The fact of the matter is, OldMiner, that each claim of a patent can be considered as an individual patent. Each claim serves the purpose of notifying the public the scope of the monopoly rights granted to the patentee.
As a member of the public I am compelled by law to assume each and every claim is valid... not just claims 11-20.
Claim 1 - whether it is valid or not - requires the public to take action (design around, take a license, etc.) and exposes the public to risk if they ignore it. Even if MS chooses to not enforce the claim, the act of granting it causes economic harm.
The patent office should not grant patents containing "widly broad" claims. Period.
The patent includes a list of the prior art which was considered by the examiner during prosecution.
Here is the list from the patent:
U.S. Patent Documents
5193178 Mar., 1993 Chillarege et al. 714/25
5790780 Aug., 1998 Brichta et al. 714/46
5928369 Jul., 1999 Keyser et al. 714/47
5944839 Aug., 1999 Isenberg 714/26
5948112 Sep., 1999 Shimada et al. 714/16
5974568 Oct., 1999 McQueen 714/38
6029258 Feb., 2000 Ahmad 714/46
6357019 Mar., 2002 Blaisdell et al. 714/38
6381711 Apr., 2002 Chiang et al. 714/48
6412082 Jun., 2002 Matsuura 714/38
Just 10 prior art documents. All US patents.
Often, when only US patent documents are cited, it is the examiner who has done the searching.
What probably happened here is the attorneys at Merchant & Gould filed an application with even broader claims and NO prior art. The examiner searched the original claims and found enough prior art for a rejection. After some amendments (and some more searching) the examiner could no longer quickly find material on which to base her rejection and she was BY LAW obligated to issue the patent.
I would challenge the validity of this patent simply by the appearance of a lack of disclosure from Microsoft. There is not one technical journal, not one product description, no one non-US patent document cited by the world's largest software company considered to be "material" to the examination of this application. This is on its face not credible.
Examiners usually do a pretty good job when they have the most relevant prior art in front of them. Lack of prior art for software at the USPTO is one of the principal problems facing the USPTO.
When the world's largest software company apparently does NOTHING to aid and assist the government's examination of its applications for patent, this is not good faith. This is abuse.
This technology offers robust performance with a high-speed data rate, utilizing a TDMA (time division multiple access) communication protocol to provide game users a fast receive-and-respond capability similar to a wired experience.
Bluetooth uses frequency hopping TDMA, but it's a bit odd that the press release doesn't mention Bluetooth.
Perhaps the Bluetooth hype - the universal wireless link (which no one actually uses) - has become a liability instead of a selling point.
yeah, yeah, yeah, and "aggravated manslaughter" technically isn't "murder."
The DOJ doesn't buy the "copyright isn't theft" defense.
Traditionally, theft involves taking something from another person without their permission. In short, you deprive that person of their property and they can no longer enjoy its use. Some have argued, particularly in the context of online or digital piracy, that infringement or misappropriation really doesn't deprive the victim of their product because it is merely being copied, so infringement or misappropriation is not truly theft. As criminal prosecutors, we focus on the conduct, regardless of the label that might be applied. That said, in the cases we prosecute, we believe that using the term theft is not misleading. While there may be technical differences between certain types of infringing activity, conduct that triggers the criminal statutes is analogous to theft.
(13c) Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention.
anyone who believes an algorithm is "inherently" non-technical has obviously never tried to solve an engineering problem.
take, as example, the viterbi algorithm, invented by dr. andrew viterbi one of the founders of qualcomm.
most digital receivers do not attempt to "undo" the effects of the radio channel, rather digital receivers attempt to model the radio channel to estimate what would have been received given an assumed binary sequence. by comparing what was actually received to what the receiver expected to receive, one can estimate the binary sequence which was sent. this is known as MLSE, or maximum likelihood sequence estimation.
a major problem with MLSE is that digital sequences can be very long, and the number of possible paths quickly becomes enormous and unmanageable. viterbi's algorithm is a clever way of "pruning" the number of paths so that the number of possible sequences is reduced to a manageable size. modern, low-cost, digital communications would not be possible without dr. viterbi's algorithm (which he, by the way, never patented.)
viterbi's algorithm is a mathematical equation which does not describe a natural phenomenen (like E=mc^2), but is an invention of mankind to solve a particularly vexing problem facing digital communications.
when programmed into a DSP, the viterbi algorithm has technical effect, but the invention itself is the algorithm.
one could copyright the code used to program the DSP, but this doesn't protect the algorithm, only a particular implementation of it. copyright does very little to prevent someone else from coding the algorithm in a different way or from implementing the invention in firmware. this is the weakness of copyright and why patents on algorithms are needed.
Symantec fully supports information sharing on threats and vulnerabilities and believes it is an important tool for consumers and IT professionals to gain a measure of early warning of potential attacks.
contrast this with the words of
... John Schwarz, president and COO of antivirus firm Symantec, who called for legislation to criminalize the sharing of information and tools online that can be used by malicious hackers and virus writers.
so, "information sharing on threats and vulnerabilities" is OK, but "sharing of information and tools" isn't.
as a Symantec customer, i expect you to be smarter than the 16-24 year old punks who "share information and tools" to make variations on well-known hacks.
it seems to me that most problems are the result of programming flaws, mistakes, and plain old "gee wiz didn't think someone could do that" ignorance on the part of developers.
more law enforcement isn't the answer, banning books isn't the solution. technical diligence is.
the job of Symantec is stay ahead of the hackers, not to close the doors after them.
The Department of Defense is also using a magnetic approach with rifle-mounted video cameras that can wirelessly beam images to a helmet-worn monitor. Using the gear, next-generation warriors won't have to expose themselves to enemy fire during battle by poking their heads out of a foxhole or around a corner.
Let's not get hysterical before there is something to get hysterical about.
"I don't think the heavy stuff is going to come down for quite some time yet."
While there is never any reason to "get hysterical" and "go nuts," there is a case for fear, uncertainty, and doubt.
