I think Microsoft and the rest of the software companies have realized that patent-trolls do more harm than good.
I call bullshit.
By what standard is Microsoft a patent troll in that instance (or any other instance)? It makes and sells products that incorporate the claimed features, and it licenses the patents to others. It's as far from a non-practicing entity as you can get. It's also suing a company that definitely has the resources to defend itself. It's not using patents as a cudgel against some upstart competitor.
Someone mentioned that Microsoft only sued one company. The others Android handset makers likely have licenses, especially given that they make Windows Mobile / Windows Phone 7 phones.
I suppose you could define a patent troll as "the patentee in a patent infringement lawsuit," but that's not a very useful definition.
However - any outcome other than what you desired will either make it im-fucking-possible to change later. For instance, a bad outcome would be for software patents to not only get validated, but strengthened to the point where any patent holder (no matter how specious the patent), can promptly send any company they want straight into fiscal hell. Like today, only 10x as worse.
I don't think you understand the procedural posture of this case. This is a (potential) Supreme Court case, which means the case will be about the narrow issue framed by the appeal and grant of certiorari. It is not about software patents per se. It's about the standard of proof of invalidity in all patent cases, specifically the standard for prior art not considered by the Patent Office.
Here, Microsoft is asking for the standard to be lowered. i4i will likely ask for the Court to maintain the status quo. In all likelihood, if the Court wants to maintain the status quo then it will simply deny certiorari and let the lower court decision stand. There is almost no chance that the Court will raise the standard beyond the existing clear and convincing standard. This is for several reasons, not least because there isn't really any standard above C&C but below the criminal standard of beyond a reasonable doubt, and it's highly unlikely the Court would create a new standard just for patent validity.
There's really no downside to supporting Microsoft here if you want patents to be easier to invalidate, especially because you know Microsoft will put substantial resources behind making sure it puts its best foot forward. For one thing, if it loses it will have to pay a $240 million judgment. That's a pretty big incentive.
Note that this doesn't prove that Microsoft believes patent law needs to be changed, either. We don't really know either way, and for msmoriarty to assume otherwise is without basis. Unless Microsoft makes a public declaration one way or the other, this simply amounts to a legal tactic - nothing more.
An appeal to the Supreme Court is a public declaration. What's more, this has been Microsoft's position for years. For example, it tried the same approach when it was sued by z4 Technologies over anti-piracy measures in XP and Office (that case eventually settled).
Dismissing this as a 'legal tactic' is silly. Microsoft is asking for a nationally binding precedent from the highest court in the country, a court that does not like to overturn itself. If the Supreme Court indeed lowers the standard of proof, then that will likely be the law for decades (barring unlikely congressional action). In fact, making this claim in a Supreme Court proceeding is actually more indicative of Microsoft's beliefs than a press release because, unlike a press release, a Supreme Court ruling would actually change the law. There are no take-backs if Microsoft changes its mind.
"Meanwhile, MontaVista added that it protects its customers from technical and legal risks through warranties on all editions of MontaVista Linux and indemnification against claims involving the code it creates and delivers."
You're comparing apples and oranges. As best I can tell, MontaVista's indemnification only extends as far as GPL disputes in which MontaVista is at fault, not software patent claims or even GPL disputes in which an upstream contributor screwed up. From this page:
Legal risk - reduces legal risk by providing indemnification from open source licensing issues ... Reduce legal risk - MontaVista indemnifies all active subscribers. This means that in the case of a GPL dispute where MontaVista is at fault, then MontaVista and not the MontaVista licensee, will bear the legal and financial burden.
Microsoft is offering a lot more than MontaVista. GPL disputes are rare; patent suits or the threat thereof are comparatively common (~3000 suits per year, although only a fraction of those are software-related).
Suffice it to say that in the world of legitimate software for these appliances, the patents are licensed only to licensees of the trade secrets.
So it sounds like the real problem for you here is not the patent but rather the trade secrets, since they're the reason you can't easily take a license. If your product idea is lucrative then why wouldn't it be worth it to invest in some tiny closet of an office in order to be able to take a license? There are lots of commercial buildings with one room offices. I haven't priced one, but they can't be all that bad.
In any event, not exactly a poster-child for software patents stifling innovation.
The U.S. Code also has 17 USC 102(b), which appears to exclude methods of operation from the scope of copyright....It's called the "idea-expression divide", and as I understand it, it's roughly equivalent to the "functionality doctrine" of trademark law: just as a trademark can't be used as an ersatz patent, nor can a copyright. But good luck for a startup company to pay a lawyer to convince a judge of that.
That's a slight muddling of the idea/expression distinction and the ban on copyrighting the functional aspects of a work, but close enough for this discussion. Anyway, as you point out, that's a part of the statute and it's been fairly well hashed out in court cases. What an attorney would have to convince a judge of is not the existence of 102(b) or the ban on copyrighting functional aspects of a work, but rather that the UI elements or whatever met the standards laid out in cases like Lotus v. Borland, Atari v. Philips, or Apple v. Microsoft.
The cases that you cited were not actually inconsistent, for example. The Lotus case didn't hold that UI elements or look-and-feel couldn't ever be subject to copyright, just that menu hierarchies in productivity software couldn't because they constitute a method of operation. Furthermore there are only so many reasonable ways to layout a menu hierarchy; where room for creativity is limited, copyright protection is likewise limited.
The Atari case was about a video game, where there is a lot more room for creativity than in spreadsheet menus. Despite this increased room for creativity, Philips still pretty closely copied graphics and sound from Pac-Man, including stuff that really isn't necessary for a maze game (e.g., the character folding back and disappearing in a starburst upon death). You could argue that things like mazes, a character that eats powerups, etc are essential to the genre, but those other little details were copied basically verbatim. It really didn't help that the infringing game had started life as an exact Pac-Man clone originally intended to be marketed under the licensed Pac-Man name. They only changed a few details when they couldn't get the license. There was really little doubt that stuff had been copied intentionally. Philips chose to walk a tightrope and they didn't pull it off.
I was not aware that this was available to people who intend to sell something.
