Wednesday, July 20, 2011

US Patent Expiration for MP3, MPEG-2, H.264

Josh Cogliati at OSNews has a well-written essay about "software" patents, and discusses how patent term calculation works - including results from a calculation for MP3, MPEG-2 and H.264 patent expiration.

US Patent Expiration for MP3, MPEG-2, H.264 (OSNews)

These are all underlying technologies used in digital music and video. If you own an iPod, or watch videos on YouTube, this affects you in some way.

Tuesday, July 19, 2011

Developers quitting app stores over patents

Since the beginning of this blog, I've commented on many examples where companies are hindered from real innovation, due to fear of "software" patents. Too often, we see examples of one company suing another over "software" methods. Resources are being wasted in patent fights, when they would be better spent on Research and Development.

"Software" patents also scare off newcomers to the industry. And these start-up companies are often those that bring revolution to the market. When the PC revolution was just beginning, Microsoft and Apple worked out of basements. Amazon started in a garage. Mark Zuckerberg wrote Facebook from his dorm room.

Yet our patent system is placing a direct barrier to the "next generation" of innovators. Case in point:

App developers withdraw from US as patent fears reach 'tipping point' (The Guardian)

The article focuses on developers outside the US, but does discuss US-based developers:
He told the Guardian that it's "far too dangerous to do business" in the US because of the risk of software patent lawsuits.

But for US-based developers, the problems remain. Craig Hockenberry of Iconfactory, developer of Twitterrific, remarked that "Just when you think things couldn't get any worse, they do and tweeted that "I became an independent developer to control my own destiny. I no longer do". Iconfactory is among those being targeted by Lodsys, but earlier this week was granted a 30-day extension to reply to Lodsys's claim.
This is why I believe "software" patents have gotten out of control. We need to reform the US patent system. Again, I urge everyone reading this blog to please contact your Senator or Representative, and ask them to take action. They do listen, but you need to speak up. Call or write today!

Monday, July 18, 2011

Apple wins in Trade Commission case

Bloomberg reported on a ruling from the US International Trade Commission, that Android maker HTC was found in violation of 2 patents held by Apple. HTC plans to appeal. From the article:
Should the commission uphold the finding, the ITC may ban U.S. imports of some HTC phones that run on Google’s Android, the most popular smartphone operating system in the U.S. The HTC decision may serve as a barometer for other cases Cupertino, California-based Apple has against makers of Android devices, including Samsung Electronics Co. and Motorola Mobility Holdings Inc.
I'll admit that this is a somewhat-clever use of patents to block a competing product. But I don't think this is a good idea.

OSNews provides more details about the patents:
The patents in question are the following two software patents:
  • 5,946,647 - 'system and method for performing an action on a structure in computer-generated data'
  • 6,343,263 - 'real-time signal processing system for serially transmitted data'
Even if you dive into these software patent filings, it still looks like incredibly generic crap we've been doing for ages, with tons and tons of prior art. Then again, and you may call me cynical, but I'm not exactly surprised; a bunch of random US judges, most likely with little to no technological expertise, ruling in favour of one of the largest US companies, against a relatively small Taiwanese company.

Friday, July 15, 2011

Patents vs standards-setting organizations

If you aren't sure if "software" patents affect your every day life, let me ask you a simple question: Do you use the web? You're using it right now to read this blog post. You probably even use Facebook, or Google, or visit other news web sites. Web sites are all built on standards. For example: "HTML" is one standard that defines how pages are put together, so web browsers can interpret them correctly.

In an earlier post about patents and standards-setting organizations, Xiph made these comments to the FTC Patent Standards Workshop about how patents affect open standards:
However, patents essential to the implementation of a standard gain their value from network effects. The innovation often plays no role. This gives the holder of such a patent the ability to hinder or eliminate entire markets which would compete with their own offerings.
Yet we see an example of this today, with the World Wide Web Consortium ("W3C") chastising Apple on "software" patents related to HTML version 5. From the article:
The patented technologies are core components to the W3C's Widget Access Request Policy, which specifies how mobile applications can request sensitive material. It is one of a number of specifications that are closely tied to the W3C's next generation standard for Web pages and applications, HTML5.
At issue:
  • patent 7,743,336, which covers "widget" security
  • patent application 20070101146, which covers access control procedures
The W3C has set up a page asking to help identify prior art, so they can invalidate the Apple patents.

Thursday, July 14, 2011

A generation of software patents

James E. Bessen (Boston University's School of Law) recently released A Generation of Software Patents, a study of a generation of "software" patents: "This report examines changes in the patenting behavior of the software industry since the 1990s. It finds that most software firms still do not patent, most software patents are obtained by a few large firms in the software industry or in other industries, and the risk of litigation from software patents continues to increase dramatically. Given these findings, it is hard to conclude that software patents have provided a net social benefit in the software industry."

It's 30 pages, but an interesting read.

Wednesday, July 13, 2011

The virtual gift patent

Patent 7,970,657 has been awarded to Facebook, for "giving gifts via a social network and displaying icons representing assets that have been acquired via the social network."

There are 52 claims, but as is the case in many software patents, claim 1 sums up the patent pretty well: (the other claims are details)
1. A method for representing ownership of an asset in a social network environment, the method comprising: receiving a request from a first user of the social network environment to purchase the asset for a second user; recording information about a purchase of the asset from a vendor; associating, by a server for the social networking environment, the purchased asset with a profile of the second user; sending for display to a viewing user an association between the purchased asset and the second user on a feed display page; sending for display to the viewing user, in connection with the association between the purchased asset and the second user, information indicating that a third user, with whom the viewing user has established a connection in the social network, owns the asset, and information including a name of the first user who gave the asset to the second user, on the feed display page.
Let me put this in a different context: If you've played online multiplayer roleplaying games, you may have used the concept where you can "gift" or "give" an item to someone else, typically a member of your party. In these games, there's usually a "log" of messages between your party, which would indicate that player "A" gave player "B" a "Sword of +1 damage".

That's essentially what this patent describes, except patent "657" is within the specific context of a "social network".

Tuesday, July 12, 2011

Apple to pay $8M damages

A federal jury in Texas ruled Apple must pay $8 million in damages to Personal Audio LLC, as reported on Bloomberg. The jury decided Apple infringed patents for downloadable playlists, a "software" patent held by Personal Audio.

Actually, they are two patents:
  • 6,199,076 is for "An audio program and message distribution system in which a host system organizes and transmits program segments to client subscriber locations."
  • 7,509,178 describes "An audio program and message distribution system in which a host system organizes and transmits program segments to client subscriber locations."
Apple argued these patents were invalid - and that it wasn't actually using the same technology, anyway. But the jury disagreed, ruling Friday in favor of Personal Audio.

Monday, July 11, 2011

Software patents wiki

If you're looking for more information about why we need to change the system with "software" patents, the Software Patents wiki might be a good place to start. The Software Patents wiki is an outgrowth of the End Software Patents campaign, supported by Free Software Foundation (FSF), Software Freedom Law Center, and Public Patent Foundation, and has received financing from the FSF.

There's also an item about the Patent Reform Act, which is the basis for America Invents Act.

Friday, July 8, 2011

Patent defense

They're in the UK, but this helpful article from InBrief is still very relevant to patent defense in the US. Unfortunately, if you've been accused of "software" patent infringement, you're still going to need a lawyer.

I mention the article because people sometimes bring up the "Gillette Defense" when talking about how to fight "software" patents. The post provides a very clear explanation:
The Gillette Defence is an extension of showing the patent you allegedly infringe is invalid. If you can show that your product or process is wholly covered by a piece of prior art then it cannot infringe the patent for the new invention. The reasoning here is that you are basically using a product or process that was known at the time of the patent (i.e. you are recreating prior art) and if your product or process is covered by the patent then the patent is invalid on the grounds of novelty.