This is, as you say, only a pending application. In the US, as in the rest of the world, applications for patent are published 18 months after filing. The patent office probably hasn't even begun to examine it yet.
But if I'm a developer (of any type) I'm thinking "OK, but how does this help me?" Claim 1 is so broad it covers EVERYTHING I DO. If the patent issues in present form - and MS decides to enforce it - I am sunk. Fear sets in.
Then the uncertaintly. I start walking the halls mumbling to myself, "Should I abandon 2000 hours of programming and completely change what I am doing, or assume the patent office will substantially reduce the claim?"
I am not comforted by the fact that there is NO prior art cited on the published application (because it is not necessary.) I have no idea if the examiner has that 10 year old copy of "computer geek" which would be a knock-out prior art.
My confidence suffers as I remind myself that that public cannot participate in the prosecution in a meaningful way and must wait until the patent is granted before it is known what claims will be issued and what prior art was available.
Then I start a serious effort into self-delusion and convince myself that "the patent office would never issue such a broad claim."
The real scandal here is that the idiot judge would not allow Microsoft to argue that there was prior art. The jury was instructed to disregard the evidence of Pei Wei that he invented plug ins three years earlier.
"An analysis of the patent conducted by a group of Stanford students as part of an overall look at software patents points out that in their search for prior art, Microsoft turned up Pei Wei, who, in May of 1993 demonstrated Viola, a browser that integrated an application in basically the same way that is claimed in the patent. And where did Pei Wei develop this patent? At the University of California. Why is that interesting? Because the University of California also owns patent number 5,838,906."
See here.
And why IS this interesting? Let's see what US law says about this:
Subject matter developed by another person, which qualifies as prior art only under one or more of subsections (e), (f), and (g) of section 102 of this title, shall not preclude patentability under this section where the subject matter and the claimed invention were, at the time the invention was made, owned by the same person or subject to an obligation of assignment to the same person
In other words, US patent law recoginzes that an inventor's own work, and the work of her co-workers, should be obvious to her. The test of patentabbility is whether or not the work would be obvious to another. Pei Wei's prior art - however significant it may be - appears to have been owned by the same person or subject to an obligation of assignment to the same person under in accordance with the exemption of 35USC103 c) and is as a matter of law could NOT to be considered as prior art for the purposes of patentability.
Thus the idiot judge was only applying the law as it was written and intended.
I disagree. It's a collaborative voluntary effort that's used on an as-is basis. There should be no need to worry about this issue.
While you may wish that there was no need to worry about this - there is a need to worry about this. Like it or not, software patents exist and must be dealt with. As Cringely recently wrote:
Whether software can be patented or not, in the U.S., it IS patented, and expecting that some contrary decision will be shortly made and the planets rearranged in space is just folly. This is the difference between cynicism and realism.
That the contributor to, or a user of, a standard (or a kernel) may be ignorant of the existence of a patent won't change the facts of infrigement. Bottom line is that if you're running a business - or working for one - you need to be realistic. The risk of patents being designed into Open Source products would seem to be a HUGE risk for the entire open source community which is being ignored due to the cynicism about patents.
"Oh, it's too much bother."
"It costs too much money."
Tell it to the companies who ignored product safety rules.
The rookery needs to get with the program. Designing products, or developing standards, which infringe difficult to license patents is a no-no and it will kill your business.
Deal with it, or you will, most certainly, be dealt with.
As usual, it was human failure (to destroy the code books, to not re-use wheel settings day to day, etc.) that compromised Enigma.
Exactly. The mathematical analysis performed by Enigma's designers did not include variables for the number of times the secret codebook would be stolen by the enemy, the number of daily communications reporting more or less the same thing (weather conditions) which make the task of finding embedded patterns possible - and sometimes easy. They did not they consider the constuction of the Bombes...
Most of all, the designers (and users) of Enigma underestimated the capabilities of their enemies because they did not know what they were capable of.
My point was that the clever way in which quantum crypto WILL be cracked have not been conceived yet so it seems to me impossible - based on today's understanding of the problem - to perform a valid mathematical analysis.
Not all of the variables are known. Or as Donald Rumsfeld so eloquently said it:
The Unknown
As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don't know
We don't know.
--Donald Rumsfeld, Feb. 12, 2002, Department of Defense news briefing
According the the Sep. 6th issue of The Economist there is a company in Massachusetts called MagiQin the final stages of testing a system which it plans to release commercially in the next few months.
"The scheme devised by MagiQ, called Navajo, does not use quantum effects to transmit the secret data. Instead, it is the keys used to encrypt the data that rely on quantum theory. If these keys are changed frequently (up to 1000 times a second in Navajo's case), the risk that an eavesdropper without the key would be able to decrypt the data can be proved mathematically to be zero.
mathematically unbreakable.
but we've heard that before.
"Just add another wheel to the Enigma machine Hermann. Those dim-witted English shopkeepers vill never figure it out... "
other, that is, than a general dislike and/or misunderstanding of copyright law
Well, Bob, I am not a lawyer, but I don't really see how this has anything to do with copyright.
First, the database information which is being discussed in the article, is assumed to be in the public domain. Laws, for example, pulished by the EU Parliament are not protected by copyright and may freely be copied and distributed by anyone.
The issue, as I understand it, is that if someone takes the time and trouble to publish these laws on a website, I should be prevented from using their website as a source for setting up my own website containing the same information.
If I restrict the material which I cut and paste to ONLY the non-copyrighted text, then I have violated no copyright, although I have indeed availed myself of the result of someone else's hard work.
I see the argument of database providers - that there should be some incentive to collect and present publicly available information - but I do not see how this can be done without creating a new class of intellectual property.
Doesn't whoever put the data there in the first place deserve the rights over that information, assuming that it was not in the public domain, and that they wish to excercise said rights ?
If you read my response before answering, you would have noticed that I was discussing publicly available information.
My point is that - if the information itself is public domain - that collecting this and presenting it on a website should not confer any rights of ownership to said information to database... which appears to be the objective of the pending legislation.
The original copyright owners should in every instance retain reasonable control of their copyrighted material.
