Wizbang on the Apple/Microsoft iPod story

Paul at Wizbang goes after some of the reporting on the Apple/Microsoft iPod saga.

Paul is right that Apple can appeal. They can do several things. One thing might be to pursue their effort of "swearing behind" the Microsoft published application.

Paul also writes:

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Closer inspection says the Microsoft patent was rejected. It was modified in December of 2003 but Techweb INCORRECTLY says the patent was approved. It is still an application. [uspto.gov]

In reality it will not be approved because of this little thing called Prior Art. As you might have guessed, you can't patent something someone else is already shipping. Further in the US we use a "First to Invent" method rather than a "First to File." Clearly since the Apple product was ~you know~ shipping, they invented it before Microsoft and clearly the MS application was not novel.

So why did Apple wait so long for the patent application? Probably because it just was not important. (and you aspiring inventors should know this) Once you ship (or publish info about) an invention you lose the right to patent it. Apple will lose on appeal and frankly, I'm not even sure why they bothered, probably only because Microsoft filed.

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There will be no royalties until a patent issues. The Independent story was wrong to the extent it implies Apple must pay Micrsoft royalties on iPods.

However, under current US law, there is a one year grace period on "on-sale" and publication activities. Paul is wrong when he says: Once you ship (or publish info about) an invention you lose the right to patent it.

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More later.

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Note that a notice of allowability on Platt's application 10/158674 went out on June 23, 2005 and a notice of allowance on June 27.

Note also that the claims of Platt's application, as allowed, may be different from the claims of Platt's application, as published.