Ethics Week 11

The Paul Heckel paper, Debunking the Software Patent Myth, is available on blackboard under Course Documents. The direct link (ymmv) is http://blackboard.luc.edu/@@2DB4DD85A3A58C1C08BAE9AA6255FB37/courses/1/COMP_317_001_9372_096/content/_867232_1/heckel_patent.pdf
 

Microsoft has apparently sued (and settled with) the company that makes Tom Tom GPS devices over the latter's use of the FAT filesystem for storing their maps.

And I'd thought the PTO had dismissed that patent. More at http://www.linux-watch.com/news/NS3808328946.html.


Discuss midterm

Reading original patent descriptions

      http://patft.uspto.gov/netahtml/PTO/srchnum.htm

Natural-order recalculation in spreadsheets:
More below.

Cell A depends on B if A needs B's value in its formula
Rule: Before calculating A, calculate all cells A depends on.
Duh.
The algorithm is called "topological sort"; published in the CS literature in 1963.

Rene K. Pardo and Remy Landau filed for a patent in 1971: U.S. Patent 4,398,249. This was an important case in allowing software patents (initially their request was denied as an "algorithm")

Spreadsheets were a brilliant idea (Dan Bricklin, VisiCalc?), but not order of recalculation.


Stallman article: why software is different

Here are a few other objections in the same vein:

Is software legitimately a special case?


Paul Graham

This would be a good time to take a quick look at the Paul Graham paper. Graham is both a venture capitalist and a software engineer (and a Lisp programmer!). One of his first points is the following:

One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general. Gradually our machines consist more and more of software. Things that used to be done with levers and cams and gears are now done with loops and trees and closures. There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not.

Here are a few more, based largely on his experience as a venture capitalist. Patents, he feels, don't matter much to software startups, unlike physical-machine startups.
Graham has three reasons why patents don't matter:
  1. Software is complicated; the real issue isn't the software but developing it. However, this argument also works the other way; if you have an idea, then you are better off pursuing patent enforcement than development, because development is hard. But also note Graham's point that if a big company tries to copy a little company's patents, there will be a "thousand little things the big company will get wrong".
  2. Startups seldom compete head-to-head with big companies; they "change the paradigm". You don't go into the word-processing business; you invent Writely (now part of Google Apps?). And, "big companies are extremely good at denial". They will go to great lengths to pretend that you don't exist, to "keep you in their blind spot". Suing a startup would mean you realized they were dangerous. He cites IBM as an example; it would have been demeaning for them to sue microcomputer developers. Also, for Microsoft to sue web-app developers (or smartphone developers) would be to admit that Windows is fading.
  3. Hacker opinion is against big patent lawsuits. If you're a big high-tech company, you'll lose a lot of your best people if you're seen "doing evil". This might be true for Google; it's less clear at Microsoft (though the employees there do care about principles). It's probably not true at Eolas.
What do you think of these? How does the Eolas case fit in?

And here's a student project from Stanford, dated 2000:
http://cse.stanford.edu/class/cs201/projects-99-00/software-patents
The authors are Carr, Gray, Watkins and Yang, and the patents they consider in depth are


Eolas

Now let's review the Eolas patent again. They have allegedly patented the idea that an applet could be displayed automatically within a browser window. In a sense, they have patented the idea that browsers can display certain kinds of content.

(Actually, their claim oscillates between the idea of displaying an applet, and the idea of displaying it automatically. This is a tricky issue.)

Who had the idea that browsers could display any content, and thus that that was all you really needed? One version of VMware used a browser plugin to view your virtual machines!

Maybe the deepest problem with the Eolas patent is that the whole idea of embedding one window in another is trivial. It might not have been trivial back in 1994, but only because browsers weren't well understood. Normally, if you patent a technique or machine, it will almost always become at least somewhat obvious in retrospect, but here the issue is a little stronger. It's that the idea here was inevitable, once browsers grew to the point that they were used to view all sorts of things. It's as if someone tried to patent a handful of general browser strategies, without developing them, in the hopes that one of them would pan out and they could collect licensing fees. (Eolas did generate a working version of their embedding idea, but they didn't do anything to popularize it as part of the web.)

