Ethics, Week 10

Discuss midterm

Four kinds of software-patent issues:

Classic "broad" patent: Wright brothers patent on wing-warping. This later led to the development of ailerons, which achieve the same effect but which mechanically are entirely different. A court ruled the Wright patent still applied.

History of software patents

For a long time, software was held to be unpatentable, as mathematical algorithms are unpatentable. Any fundamental mathematical or physical laws are unpatentable.

1972: Gottschalk v Benson: can't patent a mathematical algorithm (in this case a number-format-conversion algorithm)

1973: ATT somehow manages to patent the setuid bit, claiming it's hardware. This patent was dedicated to the public domain in 1979. This patent is certainly a deep idea: if a certain bit is set in the filesystem information node for a file (not in the file itself), then when the file is executed, it runs with the privileges of its owner and not the user. Before then (and after; see what Windows does), there were complex ad-hoc methods for running selected programs with elevated (or alternative) privileges.

1981: Diamond v Diehr: computer + machine IS patentable. For a long time after, software patents always described the software in combination with some hardware device. This patent dealt with the curing of rubber, using a computer to guide the process.

Diamond v Diehr: SCOTUS says that an invention isn't automatically unpatentable just because it contains an algorithm But PTO & lower courts read in the converse: algorithms are patentable

Note that the current business-world baseline thus rests on USPTO policy and lower-court case law, NOT congress or SCOTUS.

Problem of "non-obviousness" the rules state that it's not enough to prove it's obvious today. Uh oh. That becomes an extremely difficult burden.

To be patentable, an invention must be "novel". Novelty is usually challenged by the presentation of "prior art": did someone else discover it first? Often there are arguments about this.

If prior art is published, it can invalidate a patent. However, if it was used privately, those users can continue to use their idea without paying royalties to the owner of the patent, but the patent may still stand. The patent can be challenged on the grounds of not being novel, but this is harder.

Broad patents for fundamental new ideas, narrow patents for improvements

compatibility issues: What if the default, standard implementation is patented? Two cases where there was at least some movement away from a patented format:

    GIF => PNG
    MP3 => ogg vorbis

software patent v copyright

Supreme-court cases limit the word "process" in USC Title 35, Chapter 10, §101:

Inventions Patentable: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Some software patents

xor cursor

cpu Stack Pointer register

Using an xml document to describe the grammar of another xml document (Part of Scientigo's patent suite on xml)

British Telecom patent on the hyperlink, files 1976, granted 1989

Altavista patents on "web searching"

compression algorithms

RSA encryption: patent 4405829

Choose primes p and q.
Reveal n=pq
Find e and d so x^(ed) = x mod n (this is not hard) Common values for e: 3, 5, 17, 257, 65537
(n,e) is the public key, d is the private key

RSA uses standard high-precision arithmetic in its calculations; the underlying number theory has been well-known for centuries. The patent is for the APPLICATION of these standard methods to encryption!

The RSA patents finally expired.

Compton 1989 patent on multimedia, despite Apple Hypercard in ~1987.

Steir's patent 5,060,171 on artificially adding hair to a person's image [Garfinkel article]

Eolas v Microsoft: About a way for running "applets" in a browser window. See below.

NTP v RIM: the blackberry patent

mp3: lots of development went into this

Lempel-Ziv / LZW compression
This is the compression scheme in GIF file formats. The gif format was developed by CompuServe in 1987. A year later, they noticed that the algorithm was patented, and that the patent was currently held by Unisys. Allegedly, Unisys told Compuserve at that time that they would not need to pay royalties.

In 1999, Unisys demanded that some noncommercial websites pay a $5000 fee for hosting files in the gif format. Some commercial sites were asked for even more. It's not clear whether anyone paid it; most affected sites rapidly switched to .jpeg or .png. Some observers were especially offended by the fact that Unisys allowed the use of the GIF format as a free standard until it became well-established, and then demanded fees.

There's some question as to whether this was the only or even the dominant reason for the shift to PNG format; the latter does offer more features (especially alpha and gamma) than GIF, and is a lossless format unlike JPEG.

Natural-order recalculation in spreadsheets:

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.

MS has tried to patent FAT disk format. Their request was turned down.

compatibility issues where a patented file format (or file-creation algorithm) has led to a new standard:

GIF => PNG
MP3 => ogg vorbis

PTO (Patent & Trademark Office) problems:

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

willful: you had advance notice of infringing. Your belief that the patent was invalid is NOT a defense. Damages automatically triple.

Three groups:

how large corporations manage:

small inventors:

Open source: voip

Legal advantage of small inventor: somewhat diminished with rise in legal fees & increased ambiguity

But small inventors can still sell to patent-holding companies.

