fortboise patent watchPatent Watch


One troll down

Texas jury hammers a stake in the heart of Eolas' claim that it owns the essential technology for the interactive web. Google, YouTube, Yahoo, Amazon, JC Penney, CDW and Staples saved hundreds of $millions, after Apple, Argosy Publishing, Blockbuster, Citigroup, eBay, Frito-Lay, JP Morgan Chase, New Frontier Media, Office Depot, Perot Systems, Playboy Enterprises International, Rent-A-Center, Sun Microsystems, and Texas Instruments had capitulated. Happy day.


Patent system overhaul

The so-called America Invents Act comes with a title that reminds me of Carly Fiorina's initiative at HP, trying to spruce up the corporation by adding "Invent" to its logo, juicing the incentives for applying for patents, and trying to improve on monetizing intellectual property (as they say in corpspeak). As ever, we read that the legislation "has not received universal acclaim," although it did receive broad bipartisan support in the Senate just now, 89-9. (The nays: Cantwell [D-WA], Boxer [D-CA], Lee [R-UT], McCain [R-AZ], Coburn [R-OK], McCaskill [D-MO], Johnson [R-WI], Paul [R-KY], DeMint [R-SC], with John D. Rockfeller IV [D-WV] and Marco Rubio [R-FL] not viting.)

The big change is moving from "first to invent" to "first to file," bringing us in line with the rest of the world in favoring paperwork over invention. Since big corporations know how to handle paperwork (and can afford more lawyers to generate it), they're generally in favor, while the small fry are left out in the cold.

The other, not-so-big change is to see whether throwing money at the USPTO will solve the problem of more applications coming in than they can deal with, the backlog now exceeding half a million patents applied for. Except that the House squelched the cash flow, with an amendment requiring the agency to come back to Congress for permission to use its own reserve fund. (We see how well that sort of arrangement is working for the Postal Service.)

"The bill [set] up a reserve fund for the collection of any fees in excess of the annual appropriation. But the patent office has to return to Congress for specific authority when it wants to tap the reserve.

"That provision was put in place by the House, which feared losing budgetary authority over the patent office. The Senate in March passed a bill that would have given the patent agency direct access to all of the money it raised through fees.

"When the House bill was returned to the Senate, Senator Tom Coburn, an Oklahoma Republican, tried to amend the bill to go back to the Senate financing version, but the amendment was killed Thursday."


GeoTag, you're it!

Florian Mueller has a much more active patent blog than this one, and reports that two giants of the computer industry are standing up to the Texans who currently possess U.S. Patent #5,930,474, after its travels to Liechtenstein, the West Indies, and the British Virgin Islands. The "business model" of suing hundreds of companies for infringement produced a catchy company name out of the supposed invention: GeoTag. Who needs an actual business when you've got that many proceedings to look after?

The legal team has a sizeable challenge ahead of them now however, with a joint complaint from Microsoft and Google asking for the patent to be declared invalid, and that none of Google, Microsoft or their customers are infringing it either.

Let's hear it for the big boys against the pettifoggers!


$80,000 a pop if your site uses h'links?

A patent ambulance chasing firm has acquired the comparatively ancient U.S. Patent #5,251,294 and is looking to turn it into a major cash cow (quick before the limited term runs out... in just 3 more years). Webvention thinks they've got a license for dynamic web menus, rollover images with links, and much more. Word is that Apple, Google, Nokia, Sears, Sony and Orbitz have decided to liquidate the potential trouble for the low, low price of $80,000. Novartis (bless them) says it's willing to challenge the infringement claim.

Claim #1 sure sounds like the description of a "hyperlink" which had been thought of long before 1993, even though we didn't have the context of a ubiquitous World Wide Web to make them as useful as they've become.

If that one's not good enough, there are 77 more to try. Me, I'm going to just lay low and figure that Daniel Abelow's assigns aren't going to get this far down the food chain.

Three colossal multi-touch patents

Patently Apple reports on the three biggest of a set of 18 patents awarded to Apple, Inc. this week.

"The patents cover multi-touch displays that detect the motion of two or more fingers as well as the tracking of multiple fingers and palm contacts using proximity sensors that enable unprecedented integration of typing, resting, pointing, scrolling and 3D manipulation. One of Apple's patents also makes it crystal clear that multi-touch will extend beyond the iPod, iPhone and iPad and eventually advance to devices such as the MacBook and the iMac."


Look who invented the internet now

Interval Licensing LLC has a complaint against AOL, Apple, eBAY, Facebook, Google, Netflix, The Office Depot, OfficeMax, Staples, Yahoo! and YouTube LLC, but not, as Wired points out, Microsoft, for infringing a set of patents.

Apparently Paul Allen has decided that giving his (estimated) $13.5 billion fortune to charity isn't enough? Or maybe the Seattle Seahawks need some higher-priced talent.

The complaint's allegations include the statement that "Interval Research evolved into one of the preeminent technology firms. It employed over 110 of the world’s leading scientists, physicists, and engineers, and was at the forefront in designing next-generation science and technology." They flew under the radar pretty well, until now.