There's no rule about it. It depends on the attorney and the nature of the client, but many attorneys work on a sliding-scale depending on a client's financial situation. Many attorneys are willing to cut fees for a startup in the hopes that it will lead to more lucrative work in the future if the startup is successful. And many attorneys are sympathetic to underdogs.
I was not aware that this was available. And where would I look? The local branch of the state university (IPFW) offers pre-law but no doctorates.
You'd have to look at law schools in your state (you could look at schools in other states but you'll have more luck with your own for various reasons). They may be located some distance away, but you can accomplish a lot these days over the phone, via videoconference, email, etc. For example, it's not uncommon for patent attorneys to handle work for clients that aren't even in the same state. Several law schools have clinics that focus on IP, business formation, and entrepreneurship.
Such a patent, worded to claim the software card used with this boot process, lets the maker of the appliance sue makers of unlicensed software cards for the appliance....Comparing the boot process of a PC or Mac to the boot process of a mainstream video game console or handheld is very much apples and oranges.
I see. Your original post didn't make the architecture of the system clear. Thank you for the clarification. Still, if the product is potentially lucrative you should consider contacting a patent attorney about a freedom to operate or infringement opinion. If there are a lot of people who feel locked out of the market (you mentioned at least one other person), you could consider banding together to fund an effort to have the patent invalidated if there is appropriate prior art or other grounds for invalidity.
I am not aware of such lawsuits targeting United States-based resellers of blank software cards for this platform, but the maker of the appliance has sued publishers of unlicensed software for its previous platforms, successfully in some cases and unsuccessfully in others. Besides, I would likely get a chargeback from my payment processor for each unit stopped by customs.
Getting much further into this would start to stray into legal advice, and you aren't my client, but suffice to say that depending on the facts and strategies employed these risks can be addressed.
I did not because documents published by the company indicate that applying for a license would be a waste of time. The company has a blanket policy of not making licenses available to entities that don't already have a dedicated office and a successful product on another platform. Quoted from the application form: "Home offices are not considered secure locations." I have also read news coverage, which I can cite if you want, about another developer working from home who was rejected for exactly this reason.
The 'secure location' language is curious to me. That suggests that part of the license involves trade secrets or other confidential information. If so, that's a separate issue from patents.
I have decided not to market a program after discovering that the boot process on the program's intended platform was covered by patents, enforced by the courts of at least one major country.
I don't understand how that would have affected your program. Why would a patent on the boot process of the platform affect a program running on the platform? There are no doubt lots of patents related to a PC's BIOS or a Mac's EFI system, but that has nothing to do with someone writing a program for a PC or Mac.
Did you actually contact a patent attorney for an opinion on whether your program would infringe the patent? Fully comprehending the scope of a patent's claims is not easy and (in the US, at least) must take into account, for example, the arguments made during examination. Further, do you reside or have assets in the country in question (patent jurisdiction is generally not transnational)? Did you contact the company about a license?
I have also decided not to market a program after discovering a look and feel copyright whose owner is notorious for waving it around as if it were a patent.
That's an unfair comparison. If anything it cuts the other way. Copyrights are a vastly more powerful form of IP than patents, at least in the US. Copyrights have statutory damages, criminal liability, procedural advantages like DMCA takedown notices, a registration system rather than an application system, an extremely low standard for eligibility, an essentially indefinite term, inconsistent regional circuit precedents that can be taken advantage of when forum shopping, and an easier standard of infringement (substantial similarity in most cases as opposed to the all-elements rule of patent infringement). I would definitely agree that copyright needs reform, primarily the elimination of criminal enforcement and statutory damages, but comparing copyright and patents is very much apples and oranges.
I'm not sure I could afford a competent lawyer to argue Lotus v. Borland and Capcom v. Data East (precedents against look and feel copyright) against this copyright owner's likely claim of Atari v. Philips (precedent for look and feel copyright).
Did you contact an attorney to see if the copyright holder's claim had merit at all? Did you ask about pro bono or reduced rate representation? Did you contact law schools in your area about free representation through a clinical program? Especially in the current economy I think you might be surprised by the kinds of deals you can cut with attorneys who can't fill their calendar or who have been recently laid off or who are trying to start out after graduation.
I am a software author. Software patents interferes with my right to publish texts that i write myself.
Could you give an example? Have you been sued for patent infringement? Threatened? Did you decide not to market a program after discovering that it was covered by a software patent? Did you contact the patent owner to see if a free or inexpensive license was available?
Not so long as they get paid per patent accepted they won't.
This statement ignores a ton of history and implies corruption where there is none. The Patent Office has historically fought tooth and nail to oppose the expansion of patentable subject matter. It opposed patents on genetically modified organisms all the way to the Supreme Court. Diamond v. Chakrabarty, 447 U.S. 303 (1980) (the 'Diamond' in that case was Sidney Diamond, the Commissioner of Patents and Trademarks). It repeatedly opposed patents on software all the way to the Supreme Court. Diamond v. Diehr, 450 U.S. 175 (1981); Parker v. Flook, 437 U. S. 584 (1978) (Parker was the acting Commissioner of Patents and Trademarks); Gottschalk v. Benson, 409 U.S. 63 (1972) (again, Gottschalk was the acting Commissioner). In Bilski v. Kappos, the Patent Office was fighting against the patentability of business methods, again, all the way to the Supreme Court.
In most of these cases (all except Bilski, in fact) it was actually the Patent Office that appealed to the Supreme Court rather than acquiesce to the lower court's ruling, so the Patent Office has for decades consistently fought quite hard against the expansion of patentable subject matter despite being reliant on application and maintenance fees for its budget.
What's being announced here is a non-final office action in an ex parte reexamination. Basically, the EFF submitted some prior art that presented a 'substantial new question' of patentability and asked the Patent Office to review it. From there, the Patent Office and the patent owner hash things out; the prior art submitter's role is finished. (Prior art submitters can take a more hands-on role via inter partes reexamination, but that's more expensive and time consuming than ex parte reexam).
Reexamination cases are a little tricky to look up because you have to find the control number for the case. The control number in this case is 90/009637, which you can plug into Public PAIR. Here is the non-final office action that is the subject of the post, since you can't link directly to documents in PAIR.
