Computer Ethics, Spring 2011
Corboy 301
Week 11, April 13
Software Patents
Again, here are four categories of
software-patent issues:
- problems with the patent system generally
- problems with the patent office as applied to software
- problems with business-method patents, which until 2005
required
involvement of "technological arts"
- fundamental problems with software patents
Reading original patent descriptions
You can look them up online. Follow uspto.gov -> patents ->
patft (uspto.gov/patft). Or go directly to the search-by-patent-number
page:
http://patft.uspto.gov/netahtml/PTO/srchnum.htm
Some software patents
Here's an interesting list of some software patents, supposedly
"random" though some particularly famous ones are sprinkled in:
http://bat8.inria.fr/~lang/hotlist/free/licence/patents.html
Another list can be found at: http://www.textfiles.com/law/softpat.txt
XOR cursor, patent 4197590 (more below under Heckel's paper)
Method for dynamically
viewing image elements stored in a random access
memory array
cpu Stack Pointer register, patent 3794980, to George Cogar,
1971. Supposedly, though I can't find the source, this was purchased by
DEC [?] and eventually placed in the public domain. Or not enforced. Or,
possibly, it was in fact licensed by Intel/motorola/everyone_else.
ATT setuid-bit patent, # 4135240, invented by Dennis Ritchie,
applied for in 1972 and later placed by AT&T in the public domain.
British Telecom patent on the hyperlink, files 1976, granted 1989.
Patent number 4,873,662. In 2000 they attempted to sue a large number
of websites. The
patent itself apparently refers to a system in which multiple remote
users can access "blocks" of data on a central computer.
Altavista patents on "web searching". Altavista did have several
such patents on basic web "crawling". Most were predated by the
"archie" archive-searcher for ftp sites, developed by Alan Emtage in
1989. Altavista was purchased by CMGI, which some claim is a patent
troll.
RSA encryption: patent 4405829
Choose primes p and q.
Reveal n=pq
Find e and d so xed = x mod n (this is not hard)
Common values for e: 3, 5, 17, 257, 65537. Note (xe)d = xed.
(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 was for the APPLICATION of these standard methods
to encryption. That application was certainly novel.
The RSA patents finally expired, after much controversy. Part of
that controversy was self-induced; the patent owner at one point appeared to grant a general license
for noncommercial use, but then backed away from that.
The RSA idea is not "obvious-in-context". In fact, RSA is, for many
people, the classic Good Example for why software patents are needed.
Compton 1989 patent on multimedia, despite Apple Hypercard in ~1987.
Steir patent 5,060,171 on artificially adding hair to a person's image
[Garfinkel article; obvious-in-context]
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, patents 4464650 [?], 4558302
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 (an interesting strategy,
given that the sites were not themselves rendering the images). 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.
Note that LZW compression is not "obvious-in-context"; you can realize you need compression and still work very hard to develop LZW.
Natural-order recalculation in spreadsheets:
Patent 4398249
More below following Heckel's paper
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 patented the FAT disk format. Here is a summary of the
events from the Public Patent Foundation, which had challenged that
patent:
In April 2004, the Public Patent
Foundation filed a formal request with
the United States Patent and Trademark Office to revoke Microsoft
Corporation's patent on the FAT File System, touted by Microsoft as
being "the ubiquitous format used for interchange of media between
computers, and, since the advent of inexpensive, removable flash memory,
also between digital devices." In its filing, PUBPAT submitted
previously unseen prior art
showing the patent, which issued in November
1996 and is not otherwise due to expire until 2013, was obvious and, as
such, should have never been granted. The PTO granted PUBPAT's request
in June 2004 and provisionally rejected the patent in September 2004.
In response to the rejection, Microsoft made amendments to the patent's
claims. The PTO proceeded to allow the
amended form of the patent.
PUBPAT had no right to appeal that decision.
The fact that PubPat can't appeal or even respond to the decision is
a serious due-process issue. If you are sued by Microsoft for using the
FAT format, you will be allowed
to respond to Microsoft's post-2004 amendments to the patent claims.
But you will probably not.
Microsoft is now actively licensing the format to flash-card
manufacturers. Why not switch to the free ext2 filesystem? Because that
just is impossible, that's why.
It is unclear which patents Microsoft is most interested in pushing.
While there are legitimate reasons for thinking that FAT itself might
not be patentable, Microsoft later introduced a strategy for supporting
both long filenames and also "8.3" filenames (8 char name, 3 char
extension). The patent that covers the dual-name strategyis less
vulnerable to "obviousness" or "prior art" challenges.