The allege that the defendants infringed U.S. patents 6,263,507 (by "making and using websites, hardware, and software to categorize, compare, and display segments of a body of information"), 6,034,652, 6,788,314 (by "making, using, offering, providing, and encouraging customers to use products that display information in a way that occupies the peripheral attention of the user"), and 6,757,682 (by "making and using websites and associated hardware and software to provide alerts that information is of current interest to a user").

Here's coverage from the NYT, also.


Nice touch

Apple is suing HTC, the largest maker of smartphones running Google's Android operating system, saying that those phones running that O/S violated 20 of its patents, including some of those lovely multiple-finger gestures in the user interface that make the iPhone such a fun toy. From the NYT article:

The lawsuit "is the opening shot in a war," said Kevin Rivette, a patent lawyer and former vice president for intellectual property strategy at I.B.M. "Apple is island-hopping, attacking first the Asian companies. Then it can go after Motorola, gradually whittling away at Google's base. They want to break the Android tsunami."

Next day follow-up story in the NYT forecasts a "pretty minor" short-term impact, but a possible long-term chilling effect on HTC's business. Jeff Pu, handset analyst at Fubon Securities in Taipei:

"[F]rom a long-term perspective, many carriers in the U.S. may take a more conservative stance in adopting HTC's new products because of the lawsuit risk, or ask for price cuts to compensate for the risk."


Suit of the living dead

A 10-year old patent infringement case suddenly gets more interesting: a recently ex-Seagate engineer (who earlier testified for that company in the case) now says there was a deliberate cover-up. Convolve sued Seagate and Compaq (and Dell, and Hitachi and Western Digital) over matters late in the last millennium. Sounds expensive, regardless of how it all turns out.


Unintended consequences

The University Small Business Patent Procedures Act (a.k.a. the Bayh-Dole Act of 1980) probably seemed like a good idea at the time, but the monetary incentive for universities to keep their research secret while they try to commercialize it has the potential to squelch a lot of useful collaboration.


A Way To Banish Trolls

Slashdot: Patent Troll Attacks Cable, Digital TV Standards. In and amongst the inevitable noise in a /. thread are gems of insight and information. First, learn the details of "patent trolling." Then, consider the idea that perhaps property law could provide a solution:

"...In real property someone can aquire possesion of abandoned property by open and continous use. Now you wouldn't want someone becoming the new patent/copyright holder but the negative part "extinguishing the rights of the prior holder" would make perfect sense and help deal with both the problems of patent trolls and abandoned copyrights as well as legalizing abandonware.

"If a reasonable person knows or should have known their patent or copyright was being infringed on and takes no action within say 3 years, their patent or copyright becomes null and void. Also a system could be set up to allow "notices of intended infringement" to be filed with the copyright office, if the copyright or patent holder does not respond within the required time then the copyright or patent would lapse and the work would go into the public domain."

Forbes ran a piece about Patent Pirates last May, including mention of the CEO of Rembrandt IP Management, Paul Schneck, the troll in today's story.



E-Bay can keep its 'But it Now' feature, in spite of MercExchange’s patent for that, per Judge Jerome Friedman. The New York Times reports the judge's ruling noted that MercExchange could keep making money by licensing, and threatening litigation. This after a jury found E-Bay to be infringing, and awarding the plaintiff $35 million (which was reduced to "only" $25 mil).

"MercExchange has utilized its patents as a sword to extract money rather than as a shield to protect its right to exclude or its market share, reputation, good will, or name recognition, as MercExchange appears to possess none of these," the Judge wrote.


Patents Don't Pay (except for the lawyers, of course)

I don't know that I ever heard anyone come right out and say it at the big corporation I used to work for, but it seemed clear enough to me that our patent portfolio was more about defense than offense. The nature of patents is defensive after all: they allow you to keep someone else from using something you invented.

But we wanted to have a lot of quality patents that we could use as an incentive to motivate cross-license agreements ("what's mine is yours and vice versa and we'll stay out of court"), and as a bludgeon should someone try to sue us for infringement, and I imagine we did go after some people who were too blatantly infringing and taking business from us.

But then there were those persistent rumors that IBM made big money from licensing its IP, and we wanted to get a piece of that pie... then Carly came up with the marketing idea to make "invent" part of the HP name, putting it in the logo, and making us all look even smarter than previous.

I have no idea how it's working out for the corporation, but if they're continuing to pay piecework bonuses to employees for invention disclosures and completed applications, I imagine it continues to be a good deal for those on the inside willing and able to work the system.

James Bessen's and Michael Meurer's analysis provides a blunter assessment of the system: "today’s patents fail as property and discourage innovation." As reported by Michael Fitzgerald, the forthcoming book details how litigation costs are rising faster than patent-related profits, the expense possibly more than double the income by now. The article also provides links to even more strident opinions, and some of the ideas for reforming the system.


The chorus for patent reform is building, with USPTO director Jon Dudas doing his best to catch the wave. One of the more interesting ideas is peer review of applications... although with the trial program relying on applicants' permission, don't expect the least deserving applications to be filtered out.


That's Obvious!

Of course, things are always more obvious after they're explained, but what about before? That's why we have courts and lawyers, to wrangle out the woulda coulda shoulda.

The Supremes made a significant statement in favor of progress of useful arts in their decision in KSR Int'l Co. v. Teleflex Inc. (and as reported in the NYT by Linda Greenhouse), by broadening what's considered obvious to someone skilled in the art, as they say. "Skilled in the art" includes the skill to usefully combine existing components to find a variant solution.