The patent owner will have an opportunity to respond to this non-final office action. If the examiner is satisfied, then that's that. More likely the examiner will not accept the arguments or will have discovered new ones. Typically there are one or two non-final actions and then a final action. After that, the patent owner can still appeal to the Board of Patent Appeals and Interferences. From the time of appeal to a decision is, at median, a couple of years. From there the patent owner could still appeal to the Federal Circuit.
So, while this is a preliminary finding, it is very far from definitive.
The only simple way to reduce the workload of the patent office is to cut certain fields right out of consideration.
This is plainly false. For example, another simple way would be to substantially increase application fees, particularly for large corporations.
Furthermore, no one has yet put forward a legally workable definition of a 'software patent.' Any attempt to cut out software patents will likely lead to more litigation as applicants argue that their inventions don't qualify. The end result is a system that values style over substance as applicants invoke 'magic words' while ultimately claiming the same thing. (See, for example, current claims to 'systems' and 'computer readable media' designed to get around past attempts to prevent the claiming of algorithms).
Targeting software because it has become one of the most popular fields for patent applications is foolish. Software patents are common because software and software-related fields are a large and growing part of the economy, not because there's anything inherently odd about software patents. This anti-software-patent crusade makes as much sense as a 19th century crusade against mechanical device patents. Just think, the 19th century patent office could have saved so much time and effort if it just banned mechanical device patents! Nevermind that mechanical devices were an enormous part of the 19th century economy.
How do you put clear limits on whether something described is sufficiently innovative, or sufficiently useful?
That's the genius of the patent system. It puts extremely low bars on the requirement for innovation and usefulness and lets the market sort it out. If an invention isn't innovative or useful then it won't be of much value to the market, which tends to discourage patent applications and litigation. The goals of the Patent Office should be to perform a simple first pass at validity and to provide a legal record of what the applicant claimed and when. The rest should be sorted out in the market, in reexamination, and in the courts on an as-needed basis. To the extent patent litigation unfairly favors established players, then we can talk about things like fee-shifting, eliminating the presumption of validity, and other measures that even the playing field. Simply banning software patents is not the answer.
And patents on something that someone did a hundred years ago, only now someone adds the line "on a computer" and suddenly that's a new patentable event.
It took a while for the courts to catch up to that, but they have. In Muniauction, Inc. v. Thomson Corp., 532 F. 3d 1318 (Fed.Cir. 2008), the Federal Circuit held that, where the only difference between the claimed invention and the prior art was the use of a web browser, the addition of the web browser was obvious, especially since the patentee did not prove that "incorporation of web browser functionality into existing electronic prior art systems was...beyond the ability of a person of ordinary skill in the art at the time the...patent application was filed." In that particular case, the Federal Circuit held that a person of ordinary skill in the art would indeed have been able to incorporate a web browser, and the patent was held invalid for obviousness.
So perhaps some very, very early patents essentially claiming "something known in the art but on the internet" will hold up, but the writing is on the wall for those kinds of software patents and business method patents.
That six year backlog doesn't seem to apply if you have enough money to grease the proper hands so that your patent magically seems to get processed faster.
What an absurd and baseless accusation. The patent process is an open book. You can see virtually every communication between examiners and applicants on Public PAIR. The USPTO is an extremely transparent organization. If there were any evidence for such corruption, there are no end of legal academics who would pounce on the opportunity to expose it through statistical analysis or even anecdotal evidence. As an attorney, patent agent, and academic researcher I have never encountered any evidence of such corruption.
I have yet to meet a single "garage tinkerer" who made an invention, went through the patent process, and made any money at all much less covered the fees necessary for a decent patent attorney and the filing fees to get the patent in the first place. To me, the whole patent process is simply a major scam that gives false hope to ordinary individuals who are thinking about an invention.
Here's an example: Jerome Lemelson. Individual inventor who was granted over 600 patents and made millions from his inventions. The charitable foundation he created has given over $140 million in funding to over 63,000 student and individual inventors.
Here's another one: Robert Kearns. The individual inventor who invented the intermittent windshield wiper. Kearns eventually recovered several million dollars from the car companies that knowingly copied his invention (and yes, he received considerably more in damages than he spent in legal fees).
Is a patent a license to print money? No. Do all individual inventors with patents profit from their inventions? No. But this has far, far more to do with those inventors tending not to have a very good business plan or, frankly, the invention not being very valuable. For further evidence, see the thousands of largely useless patents that corporations file for every year. Filing for economically unimportant patents is not limited to individual inventors, and it's not an inherent problem with the patent system.
Anyway, do you really want the government saying "no, this doesn't look important enough" to patent applicants? Why should we trust a patent examiner to be the judge of what is and isn't a valuable invention, especially when market conditions can change dramatically over the course of the patent's term?
Software companies imposing restrictions on customers through licensing agreements take away fair use and right of first sale, both of which hurt customers far more than price discrimination could ever help them.
First, this case has nothing to do with fair use, implicitly or explicitly. Fair use is a defense to copyright infringement, not breach of contract, and it was not discussed in the appeals court opinion.
Second, I think you're wrong as an empirical matter. For example, I strongly suspect that far, far more people have either purchased or used academic versions of software than have resold copies of software. Every university student has benefited from academic versions of software installed on school computer labs, used by their school faculty and staff, or that they themselves purchased. By contrast, in my experience it is plainly the case that only a small minority of students have resold copies of software, academic versions or otherwise.
It would take some strong economic evidence to show that the gains from reselling software would offset the increased cost to consumers from the loss of price discrimination.
Not quite. Essentially, when you handed over the money, the transaction wasn't complete, because you didn't accept the contract yet. Without that, whatever you paid for is still not yours.
The joy of contract law.
This is inaccurate. A typical purchase of boxed software has two parts. First, you buy the box. That transaction is between you and the retailer, and it is complete when you pay for the box. The box will typically include a notice that installing the software requires accepting the terms of a license. This ruling does not affect that transaction. You are free to transfer the box to someone else because you are not yet bound by the license.
