USPTO Rules Fogent JPEG Patent Invalid

fistfullast33l writes "Groklaw has reported that the USPTO has ruled the broadest claims of the JPEG Patent held by Fogent to be invalid. PUBPAT, the organization that requested the review, released the news earlier today. According to PJ, the ruling will be hard to overturn as the 'submitters knew about the prior art but failed to tell the USPTO about it.'"

Comments

Do they have to refund

[rsilvergun]

all the money they've been paid in licenses, plus interest?

Well this was a stupid summary

[technoextreme]

The patent has not been completely ruled invalid. Some of the claims have not been addressed by the USPTO according to Forgent

Zonk's on a roll.

[normal_guy]

It's Forgent, not Fogent.

Check out the actual communication from the USPTO

[ffflala]

This thoroughly details which claims of the patent have been rejected (page 5) and which claims were found patentable (page 26). http://www.pubpat.org/672OA060525.pdf

Forgent says...

[XanC]

"Majority of Patent Claims are Upheld"

http://www.corporate-ir.net/ireye/ir_site.zhtml?ti cker=forg&script=410&layout=-6&item_id=861407

Re:So what's left?

[SwashbucklingCowboy]

They very well could. Broad claims are harder to sustain than narrow claims.

Yeah, but is it enough?

[jd]

Far as I know, this only affects the basic JPEG. JPEG2000 is still encumbered, as I believe that's a different set of patents. However, that's largely moot - PNG is lossless and often compresses better than JPEG, but JPEG is still the format of choice for, say, digital camera makers and websites. If freedom was sufficient, in itself, the format would have been dead and buried within 60 seconds of the patents being filed. It's not "necessary", there were superior, unencumbered alternatives that most OS' can display well or, at least, equally well to JPEGs.

No, the core problem wasn't with the patents, although those were bad enough. The core problems are ignorance (most people don't know what options exist), inertia (those who do often won't take advantage of them because it requires change) and stagnation (sufficient inertia kills all incentive to further develop alternatives). I would not be against compulsary education on how to be versatile, for this reason.

It is hard to blame Fogent alone, when the entire national attitude is based so firmly on milking every old idea for what it's worth, whilst the populace make no effort to avoid being bilked. As with those in Dilbert who have met the "world's most desperate Venture Capitalist", it becomes hard not to just take the money and run.

This isn't to say such conduct is good or acceptable - it isn't, in my opinion. Rather, it is to say that we should be addressing the whole problem, not merely a selection of the symptoms.

Re:Yeah, but is it enough?

[k98sven]

However, that's largely moot - PNG is lossless and often compresses better than JPEG

PNG rarely ever compresses better than JPEG. In particular for photographs. You're probably thinking about GIF.

If freedom was sufficient, in itself, the format would have been dead and buried within 60 seconds of the patents being filed.

Nonsense. The Forgent patents haven't stopped anyone from using JPEG. The free software libjpeg library from IJG has been out there the whole time, Gimp and similar programs never dropped JPEG. Again, I think you're thinking about GIF.

The core problems are ignorance (most people don't know what options exist), inertia (those who do often won't take advantage of them because it requires change) and stagnation (sufficient inertia kills all incentive to further develop alternatives). I would not be against compulsary education on how to be versatile, for this reason.

Again, you're thinking about GIF. There was never any "problem" with JPEG because noone ever though the Forgent patents were valid. The FSF themselves use JPEGs all over their web site, and always have. You won't find a GIF there, though.

Re:Yeah, but is it enough?

[Yosho]

To be fair, Photoshop's PNG support is really pretty awful. Heck, its 8-bit PNGs frequently come out larger than equivalent GIFs. Try using this plug-in to save PNGs instead: http://www.fnordware.com/superpng/. You'll find that it's much faster and they come out smaller. Still not as small a JPEG (in most cases), but...

Re:Yeah, but is it enough?

[ortholattice]

Or, if you want to optimize a whole directory of PNGs from the command line, you can use the open source pngcrush. I have used it a lot, so I can vouch that it works.

Re:Hard to overturn but...Not Enough!