Microsoft sued the TomTom people (http://arstechnica.com/microsoft/news/2009/02/microsoft-sues-tomtom-over-fat-patents-in-linux-based-device.ars),
because TomToms, although they are based on linux, use the FAT
filesystem internally. The suit was settled
two months later, after TomTom agreed to cut the FAT.
FAT is a good example of an idea that is obvious to anyone presented
with the problem of how to
create a simple filesystem suitable for small devices. However, there is
the added problem of it's being standard
(although an unofficial one); you can't just implement a workaround.
PTO (Patent & Trademark Office) problems:
- researching "prior art"
- secrecy of the process
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.
Infringement is considered willful
if you had advance notice of infringing. Your belief that
the patent was invalid is NOT a defense. Damages automatically triple.
Three groups of stakeholders:
- small inventors
- large corporations
- patent-holding companies
Where do we fit in?
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
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:
- hard for small inventors to sue them
- can cross-license
Eolas v Microsoft
Patent 5838906: Distributed
hypermedia method for automatically invoking external
application providing interaction and display of embedded objects
within a hypermedia document, filed in 1994.
The alleged invention is 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 applications could display content in
windows created and "owned" by other applications; for example, 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.
Had the Eolas patent been more aggressively enforced, it would have
been a huge impediment to the world-wide web.
2007: MS has claim they
invented it; this loses in Sept,
but Eolas & MS settle in August
October 2009: Eolas has launched a major lawsuit against just about
everyone: press
release. The list of defendants includes lots of sites that use
web-embedded objects: amazon, apple, eBay, and youtube.
View 1: Eolas developed some early web-embedding technology, and got
really lucky
View 2: Eolas patented Microsoft's 1990 Object Linking and Embedding
idea, and got a 20-year license to fleece us
View 3: Eolas may control a "critical" piece of the web standards.
Consider the actual Eolas patent claim 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 machine's console!
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 17/21) 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. [capitals in original -- pld]
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 half a billion dollars? That's more than
the
cost of every mouse in the US!
i4i xml patent, #5787449
Filed 1994, granted July 1998. Here is what the patent claims:
A system and method for the separate
manipulation of the architecture and
content of a document, particularly for data representation and
transformations. The system, for use by computer software
developers,
removes dependency on document encoding technology. A map of
metacodes
found in the document is produced and provided and stored
separately from
the document. The map indicates the location and addresses of
metacodes in
the document. The system allows of multiple views of the same
content, the
ability to work solely on structure and solely on content, storage
efficiency of multiple versions and efficiency of operation.
The great mystery is what this has to do with XML. Virtually all
flavors of xml use embedded tags, <foo>like this</foo>. The
whole point of the i4i patent is that it doesn't use embedded tags.
Except that there are suggestions that Microsoft did in fact develop
a format for creating "custom XML schemas" that used the i4i method.
Any xml schema that lets you set the tag values in one place and one
place only, as opposed to doing a global search-and-replace, could be
said to violate the spirit of the i4i patent.
Still, it is a stretch, to say the least, to believe that the i4i patent covers all custom XML schemas.
The following is from the blog of an Office product manager at
Microsoft, Brian Jones, http://blogs.msdn.com/brian_jones/archive/2005/11/04/integrating-with-business-data-store-custom-xml-in-the-office-xml-formats.aspx.
XML Data Store
In Office 12, we've introduced a new
feature to the formats that
we're currently calling the XML data store, and the way it works is
really simple. As you should all know by now, the new format consists of
a ZIP file with a bunch of XML parts (files) inside. Up until now we've
talked about all the parts that we in Office have defined to create our
documents. You as a developer also have the ability to add your own
parts though. You can take any XML file and put it inside the ZIP
package. Then all you need to do is create a relationship from the main
document part to your XML part, and the Office applications will
roundtrip your XML with the file, which means:
Roundtripping your data: The
ability to put your XML in the
ZIP package means that you now have a place to store any data your
solution may need. The data will travel with the document, but will
always be stored as a separate XML part in the ZIP package. This means
it's really easy to get to and modify without dealing with any of the
application's data....
Separating data from the document:
As well, because the
information is stored in the data store, you benefit from the fact that
the user cannot directly edit your data by editing the document
(they
can’t accidentally delete part of your data, since it’s stored
separately.