Thursday, July 7, 2011

More with Microsoft v Android

I've mentioned the patent licensing agreements between Microsoft and various Android manufacturers. As reported on Network World, Microsoft announced that another manufacturer has agreed to a patent settlement:
Microsoft's latest target is Wistron Corp., which has signed a patent agreement "that provides broad coverage under Microsoft's patent portfolio for Wistron's tablets, mobile phones, e-readers and other consumer devices running the Android or Chrome platform," Microsoft announced.

You won't find Wistron devices in a Google Shopping search or on, because the company builds components for other brands. The existence of both Android and Chrome in the latest patent agreement shows Microsoft is going after Google products on multiple fronts. Chrome OS laptops, or "Chromebooks," recently hit the market from Samsung and Acer and contain the Chrome browser running on top of Linux.
Microsoft has struck more than 700 licensing agreements since launching its IP program in December 2003, including at least five with Android vendors. Just last week, Microsoft announced Android agreements with Velocity Micro, General Dynamics and Onkyo Corp.
In similar news, Microsoft is now asking Samsung to pay $15 for each Android smartphone it makes. See also our previous notes about General Dynamics Itronix (GDI) and HTC.

Wednesday, July 6, 2011

USPTO rejects all of Oracle's Android claims

Here's a followup on an earlier item, where the USPTO rejected Oracle's 17 of 21 Android claims. As reported on H-online:
The validity of another Oracle patent has become doubtful in the dispute with Google about the infringement of Java patents and copyrights on Android devices. The US Patent Office and Trademark Office (USPTO) has provisionally declared all 24 claims of patent number 6,125,447 as being invalid. The USPTO based its decision on a patent that had been used in another case. This patent was granted in 1994 – three years before Sun filed its Java patent application. The US patent office also considered two publications released in 1996 as evidence that Sun's described method for protecting applications via "protection domains" was anticipated by "prior art."
Emphasis mine.

This is a related item to patent 6,192,476 which covers a broad method "for determining whether a principal (e.g. a thread) may access a particular resource."

Patent 6,125,447 describes "maintaining and enforcing security rules using protection domains."

Tuesday, July 5, 2011

BitTorrent sued for patent infringement

TorrentFreak reports that BitTorrent has been sued for patent infringement:
Tranz-Send Broadcasting Network filed a complaint at the court this week where it alleges that BitTorrent is infringing on a patent originally filed in April 1999. The company claims to have suffered significant losses and wants to be compensated for the ongoing patent infringement.

“By making, operating, using and/or selling [uTorrent and BitTorrent Mainline] and or other software, BitTorrent has infringed and continues to infringe, contribute to the infringement, or induce the infringement of at least claim 1 of the ’944 patent,” the complaint reads.

The patent in question is titled “Media file distribution with adaptive transmission protocols” and was granted in November 2007. It describes a file-sharing system consisting of a file database, a transfer client and a distribution server.
The "944" patent refers to patent 7,301,944 which covers "Media file distribution with adaptive transmission protocols". Tranz-Send alleges BitTorrent infringes on "at least claim 1" of the "944" patent, which is here:
1. A media distribution system, comprising: a media file database configured to store media files, wherein one or more of the media files have been compressed prior to storage in the media file database; a computing device configured to receive user requests for delivery of the one or more of the media files stored in the media file database, the computing device further configured to: identify average network throughput between computing device and the requesting users; and route the user requests for delivery of the requested one or more media files to a distribution server capable of servicing the user requests based upon at least the average network throughput; and a distribution server coupled to the media file database, the distribution server configured to simultaneously deliver a single copy of the requested one or more of the media files identified in the routed user requests to the requesting users in less-than-real-time, wherein the distribution server automatically adjusts delivery of the requested one or more media files to the requesting users based on current average network throughput between the distribution server and the requesting users.

Monday, July 4, 2011

Microsoft v Android, using patents

The Register has an unsurprising article about Android device maker GDI entering into a licensing agreement with Microsoft. But this seems to be another case one company using patents to threaten lawsuits with another company. From the article:
It's likely Microsoft approached General Dynamics Itronix and said Android violated its patents and then asked for royalties to settle the matter. And it seems the OEM agreed to agree. Others have not: Microsoft has lodged legal actions against Motorola claiming the Android-based Droid X and Droid 2, along with other handsets, violate nine of the company's software patents. Microsoft is also taking action against Barnes & Noble, Invetec, and Foxconn International over alleged patent infringements by the Android-based Nook e-reader sold by Barnes & Noble.
We've discussed Microsoft's similar license deal (with HTC) before.

Friday, July 1, 2011

USPTO Rejects Oracle's 17 Out Of 21 Android Claims

If you follow "software" patents, I hope you are tracking the Oracle v. Google case. In this lawsuit, Oracle (who purchased Sun Microsystems, who created the Java programming language) alleges that Google's Android infringes on many of the "software" patent methods used in Java. At issue is patent 6,192,476 which covers a broad method "for determining whether a principal (e.g. a thread) may access a particular resource."

Groklaw was the first to report the USPTO rejected 17 of the 21 claims in U.S. Patent No. 6,192,476, in a ruling June 16. Groklaw writes:
While Oracle has asserted seven different patents in its claims against Google, if this reexamination is exemplary of what Oracle can expect in each of the other reexaminations, Oracle will have a hard time finding claims that it can successfully assert against Google, and there lies Oracles conundrum. Oracle either has to agree with the court's directive to limit the number of claims it will assert at trial, or it is likely the court will simply stay the trial until the reexaminations are complete.
Also reported in other places, including this article from PC World:
Google had previously asked the USPTO to re-examine a number of Oracle's patents. The USPTO has rejected 17 of the 21 claims in U.S. Patent No. 6,192,476, according to a ruling dated June 16. The tech law blog Groklaw first reported the ruling on Wednesday.

The judge in the case has asked both sides to streamline the number of claims they are making, in order to make the case easier to try. A trial date has been set for Oct. 31.
An Oracle damages expert has estimated that if Google is determined to have infringed on Oracle's patents, it would owe Oracle up to US$6.1 billion, according to a recent court filing. Google has challenged the methodology Oracle's expert used.

USPTO infringes on patent?

If you read my letter to the USPTO, you may have noticed this bullet in discussing how a community review process would have identified obvious software methods such as:
  • A browser pop-up window as you leave a web page, which is also used on the USPTO web site to issue surveys (6,389,458)
I discovered this last week. I was on the USPTO web site, looking up details for a blog post, when I got a little pop-up window asking if I wanted to participate in a survey about the web site. The note informed me survey would take place after I had finished on the web site, so my browsing experience wouldn't be disrupted.

So I wasn't surprised later, when I closed that browser tab, to get another pop-up window with their survey. But the funny thing is, that exact method is covered by patent 6,389,458 - previously mentioned here.

If this were any other web site, I'd say they should worry about a patent infringement lawsuit. But as explains, the US Government cannot be sued for patent infringement:
Unlike a private party, however, the Government cannot commit the tort of "patent infringement." Governmental use of a patented invention is viewed as an eminent domain taking of a license under the patent and not as a tort.

The Government may delegate its eminent domain power over patents to contractors acting on its behalf. This is accomplished through inclusion of the "Authorization and Consent" clause in the contract [FAR clause 52.227-1].
So even if the USPTO outsourced its web site to an outside contractor, that contractor can't be held liable, either.

I don't believe that the USPTO (or its contractor?) violated this patent intentionally. That's assuming they didn't take a license for using patent 6,389,458. I think it's much more likely they simply didn't know about the "software" patent for this method, and just did what seemed obvious - direct the visitor to the survey via a pop-up window, as they exited the site.

Thursday, June 30, 2011

My letter to the USPTO

Did you respond to the USPTO with your comments on streamlining the patent reexamination process? Comments were due yesterday, June 29. If you did not send your comments, I encourage you to contact the USPTO anyway and make your voice heard. As a government institution, the USPTO listens to public input.

