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The application being discussed here is a "stealth application" in that it does not indicate Microsoft as the assignee although Microsoft is, unquestionably, the assignee. In this case, the failure of Microsoft to be identified as an assignee may be considered a failure to meet their duty as a monopolist to give competitors "access to their facilities." For more info, see comment #7 in the discussion of "stealth patents" at PubSub.org.

It should also be noted that analytically, the combination of an existing monopoly with the monopoly granted by a patent raises the same questions as the merger of two companies. In a case where the monopoly granted by the patent is for something not fundamental to a market, then one can permit the "merger." However, when the monopoly granted by the patent is fundamental and blocks an entire realm of competitive activity, the "merger" should not be permitted. In this case, Microsoft is clear in its intent to ensure that architectures of the .NET style afford the only reasonable mechanisms for working with their products. Thus, any patent that blocks others from developing similar, but different and competitive architectures, effectively blocks competitors from being able to build systems that work with Windows and thus blocks them from working with most computers. The result will be a loss of competition in an already monopolized market. In this case, what might otherwise be a "non-fundamental" patent becomes fundamental.

Even though a patent which issues from this application would appear on its face to only grant the right to exclude from some limited technical domain, when combined with the effects of Microsoft's existing market power, the effect of such a patent would go beyond the limited technical scope and extend so that it is coextensive with the entire economic product market.

thogard wrote:

>FSF or EFF [should]Provide a database of 'prior art

There is already a tool for collecting prior art! This is one purpose for the pubsub.org site. The idea is that if you find a patent or patent application for which you have or seek prior art, you can get it listed on the site and record your prior art. This makes a permanent record that others will be able to use as a source when filing "third party" prior art with the PTO as well as when defending against infringement cases in the future.

Today, there are many discussions of specific patents or applications scattered all over the web. This makes it difficult for those with a real interest in defending against some patent or application to find the prior art they need. However, on PubSub.org, you can write a comment directly linked to a specific patent or application and identify the prior art or other argument you might have for why the patent should not be (or have been) granted. Try it. If you don't find a patent or application that you're interested in, just use the "request new thread" option to get the patent listed.

The system on pubsub.org is different from what you'll find on other sites like BountyQuest where they are only collect prior art on "major" patents. At PubSub.org, you can provide prior art on *any* patent or application and what you provide will be publicly available and reviewable.

If there is demand to do so, I'll expand the scope of what we do at PubSub.org to include providing a place to record "defensive" or "Open Prior Art." This would allow anyone who has a method that they consider patentable to "block" anyone else from getting a patent on the same method. The PTO considers "internet publications" to be valid prior art as long as they are accessible. Should I do this?

bob wyman

thogard wrote:

>FSF or EFF [should]Provide a database of 'prior art

There is already a tool for collecting prior art! This is one purpose for the pubsub.org site. The idea is that if you find a patent or patent application for which you have or seek prior art, you can get it listed on the site and record your prior art. This makes a permanent record that others will be able to use as a source when filing "third party" prior art with the PTO as well as when defending against infringement cases in the future.

Today, there are many discussions of specific patents or applications scattered all over the web. This makes it difficult for those with a real interest in defending against some patent or application to find the prior art they need. However, on PubSub.org, you can write a comment directly linked to a specific patent or application and identify the prior art or other argument you might have for why the patent should not be (or have been) granted. Try it. If you don't find a patent or application that you're interested in, just use the "request new thread" option to get the patent listed.

The system on pubsub.org is different from what you'll find on other sites like BountyQuest where they are only collect prior art on "major" patents. At PubSub.org, you can provide prior art on *any* patent or application and what you provide will be publicly available and reviewable.

If there is demand to do so, I'll expand the scope of what we do at PubSub.org to include providing a place to record "defensive" or "Open Prior Art." This would allow anyone who has a method that they consider patentable to "block" anyone else from getting a patent on the same method. The PTO considers "internet publications" to be valid prior art as long as they are accessible. Should I do this?

bob wyman

On this "anniversary" of Open Source, we should be thinking about what has been accomplished and what needs to be done next. For instance, while the OS community has proven the value of providing open implementations, it is now time to start protecting and defending the community's right and ability to create those implmenations in the future. The best way to do this is to start pursuing "Open Ideas" or "Open Patents."

In recent years there has been an explosion of patents and patent applications by companies that seek to monopolize the exploitation of ideas and methods in software. With every patent granted, the scope of future OS projects is limited just a little bit more. Without going into flame wars about the patent system, I can say that there is something useful that we can do today to protect OS in the future.

A patent can be prevented if one can prove "prior art" exists that describes the method that the filer wishes to patent and, the USPTO accepts "Internet Publications" as prior art, using the "posted date" on messages as the date of priority. Thus, if people with good ideas document those ideas on the Web, from the instant that the description of a method is posted, then all future patents on that method are blocked forever unless the inventor can prove that they came up with the idea before the posting on the web. Thus, by adopting a discipline of identifying and posting ideas that others might try to patent, we can establish a collection of "Open Ideas" or "Open Patents" that block others from monopolizing the methods in the future.
It would also be useful for those in the OS community to become active in reviewing new patent applications as they are published by the USPTO every Thursday, and use the established procedures for "third party filing of prior art" to ensure that patent examiners don't issue patents on ideas that should remain Open.

Open Source isn't enough. We need Open Ideas to enable the Open Source of the future.

bob wyman

See: http://www.pubsub.org for more info.