This is kind of vague, but note that it may allow a separate
XML area that is connected to the main document only via tags. However,
the original i4i patent appeared to involve using the separate area for
tag values; the Microsoft strategy on the face of it is for a separate area for entire XML files. The
last paragraph is all about the real-world importance of separating the
tags and storing them elsewhere.
See also Joe Wilcox's article at www.betanews.com/joewilcox/article/Is-Microsoft-violator-or-victim-in-i4i-patent-dispute/1250119565,
in which he suggests that the Microsoft customers most interested in
this new Office feature were those in the pharmaceuticals industry, which is exactly what i4i writes software
for.
At the page www.afterdawn.com/news/article.cfm/2009/08/13/update_microsoft_knew_about_i4i_s_xml_patent,
there is an alleged quote from Microsoft "newly leaked emails":
"We saw [i4i's products] some time
ago and met its creators. Word 11
will make it obsolete," said one email from Martin Sawicki, a member
of Microsoft's XML for Word development team.
That would make the '449 a defensive
patent: one where the purpose is not
to be a patent troll, but instead to allow you to launch defensive
attacks against competitors that horn in on your market. This does not legitimize the patent
completely, but does put it in a different context.
An excellent technical blog on the '449 patent is at http://broadcast.oreilly.com/2009/08/mircrosoft-and-the-two-xml-pat.html.
There's a good example of what metacodes are all about, but also a
somewhat cryptic discussion of point tags (like <b> in html)
versus range tags (like <title> ... </title>, strictly
hierarchical).
More on I4I v Microsoft and patent 5787449
First, here is what the patent claims:
A system and method for the separate manipulation of the architecture and
content of a document, particularly for data representation and
transformations. The system, for use by computer software developers,
removes dependency on document encoding technology. A map of metacodes
found in the document is produced and provided and stored separately from
the document. The map indicates the location and addresses of metacodes in
the document. The system allows of multiple views of the same content, the
ability to work solely on structure and solely on content, storage
efficiency of multiple versions and efficiency of operation.
Despite the italicized phrase, it is clear that at the time of
invention the I4I claim was all about a perceived improvement on the
existing practice of mixing tags and content inline:
For manual production of documents the intermingling of the markup codes with the content is still the
best way of communicating structure. For electronic storage and manipulation it suffers from a number of shortcomings.
Yet further, there is a difficulty of resolving the markup codes from
the structure. Markup codes have to be differentiated from the content
stream they are a part of. This involves designating `special`
characters or sequences of characters
which should be identified and acted upon. This complicates the task of
any routine which must work on the document.
This is incredibly basic. It is fundamentally not an issue. The only
claimed improvement for the I4I approach is processing speed:
The present invention provides also for efficiency of operation on the
document. The invention allows document operations to be much more
efficient. It is no longer necessary to parse the entire document to
locate the embedded codes.
Differentiating codes from content is obviously no longer a problem
since they are held in different areas. This also allows more efficient
coding strategies to be developed without the restriction of ensuring
that all codes are clearly differentiated
from any possible content.
A further patent claim highlighting the concept of separation.
Thus, in sharp contrast to the prior art the present invention is based
on the practice of separating encoding conventions from the content of a
document. The invention does not use embedded metacoding to
differentiate the content of the
document, but rather, the metacodes of the document are separated from
the content and held in distinct storage in a structure called a
metacode map, whereas document content is held in a mapped content area.
It appears that I4I has managed to inflate their patent claims in court to cover any
editing of xml, in such a way as to preserve some form of "original
structure". I4I's patent is basically about how to maintain the
"metacodes" (XML markup tags) separately from the document content, for efficiency reasons.
It is admittedly a logical chain from the idea of separating data and
tags to the idea of separate editing of data and tags. But that chain
is not in the patent.
I4I did indeed "invent" something. But what they invented was
essentially the idea that some customers wanted to edit text documents
that had an underlying XML structure. Once you realize that customers
might pay for that, the creation of the actual product is obvious. This is very similar to the NTP v RIM case.
MS information on how the editing works: http://msdn.microsoft.com/en-us/library/aa212889%28office.11%29.aspx.
It appears to be true that Microsoft intended
to take I4I's broader idea -- supporting the structural editing of
XML-based documents -- and thus to take over I4I's business niche.
Somehow, I4I convinced a jury in East Texas that their patent covers any editing of XML, so as to preserve the structure. This is what Office 12 did.
