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Apple Is Accused of Violating Software Patent
outz writes "And it begins... Creative Technology, a maker of portable music players, has accused Apple Computer of violating a newly granted software patent covering the way users navigate music selections." From the NYT article: "Creative Technology, which is based in Singapore and has United States operations in Milpitas, Calif., said it would consider every option available to defend the patent, including possible legal action. Apple declined to comment on the patent. The patent, which the company calls the Zen Patent, covers Creative's interface for portable players, which allows users to select a song, album or track by navigating a succession of menus. The patent office awarded the patent on Aug. 9." We reported on the granting of the patent a few days ago.
The first iPod shipped October 23, 2001. I can't believe that Apple managed to design, prototype, test, mass produce, market and ship the iPod in 9 months.
:-)
They're good, aren't they?
Seriously, they didn't develop the hardware, they bought it. They developed the software in a few months in 2001. And the patent is about the software.
At least that's the chronology on this page.
If you as an outsider know about prior art for a patent you can request a rexamination for a patent and submit the prior art to be considered. This process is conducted by patent examiners not a court : http://www.uspto.gov/web/offices/com/speeches/05-3 8.htm
It seems to me that Apple shouldn't even need to prove prior art to kill this patent where it stands -- the defense that the invention is obvious, and therefore unpatentable, should be all they need.
To prove "obviousness," you need to show that the invention would have been "obvious" to one with "ordinary skill in the art" at the time of the application of the patent -- in this case, back in 2001. Of course, the way you show that is by showing what a person of "ordinary skill in the art" would have known in 2001, and you do that by digging up experts who can testify as to the ordinary skill in the art, and by digging up textbooks and articles and papers and everything else. In essence, you need the "prior art" to prove "obviousness," so you can't separate out the two like you suggest.
Legal obviousness is a pain in the ass to prove, because it's so fuzzy -- it's much easier to find a patent invalid based on prior art, if the prior art exists. Another thing to remember is that even if art appears to be prior art, if the applicant or the examiner referred to the art during prosecution, yet still issued the patent, then it is presumed that such art may not qualify as invalidating prior art under 35 USC 102. So even if you find something that looks like prior art, you need to go to that patent itself and the patent's prosecution history to figure out if the art was relied on in prosecution, and is therefore essentially (although there are exceptions) useless to prove invalidity.
When you are attacking a patent, you pull out all of the stops -- you attack on noninfringement (trying to show that you are not infringing, even if the patent is valid), invalidity (that the patent is invalid and never should have been issued, either because of prior art or obviousness), unenforceability (saying that even if the patent is valid, it's not enforceable, for any number of reasons), and, if you have any reason at all to believe that it might be true, inequitable conduct (basically accusing the inventor or his lawyers of lying to the USPTO to get the patent issued).
"That's not even wrong..." -- Wolfgang Pauli
The format is not proprietary, but the algorithms to create files in the format are. The Fraunhofer corporation visciously defends its mp3 patent against any software on the market incorporating an mp3 encoder.
To those in the world of proprietary software, with companies available to pay royalty fees, it is a meaningless distinction. But to those of us in the free software community, the fraunhofer patent is a major annoyance, because we can't legally ship mp3 encoders in our favorite distros/oses. It's one of the many motivations in developing the ogg vorbis codec and flac.
[/pedant mode]If what you meant was something like "the mp3 format is ubiquitous, unrestricted, and unencumbered for most people", then I apologize, as that is definitely true.
- Concertina (peeved that iTunes does not support more open formats)