Second, you install the software, which includes accepting the terms of the license. This ruling says that, at least under certain circumstances, once the license has been accepted, the user is a licensee, not an owner of a copy, and must abide by the terms of the license.
Note that just because you can transfer the box to someone after step 1 does not mean that the transferee will be able to accept the license. For example, if you buy the student version of a program and sell the box to a non-student, that non-student will be legally precluded from accepting the terms of the license agreement, assuming the license specifies that it is only to be used by students.
You buy something (and you *are* buying it, because the "agreement" isn't presented before the sale.) You try to install it, and disagree with the EULA, so press "I disagree", and the software doesn't get installed. You then sell it to try to recoup some of your lost money. But you can't, because the *agreement*, which you did not agree to says you can't.
Those weren't the facts of the case at all, nor is it the rule the court laid out. Read the opinion. The undisputed facts were that Autodesk busted a company (CTA) for unauthorized use of AutoCAD. It then licensed 10 copies of AutoCAD R14 to CTA. CTA accepted the terms of the license. Later, CTA upgraded to AutoCAD 2000, paying the upgrade price. It accepted the AutoCAD 2000 upgrade license, which required destruction of the copies of R14. Rather than destroy them, CTA sold the copies to Vernor along with the activation codes in violation of both the R14 and AutoCAD 2000 licenses. Vernor then tried to sell the copies on eBay.
So, the rule is that if you accept the terms of a license and that license (1) specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions, then the first sale doctrine does not apply and you must abide by the terms of the license that you accepted.
I don't think there's anything terrible about this ruling at all. Software companies imposing restrictions on customers through licensing agreements helps them perform price discrimination, which often benefits customers. For example, a company might sell a student version on the cheap with a license that says it can't be transferred or at least not transferred to a non-student. If a student could sell the student version to a non-student, then the company could no longer price discriminate, and it would have to charge students a higher price.
The emerging case law on this kind of action is putting the damper on a lot of get-rich-quick schemes. First, the potential damages are up to $500 per violation. Courts are not handing down massive damage awards; quite the opposite, in fact. It's likely that most of these cases will end up with damages assessed at some fractions of a dollar or even fractions of a cent per violation. $500 per violation is a cap on damages, not a target.
Second, the courts are setting a fairly high bar for the 'intent to deceive the public' element of false marking. The majority of these cases are the result of typos or failing to retool an assembly line the moment a patent expires.
I can't figure out which patent or application the article is referring to. This patent issued to Microsoft last year and covers OS shutdown methods, so I think it's the right one. The first claim is this:
One or more computer readable storage media storing computer-executable instructions which, when executed on a computer system, perform a method comprising:
receiving information from an application regarding a task that the application is configured to perform;
receiving a command to initiate operating system shut down while the application is running;
determining that the operating system shut down should be delayed due to a status of the application; and
displaying the information received from the application on a graphical user interface during a period in which the operating system shut down is being delayed, the graphical user interface showing that the application is running.
Basically it covers delaying shutdown while an application wraps something up and informing the user that this is happening via a GUI. The more detailed claims cover the circumstances under which this might occur (e.g., a negative response from the application, no response from the application, etc).
This patent does not cover what Windows XP or OS X do in this circumstance. In fact, the behaviors of XP and OS X are explicitly mentioned in the specification, and the patent is meant to cover an improved method for handling the situation.
Just pay the patent examiners a bonus based on how many patents they successfully manage to reject, including any appeals that might be raised against the rejection by the original submitter. It'll incentivize the patent examiners to get through the backlog, and, if the bonuses are funded by an extra "patent examination fee" that is only refundable in the event of a succesful application, it'll cut down on the frivolous patent submissions at no extra cost to the taxpaper as well.
Most patent applications are rejected at least once already, often they're rejected twice.
Anyway, what you suggest would be a terrible approach. The result would be that examiners would reject everything, gamble that the applicant doesn't want to waste time and money on an appeal (or would lose anyway), and collect their bonus. And it's a good bet that a lot of applicants would simply let the application go rather than appeal: the Board of Patent Appeals and Interferences already has its own 20 month-and-growing backlog, and the cost of an appeal is typically thousands of dollars.
And the PTO isn't stupid. There are performance metrics in place that try to ensure that examiners aren't rubber stamping applications with either 'reject' or 'allow.'
Finally, the PTO doesn't cost taxpayers a dime. It's already fully funded by applicant fees, and in fact Congress often skims off excess fees. In total Congress has taken over $900 million that way. A bill was recently passed to give something like $120 million of that back to the PTO for the purpose of improving its IT systems and hiring more examiners.
First, there's really little evidence that the rejection-equals-quality approach of the prior PTO leadership actually helped improve patent quality. Along those same lines, the higher acceptance rate is not the result of some edict to grant more frivolous or low quality patents. Instead, it's the result of re-aligning the performance metrics for examiners so as not to artificially promote rejections. Now, examiners are encouraged to work with applicants to find or draft allowable claims rather than fighting tooth and nail to reject the entire application.
Second, the scare quotes around 'backlog' are silly. There is a massive backlog at the PTO. Roughly three years worth of applications, in fact. It can take well over a year before an examiner even looks at an application. For a few areas of technology, it can take over three years. This is problematic for several reasons. For one, the longer an application sits in examination, the more technology changes around it. This encourages applicants to try to amend claims to cover technology that they really didn't invent or anticipate. A fast turnaround time forces prevents those kinds of shenanigans.
Another reason it's a problem is that the extreme long pendency coupled with the high turnover rate at the PTO means that it's entirely possible for examination to be completed by a different examiner than it was started under. This is especially true when you consider a broader patent family (e.g., continuations, divisionals, etc).
Yet another reason: the patent term in the US is now 20 years from the date of filing, except that the term will be adjusted in cases of Patent Office delay. It is now routine for issued patents to have a patent term adjustment of several months or even a year or more. If you think the patent term is too long, then the backlog is a problem. (And no, getting rid of term adjustment isn't the answer; it's wrong to penalize applicants because of delays in a bureaucracy that the applicants have no control over).