After the jury verdict, Microsoft petitioned the District Court for a
"Judgement as a Matter of Law" (JMoL), meaning that they wanted the
judge to declare that the jury verdict contradicted the existing law in
the case; that is, to find "there is no legally sufficient
evidentiary basis for a reasonable jury to find as the jury did." A high standard has to be met here, but this is indeed the
appropriate avenue if the jury misunderstood the patent. However, the
judge also misunderstands the patent; he wrote (in http://cs.luc.edu/pld/ethics/i4i_v_microsoft_district_jmol.pdf)
The
‘449 patented invention created a reliable method of processing and
storing content and metacodes separately and distinctly. The data
structure primarily responsible for this separation is called a
“metacode map.” According to the patent, the “metacode map” allows a computer to manipulate the structure of a document without reference to the content. [p 2]
The metacode map is a data structure that once upon a time might have
saved some computing resources, but which is trivial to work around by
leaving the tags "in place" in the document. The metacode map has
nothing to do with the idea of manipulating the XML structure without
referring to the content, except in that it might suggest one possible way to do that.
However, here's the district court opinion on data structures:
First, Microsoft argues that i4i
presented no evidence that the accused WORD products created “a data
structure” as required by the Court’s construction of the claim term
“metacode map.” The Court construed and instructed the jury that
“metacode map” and “map of metacodes” in the ‘449 patent meant “a data structure that contains a plurality of metacodes and their addresses of use corresponding to mapped content.” The Court further construed “mapped content” as meaning “the content of a document corresponding to a metacode map.”
Essentially, I4I managed to claim that any way of storing "metacodes", including embedding them in the body of the document,
amounts to storing them in a "data structure" as covered by the patent.
Even though the stated point of the patent was that this data structure
be "separate".
During trial Dr. Rhyne, one of i4i’s
technical experts, explained that the meaning of “a data structure” was
“a physical or logical relationship among data elements designed to
support specific data manipulation functions.”
The issue, then, appears to be that I4I has figured out how to
expand their original claims. The expanded claim is clearly still tied
to the invention, and so the court elected to uphold it, but the
expansion so waters down the original idea as to turn it into something
genuinely obvious.
Maybe Microsoft's core problem is that they were not able to find a short and comprehensible way to say the following:
embedded codes are prior art.
News update: the Supreme Court has agreed to hear this case, Nov 29 2010
From http://www.patentlyo.com/patent/2011/03/microsoft-v-i4i-shifting-weight-of-evidence-versus-shifting-burden-of-proof.html:
The issue is whether the District Court and Federal Circuit erred in
holding that Microsoft was required to prove its invalidity defense by
clear and convincing evidence "even though the prior art on which the
invalidity defense rests was not considered by the Patent and Trademark
Office prior to the issuance of the asserted patent."
The constitutional issue is whether overturning a patent requires the
"clear and convincing evidence" standard rather than the "preponderance
of evidence" standard. In particular, MS claims that the easier
evidentiary standard should apply to prior art that the USPTO never
reviewed in the first place, but should have.
Patent infringement suits
Note that we do not generally
have much access to the judge's reasoning in these cases. There may be
a written opinion, but often not, and in any event we generally don't
have ready access to many of the documentsoffered in evidence.
(Some of the documents, though not all, are available from the Law Library.)
Photoshop and patents
It might seem reasonable that such a complex program as Adobe Photoshop
has been effectively protected by patents. However, I can find no
evidence that this is the case. I did
find the following:
Macromedia has sued Adobe for patent infringement over some
Photoshop options
(http://www.managingip.com/Article/1327272/Macromedia-claims-Photoshop-patent.html)
The leading open-source alternative to Photoshop, gimp,
may have had
more trouble with Microsoft patents than Adobe's. In general, there are
lots of notes out there from gimp developers discussing their patent
woes. (I lost my specific reference, though.) Gimp has had to struggle
with the LZW patent on the gif format (US expiration 2003, Europe
2004), and the possible jpeg patent.
State Street Bank case, and Business-Method patents
Patent
5193056
decided 1998; patent filed 1993
Basic outcome: financial-services software containing an algorithm is
patentable. From the 1998 Federal Circuit decision:
(...) the transformation of data,
representing discrete dollar amounts,
by a machine through a series of mathematical calculations into a final
share price, constitutes a practical application of a mathematical
algorithm, formula, or calculation, because it produces 'a useful,
concrete and tangible result' -- a final share price momentarily fixed
for recording and reporting purposes and even accepted and relied upon
by regulatory authorities and in subsequent trades.