Backers of the measure say it would allow database providers to protect themselves against those who simply cut and paste their databases and resell them, or make them available for free online.
This is laughable. From where did "database providers" get THEIR information? (By cutting and pasting someone else's database of course.)
Collecting publicly available information and presenting it in a useful format does require investment may provide users value - this what search engines like Google do - but it seems to me that it should be HOW this information is collected and presented - rather than the information itself which needs to be protected.
In essence copyright protects format, not content. Google can patent the way they collect information and copyright they way they present information, but they can't claim ownership to the information itself.
If protection is extended to content, it would seem to me to be an entirely new class of intellectual property which, at least in the US, would have no Constitutional basis and which the US Congress should have no authority to create.
Well, Lernout & Hauspie B.V. is (or was) a Dutch company, but your point is well taken. Perhaps a more reasonable handling of this dispute would have been possible in a European court. I do not wish American style litigation on anyone.
Thanks, Halo1, for an interesting, and at least for me informative, discussion.
Halo1, my mother told me to never kick someone who is down, but after your "welcome our new American overlords" crack, you deserve one more whack.
Also, if they were not being creative with the law, then why is it that software patents can't be enforced in European courts?
Two words, mon ami: technical effect. European companies cannot sue Microsoft in Europe for selling software because there is (presently) no such thing as a software patent in Europe. As you have (correctly) pointed out, there no basis in European law for a patent infringement action against a software manufacturer.
What this means to European companies is that when MS copies their patented invention, they have two choices: 1. sue MS in the US for infringing their US software patent, or 2. sue Microsoft's users (who enjoy the technical effect of Microsoft's products) in Europe for infringing their European (national) patent.
What chances do you think, say, a French company will have suing Microsoft in George Bush's America?
Suing Microsoft users in Europe to get at Microsoft is not a very attractive option either. It is perhaps the most disruptive and worst of all options.
Software, because of it's worldwide use, offers the possibility to seek legal remedies anywhere in the world. Companies pick their forum based on where they think they have the best chance of success.
Japanese companies learned long ago that "foreigners" - especially Asian ones - have virtually no hope of prevailing against an American company in an American courtroom. This is the primary reason why Japan adopted software patents: to be able to seek legal remedies against American and European rivals through Japanese courts.
What European companies want - and need - is to be able to adjudicate disputes over software in European courts where there is a better chance for a fair result.
Software patents exist in the US and this situation is not going to change. Disputes over ownership of software are part and parcel of the software business and this isn't going to change either.
What should change, and what you oppose, is the possibility for European companies to use European courts to resolve disputes over software. As a resident of Europe who is actively engaged in helping European companies gain competitive advantage, I hope you do not succeed.
... but like monetary union, if the first vote is no, one keeps trying until the answer is yes. And once it is yes, it is yes.
So call me a troll, but at the end of the day, you're gonna loose this fight.
Further, what you're saying is that if an organisation gets creative with the law, we should adapt the law so that this behaviour becomes undoubtedly legal. I have to admit that's an interesting point of view, which you share with Arlene McCarthy. I prefer to try to adapt the EPO to the law.
I prefer to adapt the EPO to the needs of European industry. It is not the EPO which is being "creative with the law," it is the clients of the EPO - primarily European industry - who frustrated by the limitations of the EPC are the ones forced to be "creative."
It is my experience that the EPO follows the letter of the EPC. They are actually rather picky about this. Accusing them of being "creative with the law" does them a gross disservice. The directive is a response to the needs of European companies and has little to do with clarifying behaviour at the EPO.
I still fail to see how introducing software patents, with 75% already owned by US and Japanese companies at the start, would help European companies.
C'mon Halo1. Think. European companies file patents in the US and Japan and own a substantial number of software patents in both of those countries. The issue which we are discussing is European patents where - due to the current prohibition against software patents - neither American, nor Japanese companies have any lead whatsoever.
You're talking as if we currently have some kind of underdeveloped economy, while the European software economy is actually quite healthy and diversified.
Healthy and diversified, yes, but it would be a stretch of imagination to say that the European software economy compares in any way with the dominance of the US.
What I want to achieve is parity. Following the lead of the United States of America with regard to software patents would seem to me to be the way to go.
I, for one, would very much like to see a European Microsoft. Especially in my little country, where the number of jobs which this would create - and the increased tax base - would restore public finances to ensure the continued high quality of life which we have enjoyed for many years. Instead of the slow and pitiful decline which we have been experiencing for 20 years....
Halo1, thanks for your substantive reply to my remarks.
Innovation is spurred precisely by the hurdles patents present. I have worked for over a decade with software and hardware developers who, after complaining at length over the existence of a troublesome patent, nearly always created new and even more clever solutions which would not have existed but for the hurdle presented by a patent.
Patents are indeed the source of a great deal of innovation and technological progress. You may rely on theoretical studies by economists which opine that patents stifle innovation, I, on the other hand, have seen first hand - with my own eyes - a staggering amount of innovation from engineers resulting purely from the existence of patents.
It should be noted that it was the proprietary nature of MS products - i.e., the inability of developers to gain access to the code - which resulted in the innovation known as Linux.
Whether held off limits through secrecy (as in the case of Windows) or patenting (as I suggest), technology always finds a way around.
Copying other's products and solutions does nothing to promote innovation - it merely promotes competition based on low cost production and distribution.
Unlike real estate - which is an asset fixed in size and volume - technology is an ever expanding volume without limit. "Roadblocks" in the technology domain are inherenty ephemeral, difficult to maintain, and easily avoided. Yet without these "roadblocks" the volume of technology is less likely to expand and the only innovation occurs in how to out-source the production of existing technologies to third world countries.
There are many examples of abusive patent behaviour. As former corporate director of patents for a major telecommunications manufacturer, I was witness to many of them. IBM does not need its patents to squash competitors - yes, they do use their patents aggessively and defensively (as they have in their litigation against SCO) - but this is one tool of many in their arsenal. What does a small competitor have - other than its patents - to challenge the dominance of an IBM?