But is that "novel," "non-obvious," and so patent-worthy? Hard to say. And harder to successfully argue "yes" after this important ruling. Prediction: there will still be arguing. And probably more of it: "We could see thousands of cases asking the Patent Office to re-examine patents it has already granted," said a biotech industry lawyer, as if that were a bad thing.


If you had $29 cash on hand, and got fined a buck and a half for something, no big deal, right? Microsoft has 29 $billion cash on hand, but the $1.5 billion judgment against them is a Very Big Deal, the largest patent judgement ever. Whether it stands on appeal remains to be seen, but in the meantime, the reward for Alcatel-Lucent's mining of old intellectual property seems astoundingly egregious.

Microsoft thought they'd already licensed what they needed for an MP3 codec, from the Fraunhofer Institute, which worked on the format's development with Bell Labs. $16M flat fee. For patents it claimed were developed before Fraunhofer was involved, the jury awarded a royalty on the full value of computers sold that had the Microsoft software?! I wonder if that element of the NYT story could be correct, given that Microsoft sells software, not computers.


How much of life will we let businesses patent? Today's article by Denise Caruso in The New York Times claims that "more than 20% of human genes have already been patented, and most of those patents are owned by corporations."

Genes are not like mousetraps: there may be one and only one design that "works" for a particular purpose, and "if someone patents a gene, they have a real monopoly," as Human Genome Project researcher Tim Hubbard notes. (For "only" 20 years, but still.) Caruso writes, "this monopoly gives patent holders total control over patented genetic materials for any use whatsoever—whether for basic research, a diagnostic test, as a test for the efficacy of a drug or the production of therapies."


IBM Sues Amazon, in a big way. Not to be confused with its Worldwide Patent Policy to Promote Innovation. "IBM first sought compensation from Amazon for its patented technology in 2002 and made repeated efforts to reach an agreement without success," according to the NYT story. More coverage, from The Seattle Post-Intelligencer.

IBM's press release lists the five patents, four of which issued from 1994–1998, and the 5th this year. In issuance order, the titles are "Ordering Items Using an Electronic Catalogue," "Storing Data in an Interactive Network," "Adjusting Hypertext Links with Weighted User Goals and Activities," "Presenting Applications in an Interactive Service," and the most recent, "Presenting Advertising in an Interactive Service."

They claim willful infringement, dating back more than 4 years, and filed the suits in the plaintiff-friendly District Courts for the Eastern District of Texas.


The classic portrait of the patent examiner determining the merits of an application has yellowed, and its brittle edges are cracking. IBM says it has a better way, posting its patent filings on the web for public review. IBM envisions Building a New IP Marketplace.


Got a patent infringement lawsuit you want to file? Marshall, Texas is the place you ought to go, apparently. Fast trials, and the plaintiffs win almost 4 out of 5.


Who owns a correlation? Can a fact be patented? Can a patent restrict what you think (and say)? Michael Chricton wonders about these things, on the verge of arguments in LabCorp vs. Metabolite before the Supreme Court this week.

"We grant patents at a level of abstraction that is unwise, and it's gotten us into trouble in the past."


USPTO to announce "it will cooperate with open-source software developers on three initiatives that it says will improve the quality of software patents," according to John Markoff's story in the NYT today. The key issue seems to be the Office's inadequate resources, and their inability to identify prior art related to applications. It's not hard to find examples of patents that shouldn't have been granted, at least from a common-sense point of view. (Getting something through the courts is another story, of course.) Greg Aharonian, doesn't see the point of the new initiative: "If the patent office can't figure out how to use the resources they already have, what is the point?"

There's only two options: work harder, or smarter. If this can help them work smarter, it's worth a try, isn't it?


MIT researchers Kyle Jensen and Fiona Murray have found that "20% of human gene DNA sequences are patented and that some genes are patented as many as 20 times." Will you have to pay license fees to the genetic engineering companies to use them?!

Wired reported the story recently, The Guardian had the story back in October when it came out in Science magazine.


Ok, this is funny: US Patent #6,213,778 protects printing with a baby's butt. I am not making this up.

"I claim:
1. A method of painting using the posterior of an infant, said method comprising the acts of:
providing a background media;
providing a paint supply;
dipping the posterior of the infant in said paint supply; and
stamping the posterior on said background media to create stamping prints."


The Ninth Circuit Court of Appeals reinforced the power of "box-top" licensing, affirming a lower court opinion in Lexmark's favor against a trade group of laser printer cartridge remanufacturers. Businesses can legally limit what customers can do with a patented product after they buy it.

Fred von Lohmann of the Electronic Frontier Foundation imagines what the future could bring: perhaps "automobile manufacturers who might put a label on a new car stating that by opening the door for the first time, the new owner agreed to use only the manufacturer's replacement parts and to avoid modifying the car."

A lawyer from the winning side tells us that "we" won: "This is about customer choice," said Mr. Fitzpatrick of Lexmark. "The court has ruled in favor of customer choice." You betcha. More positively, J.D. Biersdorfer reports that "a footnote in the court's written opinion stated that the decision would not preclude a consumer from raising challenges to the box-top contract." Perhaps a sufficiently motivated customer will tell Lexmark about his or her choice in the matter.


