Um, doesn’t this patent have prior art?

February 26, 2006 By

You know the world has gotten a little nutty when a Microsoft guy complains about a patent, but when Matt May last night at the Podcast Hotel told me a company is trying to patent AJAX, among other things, I was amazed when Matt said this patent looks like it tried to patent AJAX. I haven’t looked at the patent (the patent lawyers ask employees to refrain from looking at patents) Then he passed me a Slashdot article on them today.

We call some of this kind of behavior “patent trolling.” (I haven’t looked at the patent in question, so don’t know if it’s legitimate or not, I’m not a lawyer and all that). What’s a patent troll? A company gets a patent that it itself isn’t willing to commercialize in a product, but goes around to every company threatening that it’ll take everyone to court. Demands a licensing fee. Usually something like $20,000 to $150,000. And repeats, often stopping short of the big guys with the deep pockets (although in this case it looks like they are pitching it to the big guys).

Why does this work? Well, I interviewed one of our lawyers recently and he said that a patent case, if it goes to trial, will cost millions of dollars to defend. So, of course everyone settles out of court if the fees are far less than a potential loss in court.

The commenters over on Slashdot are unusually lucid on this topic. Makes for fun reading.

As usual, my disclaimer particularly applies here. This is my personal opinion and may or may not agree with anyone else’s opinions, in particular my employer’s. I haven’t checked with anyone else at Microsoft before writing this post.

What do you think? What should the responsibility of big companies be here?

Here’s an article in InformationWeek about this patent and the breadth of what it covers.

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http://scobleizer.wordpress.com/ scobleizer

Zoli: it’s not quite that bad (it covers Ajax, doesn’t try to patent that now that I’ve read a bit more about it). Still, this one is pretty broad and I am amazed there isn’t prior art that would invalidate it. But proving that will cost millions.
http://scobleizer.wordpress.com/ scobleizer

Zoli: it’s not quite that bad (it covers Ajax, doesn’t try to patent that now that I’ve read a bit more about it). Still, this one is pretty broad and I am amazed there isn’t prior art that would invalidate it. But proving that will cost millions.
http://ceejayoz.wordpress.com/ ceejayoz

Let’s hope someone’s willing to spend those millions.

I don’t want my little shop to get extorted into paying tens of thousands of dollars worth of licensing fees to avoid a multi-million dollar lawsuit.
http://ceejayoz.wordpress.com/ ceejayoz

Let’s hope someone’s willing to spend those millions.

I don’t want my little shop to get extorted into paying tens of thousands of dollars worth of licensing fees to avoid a multi-million dollar lawsuit.
http://www.zoliblog.com/ Zoli Erdos

Of course it’s not bad, but it will be used for extortion. This is highway robbery. Also shows how patent laws are stone-age.
http://www.zoliblog.com Zoli Erdos

Of course it’s not bad, but it will be used for extortion. This is highway robbery. Also shows how patent laws are stone-age.
http://www.zoliblog.com/ Zoli Erdos

Sorry, I meant to say not THAT bad.
http://www.zoliblog.com Zoli Erdos

Sorry, I meant to say not THAT bad.
Ira

Information Week – Feb 20 – U.S. Patent System In Crisis – http://www.informationweek.com/showArticle.jhtml;jsessionid=L1JIIIGMJ5ZM2QSNDBGCKHSCJUMEKJVN?articleID=180204145

This article gives a very lucid explanation of how trolls exploit loopholes in the patent system, and some of the actions the Patent Office is taking. Short term outlook doesn’t look to promising. Looks like these disputes will be fought in the courts, boardrooms and marketplace for the near future.

