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,

(name)

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.

Tested.com 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 About.com, 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”.
And:
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.