US PTO Gives Microsoft Credit For Lotus's Homework

theodp writes "On Tuesday, the USPTO granted Microsoft a patent for 'Email Emotiflags' despite ample evidence of a circa-1996 Lotus Notes precedent called Mood Stamps — sender-chosen emoticons that appear next to inbox messages. Among those seemingly aware of the existence of Mood Stamps is Microsoft Chief Software Architect Ray Ozzie, who appears to have fielded questions about the feature while at Lotus. While simply Googling for 'Email Emotiflags' would have turned up evidence of this prior art (including a Slashdot discussion), the USPTO came up empty after instead going with the more-upscale Google Scholar and patent databases for its search effort. Think we can count on Ozzie to do the right thing and give the USPTO a heads-up?"

Comments

Clearly Slashdot is better than Google

[BadAnalogyGuy]

The USPTO should really rely on Slashdot more often to flush out these illegal patents.

Counting on Ray Ozzie to come to Lotus' defense is a fool's errand, though. Like all the once-luminary personalities that got bought by Microsoft, he belongs to them and will serve their interests instead of our own. :-)

Re:Clearly Slashdot is better than Google

[fuzzyfuzzyfungus]

Legally speaking, there is a duty to disclose any known prior art when filing a patent. In theory, we shouldn't have to depend on him doing the right thing, merely the legal one(typically a lower standard).

Re:Clearly Slashdot is better than Google

[BadAnalogyGuy]

Is the company required to consult him for every patent proposed?

Re:Clearly Slashdot is better than Google

[pushing-robot]

The USPTO has already stated that they won't be doing real prior art checks themselves. And why would they? They're self-funded, and each patent they grant is more money for them.

The way I see it, the USPTO got their money, Microsoft got an extra patent to impress their shareholders, and anybody else who wants to use similar technology would have a rock-solid legal defense. It's not the way it should work, but it works.

Re:Clearly Slashdot is better than Google

[delt0r]

..and anybody else who wants to use similar technology would have a rock-solid legal defense.

But can you afford it? These sort of thing can get ties up in legal proceedings for years.

But the lawyers will do nicely.

Re:Clearly Slashdot is better than Google

[MightyMartian]

Yes, it's a self-serving, unethical system. And that's the problem.

In my world, if you knowingly filed a patent with prior art, you would be fined 10% of your gross worth, you would be forbidden for filing any patent for a period of not less than 10 years, and any officer on your company would be forbidden to file any patents for 10 years, and any other company that they sat on would be forbidden for filing patents for 10 years, and any attempt to use another company (shell or partner) would be a criminal offense that would see your company stripped of all assets, you to spend no less than 10 years in federal prison and forbidden to ever have any direct or indirect dealings with the patent system ever again.

Re:Clearly Slashdot is better than Google

[Chris Burke]

The USPTO has already stated that they won't be doing real prior art checks themselves. And why would they? They're self-funded, and each patent they grant is more money for them.

Yeah, and up until recently (though I think it is still largely this way) we had the awesome situation where the USPTO defaulted to assuming patents were valid under the reasoning that the courts would correct any mistakes, and the courts defaulted to assuming patents were valid under the reasoning that the USPTO had done their jobs.

We need a way to give the patent office a financial incentive to do their job, and not just rubber stamp everything that comes their way. I don't know, something like... penalties for patents found to be invalid? Maybe an extra surcharge on the next application from the same party, or some longer-term hysteresis that increases the cost of filing based on how many times you've been rejected in the past. Yeah that idea has lots of problems. It's not easy. But the PTO is never going to work right when it is in their financial interest to not work at all.

Re:Clearly Slashdot is better than Google

[Tanktalus]

You really shouldn't post off-the-cuff like that. Put some more thought into it, and see if you can't come up with something really nasty.

Re:Clearly Slashdot is better than Google

[Will.Woodhull]

What sanctions can be brought against Ozzie if it can be shown that he withheld knowledge of prior art? Can he personally see jail time for this?

Since this would be a Federal crime, how would Slashdot request an FBI investigation of Ozzie's allegedly criminal behavior? Should we put it to a vote or will someone just step forward and do whatever is necessary to inform the FBI?

Re:Clearly Slashdot is better than Google

[Bobb9000]

The duty to disclose prior art extends to everyone substantively involved in the prosecution of the patent, including those associated with the inventor or assignee. Seems to me that unless Ozzie was actively involved with the patent prosecution, he doesn't fall into this category. You're right that somebody who was should have known, though.