As this article in Foreign Policy explains, the Internet, especially Twitter, didn't contribute nearly as much to the protests in Iran as has been reported: Misreading Tehran: The Twitter Devolution. "Word of mouth was by far the most influential medium used to shape the postelection opposition activity." Other major media included text messages and email, which this software wouldn't help much with.
Efforts to counter censorship and intrusive government monitoring should be applauded, but it's a bit premature to call this "world class regime-slaying."
Slashdot Mirror
I call bullshit.
By what standard is Microsoft a patent troll in that instance (or any other instance)? It makes and sells products that incorporate the claimed features, and it licenses the patents to others. It's as far from a non-practicing entity as you can get. It's also suing a company that definitely has the resources to defend itself. It's not using patents as a cudgel against some upstart competitor.
Someone mentioned that Microsoft only sued one company. The others Android handset makers likely have licenses, especially given that they make Windows Mobile / Windows Phone 7 phones.
I suppose you could define a patent troll as "the patentee in a patent infringement lawsuit," but that's not a very useful definition.
However - any outcome other than what you desired will either make it im-fucking-possible to change later. For instance, a bad outcome would be for software patents to not only get validated, but strengthened to the point where any patent holder (no matter how specious the patent), can promptly send any company they want straight into fiscal hell. Like today, only 10x as worse.
I don't think you understand the procedural posture of this case. This is a (potential) Supreme Court case, which means the case will be about the narrow issue framed by the appeal and grant of certiorari. It is not about software patents per se. It's about the standard of proof of invalidity in all patent cases, specifically the standard for prior art not considered by the Patent Office.
Here, Microsoft is asking for the standard to be lowered. i4i will likely ask for the Court to maintain the status quo. In all likelihood, if the Court wants to maintain the status quo then it will simply deny certiorari and let the lower court decision stand. There is almost no chance that the Court will raise the standard beyond the existing clear and convincing standard. This is for several reasons, not least because there isn't really any standard above C&C but below the criminal standard of beyond a reasonable doubt, and it's highly unlikely the Court would create a new standard just for patent validity.
There's really no downside to supporting Microsoft here if you want patents to be easier to invalidate, especially because you know Microsoft will put substantial resources behind making sure it puts its best foot forward. For one thing, if it loses it will have to pay a $240 million judgment. That's a pretty big incentive.
Note that this doesn't prove that Microsoft believes patent law needs to be changed, either. We don't really know either way, and for msmoriarty to assume otherwise is without basis. Unless Microsoft makes a public declaration one way or the other, this simply amounts to a legal tactic - nothing more.
An appeal to the Supreme Court is a public declaration. What's more, this has been Microsoft's position for years. For example, it tried the same approach when it was sued by z4 Technologies over anti-piracy measures in XP and Office (that case eventually settled).
Dismissing this as a 'legal tactic' is silly. Microsoft is asking for a nationally binding precedent from the highest court in the country, a court that does not like to overturn itself. If the Supreme Court indeed lowers the standard of proof, then that will likely be the law for decades (barring unlikely congressional action). In fact, making this claim in a Supreme Court proceeding is actually more indicative of Microsoft's beliefs than a press release because, unlike a press release, a Supreme Court ruling would actually change the law. There are no take-backs if Microsoft changes its mind.
"Meanwhile, MontaVista added that it protects its customers from technical and legal risks through warranties on all editions of MontaVista Linux and indemnification against claims involving the code it creates and delivers."
You're comparing apples and oranges. As best I can tell, MontaVista's indemnification only extends as far as GPL disputes in which MontaVista is at fault, not software patent claims or even GPL disputes in which an upstream contributor screwed up. From this page:
Microsoft is offering a lot more than MontaVista. GPL disputes are rare; patent suits or the threat thereof are comparatively common (~3000 suits per year, although only a fraction of those are software-related).
Suffice it to say that in the world of legitimate software for these appliances, the patents are licensed only to licensees of the trade secrets.
So it sounds like the real problem for you here is not the patent but rather the trade secrets, since they're the reason you can't easily take a license. If your product idea is lucrative then why wouldn't it be worth it to invest in some tiny closet of an office in order to be able to take a license? There are lots of commercial buildings with one room offices. I haven't priced one, but they can't be all that bad.
In any event, not exactly a poster-child for software patents stifling innovation.
The U.S. Code also has 17 USC 102(b), which appears to exclude methods of operation from the scope of copyright....It's called the "idea-expression divide", and as I understand it, it's roughly equivalent to the "functionality doctrine" of trademark law: just as a trademark can't be used as an ersatz patent, nor can a copyright. But good luck for a startup company to pay a lawyer to convince a judge of that.
That's a slight muddling of the idea/expression distinction and the ban on copyrighting the functional aspects of a work, but close enough for this discussion. Anyway, as you point out, that's a part of the statute and it's been fairly well hashed out in court cases. What an attorney would have to convince a judge of is not the existence of 102(b) or the ban on copyrighting functional aspects of a work, but rather that the UI elements or whatever met the standards laid out in cases like Lotus v. Borland, Atari v. Philips, or Apple v. Microsoft.
The cases that you cited were not actually inconsistent, for example. The Lotus case didn't hold that UI elements or look-and-feel couldn't ever be subject to copyright, just that menu hierarchies in productivity software couldn't because they constitute a method of operation. Furthermore there are only so many reasonable ways to layout a menu hierarchy; where room for creativity is limited, copyright protection is likewise limited.
The Atari case was about a video game, where there is a lot more room for creativity than in spreadsheet menus. Despite this increased room for creativity, Philips still pretty closely copied graphics and sound from Pac-Man, including stuff that really isn't necessary for a maze game (e.g., the character folding back and disappearing in a starburst upon death). You could argue that things like mazes, a character that eats powerups, etc are essential to the genre, but those other little details were copied basically verbatim. It really didn't help that the infringing game had started life as an exact Pac-Man clone originally intended to be marketed under the licensed Pac-Man name. They only changed a few details when they couldn't get the license. There was really little doubt that stuff had been copied intentionally. Philips chose to walk a tightrope and they didn't pull it off.
I was not aware that this was available to people who intend to sell something.