With patents, a small company can at least engage their larger rivals in the civil courts. Without patents there is no battle at all.
That this issue appears to be difficult to understand is more the result of the opposition relying on complicated theoretical economic and "scientific" studies, fearmongering over "trivial" patents, and abusive corporate behaviour rather than the real issues.
Knowledge has value. Knowledge is a rivalous asset increasingly embodied as software. Rivalous assets need legal protections from theft. Patents provide this legal protection. The legal ability to prevent software theft enhances innovation in software. It is not more complicated than this.
Copyright provides protection only against direct copying and is exceedingly poorly adapted to protecting innovations in software. Lotus123, the Apple GUI, Wordperfect were all protected by copyright, which did little to prevent MS from expropriating the essence of all of these innovative products.
I do not believe you are a manipulating lair. I imagine you believe passionately and honestly in your position. As do I. I simply believe your position is founded in fears and not economic reality.
I would like to point out that, despite your objections, the EPO has been issuing "software" patents for many years. It actually requires very little imagination for attorneys to add technical effect sufficient to overcome examiner's objections - entirely in accordance with the EPC. The proposed amendment which you oppose is simply a codification of the de facto situation which already exists at the EPO. If you are successful in killing this proposal, little will change at the EPO, the opportunity to create real reform will be lost, and dodgy, "trivial", software patents will continue to be issued by the EPO.
Software patents patents are vital to European economic development.
...the level of education among the EU lobbyists is quite impressive.
really?
i'd say that it is rather the level of zealousness, than the education of, EU lobbyists which is impressive.
this issue is vital to the interests of european competitiveness and deserves to be framed in the proper economic context.
1. knowledge has economic value.
increasingly, competitive advantage is conferred through the skillful use of knowledge. today, improving how a machine operates is often more valuable than the addition of one more machine. the value of knowledge, compounded by the connectivity provided by the internet, provides enormous leveraging power. in other words, ownership of the "means of production" is irrelevant in the 21st century. today it is the ownership of "knowledge" which is relevant to economic development.
2. knowledge is a rivalous asset.
contrary to existing economic theory, knowledge is NOT a non-rivalous asset. if i copy google's search methods and open up a competiting site, i have not deprived them of their knowledge, yet i have deprived them of their competitive advantage. in this regard - from a purely economic point of view - knowledge is inherently rivalous.
knowledge, embodied as software, provides competitive advantage. software inventions which are non-trivial, non-obvious, and truely groundbreaking - such as google's search engine -can provide enormous competitive advantage.
why, pray tell, should such inventions not be worthy of european patent protection?
what incentive do european software developers have to become the next "google" if their inventions can simply be expropriated by corporate giants?
3. rivalous assets need legal protection against theft.
for a small company, patents are often the ONLY tools they have to keep from being steamrolled by their larger rivals. copyright is not enough.
software patents, because they prevent the theft of knowledge, are valuable economic tools of the 21st century.
4. what should be the nature of the debate in the european parliament?
the value of software patents must, of course, be balanced against the harm caused by "trivial" patents.
everyone is against "trivial" patents. it is actually the job of the EPO to avoid issuing patents on inventions which are obvious, lacking in inventive step, or already in the public domain whether or not these inventions are electrical, mechanical, chemical, or agricultural. software is not exceptional in this regard.
framing the debate "against" software patents purely on the grounds that the EPO may, in error, issue invalid patents does not, in my opinion, reflect an impressive level of education on the part of EU lobbyists. it rather reflects an astonishing ignornace about today's ecomomic realitities.
the failure to ammend the EPC to extend patent protection to software will harm small european companies and undermine their competitiveness.
instead of opposing software patents, lobbyist efforts should be directed towards improving the quality of the examination of software patents at the EPO so that these vital economic tools are available to european companies.
On a Symbian phone, a third-party developer can access virtually every item of "phone" functionality
true, but this access will be subject to Symbian's license restrictions which are far more restrictive than those attached to Linux.
in other words, with Symbian you'll be stuck playing in Nokia's sandbox according to Nokia's rules.
if i were an independent developer, i'd rather take my chances with limited access to the "phone" and full control over my product than full access to the "phone" and limited control over my product.
and if i were Nokia - who make an increasing amount of money selling the networks which will carry this traffic - i'd rather see a killer app created which would generate the traffic needed to support the network operation than to retain full control over the applications which may, or may not, develop under Symbian restrictions.
It makes absolutely no business sense whatsoever to jump ship from a proven O/S to one that is the geeks choice just because one company has done so.
The issue, Mr. Silver, is applications. Nokia, Motorola, Sony-Ericsson, Siemens have all be very successful making radiotelephones, but none of them has a clue what to do beyond voice.
A camera on a phone is not going to generate network traffic.... when mobile phones first came out on the market people got a kick from saying "hi mom, guess where I'm calling from?" adding a camera will only generate a bit more traffic in the form of "look where i'm calling from," but it's not going to fill network capacity.
mobile phones, because they are small and battery operated, will never generate internet levels of traffic because for the simple reason the browser window is too small.
radiotelephone companies should be wise enough to know they are not experts in creating the content and applications needed to generate the amount of traffic wideband cellular needs to be profitable, but so far none of the giants has been willing to admit this... until now.
opening up the OS to Linux means that there will be a greater opportunity for small developers to create new applications to run on Motorola's mobile phones.
it's a clever move on Motorola's part which would seem to me to has little to do with whether or not Symbian, or Windows CE, is "better" than Linux.
the "killer app" for third generation phones remains to be found. Motorola's choice of Linux is an admisstion that they don't have one, and they don't have a clue what it will be... otherwise they would keep their OS proprietaty.
in other words.... the 3G killer app is out there waiting to be invented.
hopefully, the developer who invents it will not be stupid enough to make her killer app open source so that the big companies can rob her of her just rewards.