To try to put it another way, advances in software often lead to radical changes in how we use the software. Consider browsers, or wireless, for example. Radical change in use patterns often leads to demands for obvious new features, that previously were either impractical or simply irrelevant.

Here's the PTO review upholding the Eolas '906 patent in 2005.

One of the things to get out of this document is the sense in which the PTO process favors the inventor; they are legally bound to interpret the inventor's claims in the most favorable light.

See Page 3 (p 7 of the pdf) for a discussion of "obviousness".

See also Page 11 (15) for a discussion of the Toye reference, in particular the discussion on Page 13 of an early X-windows version of Object Linking and Embedding. The NoteMail viewer could display active content: "any application that displays through an X-server can insert its output ... dynamically onto a notebook page through an embedded 'virtual window'". The patent re-examiner then asks whether NoteMail is "equivalent to" a browser.

Further on (Page 17) it is stated that

MediaMosaic does enable interactive control and manipulation of objects embedded in what arguably may be construed to be a "browser-controlled window," BUT ONLY AFTER USER INTERVENTION, such as by making a selection with a mouse.

In other words, Eolas apparently has a patent on having something happen without having to click the mouse; their patent is for "zero-click" operation (one better than Amazon!). This was an important issue in 2003 as well. It is not a triviality. However, it is difficult to see how the invention of not having to click the mouse can be seen as deep. We're no longer talking about the idea of embedding applets; we're talking about automatically launching them.

Is not clicking the mouse worth a billion dollars? That's more than the cost of every mouse in the US!

MP3 patents and lawsuits

The MP3 idea was not obvious, and remains fairly complex. (RSA is another example of a genuinely non-obvious software patent.) Alcatel-Lucent v Microsoft: Alcatel-Lucent won $1,500 million in infringement suit about mp3 decoders Feb 22, 2007

MS countersued for other patents

The judge eventually set aside the damages, and the appellate court agreed.

Aug 6, 2007: MS won new trial

MS is now suing A-L for other patents.

check out mp3licensing.com (Thompson) Royalty Rates: basic mp3 decoder: $0.75/unit

mp3 was published in 1991. Will all US mp3 patents expire in 2011? Original holder: Thompson Consumer Electronics & Fraunhofer Institute. These still hold the "core" mp3 patents.

MP3 Patent claimants:

To date, (some) patent holders have announced that no action will be taken against open-source decoders.

The mp3 compression algorithm is admittedly a deep idea. Part of it involves the use of wave decomposition to store the information more efficiently; part of it involves "psychoacoustics" to identify parts of a sound file that are "unhearable" and so can be deleted.

Note that patents are for the use of an idea in a specific context:

Patent problems:

submarine patents: you don't hear about them until too late!

prior art: hard to find, hard to document, trivial ideas were never written down!
This problem, at least, will go away with the passage of time.

non-obviousness: difficult to contest many ideas go into one program! Technology evolves extremely rapidly Violates settled expectations (important part of law!) What's patented seems to be more a matter of chance than anything else.

ignorance is no defense: "submarine" patents entire process is secret: you can be making good-faith effort to be noninfringing and get hit with a huge verdict.

wilful: you had advance notice of infringing. Your belief that the patent was invalid may NOT be a defense, although it has been accepted as a defense in some cases. Damages automatically triple.

Europe

EU Parliament voted in July 2005  648-14 AGAINST the EPO (European Patent Office) directive.

March 17, 2009: European Patent Office has asked the EU's "Enlarged Board of Appeal" to decide on the exclusion of software from patentability. The EPO has long been pushing for software patentability, and this is seen by some as an attempt to bypass the European Parliament.
See http://lwn.net/Articles/324022
Also http://press.ffii.org/Press_releases/EPO_seeks_to_validate_software_patents_without_the_European_Parliament.
Also http://www.ffii.org/EPOReferral. Note especially Q3, under Questions. Under some earlier rulings (T163/85 and T190/94), patentability required "a technical effect on a physical entity in the real world". However, other rules did not include this requirement.