There's no rule about it. It depends on the attorney and the nature of the client, but many attorneys work on a sliding-scale depending on a client's financial situation. Many attorneys are willing to cut fees for a startup in the hopes that it will lead to more lucrative work in the future if the startup is successful. And many attorneys are sympathetic to underdogs.
I was not aware that this was available. And where would I look? The local branch of the state university (IPFW) offers pre-law but no doctorates.
You'd have to look at law schools in your state (you could look at schools in other states but you'll have more luck with your own for various reasons). They may be located some distance away, but you can accomplish a lot these days over the phone, via videoconference, email, etc. For example, it's not uncommon for patent attorneys to handle work for clients that aren't even in the same state. Several law schools have clinics that focus on IP, business formation, and entrepreneurship.
Such a patent, worded to claim the software card used with this boot process, lets the maker of the appliance sue makers of unlicensed software cards for the appliance....Comparing the boot process of a PC or Mac to the boot process of a mainstream video game console or handheld is very much apples and oranges.
I see. Your original post didn't make the architecture of the system clear. Thank you for the clarification. Still, if the product is potentially lucrative you should consider contacting a patent attorney about a freedom to operate or infringement opinion. If there are a lot of people who feel locked out of the market (you mentioned at least one other person), you could consider banding together to fund an effort to have the patent invalidated if there is appropriate prior art or other grounds for invalidity.
I am not aware of such lawsuits targeting United States-based resellers of blank software cards for this platform, but the maker of the appliance has sued publishers of unlicensed software for its previous platforms, successfully in some cases and unsuccessfully in others. Besides, I would likely get a chargeback from my payment processor for each unit stopped by customs.
Getting much further into this would start to stray into legal advice, and you aren't my client, but suffice to say that depending on the facts and strategies employed these risks can be addressed.
I did not because documents published by the company indicate that applying for a license would be a waste of time. The company has a blanket policy of not making licenses available to entities that don't already have a dedicated office and a successful product on another platform. Quoted from the application form: "Home offices are not considered secure locations." I have also read news coverage, which I can cite if you want, about another developer working from home who was rejected for exactly this reason.
The 'secure location' language is curious to me. That suggests that part of the license involves trade secrets or other confidential information. If so, that's a separate issue from patents.
I have decided not to market a program after discovering that the boot process on the program's intended platform was covered by patents, enforced by the courts of at least one major country.
I don't understand how that would have affected your program. Why would a patent on the boot process of the platform affect a program running on the platform? There are no doubt lots of patents related to a PC's BIOS or a Mac's EFI system, but that has nothing to do with someone writing a program for a PC or Mac.
Did you actually contact a patent attorney for an opinion on whether your program would infringe the patent? Fully comprehending the scope of a patent's claims is not easy and (in the US, at least) must take into account, for example, the arguments made during examination. Further, do you reside or have assets in the country in question (patent jurisdiction is generally not transnational)? Did you contact the company about a license?
I have also decided not to market a program after discovering a look and feel copyright whose owner is notorious for waving it around as if it were a patent.
That's an unfair comparison. If anything it cuts the other way. Copyrights are a vastly more powerful form of IP than patents, at least in the US. Copyrights have statutory damages, criminal liability, procedural advantages like DMCA takedown notices, a registration system rather than an application system, an extremely low standard for eligibility, an essentially indefinite term, inconsistent regional circuit precedents that can be taken advantage of when forum shopping, and an easier standard of infringement (substantial similarity in most cases as opposed to the all-elements rule of patent infringement). I would definitely agree that copyright needs reform, primarily the elimination of criminal enforcement and statutory damages, but comparing copyright and patents is very much apples and oranges.
I'm not sure I could afford a competent lawyer to argue Lotus v. Borland and Capcom v. Data East (precedents against look and feel copyright) against this copyright owner's likely claim of Atari v. Philips (precedent for look and feel copyright).
Did you contact an attorney to see if the copyright holder's claim had merit at all? Did you ask about pro bono or reduced rate representation? Did you contact law schools in your area about free representation through a clinical program? Especially in the current economy I think you might be surprised by the kinds of deals you can cut with attorneys who can't fill their calendar or who have been recently laid off or who are trying to start out after graduation.
I am a software author. Software patents interferes with my right to publish texts that i write myself.
Could you give an example? Have you been sued for patent infringement? Threatened? Did you decide not to market a program after discovering that it was covered by a software patent? Did you contact the patent owner to see if a free or inexpensive license was available?
Not so long as they get paid per patent accepted they won't.
This statement ignores a ton of history and implies corruption where there is none. The Patent Office has historically fought tooth and nail to oppose the expansion of patentable subject matter. It opposed patents on genetically modified organisms all the way to the Supreme Court. Diamond v. Chakrabarty, 447 U.S. 303 (1980) (the 'Diamond' in that case was Sidney Diamond, the Commissioner of Patents and Trademarks). It repeatedly opposed patents on software all the way to the Supreme Court. Diamond v. Diehr, 450 U.S. 175 (1981); Parker v. Flook, 437 U. S. 584 (1978) (Parker was the acting Commissioner of Patents and Trademarks); Gottschalk v. Benson, 409 U.S. 63 (1972) (again, Gottschalk was the acting Commissioner). In Bilski v. Kappos, the Patent Office was fighting against the patentability of business methods, again, all the way to the Supreme Court.
In most of these cases (all except Bilski, in fact) it was actually the Patent Office that appealed to the Supreme Court rather than acquiesce to the lower court's ruling, so the Patent Office has for decades consistently fought quite hard against the expansion of patentable subject matter despite being reliant on application and maintenance fees for its budget.
What's being announced here is a non-final office action in an ex parte reexamination. Basically, the EFF submitted some prior art that presented a 'substantial new question' of patentability and asked the Patent Office to review it. From there, the Patent Office and the patent owner hash things out; the prior art submitter's role is finished. (Prior art submitters can take a more hands-on role via inter partes reexamination, but that's more expensive and time consuming than ex parte reexam).
Reexamination cases are a little tricky to look up because you have to find the control number for the case. The control number in this case is 90/009637, which you can plug into Public PAIR. Here is the non-final office action that is the subject of the post, since you can't link directly to documents in PAIR.
