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December 26, 2008

Mundane

Indubitably unbiased, InformationWeek's Microsoft blogger, Dave Methvin, laments small fry with software patents. "It seems like every few months, some obscure company is awarded a patent for some relatively mundane idea, then turns around and sues the companies that have been using it... It's a shame that companies can exploit the patent system to prevent advances in software."

Dave had his knickers in a twist over Cygnus asserting 7,346,850 against Microsoft, Apple and Google. '850 claims "iconic software environment management." Dave claimed "in five minutes of searching" he found prior art, in Windows 98, in beta at the time of filing. Alas, Dave doesn't seem to know patent law. There is no absolute novelty requirement, Dave. An inventor gets a one-year grace period for public use or product sale. That'll toast Dave something fierce if he finds that out. Now there's a patent problem worth fixing. Patents ought to be reserved for new inventions.

As far as the patent system preventing advances in software, Dave's got it wrong. Patents don't prevent advances. They monetize them as intellectual property. The problem lies in the way companies deal with patents, not the patents themselves. Microsoft, Apple and Google are quite fond of their software patents, and are happy enough to swat each other with them, ending with a cooing cross-license. Microsoft, for one, hates paying a "patent tax," but doesn't mind imposing one. What the little boys that like to act big don't like are dime-store inventors, like Cygnus.

What companies ought to do, rather than reinvent the wheel, is scour patents for good ideas. Willfulness is a tough nut to crack nowadays, post-Seagate. If they are looking for cover regardless, they could always hire a third-party consultant, like Patent Hawk, who can vet the patents to weed the invalid. Find the patents of interest, and scoff them up. That's the Intellectual Ventures business model. Cheaper than litigation.

But arrogance blinds. Microsoft, for example, had a chance to buy the Intertrust patent portfolio, but wasn't willing to shell out. So Sony bought it. Then sued Microsoft for it, netting over a hundred million more than it paid.

Dave, maybe you ought to start lamenting how stupid some too-big-for-their-britches companies are about the business of software patents.

Posted by Patent Hawk at December 26, 2008 11:01 PM | Litigation

Comments

Dave claimed "in five minutes of searching" he found prior art, in Windows 98, in beta at the time of filing. Alas, Dave doesn't seem to know patent law. There is no absolute novelty requirement, Dave. An inventor gets a one-year grace period for public use or product sale.

Well the one-year grace period is only in 102(b). Under 102(a), the patent is invalid if "(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent."

Posted by: Defector at December 29, 2008 3:01 PM

It's prior art just like almost all other software patents.

Perhaps you should do some research before blogging about software patents because right now you sound like a real idiot.

Posted by: Andrew at December 29, 2008 8:00 PM

Well, Dave brings up a good point, anyway:

"And I wonder, where did Microsoft get the idea for the feature? Was it really a totally original idea, or did it have some earlier example it was following?"

Very perceptive, Dave, very perceptive. I don't think MS has had a "totally original idea" since 1978. Yes, Cygnus is probably in trouble.

And I guess Dave meant "copying" when he said "following"... but "copying" sounds so, well, cheap.

P.S. Defector, you should know "the invention thereof" in 102(a) does not mean the patent application filing date... it can be difficult to rely on a 102(a) reference in litigation.

(And how many patents do they have?? Sigh.)

Posted by: NIPRA anonymous at December 30, 2008 8:00 AM