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Microsoft Leveraging iPod Patent?
willie3204 was one of several readers who noticed this story about Microsoft cashing in on the iPod Patent that they apparently beat Apple to. Since this song looks to be played to the tune of $10/iPod, I imagine someone will be singing the appeal song.
Here's what the facts really are http://wizbangblog.com/archives/006750.php
/., reporting on the story have the facts wrong
1. M$ doesn't HAVE the patent yet, as it hasn't been granted yet
2. M$ is unlikely to get the patent, as their is prior art
3. Media outlets, incl. apparently
In Soviet Russia, I ruled you
The last time this story came up I dug up the actual patents in question. (Don't have the links handy atm) IANAL but from what I could gather, the patents don't overlap.
... although knowing MS the execution would end up like Clippy *shudders*
The Apple patent covers all the basic iPod functionality, scroll wheel, music, video (forward thinking I suppose), etc etc.
The Microsoft patent is for something called "Auto DJ". Basically it's software that allows you to pick several songs as positive seeds, and at least one as a negative seed, and based on your choices it will generate a playlist from your music library. Sounds like a DAMN good idea
The long answer is that it takes a shit load of money (usually millions) and time to overturn even obviously bad patents. Thus they are hobbling Apple for a bit and presumably generating a bit of fear, uncertainty and doubt as to iPod. It's basically like a nuisance lawsuit to tie up resources. Everyone, especially MS, knows that MS can't compete on technical mertis so it's been doing everything possible to ensure that no one else can either.
Take this as a warning as to what will happen if MS is able to force software patents into Europe and no longer has to play nice on either side of the Atlantic.
Beta is broken and the link to classic doesn't work. Stop wasting our time or there won't be anybody left here.
Right so far...
Since Apple can demonstrate that they were shipping product well before MSFT submitted their patent applications, this should be an easy appeal for Apple to win
Microsoft's invention date is before Apple's ship date, so it is not as obvious as you think it is that Apple has an easy appeal here.
The key fact, that pretty much all the news stories have skipped, is that it doesn't look like the iPod actually infringes Microsoft's patent. Rather, Apple's attempt to broadly patent more than they've actually done (which is normal...you try to patent as much around what you did as you can) got wide enough to hit Microsoft patents, so Apple simply didn't get all the patents they wanted.
You're an idiot and your comment is overrated. Learn why below.
Yes, it's true: Steve Jobs said in a sentence: "great artists steal." Unfortunately for you, his entire statement explained why he felt that saying was actually wrong and that people at Apple have been careful not to steal technology or ideas.
Don't take part of a statement and twist its intentions around to suit your poor argument.
And yes - Apple invented the first commercial GUI and did so with rights from PARC and with a number of PARC engineers that went to work for Apple.
And of course, the patent has nothing to do with putting products in white boxes. Thre are real innovations behind the iPod that distinguish it from other MP3 players.
Lastly, none of this matters. America is not a "first to file" country, but rather a "first to invent" country. Since the iPod was marketed and public before Microsoft's application, it will likely be rejected by the appeals process because of prior art violations.
The next comment I write will be ready soon, but subscribers can beat the rush and see it early!
Nope, in the U.S. only, the first person to have invented the device wins, regardless of who filed first.
But what happens if two people design something similar with no knowledge of the others progress and a patent is filed by one before the other?
The case is going to hinge on documentary evidence as to who completed work on the invention first. From 35 USC 102(g)(1):
These invention priority cases can get very messy, however, and the U.S. is probably soon going to change to "first to file."If you don't know where you are going, you will wind up somewhere else.
"Apple failed to secure a patent before Microsoft did."
As mentioned above, the USA runs on a first to invent system, not a first to file.
In Canada, it's first to file. Everywhere else, Apple is screwed (and so is Microsoft) because of public disclosure (North America is the only place with a 1 year grace period for patenting after public disclosure.)
-kidlinux.
Not so fast.
If Apple's date of publication were more than one year prior to Microsoft's filing date, then it would constitute a "statutory bar" under 35 USC 102, more specifically paragraph (b). However, since the presumed disclosure date is less than one year prior to the filing date, then paragraph (a) must be applied. And the relevant event for the applicant is not the application filing date, but, rather, the "invention" by the applicant.
Since applicants don't provide the date of invention as part of the application, for the purposes of patent application prosecution, the filing date is presumed to be the date of invention. If the applicant wants to overcome a rejection based on 102(a) prior art (also applies if the prior art is used in an obviousness rejection under 35 USC 103) then the applicant must establish this via an oath or declaration under 37 CFR 1.131 (sorry, too lazy to get the link) to "swear behind" the date of the prior art. In the case where the prior art is a US Patent which claims "the same" invention, however, then this procedure cannot be used; the priority of invention must be determined by a vastly more complex procedure called interference, where the two parties battle it out to determine priority of invention.
And that last sentence raises a question in my mind... if the Microsoft allowed application's claims are ones that Apple could make then why can't Apple copy Microsoft's claims and provoke an interference? Without seeing both files it's hard to judge what's technically and legally going on here, although PC Mag's story notes the Microsoft application as 20030221541 (series 10 application No 158,674 for those brave enough to look at the image file wrapper). I haven't found a clear source for the identity of Apple's application. The Register's story has some links, but the speculated Apple application doesn't appear to be the one being discussed.