Here is my letter to the USPTO:

My comments are not for patent reexamination, per se, but suggestions to improve the review process before a patent is granted. Under the current procedures, a patent application is reviewed by a USPTO examiner. In brief, if no prior art is found, the application is moved forward for approval. If prior art is later discovered, the burden is on the public to provide evidence and petition for reevaluation. The reevaluation process may be lengthy, taking considerable time from USPTO examiners, the patent applicant, petitioners, and (at times) the US courts.
I propose that a new process be implemented during the review process, to allow for broader review for prior art, and for tests of "obviousness".

One such process is "community review". The USPTO examiners first investigate the patent application. As they do today, examiners may choose to invalidate an application, or pass it to the next step in approval. In this next stage, the examiner pro-actively seeks experts in that field to review the patent application.

Different from public review, community review may be under a non-disclosure agreement or some other privacy arrangement. The community review helps to to determine what might be "obvious" to someone working in the field, rather than what seems "obvious" or not to a patent examiner, who may not be as familiar with the technology in question.

This method of community review or "citizen review" is employed effectively in other parts of the world. This review permits knowledgeable experts across all technical fields to weigh in on the merits of a new application and submit pertinent information while it is still under review, not just after a patent has been issued. This helps patent examiners to more effectively sort worthy inventions from unworthy ones.

I believe a community review process would have identified obvious software methods such as:
  • The "doubly-linked list", which has been part of computer science curriculum for decades. (7,028,023)
  • Expiring old items from a list, as the list is processed (5,893,120)
  • The progress bar (5,301,348)
  • A browser pop-up window as you leave a web page, which is also used on the USPTO web site to issue surveys (6,389,458)
  • Purchasing content from a phone application (7,222,078)
  • Identifying people in a digital photo (7,970,657)
Streamlining the review process before a patent is granted, through a community review, will result in fewer challenges to patent awards, and so fewer patent reexaminations.

Thank you,


Wednesday, June 29, 2011

Apple's touchscreen patent

Apple was awarded a new "software" patent last week. Patent 7,966,578 covers "Portable multifunction device, method, and graphical user interface for translating displayed content". It's a generic-sounding title, but the claims are a bit more specific, though may be hard to follow. There's a good visual description at YouTube showing a real estate web site on an iPhone.

Basically, this patent covers any software method of displaying web page content on a mobile device, where you scroll through the page with one finger, until you find a "frame" (embedded content, such as a map.) In that frame, you can use a different number of fingers to interact with the content (for example, "pinch zooming") just for that frame. also has their impression for what this means to competitors like Android.

Monday, June 27, 2011

America Invents Act passes US House

You probably noticed that HR1249 (the Leahy-Smith America Invents Act) passed the US House of Representatives (304 to 117, 10 not voting) last Thursday. The next step is to go to a Senate/House conference committee to work out the differences with S23, which passed the Senate (95 to 5) in early March.

Groklaw has an analysis of the bill, and the key differences between HR1249 and S23:
  • First to File
  • Reexaminations/Reviews
  • False Marking
  • Prior Use Defense
  • Third Party Submissions
  • Fee Setting and Budget

Friday, June 24, 2011

Patents and standards-setting organizations

For another view on how "software" patents affect us, I'd like you to read Xiph's comments to the FTC Patent Standards Workshop.
However, patents essential to the implementation of a standard gain their value from network effects. The innovation often plays no role. This gives the holder of such a patent the ability to hinder or eliminate entire markets which would compete with their own offerings.

Participants in Standards Setting Organizations (SSOs) cannot be certain that patent claims will not arise after the standard has been set. This handicaps the standards setting process, stifling the adoption of innovative technologies. The problem is particularly acute for royalty-free standards, where the incentives for patent holders to cooperate are lower and the costs of failure are higher.

Thursday, June 23, 2011

Reminder: USPTO call for comments

Just a reminder that the USPTO is inviting public comments to change the system. You need to file by June 29, 2011 - that's one week away.

Wednesday, June 22, 2011

10 physical gestures that have been patented

io9 writes with 10 physical gestures that have been patented. It's interesting that input has been patented. I hadn't thought of that. As usual, most of these should have failed an "obviousness" test:
  1. Slide to unlock
  2. Multi-touch gestures for touchscreen or trackpad
  3. Drawing each letter of the alphabet using a single stroke of your pen
  4. Making hand gestures to move icons around on your phone
  5. Any set of personalized gestures you use to operate your Kinect
  6. Flicking your pen at something
  7. Shaking your mobile device
  8. Moving 3D objects in a virtual environment
  9. Two-handed motions
  10. Texting without lifting your fingers off the keyboard

Tuesday, June 21, 2011

How to write a patent application

I found this article, "The Anatomy of a Trivial Patent", in Linux Today, from 2000. It is written by Richard Stallman, who some of you may recognize from his work in Free Software. In the article, Stallman explains how you can make a trivial programming concept sound really complicated simply by choosing your words carefully.
One reason is that any idea can be made look complex when analyzed to death. But another reason is that these trivial ideas often look quite complex as described in the patents themselves. The patent system's defenders can point to the complex description and say, "How can anything this complex be obvious?"

I will use an example to show you how. Here's claim number one from US patent number 5,963,916, applied for in October 1996:
Now you can see how they padded this claim to make it into a complex idea: they included important aspects of what computers, networks, web servers, and web browsers do. This complexity, together with two lines which describe their own idea, add up to the so-called "invention" for which they received the patent.

Monday, June 20, 2011

Why "software" patents are bad

David Bolton has an essay on, discussing why software patents are bad. Some excerpts:
The idea of a patent is to give the inventor time to make money from it before others can use it. Many of the items we use each day have been patented and made their inventors a lot of money. The light bulb, the vacuum cleaner, and windscreen wipers are all well-known examples. Each took their inventor time to develop. James Dyson made 5,127 prototypes before he perfected his cyclone vacuum cleaner.

But when it comes to software, it is not applications that are generally patented but algorithms like the infamous Unisys LZW patent. Before the patent was known, Compuserve developed the gif format for images. Until a couple of years ago, if you wanted to write software that used gif files you had to licence the compression algorithm from Unisys for about $5,000.
So if you are a small company, one day you might get approached by a lawyer. “Our client asserts that your application xyz infringes one or more of my client's patents. They demand that you either licence those patents from my client- at cost of say $50,000 per annum or cease selling your application.

Even if you decide to contest this, you'll need a war fund of at least couple of million dollars. If you haven't got this, cough up or stop selling.

Friday, June 17, 2011

Patents and copyright

The issue of software patents is difficult for most people to understand. It sometimes gets confused with copyright. So let me explain the difference between them, and why you should care about patents.

A patent protects an invention.

Let's say you come up with a new kind of car engine, one that literally runs on the driver's "good feelings" instead of burning gasoline. The happier you are, the faster your car will go. (It's a silly example, but let's run with it.) You might apply for a patent on this new invention, which gives you exclusive rights to the idea, for a limited amount of time (typically 17 years.)

Maybe you build these engines and sell them, or maybe you license the idea to Ford. But in exchange, you've disclosed publicly (via your patent application) how the invention works, so at the end of the time limit, anyone else can make the same thing on their own.

The idea behind patents is to encourage innovation of inventors, while still making it possible for industry to move forward.

There are certain limits to what you can patent. Typically, a patent application must include one or more things that are new and non-obvious. So if you instead "invented" a car engine that runs on burning coal instead of regular gasoline, you couldn't get a patent on that because it's not really new.

Inventions don't need to be physical things, though. Since 1790, the US patent system allows you to patent a "business method". The first "business method" patent (issued 1799) was a method to detect counterfeit notes.

A copyright defines the "right to copy" or "right to control copying."

Whenever you create an original work, you automatically have copyright on that work (at least in the US) for a specific period of time, after which the work enters the "public domain". The time period of a copyright varies depending on several factors, but generally is the life of the creator plus 70 years. For example, say you're an author and you write a new novel - you get the copyright.

Copyright can be applied to any creative work: songs, books, maps, movies, computer programs, video games, photographs, paintings, etc. The neat thing about copyright is you don't apply for a copyright; it is automatically granted to you when you create something.