"(P)atent protection for software? No. Not for Microsoft, nor for anyone else." Randall Stross rants about the genre.

"The legal environment changed not because of new legislation, but by accident. One important ruling here and another there, and without anyone fully realizing it, a new intellectual-property reality had evolved by the end of the 1980's. Now software could enjoy the extraordinary protection of a patent, protection so powerful that Thomas Jefferson believed that it should be granted in only a few select cases."


How exactly does patenting automated ad-delivery in RSS feeds mesh with the "don't be evil" principle? I'd like to think Google was going to enjoin everyone from doing it if they got the patent, and thereby reduce the flow of advertising, but get serious, eh?


After 4 years of debate on expanding patent coverage for computer-related inventions, the European Parliament is ready to give up. One of the sticking points is how many languages the patents would have to be translated into!


Microsoft to Pay IBM $775 Million in Settlement, and I like this, "IBM will also receive a $75 million credit toward the use of Microsoft software." Turns out that Justice Department lawsuit wasn't dead yet.

Judge Thomas Penfield Jackson had ruled that "from 1994 to 1997 Microsoft consistently pressured IBM to reduce its support for software products that competed with Microsoft's offerings, and it used its monopoly power in the market for Intel-compatible PC operating systems to punish IBM for its refusal to cooperate." Long after everyone else had gone home (and the judge's order that Microsoft be broken in two was ignored by the Bush administration), IBM gets to collect most of a cool $bil.


Mr. Stout says the settlement was a vindication of individuals over large corporations, but it seems to me that the average reader will infer that it pays to be a troll. Ian Austen and Lisa Guernsey in The NY Times on the $450M settlement between NTP and Research In Motion.


Major payday for inventor Dr. Gary K. Michelson, and his company, Karlin Technology: Medtronic will them pay a cool $1.35 billion for spinal surgery related patents and an end to litigation. Medtronic gets all the doctor's brainchildren for the next 15 years, too. The jury award that precipitated the deal ($559M) was "excessive and unjustified," but the settlement was "strategic" and the portfolio will "enhance our leadership position." That's in the "spinal business" that brings in $1.8 billion every year.

Once again, necessity was the mother of invention: Michelson has big hands, too big for the tight spots in spinal surgery.


Excerpted NYT graphic showing increasing patent application backlog If we're playing follow the leader, the leader just took a ("carefully calibrated") sharp turn: "Diverging from conventional wisdom, (IBM) has calculated that sharing technology can sometimes be more profitable than jealously guarding its property rights on patents, copyrights and trade secrets." Steve Lohr, in The New York Times. The piece includes an audio slide show if you get there quick enough.

"This month, the company said that all of its future patent contributions to the largest standards group for electronic commerce on the Web, the Organization for the Advancement of Structured Information Standards, would be free."

The piece had a link to a sidebar graphic titled "Brain Freeze," "The explosive growth in patent applications, particularly in biotechnoloy and software, has left the patent office struggling to keep up."


A Japanese company suing a Chinese company in Northern California: "In one sector after another, companies warn that China's swift industrial rise is being greased by brazen and increasingly sophisticated theft of intellectual property."

It's a Communist thing, I guess: "Until recently, when China began putting intellectual property laws in place, for the past 40 years, all patents were owned by the government, and could be shared by any company that was willing to use them," said Paul Gao, a Shanghai-based expert on consumer electronics and automotives at McKinsey & Company. "The Chinese government actually encouraged this, and that has left a deep impression on companies that intellectual property is there for anyone to use it."

The defensive strength of a good offense is not lost on them, either: "Many Chinese patents, for example, are granted without any examination of their originality, making it easy for local companies to claim others' innovations as their own" (hmm, that sounds familiar), and counter-sue instead of running away.


This seems comparatively huge: "IBM plans to announce today that it is making 500 of its software patents freely available to anyone working on open-source projects, like the popular Linux operating system, on which programmers collaborate and share code."

"Today's move by IBM is not aimed at a specific project, but opens access to 14 categories of technology, including those that manage electronic commerce, storage, image processing, data handling and Internet communications."


The patent lawyers are coming to feed at the business methods trough, working for "inventors" such as Claudio Ballard and his DataTreasury Corporation, with two works of patent art ( US Patent #6,032,137 and 5,910,988) that claim the world of electronic processing of check images.

"The number of patent lawsuits related to payment processing is expected to grow rather than shrink, and industry executives say there will be a collective toll. As more patent holders step forward to exact fees, 'it's like a death by a thousand cuts,' said Octavio Marenzi, who leads a technology consulting firm that caters to banks. 'Financial institutions are just going to get sued more and more.'" (From the NYT story.)


When the litigation was first announced, Microsoft responded with the usual "all your base are belong to us" denials of merit, but just before Alacritech was going to talk to Forbes, things went quiet as the parties reportedly want to play Let's Make A Deal.

Maybe something to those claims, after all? Alacritech has two patents for "'offload architecture' technology, which helps systems run faster by diverting work from a computer's central processor to a chip located on a network interface card, which serves as an 'offload engine'" that they said Microsoft was violating in Longhorn.


Marketing FUD: you'd better watch out if you run Open Source, because of all those patent infringements (you might or might not be making). But hey, if you stick with Microsoft, everything's going to be all right.

