Computer Ethics, Summer 2012

Corboy Law 602; Tuesdays & Thursdays, 6:00-9:00
Week 5, Class 10


Readings

Read Baase Chapter 5 on crime
 


Google can be used to search for patents at http://google.com/patents.


Some specific patents and cases:

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. The implementation might take some effort, but the conceptual idea does not require any research or trial and error. Embedding an application window in a browser window might not have been obvious 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 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. This is because the assumption is (required to be) made that the PTO got the patent right in the first place; thus, the appeal is not neutral.

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!


And finally, Eolas seems to have been derailed. In February 2012, Eolas lost a major jury trial against Google, Yahoo, Amazon, JC Penney, CDW, Staples,  and maybe one or two others. The jury held that all of Eolas' claims were invalid. Tim Berners-Lee testified, as did Pei-Yuan Wei (developer of Viola) and Dave Raggett (inventor of the <embed> tag). The defense took pains to argue that Doyle's idea was (a) obvious even in 1993 and (b) was not new; a 1991 Berners-Lee email (two years before the Eolas patent) was presented, in which he wrote "One thing I’d like to do soon, if I have time, is to teach the parser about Viola object descriptions and basically embed Viola objects into HTML files".

More at http://www.wired.com/threatlevel/2012/02/interactive-web-patent.

Those who previously entered into agreements with Eolas to pay royalties must still do so.

While not all of Eolas' options are exhausted, the future looks (deservedly) bleak.

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.

For many decades, patents for business methods were generally denied (to be more precise, this "business-methods exception" to patentability was an oft-stated maxim, but the courts had never ruled directly on it). Even after the 1981 Diehrcase allowing some software patents, a claimed software invention that also involved a business method might be refused a patent. By a decade after Diehr, however, the USPTO had begun granting a fair variety of software-related inventions of new business methods or business processes; it was too hard to make a distinction between software patents and business-method patents. State Street Bank had been granted one such patent, and the case came as SSB sued another bank which then tried to use the business-methods exception as a defense. In its ruling, the Federal Circuit established that there was no "business-methods exemption" as such, and that the USPTO had been within its rights to grant such patents.

The State Street Bank case introduced the rule that a business method could be patented if "it produces a useful, concrete, and tangible result". This "useful, concrete and tangible result" test was at the heart of the Bilski case, below, in 2009.

For a while, business-method patents were only granted for software-related processes; that is, business methods that involved the "technological arts". However, in 2005 the USPTO overturned this,  as there was no "technological arts" requirement written into law. The "useful, concrete and tangible result" rule was the only one that applied (note that this rule does pretty much forbid patenting a business idea). There remains a great deal of overlap between business-method patents and software patents.

Somewhere during this time 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). Whether this was related to the rise of business-method patents is unclear.

This case opened the door to a huge influx of business-method patents, including Amazon's "one-click" method (below).

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.

One-click shopping is obvious from a software-development perspective. It is not nearly so obvious from the perspective of online shopping, however.

Overall, there are many other more-mundane patents on online shopping carts. IBM[?] supposedly has a patent on suggesting new purchases based on past ones.

See the Bilski case (later) for more updates.


Patent ruling in Apple "Cover Flow" feature.
album cover-flow image

Graph of phone-patent lawsuits

Apple seems intent on suing Google for Android, apparently believing Android to be a knockoff of the iPhone. However, history makes this much less clear. Smartphones were introduced in 2001 and 2002 by Palm, Microsoft and Blackberry. The iPhone did not appear until 2007. The iPhone did introduce the multi-touch interface. Android was introduced in 2008.

Similar lawsuits have been filed by Apple against makers of products competing with the iPad; the Samsung Galaxy tablet has been banned in Australia. But most of what Apple has are design patents, not software patents. Ironically, Apple already licenses several Samsung patents for phones generally. And many observers have commented that HTC seems to be introducing innovative features faster than Apple right now.