I mentioned computer programs in that list of works covered by copyright, and that's the area that has some overlap with patents.

Let's say I write a little program to help you keep track of your to-do list: do the laundry, mow the lawn, drive the kids to soccer practice, etc. As part of my program, I might show how far along you are in your to-do list. I could simply print "completed 12 of 23 to-do items", but it might be better to see a visual representation. So I draw a rectangle, and fill in the rectangle up to the 52% mark, to indicate your progress.

I can put a copyright on that program. It's my creative work, my implementation of a to-do list.

But remember that patents can also cover "business methods". In the 1990s, the US Patent and Trademark Office ruled that a practical application of a computer-related invention may be patented separately. In general, And so business methods extended into software methods, also called "software patents".

And it turns out, someone actually patented the method of displaying progress via a progress bar (5,301,348 issued 1994). That patent expired only a few months ago - but until then, if you wrote a to-do list organizer that displayed a progress bar, you'd be in violation of this patent. That means if you distributed this program to other people, the patent holder could sue you.

The idea here is that you can have copyright on a particular implementation of an idea or a method, but the method itself may be patented.

And that's why we need to change how the patent system works for "software patents". Patents were intended to support new or non-obvious inventions. But since the 1990s, if you append "on a computer" to the end of an existing method, you can patent that idea.

I mentioned the progress bar on a computer patent. There's also a patent for buy this thing on a computer and a similar purchase an upgrade on a computer. And labeling people in a photo on a computer.There's even a patent for putting together a flight plan (say, if you're a pilot) on a computer.

I could go on. But if you want more examples, please see the rest of this blog.

Ask yourself: how many of those are really new and non-obvious inventions? Just because the method was "on a computer", does that really make it new? Companies get caught on this all the time. They'll implement some real-world idea on a computer, then get sued because someone else holds the patent for doing that on a computer. Some companies now exist solely to buy up these software patents, then sue people who happen to do something similar.

How you can help

The "America Invents Act" bill tries to "fix" some things in the US patent system, but unfortunately does nothing for software patents. The AIA already passed the Senate, and is about to go for vote in the House of Representatives. Call your Representative - the AIA is held up due to a clash between two personalities (surprise, politicians are fighting with each other.) That's your window to talk to your Representative.

If they won't take action because the vote is about to happen, encourage them to talk with the USPTO for a procedural change. If the AIA gets turned into law, the USPTO will then be asked to draft new guidelines for evaluating patents. That's where a procedural change can help.

One solution is some kind of community review, where the patent examiner can pro-actively talk to industry people to see if a software patent is obvious or not.

The USPTO seems open to considering this issue, and it is inviting public comments on a proposed rule to streamline patent reexamination proceedings (although you would need to file by June 29, 2011). See Docket No. PTO-P-2011-0018. As you probably know, the patent reexamination process allows a third party or an inventor to have a patent reexamined by a patent examiner to verify that the subject matter it claims is patentable. During patent reexaminations, trial proceedings may be put on hold if a judge agrees to wait for the outcome of the reexamination.

Streamlining patent reexamination proceedings could help in software patent litigation by offering a quicker and more cost effective option for invalidating software patents awarded for obvious methods. Reexaminations have been increasing steadily in recent years, and claims in almost 75% of reexaminations have been either amended or canceled - whereas in courtrooms the majority of claims are decided in favor of the plaintiff patent holders.

The "stop filming this" patent

Apple has applied for a new patent related to recording events from a mobile phone. The idea is simple:

If an event organizer doesn't want people to take photos or record video of an event, simply set up a special IR transmitter (same technology that's in your TV remote) that broadcasts a "stop filming this" signal. If mobile phones "see" this signal, they automatically shut down the camera function of the phone.

That's just one way this patent might be implemented. You might also set up an IR transmitter that broadcasts information about an object to be photographed - in a museum, you could broadcast information such as the artist, title, year, etc that a camera would encode as "extra information" in the photograph.

The abstract for the patent application is suitably generic that it could apply to anything that broadcasts an IR signal, where a camera can "see" it:
Systems and methods for receiving infrared data with a camera designed to detect images based on visible light are provided. A system can include a camera and image processing circuitry electrically coupled to the camera. The image processing circuitry can determine whether each image detected by the camera includes an infrared signal with encoded data. If the image processing circuitry determines that an image includes an infrared signal with encoded data, the circuitry may route at least a portion of the image (e.g., the infrared signal) to circuitry operative to decode the encoded data. If the image processing circuitry determines that an image does not include an infrared signal with encoded data, the circuitry may route the image to a display or storage. Images routed to the display or storage can then be used as individual pictures or frames in a video because those images do not include any effects of infrared light communications.
More information at Patently Apple.

Thursday, June 16, 2011

Anatomy of a dying patent

Groklaw has an interesting article about the Anatomy of a Dying Patent - The Reexamination of Trend Micro's '600 Patent. It's a long article, but the short version is this:

  1. In 1995, Trend Micro filed for a patent "for detecting and selectively removing/viruses in data transfers". Basically, any method that can detect when a file might be infected by a virus, when you are sending that file from one computer system to another.
  2. Trend Micro is awarded patent #5,623,600 in April 1997.
  3. In May 1997, Trend Micro sues McAfee Associates (another anti-virus maker) for patent infringement.
  4. Settled in 2000.
  5. In May 2004, Trend Micro sues Fortinet over same patent.
  6. Settled in 2006.
  7. In 2006, Trend Micro claims open-source anti-virus product ClamAV infringes on this patent. 
  8. Barracuda Networks (which creates enterprise anti-virus solutions, using ClamAV in some of its products) brings action against Trend Micro.
  9. In 2008, Fortinet also brings action against Trend Micro.
And then the fun begins, including a request to re-examine the original patent. From the Groklaw summary:
On May 19 of this year the examiner issued a Final Rejection [PDF], denying all of the claims in the '600 patent, except claims 10 and 13, including those claims that Trend Micro proposed to add through amendment. So out of 22 original claims and 15 added claims, Trend Micro now is left with just two claims. Of course, this is still not the end. Trend Micro has two months in which to respond to this Final Rejection, and even after that point it will have further avenues of appeal. However, the evidence mounted against the '600 patent is substantial and will not be easily overcome.

Wednesday, June 15, 2011

Knuth's letter to the USPTO

I came across this very interesting letter from respected computer scientist, Donald Knuth. Written in 2007, Dr Knuth asks the USPTO to reconsider awarding "software" patents.

Highlights from the letter:
In the period 1945-1980, it was generally believed that patent law did not pertain to software. However, it now appears that some people have received patents for algorithms of practical importance--e.g., Lempel-Ziv compression and RSA public key encryption--and are now legally preventing other programmers from using these algorithms.

This is a serious change from the previous policy under which the computer revolution became possible, and I fear this change will be harmful for society.
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.
It is only a 2-page letter, and I encourage you to read it.

Tuesday, June 14, 2011

Phone fight update: Nokia and Apple

Gadgetizor writes:
After almost two years of litigation of Nokia and Apple suing and counter suing each other, the patent war between the two companies has come to an end. Nokia and Apple have arrived at a settlement and both of them have agreed to withdraw all their patent lawsuits against each other.
No mention of details on the settlement.

This is an update on the phone fight I mentioned when I started this blog. If only these companies were able to invest more into innovative R&D, rather than patent defense.

Monday, June 13, 2011

i4i and Microsoft

Top Tech News writes:
On Thursday, Microsoft lost a major patent-infringement case in the U.S. Supreme Court, which left standing the largest patent award ever upheld on appeal -- a fine of $290 million. The case could have established a new threshold of evidence required to overturn a patent.

In 2007, a small Canadian company called i4i filed suit against the software Relevant Products/Services giant, alleging patent infringement in Word 2003 and 2007 because of a tool that enabled document manipulation. A 2009 decision by a U.S. District Court in Texas ruled in favor of i4i, and Microsoft was forced to drop the XML feature in order to continue selling Word while it appealed.
After the verdict, Microsoft said that, while the "outcome is not what we had hoped for," the company will continue to press for changes in patent law to "prevent abuse of the patent system."