The energy needed to change the phase of a material (melting enthalpy) is responsible for the fact, that the temperature isn't changing during the transition.
exactly. when you heat ice it remains solid until its temperature reaches +273 K, at this point, the ice stops getting warmer and it begins to melt... and the reason the ice stops getting warmer is that the heat which was causing the ice to get warmer is absorbed by the phase transition to a liquid.
the latent heat of melting is the amount of heat needed to transform a solid into a liquid without changing it's temperature.
ice has an enourmous latent heat of melting. it takes almost as much energy to melt an ice-cube as to warm the same amount of liquid to boiling.
it is the latent heat of melting which explains why you add salt to the ice bath surrounding an ice-cream churn - the melting ice absorbs heat from the ice-cream lowering it's temperature to below freezing. (well, that's the theory in any case. mine always turns out sloppy.)
as counterintuitive as it may seem, under certain conditions, ice sheets will (under certain, but not unusual, conditions) continue to thicken even when the ambient air above them is above freezing.... convection on the surface being less efficient than conduction of heat from the bottom to the surface of the sheet.
this is common knowledge among the long distance ice skaters here in the stockholm archipelago that winter days when the temperature is +2 or +3 are the best days for skating.
Slashdot Mirror
The fact of the matter is, OldMiner, that each claim of a patent can be considered as an individual patent. Each claim serves the purpose of notifying the public the scope of the monopoly rights granted to the patentee.
As a member of the public I am compelled by law to assume each and every claim is valid... not just claims 11-20.
Claim 1 - whether it is valid or not - requires the public to take action (design around, take a license, etc.) and exposes the public to risk if they ignore it. Even if MS chooses to not enforce the claim, the act of granting it causes economic harm.
The patent office should not grant patents containing "widly broad" claims. Period.
Yeah, sure.
The patent includes a list of the prior art which was considered by the examiner during prosecution.
Here is the list from the patent:
U.S. Patent Documents 5193178 Mar., 1993 Chillarege et al. 714/25
5790780 Aug., 1998 Brichta et al. 714/46
5928369 Jul., 1999 Keyser et al. 714/47
5944839 Aug., 1999 Isenberg 714/26
5948112 Sep., 1999 Shimada et al. 714/16
5974568 Oct., 1999 McQueen 714/38
6029258 Feb., 2000 Ahmad 714/46
6357019 Mar., 2002 Blaisdell et al. 714/38
6381711 Apr., 2002 Chiang et al. 714/48
6412082 Jun., 2002 Matsuura 714/38
Just 10 prior art documents. All US patents.
Often, when only US patent documents are cited, it is the examiner who has done the searching.
What probably happened here is the attorneys at Merchant & Gould filed an application with even broader claims and NO prior art. The examiner searched the original claims and found enough prior art for a rejection. After some amendments (and some more searching) the examiner could no longer quickly find material on which to base her rejection and she was BY LAW obligated to issue the patent.
I would challenge the validity of this patent simply by the appearance of a lack of disclosure from Microsoft. There is not one technical journal, not one product description, no one non-US patent document cited by the world's largest software company considered to be "material" to the examination of this application. This is on its face not credible.
Examiners usually do a pretty good job when they have the most relevant prior art in front of them. Lack of prior art for software at the USPTO is one of the principal problems facing the USPTO.
When the world's largest software company apparently does NOTHING to aid and assist the government's examination of its applications for patent, this is not good faith. This is abuse.
umm, didn't these guys have grudge too?
7. saddam hussein - invaded kuwait in 1991.
grudge: who knows. because he could.
8. george w. bush - invaded iraq 2003.
grudge: who knows. because he could.
etc.
Bluetooth uses frequency hopping TDMA, but it's a bit odd that the press release doesn't mention Bluetooth.
Perhaps the Bluetooth hype - the universal wireless link (which no one actually uses) - has become a liability instead of a selling point.
yeah, yeah, yeah, and "aggravated manslaughter" technically isn't "murder."
The DOJ doesn't buy the "copyright isn't theft" defense.
Traditionally, theft involves taking something from another person without their permission. In short, you deprive that person of their property and they can no longer enjoy its use. Some have argued, particularly in the context of online or digital piracy, that infringement or misappropriation really doesn't deprive the victim of their product because it is merely being copied, so infringement or misappropriation is not truly theft. As criminal prosecutors, we focus on the conduct, regardless of the label that might be applied. That said, in the cases we prosecute, we believe that using the term theft is not misleading. While there may be technical differences between certain types of infringing activity, conduct that triggers the criminal statutes is analogous to theft.
not theft?
tell it to the judge.
anyone who believes an algorithm is "inherently" non-technical has obviously never tried to solve an engineering problem.
take, as example, the viterbi algorithm, invented by dr. andrew viterbi one of the founders of qualcomm.
most digital receivers do not attempt to "undo" the effects of the radio channel, rather digital receivers attempt to model the radio channel to estimate what would have been received given an assumed binary sequence. by comparing what was actually received to what the receiver expected to receive, one can estimate the binary sequence which was sent. this is known as MLSE, or maximum likelihood sequence estimation.
a major problem with MLSE is that digital sequences can be very long, and the number of possible paths quickly becomes enormous and unmanageable. viterbi's algorithm is a clever way of "pruning" the number of paths so that the number of possible sequences is reduced to a manageable size. modern, low-cost, digital communications would not be possible without dr. viterbi's algorithm (which he, by the way, never patented.)
viterbi's algorithm is a mathematical equation which does not describe a natural phenomenen (like E=mc^2), but is an invention of mankind to solve a particularly vexing problem facing digital communications.
when programmed into a DSP, the viterbi algorithm has technical effect, but the invention itself is the algorithm.
one could copyright the code used to program the DSP, but this doesn't protect the algorithm, only a particular implementation of it. copyright does very little to prevent someone else from coding the algorithm in a different way or from implementing the invention in firmware. this is the weakness of copyright and why patents on algorithms are needed.
contrast this with the words of
so, "information sharing on threats and vulnerabilities" is OK, but "sharing of information and tools" isn't.
as a Symantec customer, i expect you to be smarter than the 16-24 year old punks who "share information and tools" to make variations on well-known hacks.
it seems to me that most problems are the result of programming flaws, mistakes, and plain old "gee wiz didn't think someone could do that" ignorance on the part of developers.
more law enforcement isn't the answer, banning books isn't the solution. technical diligence is.
the job of Symantec is stay ahead of the hackers, not to close the doors after them.
rat-a-tat-tat...