Re:Clearly Slashdot is better than Google

[Bobb9000]

What sanctions can be brought against Ozzie if it can be shown that he withheld knowledge of prior art?

Most likely none, since it's not actually a crime. The patent would be invalidated by virtue of the inequitable conduct, though, if Ozzie was sufficiently involved to qualify for the duty of disclosure.

Re:Clearly Slashdot is better than Google

[C10H14N2]

Just take a cue from the Chinese

http://www.reuters.com/article/worldNews/idUSPEK2206820070710

Re:Clearly Slashdot is better than Google

[kbrannen]

The USPTO has already stated that they won't be doing real prior art checks themselves. And why would they? They're self-funded, and each patent they grant is more money for them.

... We need a way to give the patent office a financial incentive to do their job, and not just rubber stamp everything that comes their way. I don't know, something like... penalties for patents found to be invalid? Maybe an extra surcharge on the next application from the same party, or some longer-term hysteresis that increases the cost of filing based on how many times you've been rejected in the past. Yeah that idea has lots of problems. It's not easy. But the PTO is never going to work right when it is in their financial interest to not work at all.

Why not hand out small fines ($5000 to companies of > 10 people and $1000 to small companies/individuals?) to the patient applicants for not doing their research well enough, and give half of the fine to the PTO worker who found the prior art as a bonus. Now the applicant and the PTO worker both have an incentive to do the research.

Re:Clearly Slashdot is better than Google

[Synchis]

Indeed.

We have a similar system for punishing corrupt high ranking gov't officials here in Canada too...

Except instead of executing them, We scour at them menacingly, give them a cushy gov't pension and send them home to write their memoirs and have them published.

Oh, and we make them say sorry.

Re:Clearly Slashdot is better than Google

[pushing-robot]

I was referring to this. Reading it again, the USPTO doesn't explicitly state that they won't be doing their own diligent prior art searches anymore, but shifting the prior art responsibility to the applicant as part of a new "accelerated review" process is tantamount to it.

Re:Clearly Slashdot is better than Google

[dgatwood]

I think that by focusing on prior art, you are all missing the real point of this story. This shows why software patents are sometimes good. This patent ensures beyond a reasonable doubt that grotesque user interface abuses like this one never make it into any generally accepted standard....

I keep hearing it's a new Microsoft

[just_another_sean]

Think we can count on Ozzie to do the right thing and give the USPTO a heads-up?"

I keep hearing it's a new Microsoft so maybe.

Ah crap who am I kidding... I'm betting no.

Criminal charges

[Norsefire]

There needs to be tougher (and by tougher I mean "some") penalties to stop patent nonsense like this. If a patent is applied for and prior art exists there should be criminal convictions (huge, EU-like fines) as a result. Then companies would have to do their homework before they file for a patent, instead of the current situation where they use an idea that was used 10+ years ago and either the patent is rejected or the USPTO misses it and they get the patent.

If the later is true (and it seems to be, quite a lot of the time) and they try to sue and prior art is turned up during the trial, there should be penalties strong enough deter cases like that, eg. If the defendant is not guilty because the patent is invalid the CEO goes to jail.

And then you may as well hang an "out of business" sign on the doors of East Texas court houses.

Re:Criminal charges

[RingDev]

There needs to be tougher (and by tougher I mean "some") penalties to stop patent nonsense like this. If a patent is applied for and prior art exists there should be criminal convictions (huge, EU-like fines) as a result.

So you're saying that as an independent inventor, I should assume a huge criminal liability by filing for a patent that may or may not have prior art that I was unable to find?

Yeah... that's a great idea. I'm sure it won't stifle innovation or the open dissemination of knowledge at all.

-Rick

Re:Criminal charges

[JustinOpinion]

The scheme I've been thinking about* for fixing the patent system involves the patent being reviewed by two examiners: one who is trying to get the patent denied, and a standard examiner. It's like a mini court case: the applicants are arguing for their case, the "con" examiner is arguing against their case, and a (more senior) patent examiner judges between the two.