The patent owner will have an opportunity to respond to this non-final office action. If the examiner is satisfied, then that's that. More likely the examiner will not accept the arguments or will have discovered new ones. Typically there are one or two non-final actions and then a final action. After that, the patent owner can still appeal to the Board of Patent Appeals and Interferences. From the time of appeal to a decision is, at median, a couple of years. From there the patent owner could still appeal to the Federal Circuit.
So, while this is a preliminary finding, it is very far from definitive.
The only simple way to reduce the workload of the patent office is to cut certain fields right out of consideration.
This is plainly false. For example, another simple way would be to substantially increase application fees, particularly for large corporations.
Furthermore, no one has yet put forward a legally workable definition of a 'software patent.' Any attempt to cut out software patents will likely lead to more litigation as applicants argue that their inventions don't qualify. The end result is a system that values style over substance as applicants invoke 'magic words' while ultimately claiming the same thing. (See, for example, current claims to 'systems' and 'computer readable media' designed to get around past attempts to prevent the claiming of algorithms).
Targeting software because it has become one of the most popular fields for patent applications is foolish. Software patents are common because software and software-related fields are a large and growing part of the economy, not because there's anything inherently odd about software patents. This anti-software-patent crusade makes as much sense as a 19th century crusade against mechanical device patents. Just think, the 19th century patent office could have saved so much time and effort if it just banned mechanical device patents! Nevermind that mechanical devices were an enormous part of the 19th century economy.
How do you put clear limits on whether something described is sufficiently innovative, or sufficiently useful?
That's the genius of the patent system. It puts extremely low bars on the requirement for innovation and usefulness and lets the market sort it out. If an invention isn't innovative or useful then it won't be of much value to the market, which tends to discourage patent applications and litigation. The goals of the Patent Office should be to perform a simple first pass at validity and to provide a legal record of what the applicant claimed and when. The rest should be sorted out in the market, in reexamination, and in the courts on an as-needed basis. To the extent patent litigation unfairly favors established players, then we can talk about things like fee-shifting, eliminating the presumption of validity, and other measures that even the playing field. Simply banning software patents is not the answer.
those and patent on genes. Plah-ease! No one invented anything there - it was just discovered.
35 USC 100(a), "The term "invention" means invention or discovery."
35 USC 103(a), "Patentability shall not be negatived by the manner in which the invention was made."
Your argument was considered and rejected by the drafters of the Patent Act.
And patents on something that someone did a hundred years ago, only now someone adds the line "on a computer" and suddenly that's a new patentable event.
It took a while for the courts to catch up to that, but they have. In Muniauction, Inc. v. Thomson Corp., 532 F. 3d 1318 (Fed.Cir. 2008), the Federal Circuit held that, where the only difference between the claimed invention and the prior art was the use of a web browser, the addition of the web browser was obvious, especially since the patentee did not prove that "incorporation of web browser functionality into existing electronic prior art systems was...beyond the ability of a person of ordinary skill in the art at the time the...patent application was filed." In that particular case, the Federal Circuit held that a person of ordinary skill in the art would indeed have been able to incorporate a web browser, and the patent was held invalid for obviousness.
So perhaps some very, very early patents essentially claiming "something known in the art but on the internet" will hold up, but the writing is on the wall for those kinds of software patents and business method patents.
That six year backlog doesn't seem to apply if you have enough money to grease the proper hands so that your patent magically seems to get processed faster.
What an absurd and baseless accusation. The patent process is an open book. You can see virtually every communication between examiners and applicants on Public PAIR. The USPTO is an extremely transparent organization. If there were any evidence for such corruption, there are no end of legal academics who would pounce on the opportunity to expose it through statistical analysis or even anecdotal evidence. As an attorney, patent agent, and academic researcher I have never encountered any evidence of such corruption.
I have yet to meet a single "garage tinkerer" who made an invention, went through the patent process, and made any money at all much less covered the fees necessary for a decent patent attorney and the filing fees to get the patent in the first place. To me, the whole patent process is simply a major scam that gives false hope to ordinary individuals who are thinking about an invention.
Here's an example: Jerome Lemelson. Individual inventor who was granted over 600 patents and made millions from his inventions. The charitable foundation he created has given over $140 million in funding to over 63,000 student and individual inventors.
Here's another one: Robert Kearns. The individual inventor who invented the intermittent windshield wiper. Kearns eventually recovered several million dollars from the car companies that knowingly copied his invention (and yes, he received considerably more in damages than he spent in legal fees).
Is a patent a license to print money? No. Do all individual inventors with patents profit from their inventions? No. But this has far, far more to do with those inventors tending not to have a very good business plan or, frankly, the invention not being very valuable. For further evidence, see the thousands of largely useless patents that corporations file for every year. Filing for economically unimportant patents is not limited to individual inventors, and it's not an inherent problem with the patent system.
Anyway, do you really want the government saying "no, this doesn't look important enough" to patent applicants? Why should we trust a patent examiner to be the judge of what is and isn't a valuable invention, especially when market conditions can change dramatically over the course of the patent's term?
Software companies imposing restrictions on customers through licensing agreements take away fair use and right of first sale, both of which hurt customers far more than price discrimination could ever help them.
First, this case has nothing to do with fair use, implicitly or explicitly. Fair use is a defense to copyright infringement, not breach of contract, and it was not discussed in the appeals court opinion.
Second, I think you're wrong as an empirical matter. For example, I strongly suspect that far, far more people have either purchased or used academic versions of software than have resold copies of software. Every university student has benefited from academic versions of software installed on school computer labs, used by their school faculty and staff, or that they themselves purchased. By contrast, in my experience it is plainly the case that only a small minority of students have resold copies of software, academic versions or otherwise.
It would take some strong economic evidence to show that the gains from reselling software would offset the increased cost to consumers from the loss of price discrimination.
This is inaccurate. A typical purchase of boxed software has two parts. First, you buy the box. That transaction is between you and the retailer, and it is complete when you pay for the box. The box will typically include a notice that installing the software requires accepting the terms of a license. This ruling does not affect that transaction. You are free to transfer the box to someone else because you are not yet bound by the license.