European patent law is similar to the Diamond v Diehr standard: machines that use software are patentable, but not software that stands alone. However, in the US the Diehr standard evolved into software patentability; in Europe software remains unpatentable as such.

Who are the stakeholders in software patents? Are we stakeholders? Compare pharmaceuticals. http://www.pbs.org/cringely/pulpit/2005/pulpit_20050818_000863.html: "Do you feel helped by patent reform?"

If the Eolas patent had succeeded earlier in the game, Firefox might never have been started, and then Internet Explorer would still likely lack tabs, plug-ins, and other core features.

WHY does the situation seem so different from pharmaceuticals?


Role of "patent trolls", or patent licensing firms
("troll" as in "the troll under the bridge, demanding tolls", not "trolling" as in fishing for "flames")

Note that the established-company-versus-established-company defense of a "patent bank" is useless here.

Patents and standards-setting

Company A participates in creation of a standard; they suggest solution S for a particular issue. After the standard is widely adopted, company A announces that they have patented S, and that they will license it for a significant fee.

N-Data patent on ethernet speed autonegotiation:

http://arstechnica.com/news.ars/post/20080123-ftc-defends-ethernet-forces-patent-troll-back-under-bridge.html

Barriers to entry

Patent Trolls: companies that have no assets but patent claims, and don't attempt to produce anything but simply collect. Is this bad? Or are such companies just creating a market for small inventors to sell their inventions?

Patent and open source

The open-source community is a STRONG proponent of eliminating software patents.

Is the open-source community entitled to:

Is the open-source community entitled to the asterisk phone switch?

Does MS intend to destroy or hobble or marginalize linux through patents?

It is very well documented that the patent process has a very NEGATIVE impact on open-source development, and on generally accepted software adoption.

So if the purpose of software patents is to aid technological process, and it doesn't do that, are software patents a good idea?

What happens if the software in question is made available through a site in Europe, which (as of now) doesn't have strong software-patent laws? Should the site warn visitors from the US?

Is this at all like thepiratebay.org?


Patents: are the right ideas being patented? Or are patents being granted to trolls for peripheral ideas?
xor:   trolls?
rsa:   good
spreadsheets:   trolls?
eolas:   trolls?


Heckel Paper

Paul Heckel wrote Debunking the Software Patent Mythsfor the June 1992 Communications of the ACM. Heckel approaches software patents as a small inventor who has sued Apple over Hypercard and is in general very strongly pro-patent. He was actually faced with huge software-development debts and no future market because Apple had reproduced his idea. He makes several claims.

4197590
One is that the XOR patent, 4197590, is really about patenting what Heckel calls "largely the invention of the frame buffer". However, the concept of a frame buffer, or memory-mapped display (in which the video screen is memory-mapped into a location in RAM, so that writing to the screen is as simple as writing to memory) was apparently prior-art. The patent application claims that they invent a way for a small (eg 416x312) graphics window to allow viewing of a larger 2048x2048 virtual display, and panning across. That is a significant invention. However, there is a reasonable body of evidence that Cadtrak attempted to enforce the XOR-cursor portion of the patent alone.

From the patent abstract:

A computer graphics display system including random access raster memory for storing data to be displayed, a raster memory control unit for writing data into the raster memory, a video control unit for causing such information to be displayed on a CRT display screen....An XOR feature allows a selective erase that restores lines crossing or concurrent with erased lines. The XOR feature permits part of the drawing to be moved or "dragged" into place without erasing other parts of the drawing.

It seems to me that a major claim of this patent, and the only relevant claim past the 1984 introduction of the Macintosh, is the XOR feature.