[sangreal66]

Don't forget that the primary purpose of corporations is to avoid personal liability and responsibility. It is both difficult to jail a corporation or jail individuals working for a corporation for corporate misbehavior.

The primary purpose of a corporation is the shield the owners from liability and responsibility. Individuals working for a corporation are still responsible for any criminal offenses they commit or conspire to commit.

DJVU and IW44

[transami]

Okay, great. But hey forget JPEG. Drum it up for IW44 and DJVU. I just converted a 3.5MB .jpg to a 400K .djvu and can't tell the difference.

Re:Hard to overturn but...

[tinkerghost]

Even if they didn't know about the prior art, why should it affect the ruling if prior art was involved? Since they knew about prior art but didn't report it, they should be fined.
Why is it harder to get an invalidation ruling overturned after you failed to mention known prior art? Because every detail of your submission is gone over with a finetoothed comb and you never get the benifit of any doubt.
The rules for prior art are fairly clear, when you file your patent you have to include all of the related prior art you know about and defend why your patent is not covered by the disclosure therein - there are several rules including

• timeframe - a published prior art must be dated 18mths prior to application date
• relatedness - OK it looks similar but it's not really the same thing because....
• progression - Yes A is prior art and B is prior art, but there is no prior art showing A can be linked directly to B. - IE the 'on the internet' loophole.

Groklaw has a writeup by an IP lawyer about what is & isn't useful prior art, but I can't find it at the moment.
When you get to relatedness and progression, there is a lot of subjectivity - and having knowingly failed to provide information relavent - all of this will be reviewed with some prejudice against you.
If you knew about a prior art, and did not file it with the patent, you have also done a bunch of things:

• you committed purjury because you have to state you know of no additional prior art when you sign the patent application.
• if the prior art would have been enough to invalidate your patent, you have committed fraud - obtaining services/goods under false pretense.
• made more work for the USPTO. If you file prior art & the reason it's not enough to invalidate your patent, the patent office will blow off the first round of protests, using that prior art, as 'reviewed and deamed insufficient' meaning "we looked at it before we gave the patent & think you're grasping at straws". Puting most of the work on the person seeking to invalidate the patent not the USPTO. On the other hand, if you don't present the prior art, they have to completely review the whole patent.

So in a perfect world, if they failed to file known prior art, this would be a 'bad monkey - no patent for you' moment. They didn't play by the rules, therefore the whole patent and all information contained therein is transfered to the public domain. That's how you make a company play by the rules, you set it up so getting caught cheating not only hurts them, but helps their competition. Unfortunately we all know it's only a perfect world if you have the money to buy the legal system.
In this situation, where they have already received the patent and forced companies to pay on the patent, I think those companies might have a civil case for fraud based on the fraud perpetrated on the USPTO ($108M + triple damages isn't pocket change to anyone but MS & GM). Note that if it's just a bad patent and you didn't withhold any information, then there's no fraud, just incompetence on the USPTO's part.
IANAL but this is what I have gathered from Groklaw and a few other sources. If someone wants to correct me please feel free.

so what about the patent lawsuits...

[pxuongl]

so what about all the companies sued by Forgent? do they get their money back? how about companies that went under due to Forgent suing for patent infringement? do they get restitution?

Re:Hard to overturn but...Not Enough!

[sharkb8]

Corporations are not gtranted patents in the U.S., people are. The corporations get an assignment from their emplyees, which essentially means that the company owns the patent, but the Applicants are always one or more individuals. However, no one goes to jail over this, the patent just gets invalidated.

What Dan Ravicher was referring to is the duty to disclose any known prior art found prior to, or during patent prosecution. Courts have frequently punished patent holders for knowing failing to disclose prior art by invalidating the entire patent. This usually only happens in court when someone gets sued for patent infringement, or when a party takes the issue to court to get a declaratory judgment finding the patent invalid. Surely no one out there wants to spend the money it'd take to get this invalidated in court.

When the issue gets brought up before the PTO, they generally just invalidate the broadest claims, and narrow the scope of the patent until it's worthless.