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 involved computers and "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 involve computers (specifically, to have some connection to "the
technological arts"), 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]. By "ungrateful", Barton-Davis apparently
meant that Amazon had benefitted enormously from public-domain software
ideas.
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: how
can you get browsers to support this? (This is partially resolved by
browser plug-ins.)
5. "prior art" is very hit-or-miss; sometimes (often!) it was considered
too obvious to document. More specifically, ideas ruled by the PTO to be patentable were often "CS folklore" but too obvious to publish.
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. Software licensing terms tend not
to take into account the fact that projects use many ideas, and a given
patented piece should be only a small part of the total.
8. Open source.
9. Patented standards are a
large social cost.
10. It is not possible to search the patent database before the patent
is granted
11. Tremendous software progress is
often made with negligible investment; we don't need patents to
encourage development.
12. Computing has a high rate of radical, as opposed to incremental,
change.
An issue that Stallman doesn't address directly is that 20 years is a very
long time in the software industry, and that locking an idea up for
that long has the practical effect of stifling growth, not encouraging
it. Software patents have had the effect of postponing adoption
until patent expires (cf James Gosling's first language) (hint: his
second language was Java).
A related issue is that weak patents can have HUGE social costs, by
blocking core technologies that everyone needs.
And basic ideas are still being patented for a new use (eg the Steir hair
patent)
Finally, another issue is the obvious-in-context problem I mentioned
above, that does seem to be a special issue with software:
often an idea is an immediate, trivial corollary of some later
development, or of some more abstract way of looking at the situation.
However, some earlier out-of-context patent may still apply. The XOR-cursor and Eolas patents may be of this type. It's not that
embedded applets is an innovative idea, per se, it just takes a
critical mass of web sites to become relevant.
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.
- Third paragraph (above) on being against software patents meaning
you're against patents generally
- Amazon one-click patent
- Startups
do not in fact get sued. They don't attract any attention
until they're big enough to be acquired or to cross-license.
- Patents
do play a role
with being acquired; the suitor has to feel that it's cheaper to buy you
than to build on their own.
- "So, are you guys hiring?" and the Viaweb project
- patents: for an "armed truce" (cross-licensing) with other big
guys, or as part of being acquired
- patents play a small role
the software business.
- The Reveal startup in 2002. They made
X-ray machines, not
software.
- Design counts for more than invention, because design is what
delivers the product.
- Why
Microsoft won't sue
linux out of business (MS probably won't, but Graham's reasoning here is
perhaps wishful thinking).
Graham has three reasons why patents don't matter:
- Software is complicated; the real issue isn't the software but
developing -- and designing --
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".
- 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.
- 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?
The argument is sometimes made that patents have real value for
startups, so that they can cross-license if accused of violating other
patents. Is this a legitimate argument in favor of patents?
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
- Amazon one-click shopping
- LZW compression and GIFs
- RSA
public-key encryption
- Eolas hypermedia patent
MP3 patents and lawsuits
The MP3 idea was not
obvious, and remains fairly complex. Alcatel-Lucent v Microsoft:
Alcatel-Lucent won $1.5 billion
in an 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:
- Thompson
- Fraunhofer
- Sisvel / Audio MPEG
- Texas MP3 Technologies
- Alcatel-Lucent
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:
- prime factorization for the purpose
of encryption
- xor for the purpose of
redrawing the mouse
- digital scanning for the
purpose of storing bank records (see below)
- RF links for the purpose of
email [?]
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.
Here's an article from FFII.org entitled, "Why are Software Patents so Trivial?", in which they suggest that this is a fundamental problem: http://eupat.ffii.org/analysis/frili.
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?
I4i is not such a company; they did produce an XML-based product.
Patent and open source
The open-source community is a strong
proponent of eliminating
software patents.
Is the open-source community entitled to:
- an applet-aware browser?
- an mp3 player?
- a gif viewer?
- other ideas that are patented?
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 can have 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?
Paul Heckel wrote Debunking the
Software Patent Myths for
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); Bricklin is generally recognized as the
inventor of the spreadsheet. 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.
Heckel's own patent was 4736308.
It wasdescribed as covering the display of two or more strings
toghether on the screen (apparently scrolling with two or more
subwindows). The argument was made that if scroling was prior art, and
subwindows were prior art, how could a trivial combination of them be
patentable? Heckel's claim is that his patent actually covers a
Hypercard-like product (hypertext plus button-activated scripts).