4398249
Another is the natural-order-recalculation patent, 4398249. This was an invention of Rene K. Pardo and Remy Landau in 1970. Heckel claims that what Pardo and Landau really invented was the spreadsheet, although (apparently) in primordial form not recognizeable by later spreadsheet pioneers such as Dan Bricklin (VisiCalc). Heckel does not name any software product Pardo and Landau produced. There was indeed an important legal case regarding the patentability of the idea; initially their request was denied by the PTO as an "algorithm. It is now considered to be an "early" software patent. Here's the idea:

Cell A depends on B if A needs B's value in its formula
Rule: Before calculating A, calculate all cells A depends on.
Duh.

The algorithm is called "topological sort"; published in the CS literature in 1963.

Spreadsheets were a brilliant idea (Dan Bricklin, VisiCalc?), but not order of recalculation.

Pardo and Landau sold the patent to the company Refac, which Heckel characterizes as "a white knight in the fight against the patent pirates". However, note the following line from the appellate court in Refac v Lotus, at http://www.ll.georgetown.edu/Federal/judicial/fed/opinions/95opinions/95-1350.html:

The district court did not abuse its discretion in holding that the '249 patent is unenforceable on the ground of inequitable conduct. [emphasis added]

Apparently Pardo and Landau were told by the USPTO that their patent was not fully disclosed; specifically

[T]he disclosure is not deemed of the level which would enable one with ordinary skill in the art to make and use the invention. The flow diagram which applicants represent in figure 2 is not of the detailed level which a programmer would need in order to write a program from.

They presented three supposedly disinterested witnesses who each submitted an affidavit that, yes, they could implement the desired program from the patent description. However, one of the three, Robert F Bullen, had a previous business relationship with Landau, that neither of them disclosed.

So much for "white knights".

There remains the broader concern that Pardo and Landau did not in fact appear recognize that they had a "spreadsheet", and that Dan Bricklin was the first to grasp that concept, and that what Pardo and Landau did have was just the idea of using topological sort when evaluating a large number of expressions with dependencies.

Here's the abstract of Pardo & Landau's patent, slightly edited, for compiling a set of formulas when some formulas may depend on the values of other formulas:

A process and apparatus (compiler program) carried out on a digital computer for converting a source program into an object program. The source program [consisting of a set of formulas] is entered into a first storage area of a computer. ... The compiler program then examines each formula to determine whether it has been defined [that is, whether it has no dependencies on as-yet-undefined formulas]. If the first formula has been defined, it is removed from the first storage area; placed in a second storage area; and marked as being defined. if the first formula examined has not been defined, it is retained in the first storage area. The compiler program repeats this process for each formula in the first storage area. After the formulas in the first storage area have been examined, the compiler program determines whether any formulas have been added to the second storage area. If so, the compiler program repeats the examination of the individual formulas still retained in the first storage area. The compiler program repeats the process until all formulas have been defined; added to the second storage area; and marked as being defined. The content of the second storage area is an object program which is executable by the computer.

2009 is a little later than 1972, and some of these ideas are now somewhat standardized, but without being familiar with this specific algorithm I was able to come up with it "on my feet" in class once. I see no evidence here of any spreadsheet-like package.

.

NTP v RIM (Research In Motion): maker of Blackberry

See http://www.spectrum.ieee.org/mar06/3087

Thomas Campana filed his first patent in 1991, for an email system with wireless links. The system has been called a merger of email and wireless pagers, which existed at that time. It remains very unclear just what claim is patented.

Was this really a "business method" patent?? The software case is VERY weak. There has been some discussion in the media about how the patent covers the way forwarding is handled, and where messages are stored, but I see NO evidence of that in the actual patent application.

See http://www.spectrum.ieee.org/mar06/3087.

Campana founded his company NTP to enforce his patents. A lawsuit was brought in 2000, after RIM (and others) wouldn't agree to a license.

Campana died in October 2004.

RIM settled for $612 million in Mar 2006 , after an original verdict of $33 million (part of the final settlement is that there are no ongoing royalty payments, so this isn't as egregious as it might seem. Still, the settlement amount just seemed to balloon.)