Apple based the Macintosh interface on work at Xerox PARC, and then failed to protect it from Microsoft (actually, the judge ruled that Apple had licensed the technology to MS). At least some of what Apple wants to protect in their iPhone cases is the design, though much of the design basics came from the work of Dieter Rams.

More on Apple patents


Here's patent 6122520 / RE 42927: System and method for obtaining and using location specific information
http://www.cbsnews.com/8301-505124_162-57325995/apple-gets-killer-location-services-patent/

RE42927


http://www.theverge.com/2011/10/31/2522418/apple-brings-proven-defense-strategy-to-its-u-s-case-against-samsung

http://www.pcmag.com/article2/0,2817,2387401,00.asp

Here's an amazing graph by Florian Mueller on Apple patent litigation relating to the iPhone:
http://www.scribd.com/doc/44759893/Apple-vs-Android-10-12-02

Here are some of the patents mentioned:

Apple v HTC before the International Trade Commission (ITC), filed March 2, 2010


5481721    Method for providing automatic and dynamic translation of object oriented programming language-based message passing into operation system message passing using proxy objects


5566337    Method and apparatus for distributing events in an operating system

5946647    System and method for performing an action on a structure in computer-generated data

5969705    Message protocol for controlling a user interface from an inactive application program

6275983    Object-oriented operating system

6343263    Real-time signal processing system for serially transmitted data

The ITC issued a partial ruling against HTC on December 19, 2011: HTC's phones could not use the "data-tapping" mechanism, in which phone numbers embedded in text (eg in email) are identified and the user can tap them to dial. This is described in the 5946647 patent, claims 1 and 8. Identifying embedded URLs by browsers and email clients has been around for a long time, although the mouse was needed to "tap" them.

While removing the data-tapping functionality might be a problem for HTC, Google may be able to develop a workaround.

The ITC ruling here suggests that, in the long run, Apple will prevail against HTC only on narrow claims, and the Android market is not in any real danger.

In April 2012 Apple actually lost an important patent case in Germany, against Motorola, and so for the time being it's harder to buy an iPhone there, or use the iCloud service. But my understanding is that Apple is well-positioned to prevail in the long run.


Apple v HTC, US District Court, Delaware


5455599    Object-oriented graphic system

5848105    GMSK signal processors for improved communications capacity and quality

5920726    System and method for managing power conditions within a digital camera device

6424354    Object-oriented event notification system with listener registration of both interests and methods

7362331    Time-based, non-constant translation of user interface objects between states

7479949    Touch screen device, method, and graphical user interface for determining commands by applying heuristics

7633076    Automated response to and sensing of user activity in portable devices


HTC counterclaims


5377354    Method and system for sorting and prioritizing electronic mail messages

6188578    Integrated circuit package with multiple heat dissipation paths

7278032    Circuit and operating method for integrated interface of PDA and wireless communication system

Apple has developed many very clever ideas for the iPhone. Many of these patents seem rather broad, however, especially the location patent.

Note that the strategy of Samsung/HTC appears to be to file infringement counterclaims. This is why it's much harder for a legitimate developer to sue for infringement than a troll. However, the Samsung and HTC patents appear mostly to be general patents on wireless technology that they had previously agreed to license on Fair, Reasonable And Non-Discriminatory (FRAND) terms.




Google and Microsoft sue GeoTag
GeoTag appears to be a classic troll. But the article mentions Skyhook, and suggests that is not a troll. Does this matter? What about i4i?

Here's the GeoTag patent: 5,930,474

How this compares with RE42927 I have no idea.

This patent is definitely an example of an idea, the implementation of which is obvious, given the availability of GPS. Should such things be patentable?

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).

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?

A related issue is that weak patents can have significant social costs, by blocking core technologies that everyone needs. Examples are not always easy to identify.
It is more likely for workarounds to be found, or for a feature to be licensed and added to non-open-source software.

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 -- 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".
  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?

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?