This issue goes to the heart of patent suits and defenses, and both i4i and Microsoft had a variety of heavyweights filing amicus briefs in their support Relevant Products/Services. One of i4i's was the PTO, which said that "because the practical effect of a successful challenge to the validity of a patent is to overturn the PTO's administrative decision, the United States has a substantial interest in the question presented."
At issue is patent 5,787,449 from Michel Vulpe and Stephen Owens, i4i. Here's the abstract:
A system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations. The system, for use by computer software developers, removes dependency on document encoding technology. A map of metacodes found in the document is produced and provided and stored separately from the document. The map indicates the location and addresses of metacodes in the document. The system allows of multiple views of the same content, the ability to work solely on structure and solely on content, storage efficiency of multiple versions and efficiency of operation.
Do you recognize that? It's written very broadly, but this patent describes an XML document.

Reading further into the patent, they provide a history of document mark-up codes. One of the first mark-up systems was TROFF (mentioned in the patent) that used special "dot commands" to control the output, followed by more complex word-processing systems such as WordStar (also mentioned) and other programs that embed "command codes" within the document. One command code might indicate bold text, and another might indicate italic text. The patent then goes on to describe SGML, a larger version of the XML markup language.

And so their invention seems to be just an XML-based content, and a separate "map" of command codes. So in the "map" you might list the code for bold text, and a reference to every place in the document that uses bold.

Unfortunately, the courts found themselves reading the legal definition of this patent, and had to determine if Microsoft had indeed violated the patent. Seems like the courts didn't get to decide if this patent should have been awarded due to the method being "obvious" to others in the technology industry.

There's more discussion at Groklaw.

Again, this is an example of why we need "software" patent reform, and why we need a change such as citizen review to help provide input early in the review process to whether a method is "obvious" to someone working in that field, or if it's truly patentable. I believe a change like this could significantly reduce the Bad Patents that get awarded.

Friday, June 10, 2011

"Software" patents are a pain to corporations, too

An article in ComputerWorld reports "Microsoft has become the first member of a crowdsourcing service designed to challenge and invalidate specious software patents sometimes used in expensive lawsuits brought by so-called patent trolls."

So it seems that "software" patents are as much a problem for large corporations, as they are a benefit (in the form of legal "leverage").

The article has some interesting information about "software" patents. This section sums up the issues, very well:
Microsoft, no stranger to patent lawsuits brought by NPEs [Non-Practicing Entities, companies that hold patent portfolios but do not produce products based on those patents] and others, said the Litigation Avoidance service will be another tool to investigate patent quality before going to court. The goal is "to reduce risk and reduce potential litigation cost," said Bart Eppenauer, chief patent counsel at Microsoft, in a statement. "NPEs continue to actively target large technology companies, and often with portfolios of questionable quality."

Article One said companies spend an estimated $5 billion annually to defend against NPE lawsuits. The most notorious NPE lawsuit in recent years was brought by NTP against BlackBerry maker Research In Motion.

NTP won a $612 million settlement from RIM in 2006 as a result of that suit, even though the U.S. Patent Office later found prior art that invalidated 97% of NTP's claims. Federal court records have shown that 46% of patent lawsuits resulting in a judgment are invalid, Article One said.

Thursday, June 9, 2011

Another view on "sofware" patents

It is sometimes interesting to look at something from someone else's point of view. I found this article at The Media Online about "software" patents in South Africa. There are two quotes in the article that are very telling: (emphasis mine)
Geraldine Fraser-Moleketi, the previous Minister for Public Service and Administration, recently described software patents as “an issue which poses a considerable threat to the growth of the African software sector”, adding that there had been “recent pressure by certain multinational corporations to file software patents in our national and regional patent offices”.

She maintained that “all of the current so-called developed countries built up their considerable software industries in the absence of software patents”. She said that for those same countries to insist on software patents now “is simply to place patents as barriers in front of newcomers”.
Bill Gates, Microsoft’s founder and CEO, observes: “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today. … The solution is patenting as much as we can. A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors.”
I view the rest of the article as positioning "software" patents as legal leverage. So the article tends to see "software" patents in South Africa as a good thing. But I think the opposite is true, and rather than propagate the concept of "software" patents as a form of legal protection, we should do what we can to reform the patent system with regards to "software" patents.

Wednesday, June 8, 2011

Patent reform

Priti Radhakrishnan and Tahir Amin of Mercury News write with their opinion on patent reform. It's a good read. I'd like to highlight this section of the article:
If America hopes to dig out of the recession, it must start innovating again -- truly innovating. Residents of Silicon Valley who have capitalized on creativity and high-tech innovation know this better than anyone. And the key to unlocking American ingenuity rests, in large part, on reforming the U.S. patent system, which now has a backlog of more than 700,000 applications.

In March, the Senate, in a rare 95-5 vote, passed landmark patent reform legislation, the America Invents Act, or AIA. The House introduced a companion bill with a rare showing of bipartisan support.

Unfortunately, the act fails to address the crux of the problem, particularly for pharmaceuticals: raising the bar on patent quality, so true inventions, not pseudo inventions, are awarded the privileges of patent protection.

To do this, Congress must harness the power of "citizen review," which is employed effectively in many parts of the world. Citizen review permits knowledgeable experts across all technical fields to weigh in on the merits of a new application and submit pertinent information while it is still under review and also after a patent has been issued. This helps patent examiners to more effectively sort worthy inventions from unworthy ones.
I like the idea of "citizen review". Implemented correctly, this could help eliminate (or at least reduce) the patent awards for "software" patents. The obviousness test would be helped by industry experts helping to determine what might be "obvious" to someone working in the field - rather than what seems "obvious" or not to a patent examiner, who may not be as familiar with the technology in question.

Tuesday, June 7, 2011

Abolishing "software" patents?

There's an interesting item over at Business Insider, discussing abolishing "software" patents. I don't agree with completely eliminating "software" patents - for certain proprietary fields such as encryption and compression, "software" patents may make some sense. But the article raises some good points:
A great example of a creative industry without patents is fashion. People copy each other all the time. Do fashion houses go bust? No. Do innovators go poor? No, they keep innovating at an even faster pace.

Software companies also copy each other all the time, and straight copycats don't generally do well. (And when they do, it's usually not just copying the idea, it's also great execution--ain't nothing wrong with fast followers, who bring competition to markets.)

And let's not forget that there are rules against infringing copyrights if someone creates a true carbon copy of something.

Monday, June 6, 2011

No impact?

Global News Wire posted an announcement from Likewise Software. It's a very short statement, so it's hard for me to quote anything without reproducing the whole thing. But here's the important part:
Likewise Software, Inc., an open source company that is an expert in helping organizations manage identity, security, and storage in cross-platform IT environments, announced that it has resolved a patent dispute with Quest Software, Inc.

In the lawsuit, Quest Software asserted infringement of its U.S. Patent No. 7,617,501 by Likewise Software. In the resolution, Likewise agreed to a permanent injunction preventing them from using the technology covered by the Quest Software patents. The resolution of this dispute has no impact on any Likewise product, customer or partner.
I find the last part very hard to believe. Patent 7,617,501 is a "method for managing policies on a computer having a foreign operating system". For example, let's say your IT environment manages the Windows PCs using "Active Directory". While there are similar methods to centrally manage non-Windows systems such as Linux and Mac OS X, Active Directly doesn't have great tools to support these operating systems on its own. Not surprising, as Active Directory was developed by Microsoft for its Windows product.

Ask any IT professional, and you'll likely hear that joining Linux and Mac OS X computers to an Active Directory domain is the key to providing central management of an organization's desktop computers. I view it as a natural extension, a third-party adding support where native tools were lacking. This kind of "bolt-on" support by third-party developers has been a part of the IT industry since the 1980s.

