Aharonian’s web site is http://www.bustpatents.com – you can subscribe to his email list.”

    Did Greg Aharonian approve this message? ;)

  74. Beware that if you think that you’re free of this nonsense in europe, that Angela Merkel and Nicholas Sarkozy will, at the G8 summit, very likely announce that they intend to do their utmost to give the megacorps the patent monopoly laws they want in europe too, like the good little lapdogs they are.

  75. What astounds me is that Microsoft can, with a straight face, suggest that 65 interface patents have been violated. Didn’t they cop much of the interface design (in Window’s initial and subsequent iterations) from Apple? But, of course, when Apple sued Microsoft for infringement, Microsoft won. The interface elements didn’t hold up in court. Why on Earth would they think that they can sue someone else for stealing elements that they stole in the first place (and that Apple stole from Xerox PARC before that)? But keep it tied up in court long enough and it may just eat away at the competition, even if it eventually loses.

  76. Joe Smith,
    You REALLY hate patents.
    Did some patent attorney take and then marry one of your girlfriends or something ?

    Listen – you could probably invalidate MANY of the M$ patent using non-patent prior art.
    For this reason, you hire a COMPETENT searcher like Greg Aharonian – INSTEAD of whining about ‘broad patents’ and ‘low obviousness standard’ and then hiring lobbyists to gut the patent system using straw-man arguments.
    many of these patents would be invalid even under ‘strict TSM’ if the proper non-patent prior art is brought.
    BTW Greg Aharonian said that many of the Verizon patents were probably invalid, and that the Vonnage priopr art searcher was not so competent.
    Greg Aharonian advocates a strong patent system with PROPER prior art brought in front of the examiner.
    He blaims USPTO managerial incompetence for the lack of good prior art brought to Examiners.
    Greg Aharonian’s web site is http://www.bustpatents.com – you can subscribe to his email list.

  77. Richard Chapman (May 13, 2007 at 04:48 PM) said that MS should have learned something from the SCO mess. Allegations are that the SCO mess IS the MS mess – financing of the whole fiaSCO coming indirectly from MS. Gates is resentful that IBM gave him his start, and continues along quite well without him…

  78. Where are all the defenders of the status quo, software patents and TSM to defend Microsoft’s right to enforce its patents – the patents have to be legitimate don’t they boys, they were issued by the USPTO after all?

    That Judge who heard the NTP v. RIM case should have no qualms about shutting down the use of Linux.

  79. Microsoft will never sue anyone in connection with linux… unless they are about to crash. With big supporters like IBM involved with linux, open source has a larger patent portfolio protecting it than microsoft does.

  80. I’ve read through many MS patents in my field but haven’t seen a single good one. They are all junk, more than likely invalid after KSR … actually even before KSR
    The fellas at MS are fully aware of this fact, that’s why they don’t disclose patent numbers.
    MS has turned into a junk patent factory following IBM’s lead
    They even hired IBM’s own patent troll Marshal Phelps to lead their patent efforts.

    Now they have a plan to file say 5000 junk patents each year and they carry it on.
    Watering down patent quality, increasing PTO backlog etc.

    Somebody has to put a stop to those junk patent filings from MS

    Well, it would be very interesting if somebody could produce an example of a worthy patent produced by MS (not acquired diring corporate acqusition)
    Something like RSA or Karmarkar patent, or early speech compression patents,
    or GIF or JPEG patents, anything like that ?
    Does anybody here know about such MS patent which will stand up in court ?
    Patent number, please …

  81. Microsoft must be violating the patents of UNIX then, which has been around much longer than Micrsoft. The UNIX developers should sue Microsoft, since Microsoft had to infringe on other programming technologies in order to develop Windows, Office or any of their other products. I don’t understand why Microsoft feels they are the first in the business, they are not at all, not even close! It’s clear Microsoft feels threatened and they think they may be able to pull it off in lawsuits. It think eventually UNIX and the other operating systems will decide to take a lawsuit on Microsoft.

  82. Good grief Microsoft! I bet you sat on these “supposed” infringement claims for years and years, just waiting until Linux and open-source got going good on the big stage. Sniveling fat, deep pocketed lawyers.

  83. Bring it on, Microsoft. Your farce of a new operating system you call Windows Vista has already driven me to Linux. I now use Linux in my home office *most* of the time. Just keep threatening, and the day will come when I won’t run a single MS product in my office ever again.

  84. It isn’t surprising that there exist patents that cover parts of GPL-licensed software like Linux. But as soon as Microsoft reveals which patents are being infringed, the community will code around them. With regard to its current tactics, I would have though that Microsoft would have learned something from the SCO mess.

  85. That’s like a poker player saying “I win” without showing their cards (code).

  86. The people applauding the Eolas success against Microsoft for $600 Million dollars for one concept as a triumph for the little guy should consider:

    1.) how much power Microsoft has to restrict the activities of developers with all of the patents it is filing;
    2.) how much money Microsoft is going to collect from developers and consumers.

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