Legal situation of large corporations:


Eolas v Microsoft: About a way for running "applets" in a browser window. Is this really an "invention" at all?

Back in 1992, browsers just displayed images and static text. However, it was clear by then that windows could be displayed in other windows; MS word could at that time display an Excel subwindow.

What was not foreseen was that browsers would become universal viewers of just about everything.

Microsoft v Eolas (+ Univ of California, as part of UCSF):
MS lost this case in 2004; was ordered to pay $521 million.  They then won the right to a new trial, but settled in 2007 before the beginning of the new trial.

Patent covers

a system allowing a user of a browser program ... to access and execute an embedded program object [or small computer program, often referred to as "applets" or "plug-ins"]

Patent filed 1994, granted 1998, USPTO review 2004, upheld 2005

See http://cse.stanford.edu/class/cs201/projects-99-00/software-patents/hypermedia.html

"Viola" prior art: may or may not be relevant: see http://www.viola.org

The Viola browser project was found by the district court to have been "abandoned", but the circuit court found that Viola version 1.0 was "abandoned" only in the sense that it was replaced with version 2.0.

Part of the technical issue was about the meaning of the term "executable application". The court allegedly gave this broad meaning. Microsoft claimed it only meant "standalone applications".

Eolas started by Michael Doyle, faculty member of UCSF. UC Berkeley is apparently the owner of the patent.

Doyle certainly had some early ideas, that came before Java applets.

Patent: 5,838,906

2007: MS has claim they invented it; this loses in Sept, but Eolas & MS settle in August

State Street Bank case, and Business-Method patents

decided 1998; patent filed 1993
Basic outcome: financial-services software containing an algorithm is patentable.

Until then, business methods that contained software or algorithms could not be patented (to be more precise, this "business-methods exception" to patentability was an oft-stated maxim, but the courts had never ruled directly on it). The USPTO had trouble with this rule, in determining whether software was patentable, and at some point dropped their rule that software was unpatentable if it involved business methods. State Street Bank was granted a patent, and the case came as SSB apparently sued another bank which then tried to use the business-methods exception as a defense.

The State Street Bank case introduced the rule that a business method could be patented if "it produces a useful, concrete, and tangible result".

Once the USPTO began patenting software as part of a business process, it became too difficult to distinguish between sofware-as-algorithmic-invention and software-as-business-method. So the USPTO also reversed its longstanding refusal to grant patents purely for software (until then, software patents had to list some hardware involvement, although that was mostly a formality in practice).

This case opened the door to a huge influx of business-method patents, including Amazon's "one-click" method (below). For a while, the USPTO required business-method patents to have some connection to "the technological arts", that is, that the methods be tied to computing in some way, but even that was eventually thrown out in 2005, as too hard to enforce. However, there remains a great deal of overlap between business-method patents and software patents.

Exhibit A: Amazon "one-click" patent, # 5960411, granted 1999. Twenty-three days later, Amazon got an injunction against Barnes & Noble, and eventually won their case. BN had to stop using their "ExpressLane" shopping method.

The essential feature of the 1-click patent appears to be that you don't have to go through the usual multi-screen checkout process; you can just click "send me this stuff the usual way", and it will remember all your previous entries.

Paul Barton-Davis, one of Amazon's founding programmers, called the 1-Click patent "a cynical and ungrateful use of an extremely obvious technology" [emphasis added]

Other examples:
Several more-mundane patents on online shopping carts

IBM[?]'s patent on suggesting new purchases based on past ones

Things MAY be reined in by the recent Bilski case.

Stallman article: why software is different


1. There's no advance warning (but isn't this true of any patent?)

2. There is no easy way to read them. They are deliberately obscure. And, for software, this is directly tied to the fact that the algorithms are very general.

3. Some patents are just plain inappropriate, but fighting them is exhorbitant.

4. chicken-and-egg problem with converting from .gif to .png

5. "prior art" is very hit-or-miss; sometimes (often!) it was considered too obvious to document.

6. Software tends to use many ideas per application, and so one software project might require licensing of many diffferent pieces. This makes incremental innovation difficult, for anyone. (Even microsoft.) This problem exists for software because writing software is in some sense much easier than traditional engineering, and so you can afford to put more ideas in.

7. Open source.

Is software legitimately a special case?

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

MP3 patents and lawsuits

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.

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.

Is software legitimately a special case? Or is it just that there are lots of small-time whiners in software who want to profit from the work of others without paying?

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.


software issues:

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

Three groups:

how large corporations manage: patent banks legal departments cross-licensing

small inventors:
    market your invention yourself??
    sell to a holding company These are tricky places. They produce nothing, they interfere with progress, but they do produce a market for new patents.

Open source voip mp3 to date, some patent holders have announced that no action will be taken against open-source decoders.


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

Stallman issues

Others:

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?