And what does Likewise do, anyway? The title on their web page says it all: "Join Linux, Unix and Mac to Active Directory". In other words, their business is built around helping IT staff manage non-Windows systems through Active Directory. So I am skeptical that this settlement will not impact "any Likewise product, customer or partner."

Friday, June 3, 2011

Lodsys sues iPhone developers

Here's another follow-up to Lodsys going after Apple (and Google) for in-app purchases. Ars Technica reports that Lodsys has now filed patent infringement lawsuits against 7 developers of Apple's iOS (iPhone/iPad). Also reported on Patently-O.

Lodsys claims that "software" patents 7,620,565 and 7,222,078 were used by the developers without their consent. As a reminder, these patents cover examples like you download a "demo" (usually with limited functionality) and later choose to purchase the full version of the app.

Thursday, June 2, 2011

More on the in-app "Buy now" patent

You may recall Lodsys going after Apple for use of their "software" patent that covers in-app purchases? It seems Lodsys is now targeting Google's Android platform, over the same issue. From the article:
"We recently implemented in-app purchases for our Android application and several weeks later we received a letter from Lodsys, claiming that we infringed on their patents," wrote the developer of Tank Hero, a game on the Android Market. "We are obviously a small shop and are not financially capable of defending ourselves over a litigation."
Google added an in-app billing option to Android Market apps at the tail end of March. It was pitched as a way for developers to sell virtual items, including levels or additional features. By comparison, Apple launched its in-app purchase solution in 2009. Those dates are particularly important based on the fact that Lodsys has mentioned in its letters that it can seek past revenues from in-app purchases made within infringing apps as part of a licensing deal.

Wednesday, June 1, 2011

$5 for every phone

Here's another example of settling over "software" patents. Microsoft gets $5 for every Android phone made by HTC. Unfortunately, the article doesn't specify which patents were involved:
The Redmond, Wash.-based tech giant is also seeking to sue other Android phone makers, the report says, and is aiming for "a $7.50 to $12.50 per unit license to settle alleged infringement of Microsoft patents."

Any settlements would bolster Microsoft's claim that Android infringes its intellectual property and could potentially squeeze the margins for Android-backed gadgets, making tablets and smartphones running on Microsoft's operating system more attractive, the report says.
That last bit (emphasis mine) demonstrates how "software" patents are being used for legal leverage, instead of protecting actual innovation. Suing over "software" patents may be a lucrative business model, but it's tying up our legal system.

Tuesday, May 31, 2011

Paul Allen's patent attack, part 2

In a followup to Paul Allen's patent attack, Groklaw writes:
According to a status report filed with the court by Yahoo! (see full text below), the reexamination requests with respect to three of the four patents have been granted, and we should expect to hear about the fourth any day now.

Two of the reexamination requests (those for patents 6263507 and 6034652) were filed as ex parte requests. That means the requesting party has submitted what they believe to be relevant prior art, but it is entirely up to the examiner to assess the relevance of that prior art and apply it with no further input from the requesting party. In the other two cases (patents 6788314 and 6757682) the requests are for inter partes reexaminations, meaning the requesting party is an on-going participant to the reexamination process. Why were two of the requests made ex parte and the other two inter partes? For patents issued with filing dates before November 11, 1999, a requesting party may only request ex parte examination.
Here's a reminder on the patents:
  • 6,263,507: "Browser for use in navigating a body of information, with particular application to browsing information represented by audio data."
  • 6,034,652 and 6,788,314: "Attention manager for occupying the peripheral attention of a person in the vicinity of a display device"
  • 6,757,682: "Alerting users to items of current interest"

Friday, May 27, 2011

Facebook and sharing personal info

Facebook has applied for another broad patent: "Controlling Access of User Information Using Social-Networking Information". Fortunately, this is still just an application for a patent.

More information from BNet:
The concept is to use degrees of separation between people to control whether one social network user can retrieve information about a second. If there is a close enough relationship between them (in Facebook terms, think of the difference between friends and friends of friends), then the first user gets the information. Too great a degree of separation, and the request is denied.
This might seem a ridiculous patent. After all, what social network doesn’t in some form allow users to obtain information about each other based on the relationship between them?

Thursday, May 26, 2011

The "editable toolbar" patent

Patent 7,363,592 describes editable toolbars in software. In brief, that's the ability to add, remove, or rearrange buttons on a toolbar - like the "bold" or "italic" buttons in a word processing program. But according to an article in TechDirt, this patent on the "editable toolbar" was ruled invalid:
The court goes through a discussion on the obviousness of editable toolbars... which should drive any real programmer nuts. The fact that lawyers and a court had to waste all this time debating the patentability of editable toolbars is just crazy. The key point, however, is that there was a previous patent that more or less beat Odom to the punch on pretty much everything in his patent. That's extremely embarrassing for Odom, since his entire job is supposedly his ability to find prior art for people.
In short, the court found that an "editable toolbar" was not patentable.

Wednesday, May 25, 2011

Concerns about software patents

I'd like to share this link from ZDNet UK: "Concerns about software patents". It raises several good points on "software" patents. From the article:
While patents themselves are a good thing, applying them to software can actually have an adverse effect. Patents protect physical devices from being cloned, but when dealing with software that is based on mathematical algorithms, software patents prohibit companies from competing with similar software products. And depending on how broad the patent is, it can affect multiple products that are based on the same mathematical algorithm or user interface.
Microsoft has taken this one step further, and has started using software patents to threaten competitors into paying royalties.
The patent system should not be used as a "club" to threaten competition. This ties up our courts, and wastes resources that might be better spent on innovation, rather than "software" patent fights. But I hope through activism, we can change how "software" patents are treated.

Tuesday, May 24, 2011

Apple responds to "buy now" patent

Following up on last week's item about the in-app "Buy Now" patent - for example, when you want to purchase additional content from within an app. In that case, Lodsys sent notices to certain iPhone developers, claiming they were infringing on their patent.

Apple responded to Lodsys, and to the developers, saying it has the licensed the rights to in-app purchase, and that that license extends to developers on the iOS platform.

Details, including a copy of Apple's letter, are at CNet.

Monday, May 23, 2011

The patent on secure networks

Let's say you are an application developer, and you'd like to communicate with your server to complete some action. Maybe it's an app on a mobile phone, helping the user to buy a book online. Today, we do that using a web browser and the "HTTPS" protocol, which encrypts all traffic to a web server.

But how to do this through an "app", and know that the other end is secure? An easy way to do that might be to reference a different server name.

And now, there's a patent on that.

Patent 7,945,654 describes this behavior, with the added twist of non-standard "top-level domain names":
A secure domain name service for a computer network is disclosed that includes a portal connected to a computer network, such as the Internet, and a domain name database connected to the computer network through the portal. The portal authenticates a query for a secure computer network address, and the domain name database stores secure computer network addresses for the computer network. Each secure computer network address is based on a non-standard top-level domain name, such as .scom, .sorg, .snet, .snet, .sedu, .smil and .sint.

Sunday, May 22, 2011

Buying "software" patents

Last year, Facebook bought the entire portfolio of social networking patents from rival Friendster. More details from this article in GigaOM:
The Friendster patents, which date back to the early days of social networking, are incredibly broad. They cover things like making connections on a social network, friend-of-a-friend connections through a social graph, and social media sharing.
It’s unlikely that Facebook would use the patents against other companies in the space rather than trying to out-compete them, though it now has the option to wield intellectual property as a weapon.
Think about that last statement for a moment: "wield intellectual property as a weapon." That's not what the patent system was originally set up to do, and that's partially why I'm trying to bring about reform of the patent system, especially for "software" patents.

If you haven't already, please contact your senator's office, and voice your concern over "software" patents.

Saturday, May 21, 2011

Kodak and Apple

How many things can your computer do at once? Right now, you probably have a web browser running, and maybe an email program. Behind the scenes, your computer may be running an antivirus program, and other "services" that keep your system running smooth. And it does this all at the same time.

Now a different question: how many things can your phone do at the same time? Can it do more than task simultaneously? As portable devices become more powerful, the obvious thing to do is to take advantage of that capability.