Food for thought from the article:

“Good patents create a financial incentive for innovation; bad patents impose costs on the economy and on national competitiveness.” –New York Law School professor Beth Noveck
Ira

Information Week – Feb 20 – U.S. Patent System In Crisis – http://www.informationweek.com/showArticle.jhtml;jsessionid=L1JIIIGMJ5ZM2QSNDBGCKHSCJUMEKJVN?articleID=180204145

This article gives a very lucid explanation of how trolls exploit loopholes in the patent system, and some of the actions the Patent Office is taking. Short term outlook doesn’t look to promising. Looks like these disputes will be fought in the courts, boardrooms and marketplace for the near future.

Food for thought from the article:

“Good patents create a financial incentive for innovation; bad patents impose costs on the economy and on national competitiveness.” –New York Law School professor Beth Noveck
http://pushingthesky.net/ karan

what of the patent granted on most of the “non-coding” DNA? I recall that someone went out and patented most of the human genome that’s considered to be non-coding and thus not critical. However, the non-coding DNA has a bunch of interest for those doing research, and subsequently the patent holder is just sitting back and watching the licensing fees roll in.

Similar to this is patents granted for plants that are staples around the world, with companies like Monsanto holding patents on things like Basmati rice. How on earth is that an “innovation”? The patent system has become purely ludicrous these days and needs a shakeout.
http://pushingthesky.net/ karan

what of the patent granted on most of the “non-coding” DNA? I recall that someone went out and patented most of the human genome that’s considered to be non-coding and thus not critical. However, the non-coding DNA has a bunch of interest for those doing research, and subsequently the patent holder is just sitting back and watching the licensing fees roll in.

Similar to this is patents granted for plants that are staples around the world, with companies like Monsanto holding patents on things like Basmati rice. How on earth is that an “innovation”? The patent system has become purely ludicrous these days and needs a shakeout.
rafael

i say do away with all software patents, its only locking the industry down and limiting innovation, granted if a product looks too close to another then there is a problem, but shouldnt be a patent dispute, just a trademark suit of sorts where they steal the “look and feel.” after all companies still have to protect themselves but not by patenting everything.
rafael

i say do away with all software patents, its only locking the industry down and limiting innovation, granted if a product looks too close to another then there is a problem, but shouldnt be a patent dispute, just a trademark suit of sorts where they steal the “look and feel.” after all companies still have to protect themselves but not by patenting everything.
rafael

i say do away with all software patents, its only locking the industry down and limiting innovation, granted if a product looks too close to another then there is a problem, but shouldnt be a patent dispute, just a trademark suit of sorts where they steal the “look and feel.” after all companies still have to protect themselves but not by patenting everything.
http://www.mjtnet.com/ Marcus

Software patents are bad. In Europe we don’t have them – yet. I hope it stays that way. See:

http://www.nosoftwarepatents.com/

Actually it isn’t so much patents that are bad, it’s the people that approve them. The US patent office seems to approve *anything*. Clearly they have no clue what they’re reading and they just tick the box. Patent trolls are simply benefiting from this.
http://www.mjtnet.com/ Marcus

Software patents are bad. In Europe we don’t have them – yet. I hope it stays that way. See:

http://www.nosoftwarepatents.com/

Actually it isn’t so much patents that are bad, it’s the people that approve them. The US patent office seems to approve *anything*. Clearly they have no clue what they’re reading and they just tick the box. Patent trolls are simply benefiting from this.
http://www.mjtnet.com/ Marcus

Software patents are bad. In Europe we don’t have them – yet. I hope it stays that way. See:

http://www.nosoftwarepatents.com/

Actually it isn’t so much patents that are bad, it’s the people that approve them. The US patent office seems to approve *anything*. Clearly they have no clue what they’re reading and they just tick the box. Patent trolls are simply benefiting from this.
Mike

I as a developer don’t bother patents. Anyone’s work is protected by copyright already, and a single line of your code makes it different to someone else’s. I don’t worry.

As long as patents is a way to file a specific implementation, i.e. something built from your source code, I don’t see any problem with it. Useless since you are already protected by copyright laws, and of course if you are stupid enough to put your asset in the wild, then you must accept the consequences.