1.Patent application is submitted to patent office, with a non-trivial (but not enormous) fee. This fee keeps the useless applications to a minimum.
2. The "con" examiner looks over the application, and lists all the reasons he can think of why it should be denied. E.g. if it's too obvious. He does some searches for prior art both in the patent database and elsewhere (the Internet, journals, etc.). He puts his "this should be denied" case together and submits it.
3. The applicants see the "this should be denied" reasons. They have the option to withdraw their application, if they agree with the "con" examiner. Thus if they are made aware of prior art they had not otherwise known about, they can withdraw. Maybe they get half their application fee back. The other half goes to the "con" examiner as a bonus (this encourages them to do proper searches for prior art, etc.).
4. If the applicants disagree with the "con" examiner, they can push their application into the next round. In this round a more senior patent examiner looks over the patent, and compares what they are claiming with the evidence the "con" examiner managed to put together. He can then either grant or reject the application, without any refund of the application fee.

The point here is that the patent office makes the same amount of money whether they accept or reject the final application. And the "con" examiner has a financial incentive to put together a strong case against the patent. Moreover, this system prevents any applicant from claiming "I didn't know about that prior art!" either during the application process or in later patent court cases: because they were provided with a detailed summary of possible prior art. Of course if the "con" examiner can't find any reasonable rejection reasons, that's great: this can strengthen the patent holder's case for the application and any subsequent court cases.

By forcing the applicants to read and sign-off on a document detailing possible problems with their patent, they can't claim ignorance; there is a paper trail showing that they were made aware. This could be very nicely be combined with stiffer legal penalties for frivolous patents, at least in cases where they chose to willfully ignore the recommendations of the "con" examiner.

[*Like any scheme, there are plenty of problems (some of which have solutions that I didn't have time to get in to). Feel free to point them out. And yes, I'm well-aware that the primary problem is "reform is nearly impossible, this idea will never be implemented by the powers-that-be."]

Failed plaintiff case should compensate defenders

[cryfreedomlove]

I've been involved in a few patent litigations. They almost always settle out of court or the plaintiff loses outright in court. The problem is that even when the defense 'wins' the case, they still spend millions in that defense. Why not force the plaintiff to compensate the defense for causing them to waste so much money?

There Is a Possibility You Overlook

[eldavojohn]

Among those seemingly aware of the existence of Mood Stamps is Microsoft Chief Software Architect Ray Ozzie ...

Isn't it possible that (since he worked on the Lotus Notes project) Ray Ozzie is the originator of this idea and Lotus Notes did not have the foresight to patent this technology when he worked for them? Isn't it possible that he thought this idea patentable and in a better late than never fashion he patented it?

I don't think this is a novel idea and I think it should not be patentable ... I just find this summary to be very short sighted and subjective:

Think we can count on Ozzie to do the right thing and give the USPTO a heads-up?

What is "the right thing?" He works for a company with the priority to rake in cash. It's "right" in his boss' eyes, I'm sure.

Re:There Is a Possibility You Overlook

[Imagix]

Among those seemingly aware of the existence of Mood Stamps is Microsoft Chief Software Architect Ray Ozzie ...

Isn't it possible that (since he worked on the Lotus Notes project) Ray Ozzie is the originator of this idea and Lotus Notes did not have the foresight to patent this technology when he worked for them? Isn't it possible that he thought this idea patentable and in a better late than never fashion he patented it?

However his employment contact with Lotus likely had clauses about how Lotus owns the ideas since he came up with them in the context of being employed by Lotus.

Re:Count on Ozzie?

[just_another_sean]

No, the other Ozzie, the guy who invented Lotus Notes. Which just might make him even more of a lunatic then the Ozzie you're referring to!

This is insane.

[CopaceticOpus]

I wish someone could figure out a way to legislate common sense. We're talking about a patent and potential legal battle over putting little smileys and pictures next to a message? I'm sure we can find examples of six year old girls doing this hundreds of years ago, only it was on paper instead of on a computer.

And even if this was a completely new idea, all we are talking about is tiny pictures with an associated feeling. Is it such a breakthrough? Could we never hope for such an advance for mankind unless the patent system would encourage companies to spend millions on smiley face research? The only reasonable response to this patent request is to laugh and tell them to get over themselves.

Re:The patent system is broken by design

[shentino]

Problem is you still get steamrolled by a larger LEGAL budget.

You are never safe in a country where a big bad-ass company can lawyer you to oblivion.

Re:Failed plaintiff case should compensate defende

[shentino]

That's known as "loser pays" and will have such a chilling effect on frivolous litigation that the legal lobbies will not let it happen without a huge fight.