Unless it involves a software method. Then it's patentable.

An article in NewsFactor Business Report describes a legal battle between two large companies: Kodak and Apple. At issue:
Kodak, the 131-year-old camera company based in Rochester, New York, has amassed more than 1,000 digital-imaging patents, and almost all of today's digital cameras rely on that technology. Mining its rich array of inventions has become an indispensable tool in its long and painful digital turnaround.

After failed negotiations, Kodak filed a complaint with the commission in January 2010 against Apple and the BlackBerry maker RIM. It also filed two lawsuits against Apple in federal court in Rochester, but it has not specified the damages it is seeking.

Three months later, Apple claimed that some Kodak camera and video camera lines violate two of its patents. One invention relates to a camera's ability to process several images at the same time; the other enables a camera to simultaneously handle adjustments in color, sharpness and other processes.
(Emphasis mine)

Friday, May 20, 2011

Who is that in the photo?

Have you ever looked through your family's photo album? You might find pictures of yourself as a child, your first birthday, your first loose tooth, your first time in a school play. You'll also find photos of relatives: aunts, uncles, great-grandparents, second cousins twice removed.

Flip those photos over, and I'll bet you'll find that someone wrote down who was in the photo.

In digital media, there's a similar way to identify people in photos. It's usually called a "tag" and this concept has been around for a long time. Pretty obvious, right? But applied to "social networking" (such as Facebook) this is now patented.

Patent 7,945,653 describes simply "Tagging digital media".

More from this article on BNet:
Patent number 7,945,653 is titled Tagging digital media. If you added “with someone’s identity,” this would be one of the rare cases where the title would reasonably describe what the patent covers.
Breaking it down, the claim involves the following:
  • There is a database of unspecified digital media.
  • Someone on a device (computer, smartphone, tablet, or what have you) brings up a file and associates it with the identity of a second person.
  • The second person gets a notification and can reject the identification.
So basically, this is "tagging" someone in a photo - with the added "social" action of notifying the other person that they were "tagged".

Thursday, May 19, 2011

The "buy now" button, part 2

Similar to Amazon's patent on the "buy now" button - also known as the "One Click" patent - is a patent on in-app purchases. You know those apps for your smartphone, where you download a "demo" (usually with limited functionality) and later choose to purchase the full version of the app? There's a patent on that idea.

And they are suing developers who have included this feature in their iPhone apps.

Patent 7,222,078 describes a method that seems too abstract to summarize adequately. Here's the abstract:
Methods and systems for gathering information from units of a commodity across a network

In an exemplary system, information is received at a central location from different units of a commodity. The information is generated from two-way local interactions between users of the different units of the commodity and a user interface in the different units of the commodity. The interactions elicit from respective users their perceptions of the commodity.
Seems pretty vague to me. The salient point for iPhone developers seems to be around Claim 24:
24. The system of claim 1 wherein the two-way local interactions comprise a transaction for sale of a product or a service contract for the commodity.
As far as I can tell, that's what Lodsys is using as they sell licenses for in-app "buy" buttons.

Wednesday, May 18, 2011

The wrong patent reform

Business Insider asks a potent question: "Is Congress Trying To Kill American Innovation Through Patent Reform?" Here's the important point from the article:
A new bill - the America Invents Act (formerly the Patent Reform Act of 2011) -is making its way through Congress. It would change America's inventor-friendly patent system to favor whoever files for an application first.

As Clyde Prestowitz, writing on his blog at Foreign Policy, points out, America's penchant for invention is due in large part to its patent system, which grants the original inventor patent rights even if another person or corporation files for the patent first.
I'm in favor of patent reform, especially related to "software" patents. But changing the system so that the first person to file "wins" is the wrong way to do this. I'm very concerned the AIA will lead to more patent "trolls" - even for non-"software" patents.

Tuesday, May 17, 2011

Honeywell settles patent dispute with BorgWarner

According to Business Week:
Honeywell International Inc. said Monday that it will pay BorgWarner Inc. $32.5 million to resolve a four-year-old patent dispute over auto parts.

The one-time payment gives Honeywell access to BorgWarner's three patents for cast titanium compressor wheels, which are used in turbochargers for commercial vehicle engines. Other terms of the settlement were confidential.
The article doesn't mention the specific patents. But this seems to be a pretty straightforward patent of a physical item, like Apple's patent application for building a better keyboard.

Monday, May 16, 2011

The double-linked list

Here's a concept that's been around in computer programming for as long as I can remember. Assume you have a big list of things (names, whatever) and each item in the list "knows" the item that comes before it, and the item that comes after it.

In other words, the double-linked list. You might use a double-linked list in a variety of applications. Typically, a double-linked list is used in a "stack" operation - because the double-links make it very easy to navigate forward in the list, and just as easy to move backward. Examples include the "Undo/Redo" actions in a word processor, or the "Back/Forward" buttons in a web browser.

This has been a part of computer programming curriculum for decades, but it was a patentable method in 2002 (awarded 2006).

Patent 7,028,023 describes a method where a "list is provided with auxiliary pointers for traversing the list in different sequences. One or more auxiliary pointers enable a fast, sequential traversal of the list with a minimum of computational time. Such lists may be used in any application where lists may be reordered for various purposes."

A more visual explanation of the double-linked list at wikipedia.

I worked with double-linked lists when I worked as a student intern at a geographics company, in 1994. I didn't even a computer programming student (I was in physics, learned programming "on the side") but it was still something easy enough to understand without an extensive programming background.

Sunday, May 15, 2011

Expiring old items from a list

Here's another example of a "software" patent, which should be obvious to anyone who's worked in computer programming:

Patent 5,893,120 describes "Methods and apparatus for information storage and retrieval using a hashing technique with external chaining and on-the-fly removal of expired data." In other words, this is a standard way to expire old items from a "list" in computer programming, whenever the list is accessed.

I'm not a programmer (by trade, anyway - but I maintain several web sites on my own) yet this is so trivial and obvious, that I wrote a similar method for expiring password "cookie" hashes in a database several years ago. Every time someone someone accessed the login table (i.e. tried to login, or accessed a web page that required authentication) the method would first scan the login table to see if any passwords had already expired, then it would honor the request from the user.

For example, if we set your password cookie to expire in 3 hours, the database would be cleared of your entry after 3 hours, but only when someone accessed the database.

This is a trivial thing, something that's been taught in computer programming classes for ever. And here, it was a method used in the Linux kernel. Bedrock (a "patent portfolio" company) successfully sued Google over the patent, although Yahoo! defeated Bedrock in a similar suit.

Saturday, May 14, 2011

I'm okay with this patent application

AppleInsider writes about a new keyboard that Apple is working on, that has predictive capabilities. I'm okay with this one.

From the description of the patent, this seems to be a physical device, a new way to design keyboards. There's probably a software component on the back-end to take advantage of other features, but the patent application is for a better keyboard not for a better software method.

Friday, May 13, 2011

How to help

If you follow this blog, you may wonder "How can I help?"

Influencing change on "software" patents will not be easy, but it is possible. We need your help to make this happen.

Ultimately, changing how the USPTO considers "software" patents will require a change in law. The right place for this to start is with your congressperson. Remember: it's the job of your senator or US representative to listen to you and bring your concerns to the floor. All it takes is a phone call.

There's one Senate subcommittee that may have strong influence here: the Senate Subcommittee on Privacy, Technology, and the Law. Their jurisdiction, per the web site:
(1) Oversight of laws and policies governing the collection, protection, use and dissemination of commercial information by the private sector, including online behavioral advertising, privacy within social networking websites and other online privacy issues; (2) Enforcement and implementation of commercial information privacy laws and policies; (3) Use of technology by the private sector to protect privacy, enhance transparency and encourage innovation; (4) Privacy standards for the collection, retention, use and dissemination of personally identifiable commercial information; and (5) Privacy implications of new or emerging technologies.
Do you live in Minnesota, New York, Rhode Island, Connecticut, Oklahoma, Utah, or South Carolina? If so, your senator sits on this very important committee.