"As Poland demonstrated yesterday, the rest of the world is not nearly as keen on software patents as the United States. Many countries see US lobbying not as a fair reward for intellectual property but as an commercial weapon to be wielded to maintain American dominance in software."


"In one telling vignette, Jaffe and Lerner cite a patent litigation campaign brought by a a semi-conductor chip designer that claims control of an entire category of computer memory chips. The firm's claims are based on a modest 15-year old invention, whose scope and influenced were broadened by secretly manipulating an industry-wide cooperative standard-setting body."

Coming soon, their book, Innovation and Its Discontents : How Our Broken Patent System is Endangering Innovation and Progress, and What to Do About It (and already discounted more than 30% by Amazon?!). After the entertaining description about how bad things are, the authors suggest how the system can be fixed: "create incentives to motivate parties who have information about the novelty of a patent; provide multiple levels of patent review; and replace juries with judges and special masters to preside over certain aspects of infringement cases."


The Electronic Frontier Foundation is maintaining a Most Wanted list of bogus patents: crimes against the public domain; willful ignorance of prior art; egregious display of obviousness. "The fact that their owners are threatening and filing suits against small businesses, individuals and nonprofits, not to mention the threats to free expression and innovation that each of them pose" makes them the "worst of the bunch."


The classic parental injunction against pop music of the day -- "turn that garbage down!" -- takes on new meaning as companies such as Overpeer and MediaDefender flood peer-to-peer networks with noise, designed to frustrate those seeking to pirate music. As one of the "older set," the obvious question that comes to mind is "how can you tell the file is bad?"

"A computer science professor and graduate student have been awarded a patent for a method of thwarting illegal file sharing on peer-to-peer networks by flooding the network with bogus files that look like pirated music." ( Wired)


The patent lawyers are over the moon on the Canadian Supreme Court decision in favor of Monsanto: the ruling is "a fantastic decision in terms of biotechnology and patents. We have a strong signal that cells and genes are patentable," says Eileen McMahon, a partner at the Toronto law firm Torys.

Monsanto gets a lot of (bad) publicity, but no help paying their lawyer bills. The judge found that the Roundup Ready canola plants that came into farmer Schmeiser's possession by accident, and their issue did not produce an economic benefit. From the NY Times report: "Nevertheless, the court set aside the lower courts' decision that Mr. Schmeiser owed Monsanto 19,800 Canadian dollars in profits. The Supreme Court ruled that Mr. Schmeiser had earned the same profit from the Monsanto product as he would have from ordinary canola. It also overruled the lower courts' decision that Mr. Schmeiser was responsible for Monsanto's legal costs."

They'll have to make it up with their "you must buy seeds from us, every year" marketing strategy.


The Unisys patent flap over the GIF format quietly went away last year when the LZW compression algorithm patent expired, but the problem of proprietary ownership of basic image formats is not yet resolved. I always thought JPEG was far beyond dispute, but here comes Forgent Networks suing everybody and their brother with a 17-year-old patent they found in their purchase of Compression Labs. Apparently I missed this when it came up two years ago. Forgent has until October 2006 when the patent expires to put the squeeze on users, which includes pretty much everybody using computers and digital cameras. Actually, the story won't end there: "Remember, even if the patent expires, once we notify companies that they are infringing on patent, we can seek damages all the way back to the date when it was issued," spokesman Michael Noonan said.


Microsoft seems interested in buying its way out of patent disputes, or perhaps into an even stronger position of its own. A couple billion to Sun Microsystems last week, now $440 million to Intertrust.


It used to be that staying out of court was the goal of big companies with big patent portfolios: you don't sue us, and we won't sue you. IBM has shown the way toward mining value from a portfolio, however, and now the game is to find out "how do we make money from these patents?" HP and Gateway had a licensing deal for some PC technology last decade, but now they have Business section headlines over "six technology patents relating to desktop, notebook and server computer systems."


Add Kodak to the list of companies seeking to mine their patent portfolio now that manufacturing seems to be passé. They break on to the public scene by filing suit against Sony for infringement of their supposedly substantial patents for the basics of digital imaging. It's a little surprising to me that Logitech made the list of companies with biggest market share (at 5th), with no mention of HP. I thought they were up and coming. Sony, Canon and Kodak are #1, 2, 3, splitting not-quite-half the market, according to the "NPD Group" numbers quoted by Forbes.


A classic battle of patent minutiae: three blades or four? Gillette comes up with blade geometry for a progressive shave, and Schick copies it with one more blade. The judge thinks there's "no reasonable likelihood of success" on its infringement claim. Anybody for 5? Schick's advertising for "Quattro" assures us that 4's the limit...

I bought some deeply discounted Gillettes and liked them well enough, but I thought the meaningful innovation was the inter-blade cleaning mechanism: I'd disliked multi-bladed razors for their tendency to clog up from way back. As for fueling razor profits... I buy the cheapest thing I can when I need to, which is once every couple of years at most. It helps to give up shaving half the year.


Just in case you thought Microsoft was collecting all those patents for a defensive position, consider $.25 for every flash memory card or device that uses memory cards flowing to Redmond.

Opinions of the defensibility differ. This one surmises this might be a stealth volley at free operating systems.