Merely suggesting it is political suicide.

that's not why the US patent system is broken

[viralMeme]

"It is a system where I can invent something, only to be told that I have to pay someone else if I want to use my own invention, because someone else thought of something just like it too. If being the first to develop something doesn't give you the edge in the market, then no patent will change that"

Filling in a bunch of forms isn't exactly inventing anything. That's not why it's broken. The reason the US patent system is broken is it allows anyone to patent nonsense such as the above, then wait until someone develops something tangible and then sue their asses off in court. It's known as the submarine patent ..

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[account_deleted]

Comment removed based on user account deletion

Once AGAIN, the summary leaves out key patent bits

[Janthkin]

First, the linked article doesn't render properly in Opera. Grrr. Second, here's the actual claim:

1. A system comprising:
a processor;
a memory;
an email application maintained in the memory and executed on the processor to perform a method, the method comprising:
receiving an email message having an associated emotiflag specified by the composer of the email message to indicate an emotion the composer intends to be associated with the email message as a whole wherein:
the email message comprises: a message body;
and header data, the header data comprising an email subject;
the emotiflag is separate from the message body and the email subject;
and the emotiflag comprises: a graphical icon;
and a text tag;
and a display device for rendering a representation of the received email message such that the emotiflag is rendered as part of the representation, wherein rendering the emotiflag comprises rendering the graphical icon and the text tag.

Looking at the (brief) summary of "Mood Stamps" linked by TFA, I don't see the emotiflag comprises: a graphical icon; and a text tag;, and I don't see wherein rendering the emotiflag comprises rendering the graphical icon and the text tag.

New article summary: "Microsoft receives a very narrow patent on an incremental improvement over Mood Stamps."

Re:Failed plaintiff case should compensate defende

[Desolation Row]

The US has a very strict "loser pays" structure, where "loser" is defined as taxpayers without their own personal lawyer and lobbyist militia.

Ray Ozzie Created Notes At Lotus!

[azav]

This is amazing, because in 1991/1992, I had the opportunity to move over to the Lotus Notes team in Cambridge, Mass. Of course Ozzie knows about this since he created Notes. Argh.

Same feature was in MagicCap

[DdJ]

Essentially the same feature was built into the mail client of the MagicCap operating system, if I'm understanding what's being claimed.

I have a Sony PIC-1000, a Sony PIC-2000A, and a General Magic DataRover 840, and they all have this feature. Basically, when you're composing email (or in fact any other message -- email is not all that's supported), you can open a "stamp drawer" and drop "stamps" on the message to indicate any number of things. This could be done for purely cosmetic reasons, but it was also how you added metadata to the message. Particular stamps had code attached to them and could actually do things. And I think this goes all the way back to 1994.

Re:Failed plaintiff case should compensate defende

[anyGould]

It also rewards rich people who can afford to raise the stakes. You might be 90% sure that you'll win, but the more money I spend hassling you, the more risk you have to accept. I can simply spend you out of the courtroom.

Jury Duty for IT professionals

[sorak]

Lately, the phrase "Jury Duty" has been rattling around in my head. I have been thinking about how our legal system is based on the idea that regular citizens have a responsibility to help it run smoothly, even if we have to occasionally send out letters and make them.
.
Because the patent office cannot have an expert for every field, I am wondering if we cannot implement a system in which patent requests are sent out to randomly chosen experts in whatever fields that patent may qualify for, and if the experts' (possibly defined as anyone with a M.S. or higher from an accredited institution), input can be taken into account by the USPTO. Of course the USPTO people would still have to verify that any criticism is really valid, but at least they would not be doing 100% of the legwork, and the people evaluating the patents would be more well-informed than the typical patent clerk.
.
The hard part would be incentives. Because a patent application costs around $10 grand, it wouldn't be difficult to increase the fee and pay out rewards for citations of prior art. And phrasing it as "your contribution to the arts and sciences" may provide some incentives for the idealistic. I'm wondering, assuming that we want to reward the inventors of new technologies, how would others fix the current system?

USPTO

[omb]

The __EVER_BROKEN_US_LEGAL_SYSTEM__ should allow "costs in cause" in all litigation, what you have just encourages abuse, since you can sue people with little risk.

The USPTO needs to be sanctioned and regulated, right now it is stupid disaster.