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Groklaw Says Microsoft Patent Portfolio Now Worthless
twitter writes "P.J. concludes her look at the Bilski decision: 'you'll recall patent lawyer Gene Quinn immediately wrote that it was bad news for Microsoft, that "much of the Microsoft patent portfolio has gone up in smoke" because, as Quinn's partner John White pointed out to him, "Microsoft doesn't make machines." Not just Microsoft. His analysis was that many software patents that had issued prior to Bilski, depending on how they were drafted, "are almost certainly now worthless." ... He was not the only attorney to think about Microsoft in writing about Bilski.'"
http://slashdot.org/~SockDisclosure/journal/214377
I think Microsoft wins either way. They are not generally a patent troll company, nor are other large companies (IBM) with massive patent portfolios. If their strategy was to countersue little companies which had (somewhat) frivolous patents as a defensive measurement, they win either way. Either their patents are valid, in which case they have a good defense strategy, or they are not, and neither are the patent-troll lawsuit patents. I read somewhere it costs $10,000 or so to file a patent. This is chump change to Microsoft.
Rhymes that keep their secrets will unfold behind the clouds.There upon the rainbow is the answer to a neverending story
The whole reason the patent system exists is so that the "little guy" will have incentive to make a product without fear of the big guy stomping them. Of course, it turns out that the big guy with a 1000 patents a year deters any competition, so, there's obviously going to be more competition if this ruling means as the article says. But, at the same time, if I genuinely do make a product that is new, then, big companies will be allowed to take it. In fact, anyone will.
As such, patents aren't -that- bad, but just imagine if copyrights were also deregulated to a degree. Yeah, people might be able to copy madonna songs more freely (as terrible a thing to do as that is), but, at the same time, the GPL would lose quite a bit of its teeth as its only as good as the rights the code authors have. If you are MS, looking at a billion in Windows development costs a year, suddenly a few hundred million in political "donations" in favor of candidates that are willing to legislate in that open source means public domain, and suddenly Linux is on everyone's desktop, but, it's closed source!
This is my sig.
Well, no. At least with Groklaw, you can read the decisions and briefs directly and make up your own mind if you don't like the commentary and analysis.
Well, there's spam egg sausage and spam, that's not got much spam in it.
No. The decision affects business method patents, not software patents. Software patents will probably get a direct challeng at some point, but that point is not today.
Do you even lift?
These aren't the 'roids you're looking for.
So... Who wants to be the first one to try violating one of Microsoft's software patents and test it in court? Hmmm?
let's have a look at the innards of my son's xbox crystal which he just drowned in orange-flavoured soda...
HDD: Seagate. No. ...in fact, I don't see one single component in there that has a Microsoft logo on it. Given that the HDD and some other components actually state "made in Taiwan" somewhere on the label, I can only conclude that the box was assembled in China. The software, on the other hand...
Processor: Intel. No.
Memory: Samsung. no.
Northbridge: NVidia. No.
GPU: NVidia. No.
various I/O, timer and controller chips: Texas Instruments. No.
Controller ports: I have no idea. Possibly not, although they are in essence, usb ports with slightly more robust terminal connections.
kernel/UI: is a multiboot system. He has the choice between the classic xbox Win2K kernel/UI (Microsoft), the extended interface that allows him to copy games directly to the HDD and do all manner of other wonderful and weird stuff to the system and play any of several thousand in situ games via any of the dozen or so emulators (almost certainly not Microsoft), and Linux (ha!).
So no, they don't make machines. Their scrollwheel mice were built by Logitech (albeit maybe to Microsoft's specification). The kernel software that shipped with the xbox classic was... well, sort of. Microsoft codeveloped NT with IBM under the label "OS/2". OS/2 died a horrible death, NT was a victim of its own success.
Operation Guillotine is in effect.
A ruling came down from the board of patent appeals and interferences (BPAI) allowing Beauregard claims. a Beauregard claim is a claim for the steps of a method stored on a "computer-readable medium." The FedCirc could rule that the BPAI is wrong on appeal, but for the time being the PTO will still be allowing software claims using the computer readable medium language.