Second, you install the software, which includes accepting the terms of the license. This ruling says that, at least under certain circumstances, once the license has been accepted, the user is a licensee, not an owner of a copy, and must abide by the terms of the license.
Note that just because you can transfer the box to someone after step 1 does not mean that the transferee will be able to accept the license. For example, if you buy the student version of a program and sell the box to a non-student, that non-student will be legally precluded from accepting the terms of the license agreement, assuming the license specifies that it is only to be used by students.
Those weren't the facts of the case at all, nor is it the rule the court laid out. Read the opinion. The undisputed facts were that Autodesk busted a company (CTA) for unauthorized use of AutoCAD. It then licensed 10 copies of AutoCAD R14 to CTA. CTA accepted the terms of the license. Later, CTA upgraded to AutoCAD 2000, paying the upgrade price. It accepted the AutoCAD 2000 upgrade license, which required destruction of the copies of R14. Rather than destroy them, CTA sold the copies to Vernor along with the activation codes in violation of both the R14 and AutoCAD 2000 licenses. Vernor then tried to sell the copies on eBay.
So, the rule is that if you accept the terms of a license and that license (1) specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions, then the first sale doctrine does not apply and you must abide by the terms of the license that you accepted.
I don't think there's anything terrible about this ruling at all. Software companies imposing restrictions on customers through licensing agreements helps them perform price discrimination, which often benefits customers. For example, a company might sell a student version on the cheap with a license that says it can't be transferred or at least not transferred to a non-student. If a student could sell the student version to a non-student, then the company could no longer price discriminate, and it would have to charge students a higher price.
The emerging case law on this kind of action is putting the damper on a lot of get-rich-quick schemes. First, the potential damages are up to $500 per violation. Courts are not handing down massive damage awards; quite the opposite, in fact. It's likely that most of these cases will end up with damages assessed at some fractions of a dollar or even fractions of a cent per violation. $500 per violation is a cap on damages, not a target.
Second, the courts are setting a fairly high bar for the 'intent to deceive the public' element of false marking. The majority of these cases are the result of typos or failing to retool an assembly line the moment a patent expires.
I can't figure out which patent or application the article is referring to. This patent issued to Microsoft last year and covers OS shutdown methods, so I think it's the right one. The first claim is this:
Basically it covers delaying shutdown while an application wraps something up and informing the user that this is happening via a GUI. The more detailed claims cover the circumstances under which this might occur (e.g., a negative response from the application, no response from the application, etc).
This patent does not cover what Windows XP or OS X do in this circumstance. In fact, the behaviors of XP and OS X are explicitly mentioned in the specification, and the patent is meant to cover an improved method for handling the situation.
Just pay the patent examiners a bonus based on how many patents they successfully manage to reject, including any appeals that might be raised against the rejection by the original submitter. It'll incentivize the patent examiners to get through the backlog, and, if the bonuses are funded by an extra "patent examination fee" that is only refundable in the event of a succesful application, it'll cut down on the frivolous patent submissions at no extra cost to the taxpaper as well.
Most patent applications are rejected at least once already, often they're rejected twice.
Anyway, what you suggest would be a terrible approach. The result would be that examiners would reject everything, gamble that the applicant doesn't want to waste time and money on an appeal (or would lose anyway), and collect their bonus. And it's a good bet that a lot of applicants would simply let the application go rather than appeal: the Board of Patent Appeals and Interferences already has its own 20 month-and-growing backlog, and the cost of an appeal is typically thousands of dollars.
And the PTO isn't stupid. There are performance metrics in place that try to ensure that examiners aren't rubber stamping applications with either 'reject' or 'allow.'
Finally, the PTO doesn't cost taxpayers a dime. It's already fully funded by applicant fees, and in fact Congress often skims off excess fees. In total Congress has taken over $900 million that way. A bill was recently passed to give something like $120 million of that back to the PTO for the purpose of improving its IT systems and hiring more examiners.
While it's true that the absolute number of allowances has increased, the number of rejections has also increased, according to Prof. Dennis Crouch of PatentlyO.com, who is a leading figure in empirical patent research. It's not as though examiners have simply started rubber stamping everything that comes through.
First, there's really little evidence that the rejection-equals-quality approach of the prior PTO leadership actually helped improve patent quality. Along those same lines, the higher acceptance rate is not the result of some edict to grant more frivolous or low quality patents. Instead, it's the result of re-aligning the performance metrics for examiners so as not to artificially promote rejections. Now, examiners are encouraged to work with applicants to find or draft allowable claims rather than fighting tooth and nail to reject the entire application.
Second, the scare quotes around 'backlog' are silly. There is a massive backlog at the PTO. Roughly three years worth of applications, in fact. It can take well over a year before an examiner even looks at an application. For a few areas of technology, it can take over three years. This is problematic for several reasons. For one, the longer an application sits in examination, the more technology changes around it. This encourages applicants to try to amend claims to cover technology that they really didn't invent or anticipate. A fast turnaround time forces prevents those kinds of shenanigans.
Another reason it's a problem is that the extreme long pendency coupled with the high turnover rate at the PTO means that it's entirely possible for examination to be completed by a different examiner than it was started under. This is especially true when you consider a broader patent family (e.g., continuations, divisionals, etc).
Yet another reason: the patent term in the US is now 20 years from the date of filing, except that the term will be adjusted in cases of Patent Office delay. It is now routine for issued patents to have a patent term adjustment of several months or even a year or more. If you think the patent term is too long, then the backlog is a problem. (And no, getting rid of term adjustment isn't the answer; it's wrong to penalize applicants because of delays in a bureaucracy that the applicants have no control over).
As this article in Foreign Policy explains, the Internet, especially Twitter, didn't contribute nearly as much to the protests in Iran as has been reported: Misreading Tehran: The Twitter Devolution. "Word of mouth was by far the most influential medium used to shape the postelection opposition activity." Other major media included text messages and email, which this software wouldn't help much with.
Efforts to counter censorship and intrusive government monitoring should be applauded, but it's a bit premature to call this "world class regime-slaying."