Microsoft Copies Idea, Admits It, Then Patents It

An anonymous reader writes "BlueJ is a popular academic IDE which lets students have a visual programming interface. Microsoft copied the design in their 'Object Test Bench' feature in Visual Studio 2005 and even admitted it. Now, a patent application has come to light which patents the very same feature, blatantly ignoring prior art."

Comments

Patents and Perjury

[NZheretic]

To quote Bruce Perens' 2006 State of Open Source press conference

Perjury:

When one applies for a patent, an oath is sworn. The penalty for falsehoods under that oath [http://www4.law.cornell.edu/uscode/html/uscode18/ usc_sec_18_00001001----000-.html] in theory - is currently 5 years imprisonment, or a fine, or both. That's in theory. Now, let's talk about practice. At the meeting, Robert Clark, Deputy Director of the Office of Patent Legal Administration, said that there _was_ a patent perjury case: in 1974, and that one comes along every 25 years or so. Yet, we are aware of, for example, a much more recent patent in which the claims included verbatim text of a published paper by a researcher not connected with the applicant. And there are examples like Microsoft's two-click patent, in which there does not seem to have been any excuse for the filer to have been unaware of prior art. There's a strong financial incentive for the unscrupulous to eavesdrop on the open discussion lists of standards organizations or Open Source projects and to make pre-dated patent filings with that information, another form of perjury.

My premise in bringing this up is that there does not seem to be any sense of peril for those who game the system. The worst that can happen to a perjurer is that his patent claim is denied, and he can get a continuation from the patent office and eventually get the patent anyway. Contrast this to how courts treat perjury in non-patent matters: impeachment of a witness for unreliable testimony is often followed by prosecution for perjury and a lengthy jail sentence.

This creates a quandry for the patent examiner, because the total lack of enforcement against perjury means that the examiner should not assume that any patent application has been made in good faith. That examiner might not get a whole day in which to evaluate a patent application, and the fact that we can't rely on the applicant telling the truth makes a job with an impossible time constraint even more preposterous.

Perjury is not a victimless crime: it creates intellectual _poverty_ because its victims will be unjustly denied use of technology covered by a patent claim that, in general, they can't afford to litigate.

In some cases, the perjurer is hiding behind an attorney or a patent agent who believes in the honesty of the claim. But the applicant should be counseled on the peril of perjury in making an application, and the peril should be real.

Today's policy seems to be denial that a problem exists. I submit that improving software patent quality should improve the active pursuit of perjurers: referral of applications from an examiner to a criminal investigator during examination or re-examination, and we must carry that process through to conviction on a regular basis.

This is something that the U.S. Patent Office can do without changing a single law. The law-enforcement authorities exist, the public sympathy is there for enforcement against white-collar crime, nobody's whining that Ken Lay got in trouble. So, United States Patent Office, let's hear an annoucement that you are going to be vigilant about referring perjurers for criminal enforcement, more than four times a century.

Re:Sick Software "Patents"

[Dufftron 9000]

For $180 you can submit the reference to the USPTO to make sure they see it. I fully preemptively agree that paying sucks, but unfortunately it is your only course of action if you actually care about it.

How-to submit the reference: http://www.uspto.gov/web/offices/pac/mpep/document s/appxr_1_99.htm

Link to the full transcipt

[NZheretic]

State of Open Source

What, no link to the patent application?

[Anonymous Coward]

Why not link to the patent application itself? From the USPTO here.

(Posting AC = No karma whoring)

Re:Submit the prior art

[mr_death]

The whole purpose of publishing patent applications was so that people could submit prior art to the examiner.

Umm, no (at least in the USA.) Publishing a patent app after 18 months thwarts the well-known tactic of constantly amending your app so that it stays below the radar for years -- the submarine patent. People would file a patent app, delay its prosecution until a market developed, then get it approved and demand infringement damages from all the legitimate companies that had been working on the problem for years.

Re:Hard to defend

[jbengt]

According to linked articles, MS doen't offer this feature in the Express version.

Re:Sick Software "Patents"

[Compholio]

It also might have something to do with that in the US we consider a corporation to be a "corporate personhood". So a corporation is practically indistinguishable from a person under our laws.

Re:Microsoft is not a single entity

[greg_barton]

And now, because people think of Microsoft as a single entity, they are angry because Microsoft both patent the idea, and at the same time acknowledge where it came from.

And this is exactly what they signed up for when they applied for corporation status. They want to be recognized as a corporate entity, with all of the rights and responsibilities that entails.

Your point?

Re:Antipatents?

[Grond]

There already is such a system: the Statutory Invention Registration. Basically, it has all the same information as a patent but doesn't confer any rights on the submitter the way a patent grant does. Once it's submitted, it joins the PTO's database, which is the one place a patent examiner is guaranteed to look when reviewing a patent.

This is also one reason why "defensive patents" are complete hokum. If a company really wanted to get a patent just to make sure no one else could, they would just file a SIR: it has all the same information, it gets searched by examiners, and it's a public record. But of course SIRs are actually very rare: it's so easy to get a patent that companies would rather get the patent 'just in case' they need to sue anyone later.

Re:Sick Software "Patents"

[Compholio]

You are partly correct:

The idea that corporations are "artificial persons" (slightly different wording, same basic idea) originated in England well before the U.S. was formed.

Is correct, however the "artificial persons" concept is more limited than that of a "corporate personhood" (at least according to the Wikipedia article). For example, in the United States a corporate personhood is entitled to basic human rights (where most other countries draw a distinction since corporations are not humans).

And, FYI, they aren't "practically indistinguishable" either, they have a distinct subset of the abilities of a regular person.

Sure, they can't vote or hold office. They can however:
* be found guilty of a crime
* be sentenced to pay restitution
* petition the government as a citizen
* not have their charter revoked by the state (killed)

and a host of other things. From my (admittedly limited) viewpoint of the subject I would consider that "practically indistinguishable" under our law.

Beware of Submitting Prior Art

[RallyDriver]

If you do, and as is typical the patent office drops the ball and issues the patent, then that prior art is lost forever to you as an anti-patent defence, and cannot be used in a court case.

This is why companies rarely challenge inappropriate patent filings via the USPTO, and save prior art until they need it in a court of law to challenege enforcement of a bad patent, so they can have it argued by their own experts.

The system is broken in many ways, this is just one more.

Re:Sick Software "Patents"

[Exactament]

This isnt the first time. For over 6 years we have been developing an open source authorisation and access control system called PERMIS (see www.openpermis.org) which validates authorisation tokens, including X.509 attribute certificates and Shibboleth attribute assertions, and uses them to make access control decisions. We have many academic papers published about our work. Then in Sept 2006 Microsoft applied through Blair Dillaway for a new patent in the U.S. covering the use of multiple types of security tokens in a single access control act. If that isnt theft of previously published prior art of ours (and others in the academic community), then I dont know what is.