"I don't think the heavy stuff is going to come down for quite some time yet."
While there is never any reason to "get hysterical" and "go nuts," there is a case for fear, uncertainty, and doubt.
This is, as you say, only a pending application. In the US, as in the rest of the world, applications for patent are published 18 months after filing. The patent office probably hasn't even begun to examine it yet.
But if I'm a developer (of any type) I'm thinking "OK, but how does this help me?" Claim 1 is so broad it covers EVERYTHING I DO. If the patent issues in present form - and MS decides to enforce it - I am sunk. Fear sets in.
Then the uncertaintly. I start walking the halls mumbling to myself, "Should I abandon 2000 hours of programming and completely change what I am doing, or assume the patent office will substantially reduce the claim?"
I am not comforted by the fact that there is NO prior art cited on the published application (because it is not necessary.) I have no idea if the examiner has that 10 year old copy of "computer geek" which would be a knock-out prior art.
My confidence suffers as I remind myself that that public cannot participate in the prosecution in a meaningful way and must wait until the patent is granted before it is known what claims will be issued and what prior art was available.
Then I start a serious effort into self-delusion and convince myself that "the patent office would never issue such a broad claim."
Then the doubt sets in.
"An analysis of the patent conducted by a group of Stanford students as part of an overall look at software patents points out that in their search for prior art, Microsoft turned up Pei Wei, who, in May of 1993 demonstrated Viola, a browser that integrated an application in basically the same way that is claimed in the patent. And where did Pei Wei develop this patent? At the University of California. Why is that interesting? Because the University of California also owns patent number 5,838,906." See here.
And why IS this interesting? Let's see what US law says about this:
Title 35 United States Code , Sec. 103. c) - Conditions for patentability; non-obvious subject matter:
Subject matter developed by another person, which qualifies as prior art only under one or more of subsections (e), (f), and (g) of section 102 of this title, shall not preclude patentability under this section where the subject matter and the claimed invention were, at the time the invention was made, owned by the same person or subject to an obligation of assignment to the same person
In other words, US patent law recoginzes that an inventor's own work, and the work of her co-workers, should be obvious to her. The test of patentabbility is whether or not the work would be obvious to another. Pei Wei's prior art - however significant it may be - appears to have been owned by the same person or subject to an obligation of assignment to the same person under in accordance with the exemption of 35USC103 c) and is as a matter of law could NOT to be considered as prior art for the purposes of patentability.
Thus the idiot judge was only applying the law as it was written and intended.
are called tourists.
While you may wish that there was no need to worry about this - there is a need to worry about this. Like it or not, software patents exist and must be dealt with. As Cringely recently wrote:
Whether software can be patented or not, in the U.S., it IS patented, and expecting that some contrary decision will be shortly made and the planets rearranged in space is just folly. This is the difference between cynicism and realism.
That the contributor to, or a user of, a standard (or a kernel) may be ignorant of the existence of a patent won't change the facts of infrigement. Bottom line is that if you're running a business - or working for one - you need to be realistic. The risk of patents being designed into Open Source products would seem to be a HUGE risk for the entire open source community which is being ignored due to the cynicism about patents.
"Oh, it's too much bother."
"It costs too much money."
Tell it to the companies who ignored product safety rules.
The rookery needs to get with the program. Designing products, or developing standards, which infringe difficult to license patents is a no-no and it will kill your business.
Deal with it, or you will, most certainly, be dealt with.
Exactly. The mathematical analysis performed by Enigma's designers did not include variables for the number of times the secret codebook would be stolen by the enemy, the number of daily communications reporting more or less the same thing (weather conditions) which make the task of finding embedded patterns possible - and sometimes easy. They did not they consider the constuction of the Bombes...
Most of all, the designers (and users) of Enigma underestimated the capabilities of their enemies because they did not know what they were capable of.
My point was that the clever way in which quantum crypto WILL be cracked have not been conceived yet so it seems to me impossible - based on today's understanding of the problem - to perform a valid mathematical analysis.
Not all of the variables are known. Or as Donald Rumsfeld so eloquently said it:
The Unknown
As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don't know
We don't know.
--Donald Rumsfeld, Feb. 12, 2002, Department of Defense news briefing
According the the Sep. 6th issue of The Economist there is a company in Massachusetts called MagiQin the final stages of testing a system which it plans to release commercially in the next few months.
"The scheme devised by MagiQ, called Navajo, does not use quantum effects to transmit the secret data. Instead, it is the keys used to encrypt the data that rely on quantum theory. If these keys are changed frequently (up to 1000 times a second in Navajo's case), the risk that an eavesdropper without the key would be able to decrypt the data can be proved mathematically to be zero.
mathematically unbreakable.
but we've heard that before.
"Just add another wheel to the Enigma machine Hermann. Those dim-witted English shopkeepers vill never figure it out... "
Well, Bob, I am not a lawyer, but I don't really see how this has anything to do with copyright.
First, the database information which is being discussed in the article, is assumed to be in the public domain. Laws, for example, pulished by the EU Parliament are not protected by copyright and may freely be copied and distributed by anyone.
The issue, as I understand it, is that if someone takes the time and trouble to publish these laws on a website, I should be prevented from using their website as a source for setting up my own website containing the same information.
If I restrict the material which I cut and paste to ONLY the non-copyrighted text, then I have violated no copyright, although I have indeed availed myself of the result of someone else's hard work.
I see the argument of database providers - that there should be some incentive to collect and present publicly available information - but I do not see how this can be done without creating a new class of intellectual property.
If you read my response before answering, you would have noticed that I was discussing publicly available information.
