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.