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Microsoft Applies For Patent On Tufte's Sparklines
jenkin sear writes "Data visualization guru Edward Tufte developed Sparklines, a great way to display condensed data as an inline graphic. Excel's new version has incorporated the design element — and Microsoft has applied for a patent on them — without so much as a by-your-leave from Tufte."
A comment on the blog post discussing the feature (to which TFS links) says:
They haven’t tried to patent sparklines, but the use of sparklines in Excel. I.e. the automatic updating of a sparkline embedded in a spreadsheet.
Cue the posts on how obvious and stupid the patent is regardless of this below. Point is, it's not an attempt on something already claimed by someone.
First, the actual claims are considerably narrower than just 'any and all uses of sparklines.' The broadest claim is about the use of sparklines in a dynamically updated electronic document. Most of the narrower claims have to do visual effects, the handling of null values in the spreadsheet, etc. This is pretty tame stuff.
Second, this is a newly filed application. The examiner will almost certainly come back with multiple rejections based on obviousness, and the claims will likely be narrowed in response. Like most negotiations, the parties start off with extreme positions and work towards compromise.
Third, the patent application already cites Tufte (along with a dozen other pieces of prior art) in the Information Disclosure Statement. In other words: Microsoft gave the patent examiner many important pieces of prior art. The examiner will no doubt find many more. This is all publicly available through the Patent Office's Patent Application Information Retrieval system.
Fourth, there is no need for Microsoft to acknowledge Tufte as an inventor on the patent application. Inventorship in the patent context is a legal term of art with a specific meaning. The fact that Microsoft said that Tufte invented sparklines is not the damning piece of evidence many are assuming it is (and recall from point three, above, that Microsoft acknowledged Tufte in its IDS). First, Tufte invented sparklines more than a year before the filing date, so any patentable claims must be a non-obvious improvement upon or use of sparklines, not sparklines themselves. Second, Tufte clearly did not work with the Microsoft inventors, so he cannot be a co-inventor of anything claimed in this application.
Once again non-experts hear hoofbeats and scream 'Zebra Stampede!' The comments on Tufte's site, for example, are a joke, an absolute mess of uninformed speculation. Given the wealth of publicly available information on patents and patent application, the Slashdot editors should do more to fact check these stories before publishing them.
Finally, I'll just tack on that if sparklines are so great and this is all so obvious, then surely there's an open source version that predates this application. Remember, though, that this application was filed on May 7, 2008, so the open source version would need to predate that, preferably (but not necessarily) by a year or more. That would actually be an important piece of prior art.
They're already published and in use, therefore not patentable.... if only the patent office would follow their own damn rules about such things!
This is one of those issues I'd love to hear a real patent attorney weigh in on: If someone files a patent on something you can prove you demonstrated publicly at an earlier date, what are your options? Can you file an opposition to the patent? How does it work?
I am not an attorney (I'm an academic) and this is not legal advice. If you ever find yourself in a situation like this you should consult a competent patent attorney in your jurisdiction. To be clear, when I use the word 'you' in this post I mean the generic 'you,' not you personally.
Here's the basic flowchart. Has the other party filed an application or received a patent? If they've already received a patent, then your primary option is to put the patent into reexamination. To do this requires evidence of a substantial new question of patentability (i.e., something new the examiner or the courts haven't looked at yet) and the payment of a fee. You can either put it into ex parte reexamination, where you submit your evidence and the patent office takes it from there, or you can put it into inter partes reexamination, where the patent office holds a sort of mini trial with you arguing against the patent's validity and the patent owner arguing for it.
If the patent holder is actually demanding a license, threatening a lawsuit, etc, then you may also have the option of filing what's called a declaratory judgment lawsuit where you ask a court to determine whether the patent is valid or not.
If things are still at the application stage, your options are much more limited. You can submit prior art to the patent office, or, in the rare circumstance that you also have a pending patent application on the same invention, then the patent office may declare what's called an interference and try to figure out who invented the claimed invention first.
Actually, yes, it *is* a legal requirement that MS not claim to invent what they haven't invented. Unfortunately, this is never enforced with the applicable punishment. (Rarely against individuals. I've never heard of it being enforced against a company.)
I think we've pushed this "anyone can grow up to be president" thing too far.
Please stop thinking in a FOSS mind frame. In our world, someone asks a question and if we're experienced in that field we don't mind helping out. In the law world, they just lol'd at you (just like every patent attorney who actually read your post) and are currently waiting for you to swipe your credit card details. Now ... Armchair Patent Attorneys ... now that's another matter. I'm sure they're willing to provide an abundance of information.
I'm taking the patent bar in a month and the state bar in three. I'm currently an academic, so naturally part of my job is teaching people about the law, but I'm not going to stop doing so if I'm admitted to the bar. In fact, the Model Rules of Professional Responsibility state that lawyers should help to educate the public about the law (note: they aren't required to, but they should).
Furthermore, there are patent attorneys that have made helpful comments on Slashdot over the years, which stands in direct contradiction to your claim.
Similarly, one of the people I work with is an experienced patent attorney and distinguished law professor. We offered to be the subject of a Slashdot interview about patents, particularly software patents. We felt we'd be a good match since he graduated from MIT and I have bachelor's and master's degrees in computer science. Slashdot didn't take us up on the offer, but at least we tried.
And finally I'll just point out that there are, of course, far more armchair patent attorneys than patent attorneys on Slashdot, so statistically it's hardly surprising that most comments, helpful or otherwise, come from non-experts. It would actually be pretty incredible if every patent-related post or comment on Slashdot was met by a host of patent attorneys chiming in on the issue.
This appears to be a specific implementation of sparklines in an Excel spreadsheet, not sparklines in general. This blog talks about this specific implementation (sparklines in Excel) in 2006. This comment on that blog says that there are three current commercial implementations.
There's even a Sourceforge project for Sparklines in Excel, but it appears to have first published in early 2009.
Put identity in the browser.
I've used sparklines that were updated "automatically" from the values in a database. The software in question tracked the coffee consumption pr. person in the lab, and displayed it using sparklines on a web page (no longer online). The sparkline code was a PHP snippet I found on the net somewhere. There must be plenty of prior art.