My point is that - if the information itself is public domain - that collecting this and presenting it on a website should not confer any rights of ownership to said information to database... which appears to be the objective of the pending legislation.
The original copyright owners should in every instance retain reasonable control of their copyrighted material.
This is laughable. From where did "database providers" get THEIR information? (By cutting and pasting someone else's database of course.)
Collecting publicly available information and presenting it in a useful format does require investment may provide users value - this what search engines like Google do - but it seems to me that it should be HOW this information is collected and presented - rather than the information itself which needs to be protected.
In essence copyright protects format, not content. Google can patent the way they collect information and copyright they way they present information, but they can't claim ownership to the information itself.
If protection is extended to content, it would seem to me to be an entirely new class of intellectual property which, at least in the US, would have no Constitutional basis and which the US Congress should have no authority to create.
Thanks, Halo1, for an interesting, and at least for me informative, discussion.
See you in the halls of Parliament.
Also, if they were not being creative with the law, then why is it that software patents can't be enforced in European courts?
Two words, mon ami: technical effect. European companies cannot sue Microsoft in Europe for selling software because there is (presently) no such thing as a software patent in Europe. As you have (correctly) pointed out, there no basis in European law for a patent infringement action against a software manufacturer.
What this means to European companies is that when MS copies their patented invention, they have two choices: 1. sue MS in the US for infringing their US software patent, or 2. sue Microsoft's users (who enjoy the technical effect of Microsoft's products) in Europe for infringing their European (national) patent.
What chances do you think, say, a French company will have suing Microsoft in George Bush's America?
Suing Microsoft users in Europe to get at Microsoft is not a very attractive option either. It is perhaps the most disruptive and worst of all options.
Software, because of it's worldwide use, offers the possibility to seek legal remedies anywhere in the world. Companies pick their forum based on where they think they have the best chance of success.
Japanese companies learned long ago that "foreigners" - especially Asian ones - have virtually no hope of prevailing against an American company in an American courtroom. This is the primary reason why Japan adopted software patents: to be able to seek legal remedies against American and European rivals through Japanese courts.
What European companies want - and need - is to be able to adjudicate disputes over software in European courts where there is a better chance for a fair result.
Software patents exist in the US and this situation is not going to change. Disputes over ownership of software are part and parcel of the software business and this isn't going to change either.
What should change, and what you oppose, is the possibility for European companies to use European courts to resolve disputes over software. As a resident of Europe who is actively engaged in helping European companies gain competitive advantage, I hope you do not succeed.
So call me a troll, but at the end of the day, you're gonna loose this fight.
I prefer to adapt the EPO to the needs of European industry. It is not the EPO which is being "creative with the law," it is the clients of the EPO - primarily European industry - who frustrated by the limitations of the EPC are the ones forced to be "creative."
It is my experience that the EPO follows the letter of the EPC. They are actually rather picky about this. Accusing them of being "creative with the law" does them a gross disservice. The directive is a response to the needs of European companies and has little to do with clarifying behaviour at the EPO.
I still fail to see how introducing software patents, with 75% already owned by US and Japanese companies at the start, would help European companies.
C'mon Halo1. Think. European companies file patents in the US and Japan and own a substantial number of software patents in both of those countries. The issue which we are discussing is European patents where - due to the current prohibition against software patents - neither American, nor Japanese companies have any lead whatsoever.
You're talking as if we currently have some kind of underdeveloped economy, while the European software economy is actually quite healthy and diversified.
Healthy and diversified, yes, but it would be a stretch of imagination to say that the European software economy compares in any way with the dominance of the US.
What I want to achieve is parity. Following the lead of the United States of America with regard to software patents would seem to me to be the way to go.
I, for one, would very much like to see a European Microsoft. Especially in my little country, where the number of jobs which this would create - and the increased tax base - would restore public finances to ensure the continued high quality of life which we have enjoyed for many years. Instead of the slow and pitiful decline which we have been experiencing for 20 years....
Innovation is spurred precisely by the hurdles patents present. I have worked for over a decade with software and hardware developers who, after complaining at length over the existence of a troublesome patent, nearly always created new and even more clever solutions which would not have existed but for the hurdle presented by a patent.
Patents are indeed the source of a great deal of innovation and technological progress. You may rely on theoretical studies by economists which opine that patents stifle innovation, I, on the other hand, have seen first hand - with my own eyes - a staggering amount of innovation from engineers resulting purely from the existence of patents.
It should be noted that it was the proprietary nature of MS products - i.e., the inability of developers to gain access to the code - which resulted in the innovation known as Linux.
Whether held off limits through secrecy (as in the case of Windows) or patenting (as I suggest), technology always finds a way around.
Copying other's products and solutions does nothing to promote innovation - it merely promotes competition based on low cost production and distribution.
Unlike real estate - which is an asset fixed in size and volume - technology is an ever expanding volume without limit. "Roadblocks" in the technology domain are inherenty ephemeral, difficult to maintain, and easily avoided. Yet without these "roadblocks" the volume of technology is less likely to expand and the only innovation occurs in how to out-source the production of existing technologies to third world countries.
There are many examples of abusive patent behaviour. As former corporate director of patents for a major telecommunications manufacturer, I was witness to many of them. IBM does not need its patents to squash competitors - yes, they do use their patents aggessively and defensively (as they have in their litigation against SCO) - but this is one tool of many in their arsenal. What does a small competitor have - other than its patents - to challenge the dominance of an IBM?
With patents, a small company can at least engage their larger rivals in the civil courts. Without patents there is no battle at all.
That this issue appears to be difficult to understand is more the result of the opposition relying on complicated theoretical economic and "scientific" studies, fearmongering over "trivial" patents, and abusive corporate behaviour rather than the real issues.
Knowledge has value. Knowledge is a rivalous asset increasingly embodied as software. Rivalous assets need legal protections from theft. Patents provide this legal protection. The legal ability to prevent software theft enhances innovation in software. It is not more complicated than this.
Copyright provides protection only against direct copying and is exceedingly poorly adapted to protecting innovations in software. Lotus123, the Apple GUI, Wordperfect were all protected by copyright, which did little to prevent MS from expropriating the essence of all of these innovative products.