Either way, patents are worthless.
Mike

I as a developer don’t bother patents. Anyone’s work is protected by copyright already, and a single line of your code makes it different to someone else’s. I don’t worry.

As long as patents is a way to file a specific implementation, i.e. something built from your source code, I don’t see any problem with it. Useless since you are already protected by copyright laws, and of course if you are stupid enough to put your asset in the wild, then you must accept the consequences.

Either way, patents are worthless.
Mike

I as a developer don’t bother patents. Anyone’s work is protected by copyright already, and a single line of your code makes it different to someone else’s. I don’t worry.

As long as patents is a way to file a specific implementation, i.e. something built from your source code, I don’t see any problem with it. Useless since you are already protected by copyright laws, and of course if you are stupid enough to put your asset in the wild, then you must accept the consequences.

Either way, patents are worthless.
Jason Hawryluk

Robert, I sent you a link to this last week “Wake up, and write about this if not done to death already…” It may have been put in the spam folder because of the object of the mail.

In any case. This patent covers not just AJAX but RIA altogether. The guy that patented this is a former Macromedia employee. It does not cover Ajax per say, but what one would do with it. For example MS Office Live would be in violation, as would the new Google page creator. Meaning a “online” product that let’s a user create a RIA via a RIA. If you only read the first part then yes it would seem to cover everything. From what I’ve read of it, and from my limited(non existent) understanding of patent law, that is the impression I came away with. In itself this is a large constraint, and I hope that I understood it correctly.

On a good note, there is prior art dating back to 1997 but proving that is a whole other issue. The fact that the guy attempts to cover so many aspects of Web 2.0 + RIA in general is scary and does not say much for the US Patent Laws. It proves that the law’s and procedures that pertain to patents need to be finally revisited, and/or changed. Unfortunately even that will not solve the problem. The US laws were originally designed to give a company a monopoly, not just protect an intellectual property. Other examples would be “On click”.

If this person get’s to the point where he enforces it (in all it’s context) could set the net back 5+ years. Would hurt not only AJAX but XUL, XAML, MXML. Even asp and asp.net. Considering all the large companies affected I don’t think it’ll go farther then the trash.

However, consider if you would, a large company that has the financing to hold it up in court purchased this patent. Ouch…

I think the guy that patented this, did it for this one reason. He’ll sell it to the highest bidder and retire to some island. The lucky buyer, is now equipped with an industrial duck tape, and would have the power to enforce it. This hypothesis is allot scarier then some lone guy with a patent. So lawyers that say 1,000,000 $ to back it, it’ll never happen…should look at the angles. I’m fairly sure that the original patent owner is well aware that he could not fight it in court, and I think his intensions are to sell it.

Your thoughts?
Jason Hawryluk

Robert, I sent you a link to this last week “Wake up, and write about this if not done to death already…” It may have been put in the spam folder because of the object of the mail.

In any case. This patent covers not just AJAX but RIA altogether. The guy that patented this is a former Macromedia employee. It does not cover Ajax per say, but what one would do with it. For example MS Office Live would be in violation, as would the new Google page creator. Meaning a “online” product that let’s a user create a RIA via a RIA. If you only read the first part then yes it would seem to cover everything. From what I’ve read of it, and from my limited(non existent) understanding of patent law, that is the impression I came away with. In itself this is a large constraint, and I hope that I understood it correctly.

On a good note, there is prior art dating back to 1997 but proving that is a whole other issue. The fact that the guy attempts to cover so many aspects of Web 2.0 + RIA in general is scary and does not say much for the US Patent Laws. It proves that the law’s and procedures that pertain to patents need to be finally revisited, and/or changed. Unfortunately even that will not solve the problem. The US laws were originally designed to give a company a monopoly, not just protect an intellectual property. Other examples would be “On click”.