The W3C calls bullshit on Eolas' US Patent #5,838,906: "W3C urges the USPTO to initiate a reexamination of the '906 patent in order to prevent substantial economic and technical damage to the operation of World Wide Web," stated Berners-Lee.


The NY Times story on Petra Moser's research into the effects of patent laws on innovation describes why countries lower in the pecking order might not want to accept the goodness of a strong patent system. I looked for a more durable link, and found that the story was featured on the MIT Sloan Schoole of Management home page, but that will disappear at some point, too.

At any rate, her innovation was to examine another important record of innovation, technology shown at the big exhibitions of the 19th century. She found plenty of contributions from inventors in small countries that didn't have patent protection, but succeeded through trade secrets, for example. Her doctoral dissertation is hailed as an innovation in its own right.

4.June 2003

Has Microsoft "locked up rights to any system which offers up time-shifted movies or television programs over cable, broadband, or satellite systems"?! Alexander Wolfe, on

2.June 2003

David Boies has a nose for big cases. The Microsoft anti-trust case, the Gore vs. Bush election, and now SCO vs. IBM on the intellectual property in Linux. Novell complicated things by asserting its own claims to IP in Unix.

31.May 2003

Little guy makes good, in a patent suit against eBay, good for $35M (and possibly three times that) according to the jury. EBay's planning to fight the result, says they didn't infringe, and that the patents aren't valid anyway. "A U.S. magistrate overseeing an earlier hearing said he would have preferred a root canal than deal with the feuding parties."

Paul Kedrosky considers questions such as whether software patents are "the beginning of the end for the patent system?" He sees a "faster and smarter" patent office with examiners who are "the most technically sophisticated in history."

17.May 2003

The Boston College Law School has an Intellectual Property and Technology Forum website that looks interesting. The top headline when I looked just now concerned Unocal's purported manipulation of regulatory proceedings before the California Air Resources Board and the FTC response to that. The claim is that Unocal managed to patent what is now required by gasoline suppliers in California, and looks to collect 5.75 cents a gallon which I'd guess works out to be a lot of money.


Way down near the bottom of this story about the patent battle between Blackberry and NTP is the little zinger that one of the patents involved, from Thomas J. Campana, Jr., has more than 650 claims. It gives me a headache just thinking about it. What makes the dispute interesting to watch is that Congress has got hooked on Blackberries since 9/11. Oh yeah, and the part about it being payback time for Blackberry's parent, Research in Motion, who have won a few patent lawsuits of their own.


".Net patent could stifle standards effort": "Microsoft is in the process of applying for a wide-ranging patent that covers a variety of functions related to its .Net initiative. If approved as is, the patent would cover application programming interfaces (APIs) that allow actions related to accessing the network, handling Extensible Markup Language (XML), and managing data from multiple sources."

Somehow I doubt it's going to be approved as-is, but it will be interesting to see what, if anything, ultimately does get allowed. Given 43 claims in this one, and another 6 patent applications on the same topic, they may well get a bundle of something protected.

Adam Smith and his 75 co-inventors claim, first of all,

A software architecture for a distributed computing system comprising: an application configured to handle requests submitted by remote devices over a network; and an application program interface to present functions used by the application to access network and computing resources of the distributed computing system.

In other words, "we claim we invented client-server computing." The patent lawyer was thinking hey, it's worth a try! A few claims beyond the laughably broad, it gets more interesting:

5. An application program interface embodied on one or more computer readable media, comprising: a first group of services related to creating Web applications; a second group of services related to constructing client applications; a third group of services related to data and handling XML documents; and a fourth group of services related to base class libraries.

and so on.


Like so many inventions, this one sounds (!) obvious when you hear about it, but it strikes me as clever, and wonderful, and why didn't I think of that? The New York Times reports that David Millrod invented a telephone that responds to the distinctive cadence of a simple command: Answer phone! The caller gets a short recording, "give me a minute to get to the phone." US patent #6,483,897, 19 claims.


Corporations donating patents: tax scam or legitimate philanthropy? Well, maybe it's tax-advantaged philanthropy.


Canesta, Inc. says they have technology and a patent portfolio to enable 3-D machine vision faster, better and cheaper. USP 6,323,942 describes "a system that can produce direct three-dimensional imaging... implementable on a single (CMOS) IC that includes both detectors and circuitry to process detection signals, (requiring) few discrete components and no moving components." The idea is like radar, except using light instead of radio waves for a shorter-range, more detailed result.


BT's hyperlink patent gets the boot. The judge found "that, as a matter of law, no jury could find that Prodigy infringes the Sargent patent."

29.July 2002

First it was GIF, now we find out that JPEG may have a patent encumbrance, estimated to be worth $100 million to $300 million. Sony Corp. has rolled over to Austin, Texas based Forgent Networks. Their new chief exec was schooled in HP's inkjet business, and got the team to rummage through a Forgent's portfolio of 40 patents. Philips and Lucent may have something cooking for JPEG, too.

US Patent #4,698,672, titled "Coding system for reducing redundancy." Forgent acquired the 1986 patent along with Compression Labs, Inc.


"IBM, Microsoft plot Net takeover," leveraging patents for web services into a standard, overriding the "gentlemen's agreement" of the W3C to have standards based on royalty-free licensing. Part of a ZDNet special report, "A plot to take over the Net?"