I do not believe you are a manipulating lair. I imagine you believe passionately and honestly in your position. As do I. I simply believe your position is founded in fears and not economic reality.
I would like to point out that, despite your objections, the EPO has been issuing "software" patents for many years. It actually requires very little imagination for attorneys to add technical effect sufficient to overcome examiner's objections - entirely in accordance with the EPC. The proposed amendment which you oppose is simply a codification of the de facto situation which already exists at the EPO. If you are successful in killing this proposal, little will change at the EPO, the opportunity to create real reform will be lost, and dodgy, "trivial", software patents will continue to be issued by the EPO.
Software patents patents are vital to European economic development.
really?
i'd say that it is rather the level of zealousness, than the education of, EU lobbyists which is impressive.
this issue is vital to the interests of european competitiveness and deserves to be framed in the proper economic context.
1. knowledge has economic value.
increasingly, competitive advantage is conferred through the skillful use of knowledge. today, improving how a machine operates is often more valuable than the addition of one more machine. the value of knowledge, compounded by the connectivity provided by the internet, provides enormous leveraging power. in other words, ownership of the "means of production" is irrelevant in the 21st century. today it is the ownership of "knowledge" which is relevant to economic development.
2. knowledge is a rivalous asset.
contrary to existing economic theory, knowledge is NOT a non-rivalous asset. if i copy google's search methods and open up a competiting site, i have not deprived them of their knowledge, yet i have deprived them of their competitive advantage. in this regard - from a purely economic point of view - knowledge is inherently rivalous.
knowledge, embodied as software, provides competitive advantage. software inventions which are non-trivial, non-obvious, and truely groundbreaking - such as google's search engine -can provide enormous competitive advantage.
why, pray tell, should such inventions not be worthy of european patent protection?
what incentive do european software developers have to become the next "google" if their inventions can simply be expropriated by corporate giants?
3. rivalous assets need legal protection against theft.
for a small company, patents are often the ONLY tools they have to keep from being steamrolled by their larger rivals. copyright is not enough. software patents, because they prevent the theft of knowledge, are valuable economic tools of the 21st century.
4. what should be the nature of the debate in the european parliament?
the value of software patents must, of course, be balanced against the harm caused by "trivial" patents.
everyone is against "trivial" patents. it is actually the job of the EPO to avoid issuing patents on inventions which are obvious, lacking in inventive step, or already in the public domain whether or not these inventions are electrical, mechanical, chemical, or agricultural. software is not exceptional in this regard.
framing the debate "against" software patents purely on the grounds that the EPO may, in error, issue invalid patents does not, in my opinion, reflect an impressive level of education on the part of EU lobbyists. it rather reflects an astonishing ignornace about today's ecomomic realitities.
the failure to ammend the EPC to extend patent protection to software will harm small european companies and undermine their competitiveness.
instead of opposing software patents, lobbyist efforts should be directed towards improving the quality of the examination of software patents at the EPO so that these vital economic tools are available to european companies.
true, but this access will be subject to Symbian's license restrictions which are far more restrictive than those attached to Linux.
in other words, with Symbian you'll be stuck playing in Nokia's sandbox according to Nokia's rules.
if i were an independent developer, i'd rather take my chances with limited access to the "phone" and full control over my product than full access to the "phone" and limited control over my product.
and if i were Nokia - who make an increasing amount of money selling the networks which will carry this traffic - i'd rather see a killer app created which would generate the traffic needed to support the network operation than to retain full control over the applications which may, or may not, develop under Symbian restrictions.
The issue, Mr. Silver, is applications. Nokia, Motorola, Sony-Ericsson, Siemens have all be very successful making radiotelephones, but none of them has a clue what to do beyond voice.
A camera on a phone is not going to generate network traffic.... when mobile phones first came out on the market people got a kick from saying "hi mom, guess where I'm calling from?" adding a camera will only generate a bit more traffic in the form of "look where i'm calling from," but it's not going to fill network capacity.
mobile phones, because they are small and battery operated, will never generate internet levels of traffic because for the simple reason the browser window is too small.
radiotelephone companies should be wise enough to know they are not experts in creating the content and applications needed to generate the amount of traffic wideband cellular needs to be profitable, but so far none of the giants has been willing to admit this... until now.
opening up the OS to Linux means that there will be a greater opportunity for small developers to create new applications to run on Motorola's mobile phones.
it's a clever move on Motorola's part which would seem to me to has little to do with whether or not Symbian, or Windows CE, is "better" than Linux.
the "killer app" for third generation phones remains to be found. Motorola's choice of Linux is an admisstion that they don't have one, and they don't have a clue what it will be... otherwise they would keep their OS proprietaty.
in other words.... the 3G killer app is out there waiting to be invented.
hopefully, the developer who invents it will not be stupid enough to make her killer app open source so that the big companies can rob her of her just rewards.
exactly. when you heat ice it remains solid until its temperature reaches +273 K, at this point, the ice stops getting warmer and it begins to melt... and the reason the ice stops getting warmer is that the heat which was causing the ice to get warmer is absorbed by the phase transition to a liquid.
the latent heat of melting is the amount of heat needed to transform a solid into a liquid without changing it's temperature.
ice has an enourmous latent heat of melting. it takes almost as much energy to melt an ice-cube as to warm the same amount of liquid to boiling.
it is the latent heat of melting which explains why you add salt to the ice bath surrounding an ice-cream churn - the melting ice absorbs heat from the ice-cream lowering it's temperature to below freezing. (well, that's the theory in any case. mine always turns out sloppy.)
as counterintuitive as it may seem, under certain conditions, ice sheets will (under certain, but not unusual, conditions) continue to thicken even when the ambient air above them is above freezing.... convection on the surface being less efficient than conduction of heat from the bottom to the surface of the sheet.
this is common knowledge among the long distance ice skaters here in the stockholm archipelago that winter days when the temperature is +2 or +3 are the best days for skating.