If this person get’s to the point where he enforces it (in all it’s context) could set the net back 5+ years. Would hurt not only AJAX but XUL, XAML, MXML. Even asp and asp.net. Considering all the large companies affected I don’t think it’ll go farther then the trash.

However, consider if you would, a large company that has the financing to hold it up in court purchased this patent. Ouch…

I think the guy that patented this, did it for this one reason. He’ll sell it to the highest bidder and retire to some island. The lucky buyer, is now equipped with an industrial duck tape, and would have the power to enforce it. This hypothesis is allot scarier then some lone guy with a patent. So lawyers that say 1,000,000 $ to back it, it’ll never happen…should look at the angles. I’m fairly sure that the original patent owner is well aware that he could not fight it in court, and I think his intensions are to sell it.

Your thoughts?
Jason Hawryluk

Robert, I sent you a link to this last week “Wake up, and write about this if not done to death already…” It may have been put in the spam folder because of the object of the mail.

In any case. This patent covers not just AJAX but RIA altogether. The guy that patented this is a former Macromedia employee. It does not cover Ajax per say, but what one would do with it. For example MS Office Live would be in violation, as would the new Google page creator. Meaning a “online” product that let’s a user create a RIA via a RIA. If you only read the first part then yes it would seem to cover everything. From what I’ve read of it, and from my limited(non existent) understanding of patent law, that is the impression I came away with. In itself this is a large constraint, and I hope that I understood it correctly.

On a good note, there is prior art dating back to 1997 but proving that is a whole other issue. The fact that the guy attempts to cover so many aspects of Web 2.0 + RIA in general is scary and does not say much for the US Patent Laws. It proves that the law’s and procedures that pertain to patents need to be finally revisited, and/or changed. Unfortunately even that will not solve the problem. The US laws were originally designed to give a company a monopoly, not just protect an intellectual property. Other examples would be “On click”.

If this person get’s to the point where he enforces it (in all it’s context) could set the net back 5+ years. Would hurt not only AJAX but XUL, XAML, MXML. Even asp and asp.net. Considering all the large companies affected I don’t think it’ll go farther then the trash.

However, consider if you would, a large company that has the financing to hold it up in court purchased this patent. Ouch…

I think the guy that patented this, did it for this one reason. He’ll sell it to the highest bidder and retire to some island. The lucky buyer, is now equipped with an industrial duck tape, and would have the power to enforce it. This hypothesis is allot scarier then some lone guy with a patent. So lawyers that say 1,000,000 $ to back it, it’ll never happen…should look at the angles. I’m fairly sure that the original patent owner is well aware that he could not fight it in court, and I think his intensions are to sell it.

Your thoughts?
Jason Hawryluk

EDIT:

On above mention of lawyer impression I misread your post. My apologies…

Jason
Jason Hawryluk

EDIT:

On above mention of lawyer impression I misread your post. My apologies…

Jason
Jason Hawryluk

EDIT:

On above mention of lawyer impression I misread your post. My apologies…

Jason
Jake

Patent Troll was coined by Peter Detkin while at Intel.

Where is he now? Intellectual Ventures Notice the familiar Microsoft names (I believe with funding). Looks like a Troller.
Jake

Patent Troll was coined by Peter Detkin while at Intel.

Where is he now? Intellectual Ventures Notice the familiar Microsoft names (I believe with funding). Looks like a Troller.
Jake

Patent Troll was coined by Peter Detkin while at Intel.

