Tuesday, October 05, 2004

Patent confusion at eWeek?

Steven Vaughan-Nichols in eWeek propounds some patent confusion.

-->Microsoft's Sender ID-related patent proposals helped crush a once-promising way to stop spam; and Microsoft's own FAT (file allocation table) patent has, for now anyway, been denied.<--
Gee, all four patents of Microsoft's licensing stable are in force. A rejection of claims in the first Office Action of a re-exam does not constitute a "denial of a patent."

-->As a developer, closed or open source, you don't have the time or skills to look for software patents. For that matter, some experts say you shouldn't look anyway!

"Current U.S. patent law creates an environment in which vendors and developers are generally advised by their lawyers not to examine other people's software patents, because doing so creates the risk of triple damages for 'willful' infringement," Daniel Egger, chairman and founder of OSRM (Open Source Risk Management), said a few weeks back.<--

Totally dumb. If you read the patent and act accordingly, you avoid infringment altogether, so triple damages never come up. This stupid advice probably is a vestigial remnant of copyright confusion, but whatever its source, it really is bad. Further, the Knorr-Bremse case has modified the lay of the land. [Merely as a sidelight, Mark Lemley talked about not reading other people's patents in the rational ignorance paper in the Northwestern Law Review; refer to earlier post on IPBiz.blogspot.]

-->Can you say that's a little broad? I knew you could. Kodak is using it against Java, but Kodak also could use it against Microsoft and its .NET platform.<--
Microsoft took a license.

-->It all seemed so funny back in 1999, when Amazon.com started this whole mess by patenting the one-click idea. But now, no one is laughing.<--
Barnes & Noble, with Pennie & Edmonds LLP as attorneys, could not invalidate the patent.

-->How did we ever end up in such a mess? Well, I'm no lawyer, but Glenn Peterson, who is an IP attorney and shareholder in the Sacramento-based law firm McDonough Holland & Allen PC, said, "Many traditionalists harken back to Thomas Jefferson to remind us that ideas are not patentable. One may patent the tangible fruits of an idea, but not the abstraction, i.e., the idea itself." <--
Say what?

-->Eolas is still fighting Microsoft over basic browser technology found in IE.

Think that doesn't matter to open-source developers? Think again. If upheld, the Eolas patent also can be used against Mozilla or Firefox. No one is safe from patent abuse.<--

Gee, by your logic on Microsoft's FAT patent, the Eolas patent has been "denied," since the claims were rejected (twice) in a re-exam. At least be consistent.

[Steven J. Vaughan-Nichols is a Senior Editor at eWeek.com.]

In an accompanying article, there was more confusion.

-->Beyond the Kodak/Sun case, Glenn Peterson of McDonough Holland expects "software patentability issues to be the subject of intense litigation over the next few years, both in the trial courts and in the federal courts of appeal."

"I would not be surprised at all to see the issue reviewed in the U.S. Supreme Court," he said. "It is hard to overstate the commercial impact of a patent office that continues to proliferate software patents, especially with such minimal scrutiny as would explain issuance of the 'one-click' patent and some of its just as ridiculous siblings."<--

Comment: Recall that the one-click patent of Amazon was litigated in district court in the context of the injunction. With all the resources of Barnes & Noble and of Pennie & Edmonds, a significant case for invalidity could not be made. Although the district court decision was later reversed, it is simply wrong to say that there was "minimal scrutiny" of this patent. And the patent remains valid. Similarly, as to the Eolas browser patent, the 501 filing by W3C (written by Pennie & Edmonds) argued for anticipation of the claims. In the re-exam, the examiner initially accepted this argument only for obviousness (not anticipation), and, after receipt of the Eolas reply, withdrew his rejection entirely as to the arguments in the Pennie paper. A different rejection on different art was applied. It is simply wrong to say that these matters have received minimal scrutiny. If these patents are so ridiculous, where is the prior art that says so? It's one thing to give a sound byte about ridiculous patents, but where's the beef? eWeek needs to present substance rather than puffery.


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