Did the USPTO just award a patent for a perpetual motion machine? US Patent 6,362,718 certainly looks like one. And the claims of the inventors, on pages such as MEG - "Motionless Electromagnetic Generator" reinforce the feeling. 500% efficiency, "energy-replenishing from the Active Vacuum" and so on. The Scientific American's article Exploiting Zero-Point Energy drily says "we don't think so."

It's interesting to see sonoluminescence show up in that article, too. Here it's about zero-point energy, but there's been talk for some years about it being the ticket to desktop fusion, including a recent paper that Science Magazine accepted for publication.

The forwarded email I saw about MEG included this breathless prose: "The first MEG units to be produced for sale will output 2.5 kilowatts of free electricity. Forever. They should be in production about a year from now. Facilities for manufacturing the device are being set up in an unnamed 'friendly nation.' This free electricity will flow indefinitely, without much, or any maintenance...."


The BT claim to have patented hyperlinks is dealt a blow by a U.S. District Court judge. Even more interesting than that was the mention of the "Markman ruling," "the phase of the trial that is concerned primarily with putting the words of the patent claim into plain English." I still remember the feeling of having a plain English description of an invention of mine turned into patent verbiage, and wondering why it had to be that way. Now to hear that there's an explicit decoding phase when things go to trial...

Well, it may not be that simple. This description of the Markman ruling is more toward the judge "construing the patent claims as a matter of law." That doesn't sound quite the same as putting it into plain English.

In the matter at hand, it remains to be seen whether the 1968 demonstration of prior art will invalidate the patent applied for in 1976 and granted after more than a decade of wheedling.


Plantronics has 63 patents, pending applications for 75 more, and has published one idea defensively. The story is about this "trend."

Salon reports on a more aggressive approach: hunting. BountyQuest offers "rewards for knowledge" to help invalidate patents. The market is lukewarm to the idea so far. Meanwhile, the patent office seems to be ever further behind the power curve. "On average, issued software patents are missing three or four prior art examples that should have been cited," according to Greg Aharonian, publisher of Internet Patent News. (The PTO insists he doesn't know what he's talking about.)

There is something to be said for improving the art of learning prior art. That's what the patent system was supposed to be for, after all: disseminating useful knowledge. The FTC is listening to arguments.


Is the hyperlink legally patented and open for collection of licensing fees to BT Group Plc? A US District court is going to take a stab at answering the question. (Note the previous link on the subject, just under a year down the page.) Perhaps this will be a landmark case in the use of digital archives to establish prior art.


IBM sets a new record for patents awarded in one year: 3,411. Those guys really know how to turn the crank.


You can't fool all of the people all of the time, but you might be able to fool a patent examiner and make him (or her) believe you invented something that's already out there. (On multi-threading a nameserver.)

Tumbleweed's "portfolio" includes 6 patents, and 19 applications. One of them hit the big time, licensed by Hallmark Cards, Incorporated.


The web's a juicy target: a claim on fundamental technology could reap huge benefits. Now comes UFIL United Data Technologies, claiming they have a proprietary interest in RDF and RSS. Not quite fundamental, but certainly very valuable.


I'd bookmarked this article that was published almost a year ago, but didn't get around to reading it until today: The Expansion of the Patent System: Politics and Political Economy, by Brian Kahin. "Over the past twenty years, the jurisdiction of the patent system has expanded to cover software and business practices. This expansion continues to elicit concerns about quality, but the quality problem is symptomatic of institutional problems. Captured by the patent community, the U.S. Patent and Trademark Office has adopted an expansionist philosophy and devalued the examination process. This philosophy, along with the expansionist decisions of the specialized Court of the Appeals for the Federal Circuit [particularly the allowance of "business methods" patents in 1998], is dramatically at odds with the principles of the Clinton Administration's initiative on global electronic commerce."


The rate of issuing of the last 2.3 million US Patents

Newbytes reports that the FTC and DOJ will hold hearings to consider whether the proliferation of patents is out of hand. It's framed in antitrust terms, the counterveiling body of law that prevents the monopoly afforded by a patent from being abused. Of course, the results in the anti-trust case against Microsoft shows what a sorry state that is in.

Reading the article motivated me to update my little graph of US patents vs. time on my patentmania page. It's been almost 2 years since we crossed the 6 million mark. The upward bend in the curve is becoming more apparent.


Dave Winer points to a patent awarded this week and assigned to IBM, for "System and method for building a web site using specific interface". Sounds like exactly what he and others have been building for some years, including the 3 since the patent application was filed. What has IBM done for the state of the art? Nothing that's shown up on my radar. Lotus Notes? Puhlease.


1000+ messages about the W3C's patent policy proposal in less than the first week of October.


The Register reports that it was IBM that demanded the "reasonable and non-discriminatory" (RAND) licensing of patents in the W3C standards. Not terribly surprising for a company that reportedly earns a billion dollars in revenue from patent royalties every year.

I'm glad to see that HP has stated their opposition after they were initially listed in news reports as one of the Big Corps supporting the proposal. "Hewlett-Packard's position is that the fundamental standards for the Web should be royalty free." Amen.


Web standards as bait for royalty obligations? That could be the result of the W3C patent plan. ZDNet reports on the firestorm following the proposal getting slashdotted close to the end of its 6 week comment period.