The patent had been challenged with the USPTO. The PTO retracted one or two of the patents in Feb 2006, but the presiding judge in the case (Judge Spencer) refused to stay the case pending further USPTO findings. [Proceedings are still pending within the USPTO regarding other Campana patents.] I am trying to find out the USPTO final decision here. Here is a RIM update on the patent-office reexamination; I do not think it is final and it is also a press release.

Just a day after a judge in the NTP-RIM patent fight said that he would not wait for the US Patent Office to complete a review of NTP's patents, that same Patent Office announced a "non-final" ruling on one of the NTP patents, suggesting that the original patent might not be valid. -- techdirt.com

How could the court and the USPTO be so far apart on this?

NTP owned nothing but patents, but Thomas Campana -- co-founder -- did "invent" the technology. So NTP is not a classic "patent troll".

The case was before Judge James Spencer of the US District Court for Eastern Virginia, known as the home of the "rocket docket": part of the court's culture was strict adherence to timetables. RIM engaged the mega-lawfirm of Jones,Day, which irritated Judge Spencer regularly (probably with delay tactics). This was a classic Bad Idea. However, it also appears that Judge Spencer had little if any awareness of the central debates regarding software and business-method patents.

Case: NTP, Inc. v. Research In Motion, Ltd., No. 3:01CV767, 2003 WL 23100881 (E.D. Va. Aug. 5, 2003)

During the trial, RIM put on a demo of some supposedly pre-Campana text-messaging software, BUT a major part of it was post-Campana's-patent. Another bad idea. However, there actually was pre-Campana text-messaging software! It is even cited in the '592 patent.

RIM failed to prove the patent invalid in court. Supposedly, in court the burden would be on NTP to prove the patent valid, while during a USPTO reexamination the burden of proof is supposedly on the challengers. So the burden-of-proof issue should have worked in RIM's favor.It did not.

Original verdict: $33 million. RIM could have been liable for triple damages if infringement was found to be "willful". However, Judge Spencer compromised here on 42%, raising the award to $47 million.

RIM appealed Judge Spencer's decision to the appellate circuit court.

The core problem with RIM: they did implement a system very much like Campana's idea. The only new idea is essentially that effort is made to make the blackberry completely transparent to your laptop's normal email software (ie blackberry email is eventually forwarded, through the blackberry, into your laptop, but is also viewable (and can be responded to) on the blackberry itself.

The core problem with NTP's wireless email patents: the only new element is the use of RF links in an email network. (Store-and-forward idea is acknowledged as prior art). BUT:

Prior art clearly includes the following:
    1. Use of RF for IP links
    2. Email based on ANY set of IP links
    3. Use of RF to send short text messages to pagers

There is room for innovation in terms of identifying the nearest wireless hub, but that does not appear to be part of the patent. The patent does include lots of detail about switches and gateways, all of which appears to be standard according to RFC 821.

One central idea of the NTP patent: if a wireless unit is out of range, messages are stored at Network Operations Center (NOC). However, this idea is a fundamental part of the original SMTP rfc 821 (August 1982). Specifically, rfc 821 implicitly calls for a forwarding node to hold messages when retrying to contact the next hop, and the final server in the line holds messages indefinitely when waiting for the user to connect and download email.

Whether or not this storage strategy was really the main idea, RIM seized on it when they lost their case; they developed an alleged "workaround" that handled message storage differently:
    http://www.businessweek.com/technology/content/feb2006/tc20060210_490726.htm
When you're out of range, RIM stores your messages at their Network Operations Center, or NOC. The workaround would store them on the senders' server, that is, the RIM NOC wouldn't accept messages until the destination was available and prepared to accept delivery. Or, possibly, the messages would be stored "downstream" on the receivers' servers, but with RIM able to retrieve them and forward them wirelessly once the destination device became available.

Note that if the alleged workaround still violated NTP's very vague patents, it would take another multi-year trial to establish that. One possiblility to consider is that the workaround was intended only as a negotiating tactic when trying to settle on a dollar amount for royalties: it would allow RIM to avoid a shutdown injunction and thus would give them some leverage. And, indeed, the settlement of $600 million wasn't much larger than what NTP had won in court with the added benefit of a RIM shutdown.