Where is he now? Intellectual Ventures Notice the familiar Microsoft names (I believe with funding). Looks like a Troller.
Jake

There is a benefit to owning patents while not commercializing. Besides the pure profit aspect of settlements, a typical defense of the big guys is the counter claims and license swap settlement. If you don’t commercialize and operate or build, then you have nothing to protect by settlement. Nothing stronger than a set of patents with numerous and broad claims and nothing to protect.
Jake

There is a benefit to owning patents while not commercializing. Besides the pure profit aspect of settlements, a typical defense of the big guys is the counter claims and license swap settlement. If you don’t commercialize and operate or build, then you have nothing to protect by settlement. Nothing stronger than a set of patents with numerous and broad claims and nothing to protect.
Jake

There is a benefit to owning patents while not commercializing. Besides the pure profit aspect of settlements, a typical defense of the big guys is the counter claims and license swap settlement. If you don’t commercialize and operate or build, then you have nothing to protect by settlement. Nothing stronger than a set of patents with numerous and broad claims and nothing to protect.
Andy Freeman

> A company gets a patent that it itself isn’t willing to commercialize in a product,

In other words, if you’re not working for “the man”, you don’t deserve to make any money off of your inventions.

While it may be convenient to suggest that individual inventors abuse the patent process more than BigCo, the reality is different. BigCos can, and do, afford to abuse it more. So naturally we worry about squashing a little guy who is trying to leverage his idea.

And yes, the small guy is often trying to commercialize a product. But, since we don’t care if a company just sits on patents (TI among others), why would we object to an individual doing the same?
Andy Freeman

> A company gets a patent that it itself isn’t willing to commercialize in a product,

In other words, if you’re not working for “the man”, you don’t deserve to make any money off of your inventions.

While it may be convenient to suggest that individual inventors abuse the patent process more than BigCo, the reality is different. BigCos can, and do, afford to abuse it more. So naturally we worry about squashing a little guy who is trying to leverage his idea.

And yes, the small guy is often trying to commercialize a product. But, since we don’t care if a company just sits on patents (TI among others), why would we object to an individual doing the same?
Andy Freeman

> A company gets a patent that it itself isn’t willing to commercialize in a product,

In other words, if you’re not working for “the man”, you don’t deserve to make any money off of your inventions.

While it may be convenient to suggest that individual inventors abuse the patent process more than BigCo, the reality is different. BigCos can, and do, afford to abuse it more. So naturally we worry about squashing a little guy who is trying to leverage his idea.

And yes, the small guy is often trying to commercialize a product. But, since we don’t care if a company just sits on patents (TI among others), why would we object to an individual doing the same?
http://scobleizer.wordpress.com/ scobleizer

Andy: well, I’d rather reward inventors for BOTH coming up with an idea AND building a product around that idea. That ensures that good ideas get put into products, which improves all of our lives. Instead we have inventors coming up with ideas on paper and then going around and suing those who try to put those ideas into products. That retards the number of new products that consumers get to buy. Not a good system for consumers. Great for the guy who can come up with ideas, though, and who can successfully push them through the system. Also great for the lawyers. Bad for everyone else.

Hint: our patent system wasn’t invented to protect the inventor. It was invented to cause more products to reach the market.
http://scobleizer.wordpress.com/ scobleizer

Andy: well, I’d rather reward inventors for BOTH coming up with an idea AND building a product around that idea. That ensures that good ideas get put into products, which improves all of our lives. Instead we have inventors coming up with ideas on paper and then going around and suing those who try to put those ideas into products. That retards the number of new products that consumers get to buy. Not a good system for consumers. Great for the guy who can come up with ideas, though, and who can successfully push them through the system. Also great for the lawyers. Bad for everyone else.

Hint: our patent system wasn’t invented to protect the inventor. It was invented to cause more products to reach the market.
http://scobleizer.wordpress.com/ scobleizer

Andy: well, I’d rather reward inventors for BOTH coming up with an idea AND building a product around that idea. That ensures that good ideas get put into products, which improves all of our lives. Instead we have inventors coming up with ideas on paper and then going around and suing those who try to put those ideas into products. That retards the number of new products that consumers get to buy. Not a good system for consumers. Great for the guy who can come up with ideas, though, and who can successfully push them through the system. Also great for the lawyers. Bad for everyone else.