Will Microsoft undertake a patent war against the Open Source movement? Or is an Open Source .NET actually working to their benefit? ZDNet looks in its crystal ball after an interview with HP's Bruce Perens.


Oracle collects "a seminal patent in the area of interactive, online marketplaces" (their description) by buying the company that it was assigned to. Funny thing is, it was granted in 1986, which means it runs out in 2003.

The claim to it being original is good with that date, but it's hard to imagine them being able to do much with it before it becomes moot.

7.Aug.2001 is awarded a patent for delivering software over the 'net. Like so many software patents, its claims strike me as amazingly broad, and absolutely not novel at the time they applied for it.

The first claim protects a method to perform a remote maintenance task on a computer via a browser, by delivery of software encapsulated in a markup language. It's interesting to consider that internet worms did exactly this some time ago, although in a rather perverted sense of "maintenance." And alright, maybe not with a browser. But still.

(14.Aug.2001) Phil Wainewright's commentary, "No Justice in McAfee Patent."

2.July 2001

Gee, I thought the wheel was already taken! A Melbourne man decided to illustrate the foolishness of the new "innovation" patent system down under.

6.June 2001

Pitney Bowes stuck it to HP this week, with the latter coming up with a settlement of $400 million in cash (but "no admission of infringement") just before the case was scheduled to go to court. Who needs an admission when you have that much cash?

That's about a third more than HP's profit for its 2nd quarter. Just how would a big corporation opt out of the patent rat race, exactly?

13.May 2001

Jerome Lemelson will likely pass Thomas Edison in the number of patents to his name, albeit posthumously. In the meantime, his lawyer continuous to milk Lemelson's extraordinary talent for working the U.S. patent system to extort payoffs from corporations around the world. Legally, of course.

Reading Fortune's fascinating article, The Patent King, I was left wondering to what extent Lemelson's "proactive" claims on developing technology, and his successful attack on Japanese companies account for those companies' habits of surrounding and preempting the work of other inventors.


It's not about patents, but a related issue of intellectual property: the term of copyrights. Dan Gillmor's column gives a good background of how things used to be, and how they are now (and of course, what he thinks about it).

We also have the Digital Millennium Copyright Act being used to stifle academic research. The plot thickens.


The New York Times Magazine's feature piece this week is about something for nothing: a very modestly effective drug called Claritin. It costs 5 or 10 times much in this country as in "dozens of others," and it helps somewhere between 1/3 and 1/2 of the people for whom it's prescribed here. A suitably dressed placebo can help about 1/3 of those taking it. Schering-Plough sells $2 billion worth of the stuff in a year. The cost-benefit arithmetic is left to the reader.

It's arithmetic that can support a lot of advertising... and $millions in litigation for patent extension, and development of "layered" patents to cover manufacturing, precursors and metabolites. Coming soon, if Schering-Plough gets its way: a patented new substitute that's every bit as (in)effective and expensive as what they have now.


Shades of ambulance chasing - 35 to 40% of $350 million in contingency fees for litigating to get patent license fees. Techsearch LLC's business is extortion, but all very legal, thank you. The president says "critics are simply envious of his firm’s success." The story ends with an angle from the small inventor who can't make money from a legitimate invention without the help of a firm like Techsearch.


Injunction against Barnes & Noble for supposed infringement on Amazon's "one click" patent overturned! Bully for them.


Rob Pegoraro at the Washington Post joins the chorus against ridiculous patents, focusing on British Telecom's claim to own the hyperlink.

Patent mania meets Privacy invasion at Dan Gilmor's pressing the question of whether their new Honor System is patent-applied-for. And then there's the question of whether they can be trusted to spy on us.

Bounty Quest offers rewards for providing prior art to invalidate a patent.


From Internet World's interview with CMGI chairman and CEO David Wetherell:

Wetherell: Even though AltaVista’s doing well in the advertising space [that's why the recent layoffs?! -TvA], we just think that in order to really ensure strong growth they ought to leverage their position in search licensing to a greater extent. And we saw the opportunity to do that because we think it’s a big market. They happen to own 38 patents, many of which we think are fundamental in the search area. They were the first to spider and index the Web. And Digital did a good job of recognizing the potential value of that intellectual property. And they were very thorough in filing broad and deep and narrow patents. And we have another 30 patents that are in application. So we believe that virtually everyone out there who indexes the Web is in violation of at least several of those key patents.

IW: Does that mean you’ll pursue that?

Wetherell: Yes, we will. Coming up in the first quarter of 2001.

IW: So we may see some lawsuits ...

Wetherell: If necessary, we will defend it, to the letter of the law.

IW: Are there any specific examples of the types of patents?

Wetherell: If you index a distributed set of databases - what the Internet is - and even within intranets, corporations, that’s one of the patents. We did a press release on this with a list of six or ten of the key areas that the patents cover....

If Altavista is so steeped in technology, why is the search function not at all interesting to me, returning too much garbage? How much does Google rely on things AV has patented, I wonder, and how much of what Google has (or stands to) patent does AV not have? (Or infringe on?! I smell cross-licensing deals, perhaps the best we can hope for?)

Older works on the web

James Gleick's Patently Absurd, which ran in the New York Times Magazine on 12.Mar.2000.

A Patently Absurd collection.