On the face of it, NTP's patents were for a SYSTEM, that is, for software. But the system claim is rather weak; all the components were pre-existing. The patent makes much more sense as a BUSINESS METHOD patent, but apparently this distinction was never clarified through the course of the trial.

One problem with the claim that NTP's patents were for a business method is that such patents were not granted until a 1998 court case. NTP's patents were applied for in 1991.

It seems surprising to me, but this distinction (between system and method patents) played little if any role in the trial.

Despite the well-established idea of store-and-forward delivery of email over any type of IP links, Judge Spencer allegedly claimed (I don't have a source for this, but remember reading it) that the case "wasn't even close". How could this be?

One possibility is that the judge saw the Campana patent as a non-IP way of delivering email over the last link. That is, neither NTP nor RIM was really bringing the Internet to handheld browsers; they were extracting email messages and then sending them over a proprietary protocol. That might make sense as a genuine invention.

However, we're again up against the "inevitability" issue here: the idea itself is obvious, and what RIM really brought to the table was the capital to build the appropriate wireless network.

Nobody disputes that RIM developed their system independently.

Patents for genuine hardware electronics methods are not an issue here: modulation techniques receiver--cpu interaction NTP's patents covered only the system, not the devices.

Real issue: patent system often ignores the fundamental CS principle of abstraction (ie building networks with any links) (If this was a business-method patent, that might make this issue irrelevant.)

District Court issues

[quotes from NTP's Memorandum of Points and Authorities in Opposition to RIM's First (or Second) Motion for Summary Judgement]

1. RIM seemed focused on obtaining summary judgement before the "Markman hearing" (or claim-construction hearing), a hearing at which the judge rules on the meaning of various patent claims. This seems awkward. NTP's reply:

RIM's preemptive May 3. 2002 motion for partial summary judgment flies in the face of its prior arguments and representations to the Court. The motion is an attempt to short-circuit the Court's procedural schedule regarding claim construction and to burden NTP with briefing before RIM even files its responsive claim chart and prior art statement. RIM's motion - which RIM admits will likely "miss the mark altogether" - seeks to force the Court to engage in a wasteful, piecemeal, incomplete and ultimately fruitless claim interpretation exercise before the disputed claim terms are briefed or even identified.

2. RIM introduced the Zabarsky prior art rather late in the game. It is not clear why they didn't pick up on this earlier. Perhaps the idea of positioning their devices as pagers didn't occur to them.

3. NTP was an advocate of the "push" idea:

The Campana patents bridged this email-wireless divide by providing universal connectivity for email between wired and wireless systems. For the First time, email sent to a user at his or her normal electronic mail system could be "pushed" to the user's mobile processor in a format suitable for standard email operations such as viewing, replying and forwarding. The user no longer needed to find his or her email; instead, the email would find the user.

This "push" idea, though, is not new: it's what happens when a cellular network calls you (the call is "pushed" to you), and it's what happens in SMTP whenever the next hop is reachable. The last sentence sounds seductive, but again it is difficult to see the innovation here except in the context of actually building a wireless email network.

Another NTP description that makes the invention appear very deep is:

Campana opened access between the world of landline-based electronic mail systems and the wireless world. Campana taught the ability to "push" the email stored in the user's mailbox on the email server all the way to a mobile destination processor operated by that user. As Campana recognized, the wireless user would be unable to periodically request email because of all of the drawbacks cited above (e.g., uncertainty. delay and inconvenience/cost). Thus, the wireless user would be best served by a system that delivered email without the need for any request from the user - similar to the way that a server delivers email to the user's desktop computer when Outlook requests it.

But is this meaningful? It seems likely that anyone using RF links for email in 1995 would have found all the ideas here obvious. However, the notion that laptop users had to dial in to retrieve email was also something that many people felt was "inevitable".