Practical effect: any patent using that language will still be enforceable. Since you can't violate a software patent without storing it somewhere, there is no downside to including that language in the claims.
Apple worked around that anyway
I don't think Groklaw is being overly optimistic, I think the summary is.
PJ essentially said that this further erodes software patents and that it may well invalidate one particular type of software patent. A type that Microsoft apparently has a great deal of because they filed a brief saying that ruling the wrong way on this would hurt them.
PJ did not say that all Microsoft patent are belong to us or all software patent are belong to us. The article is implying that far more strongly than PJ.
The decision directly affects business method patents but also overrides a standard used to test the validity of process patents and that standard has been used as the basis of a great deal of software patents. Apparently, including a large portion of Microsoft's portfolio.
The counter attack there being the "not obvious" leg of patentablity. Using a tool for it's intended purpose is considered obvious, and therefore not patentable. Since running algorithms is what computers do, by definition, it's a short step to an "obvious, therefore not patentable" attack.
Basically, the argument is if you have a nail that isn't patentable and a hammer that was specifically designed to hit nails with then hitting the nail with the hammer is obvious and not patentable.
--MarkusQ
For example, Beauregard claims, which are claims on a computer readable media adapted to implement a method or system, are considered patentable by the PTO. These kind of claims are very popular because they allow patent holders to go after the software distributors rather than end-users.
The PTO may still be accepting them, but I imagine the first time one goes to court they will be overruled. The decision is very specific: to be patentable, the subject of the patent must either "[be] tied to a particular machine" or "transform[...] an article". A storage medium is not a machine itself, and is not as far as I can see tied to a particular machine; nore does it transform an article. I note that the article you link to cites a federal court decision that such items are patentable, which obviously means that until such decisions are overruled explicitly by a court of appeals or the supreme court the PTO should continue as if it were still valid, but I would think that such an appeal court would, in light of the recent decision, look again and see that such claims are invalid.
Of course, this still leaves "computer with program loaded and executing" style claims, which can be targetted to developers as well as users.
Ob.Disclaimer: the above does not constitute legal advice. Consult an expert before making any decisions based on this.
Truly horrid... it died for lack of Windows compatibility. And it lacked Windows compatibility because Microsoft was able to convince a judge that Windows 95 was a new and unique product, not covered under the settlement order requiring Microsoft to hand over their API code (enforced through WFW3.11, including win32s).
I might still be using it today, otherwise.
Patents in themselves and Intellectual Property are good at times but when it comes to software patents, all they do is cause abuse.
The problem with "intellectual property" is that no one knows what you're talking about when you say it. Patents, trademarks, copyrights, and software patents are wholly different animals and people have wildly varying ideas about the relative worth of each. In short, don't use "intellectual property" because it just confuses the issue.
Dewey, what part of this looks like authorities should be involved?
In re Bilski only deals with the patentability of certain process claims. Patents can be granted to "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter." 35 U.S.C. Sec. 101. Beauregard claims do not really claim a process, they claim an article of manufacture. They really do not fit within In re Bilski at all.
The scope of In re Bilski is very important. Lower courts are limited in how far they can stretch the decision. Even the Court of Appeals for the Federal Circuit (the appeals court that decided In re Bilski) is limited in what they can do with this decision. Individual three-judge panels on U.S. appeals courts are bound by precedents established by any panel of the given appeals court. The Court of Appeals for the Federal Circuit has to hear a case en banc (all the judges at one time) to overturn its own precedents. Since the Federal Circuit has exclusive appellate jurisdiction over patent cases, they are the ones who would need to hear an appeal.
This means that any precedents that were in place before In re Bilski, and were not affected by the decision, are still binding on everyone except the Court of Appeals for the Federal Circuit sitting en banc or the Supreme Court of the United States. The Court of Appeals for the Federal Circuit noted that:
This suggests that the holding of In re Bilski is limited to process claims and that many other types of claims that are used in software patents are unaffected.