Hint: our patent system wasn’t invented to protect the inventor. It was invented to cause more products to reach the market.
Jake

Robert:

The patent system is designed to ensure that good ideas get put into products. A patent is a means to teach others about the invention while protecting the owner of the invention. The owner will often be willing to license the use of the invention to those who wish to apply it.

The opening move is often a friendly letter to a company that may be infringing on a patent offering them the opportunity to discuss licensing terms. Nobody wants to sue or go to court. Lawsuits and injunctions are often the result of the hubris of the infringer.

In the little guy/BigCo scenarios: Say you invent a technique that makes a Visio user 10% more productive. To commercialize it, you effectively have to take on Visio – an endeavor with no commercial value and which may entail licensing patents that others own.

Wouldn’t it be better to patent the invention, teach Microsoft how to make Visio users 10% more productive and license the invention to Microsoft?

What if you patent the invention, teach Microsoft how to make Visio users 10% more productive, but Microsoft does not license the invention? What recourse does the inventor have except to sue Microsoft and enjoin the use of Visio?
Jake

Robert:

The patent system is designed to ensure that good ideas get put into products. A patent is a means to teach others about the invention while protecting the owner of the invention. The owner will often be willing to license the use of the invention to those who wish to apply it.

The opening move is often a friendly letter to a company that may be infringing on a patent offering them the opportunity to discuss licensing terms. Nobody wants to sue or go to court. Lawsuits and injunctions are often the result of the hubris of the infringer.

In the little guy/BigCo scenarios: Say you invent a technique that makes a Visio user 10% more productive. To commercialize it, you effectively have to take on Visio – an endeavor with no commercial value and which may entail licensing patents that others own.

Wouldn’t it be better to patent the invention, teach Microsoft how to make Visio users 10% more productive and license the invention to Microsoft?

What if you patent the invention, teach Microsoft how to make Visio users 10% more productive, but Microsoft does not license the invention? What recourse does the inventor have except to sue Microsoft and enjoin the use of Visio?
http://iblog.typepad.com/iblog_eng/ Ray CHOW

For us in Europe, Software patents is an HERESY, guess why. But there is a solution, you can still consider to run from European hosting all patented SW that cause problemes with your “inventor Trolls”!
http://iblog.typepad.com/iblog_eng/ Ray CHOW

For us in Europe, Software patents is an HERESY, guess why. But there is a solution, you can still consider to run from European hosting all patented SW that cause problemes with your “inventor Trolls”!
Jake

Ray – Why?

The “troll” space is not limited to software or business processes. I believe the man who invented intermittent wipers had to fight long and hard to receive recognition and payment for the invention. I don’t think he was manufacturing intermittent wipers at the time.
Jake

Ray – Why?

The “troll” space is not limited to software or business processes. I believe the man who invented intermittent wipers had to fight long and hard to receive recognition and payment for the invention. I don’t think he was manufacturing intermittent wipers at the time.
http://www.webdescript.com/blog/intersection/ Nick Mudge

Shows how little understood AJAX is. AJAX is nothing but a few javascript functions that are broadly known. You can’t patent that.
http://www.webdescript.com/blog/intersection/ Nick Mudge

Shows how little understood AJAX is. AJAX is nothing but a few javascript functions that are broadly known. You can’t patent that.
http://itzy.wordpress.com/ Itzy Sabo

There’s another angle to this debate, which has nothing to do with whether software should be patentable: if you invent something and do not patent it, not only can your competitors use it (duh!) but they will patent it and try to prevent you from using your own invention! Then you are forced to fork out $plenty on proving that it was your invention in the first place.
http://itzy.wordpress.com/ Itzy Sabo

There’s another angle to this debate, which has nothing to do with whether software should be patentable: if you invent something and do not patent it, not only can your competitors use it (duh!) but they will patent it and try to prevent you from using your own invention! Then you are forced to fork out $plenty on proving that it was your invention in the first place.

Um, doesn’t this patent have prior art?

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