If we can get several of these senators to understand how "software" patents are stifling innovation of American technology companies, how US companies are spending so much time and money fighting "software" patents when those resources could go to R&D, then the subcommittee can take action.

Contact your senator's office, and voice your concerns over "software" patents. Note that you don't actually have to speak with your senator - ask to speak with the staffer who usually deals with technology issues. An alternate contact might be their State Director.

Feel free to cite the examples in this blog when you speak with your congressperson. After all, that's why I'm writing this blog. My goal is one example per day.

Blogspot had some problems

Looks like some of my posts are gone. Blogspot reported problem earlier this week, but I hope they will recover the lost items for me.

Tuesday, May 10, 2011

The "pop-up" window

You might also refer to this one as the "pop-under window" in a web browser. You know when you click the "X" button to close a browser, and you get a little window (usually an ad)? There's a patent for that:


"Upon query (or other interaction) by the browser prior to closing page, the traffic control program interacts with the browser software to modify or control one or more of the browser functions, such that the user computer is further directed to a predesignated site or page (and displays a predesignated frame) upon execution of a browser function, instead of accessing the site or page typically associated with the selected browser function."

Issued May 14 2002, so won't expire until 2022.

Monday, May 9, 2011

The "buy now" button

This is also known as the "One Click" patent from Amazon, and affects making purchases by clicking a "buy now" button:


"A method and system for placing an order to purchase an item via the Internet. ... In response to the selection of the order button, the client system sends to the server system a request to purchase the identified item."

Issued September 28, 1999. This won't expire until 2019.

Sunday, May 8, 2011

When patents shut down the little guy

The Electronic Frontier Foundation wrote with this example of a small business getting shut down over "software" patents.

Patent 7,640,098 describes a process for generating flight plans on the Internet. People have been generating flight plans for as long as we've regulated flight, but tacking "on the Internet" on the end of that process turns it into a patentable "software" method.

As the EFF describes, RunwayFinder (2005) allowed users to check out runway layouts and gather other information about airports, such as current weather, to help them make flight plans. The site's developer ran RunwayFinder out of his home and relied on ad revenue and PayPal donations to run the site. A lawsuit by FlightPrep, owner of 7,640,098, caused RunwayFinder to shut down.

This story has a happy ending, at least. RunwayFinder's web site is back up, with this message:

"RunwayFinder is back on the air! Thanks to your overwhelming support and some great communication sat down with FlightPrep and FlightPrep agreed to dismiss the lawsuit! The exact details of the settlement license are convidential. RunwayFinder doees not ask for or support any further boycott of FlightPrep, its services, products, or owners. This is a big win for RunwayFinder and the pilots who depend on its services! We're back and lawsuit free, come check out Again, thanks you for all of your support."

Saturday, May 7, 2011

Pay up to patent trolls?

Network World has an interview with Red Hat Software CEO Jim Whitehurst. The title is very telling: "Red Hat CEO hates patent trolls, but says sometimes you just have to pay up". It's a very pessimistic view.

The article mentions that Red Hat Software paid out $4.2 million to settle a "software" patent suit in 2008. That's a significant amount of money, even for a company that will pass $1 billion in revenue. Again, I wonder what actual innovation could be sponsored for $4.2 million, instead of spending it to settle "software" patents?

Which brings me to the subtitle on the Network World article, because it neatly summarizes why I am fighting to change "software" patents: "Red Hat CEO Jim Whitehurst says software patents impede innovation". This quote from the article sums up that thought very well:
Just like a proprietary software company, one of Red Hat's main goals with settlements is to indemnify its customers against legal actions. Whitehurst said, "I don't think there should be software patents," because they prevent companies from pursuing legitimate business models if they think there's a chance they'll have to pay out patent licensing fees.
But I hope through activism, we can change how "software" patents are treated.

Friday, May 6, 2011

The character generator and the Apple II

The Register had an interesting article the other day, that mentioned Apple co-founder Woz and his view on software patents. Woz told a great story about the Apple II.

From the article:
"The Apple II, okay? I put it together, and I'm going to put characters on my TV set, and there's this trick called a character generator. Okay, that'll help me figure out which dots to put out at the right time to pop up on an American TV," he reminisced.

"And then we find out RCA has a patent on a character generator for any raster-scanned setup," he said. "And they patented it at a time when nobody could have envisioned it really being used or anything ... and they got five bucks for each Apple II, based on this little idea that's not even an idea. Y'know: store the bits, store the bits, then pop in a character on your TV."

[...] "I don't know any other way you could do it - anybody would have come up with that with the same approach."

Thursday, May 5, 2011

Paul Allen's patent attack

Let's say you're on a news web site, maybe CNN, reading about the topic of the day. For example: as I write this, Bin Laden's death is still in the news. So maybe the article you're reading has links to related news items:

  • Poll: 56% want death photo released
  • Source: Bin Laden's daughter saw killing
  • Fake bin Laden photo circulates
  • More raid details emerge

Guess what? There's a patent for displaying relevant, related links to a news article.

  • 6,263,507: "Browser for use in navigating a body of information, with particular application to browsing information represented by audio data."
  • 6,034,652 and 6,788,314: "Attention manager for occupying the peripheral attention of a person in the vicinity of a display device"
  • 6,757,682: "Alerting users to items of current interest"

An article on the Wall Street Journal has some interesting reading, and Techdirt has an update from December 29.

It's another example of "software" patents being used as a legal attack.

Wednesday, May 4, 2011

1+1 (pat. pending)

I wanted to share this excellent (although long) article at Groklaw, speaking to "software" patents:

1+1 (pat. pending) - Mathematics, Software and Free Speech
Why Software and Patents Need To Get a Divorce

"This article provides a detailed factual explanation of why software is mathematics, complete with the references in mathematical and computer science literature. It also includes a detailed factual explanation of why mathematics is speech, complete once again with references. My hope is that it will help patent lawyers and judges handling patent litigation understand these fundamental truths, so they can apply that technical knowledge to their field of skill."

Tuesday, May 3, 2011

"Emergency mode" on a mobile phone

When you need to dial 9-1-1 on your mobile phone, it might be nice to have the phone direct as much power as possible to the cell transmitter, so you get a clear signal, no accidentally-dropped calls in the middle of reporting an emergency. Seems fairly obvious to me. But Apple filed for a patent on that:

Apple's iPhone Emergency-Mode Processor & Features Patent

I couldn't find a link directly into the USPTO, but you can use PAIR to search for application file number 11/999,547.

Monday, May 2, 2011

Patent busting

The Electronic Frontier Foundation (EFF) was founded in 1990 - long before "the Internet" was something most people had heard about - to defend "digital freedoms". They've done a lot of good in these last 21 years.

One of their efforts is the EFF Patent Busting Project: "Tired of bogus software patents? So are we! To combat these annoying and often dangerous legal weapons, EFF has launched the Patent Busting Project to take down some of worst offenders."

They have a "top ten most wanted" poster on their site, demonstrating "crimes against the public domain, willful ignorance of prior art, egregious display of obviousness". There are some interesting items, showing the impact the EFF has had:

  • A patent for streaming audio and video over the Internet (now invalid) 5,132,992
  • A system and method to record a live performance (concert) and recording them to media (CD) within minutes of the concert ending (now busted) 6,614,729
  • A patent for making telephone calls over the Internet (re-examined) 6,243,373
  • A method to play (card) games over the Internet (re-examined) 6,264,560
  • A patent for hosting and assigning domain names - such as (now busted) 6,687,746
  • A patent to store URLs in a bar code, that might be printed in an ad (narrowed) 6,199,048
  • A patent for taking and scoring tests over the Internet (re-examined) 6,513,042
  • A patent to emulate a handheld game console using software 6,672,963
  • A software method to parse customer emails - for example, to route them to a Helpdesk (invalid) 6,411,947
  • A system for combining different music files together, then playing them over the Internet (narrowed) 5,886,274