DevTopics » Patents

Apple Sues the World for Patent Infringement

timm — Thu, 04 Mar 2010 16:56:05 +0000

Apple Inc. has filed a federal lawsuit against “the world” for violating its U.S. Patent 3,141,5926 “Removing a Booger by Performing Gestures with a Finger.” Apple is demanding licensing royalties from all world citizens who pick their nose, and a cease & desist order against Kleenex tissues for providing citizens with an alternate method to jailbreak boogers and avoid Apple’s patent.

This new legal action follows a similar lawsuit that Apple filed against rival phone maker HTC for allegedly violating 20 of Apple’s mobile phone patents. The Apple patents include “novel” inventions such as U.S. Patent 7,657,849 for unlocking a phone with a finger swipe.

It’s no surprise that our overwhelmed U.S. Patent Office granted Apple a patent for simply combining two unpatentable features: swiping a finger and unlocking a phone. So naturally on the heels of this legal coup, Apple has also patented using your finger to open a document, close an app, make a phone call, and pick your nose.

Apple’s litigious reaction to its competition is understandable. Apple’s iPhone has jumped to an early lead in the smartphone market, but tech analysts predict the Google Android open mobile platform will permanently overtake the iPhone in market share by 2012. This prediction makes sense given that Apple is following the same tightly-controlled, closed-platform approach with mobile phones that it took in the personal computer market, which ultimately resulted in Apple’s niche 10% market share, while an inferior Windows on an open-hardware platform grabbed the market monopoly.

Steve Jobs is quoted in a press release as saying, “We can sit by and watch competitors steal our patented inventions, or we can do something about it. We’ve decided to do something about it.” The irony is not lost considering Apple owes its existence to technology invented by someone else: the graphical user interface from Xerox Labs.

In spite of all the legal ruckus, there are some benefits to this new Apple lawsuit. For example, parents whose children embarrass the family with incessant nose-picking now have another tool in the shed. The next time little Johnny goes fishing for a booger, his mother can threaten to dock his allowance to pay the Apple licensing fees.

P.S. – In case it wasn’t obvious, this article is a parody joke. I’m actually an iPhone fan, just not a fan of the current U.S. software patent system. Apple, I know you’re in a litigious mood lately, but please don’t sue me for poking fun at you!

P.P.S. – Tired of bogus patents? To combat these annoying and often dangerous legal weapons, the Electronic Frontier Foundation (EFF) has launched the Patent Busting Project to take down some of worst offenders.

Microsoft Community Promise for C# and CLI

timm — Tue, 07 Jul 2009 16:24:33 +0000

Microsoft is applying its Community Promise to the C# programming language and Common Language Infrastructure (CLI). This means that anyone can freely build, sell, distribute or use programs with C# and the CLI without signing a license agreement or otherwise communicating to Microsoft. This applies to all distribution models including open source and GPL. Under the Community Promise, Microsoft will not assert its Necessary Claims.

In other words, build all you want with C# and .NET, Microsoft won’t sue you for copyright or patent infringement.

Specifically, this announcement applies to the ECMA 334 (C#) and ECMA 335 (CLI) specifications.

“The Community Promise is an excellent vehicle and, in this situation, ensures the best balance of interoperability and flexibility for developers,” said Scott Guthrie, Corporate Vice President for the .NET Developer Platform.

Microsoft Granted 10,000th Patent

timm — Thu, 05 Mar 2009 16:28:33 +0000

Microsoft received its 10,000th U.S. patent earlier this month. This makes Microsoft one of the leading patent filers, though IBM still files the most patents and in 2008 became the first company to issue 4,000 patents in a single year.

“Logging the 10,000th patent really is a testament to all of the innovation that has been taking place,” said Microsoft chief patent counsel Bart Eppenauer. Although Microsoft maintains its patents are mostly for defense, its huge patent portfolio hasn’t kept it out of the courtroom. The number of patent lawsuits filed against Microsoft has actually increased significantly in the past few years.

“That increase has come almost entirely from entities that do not produce products,” Eppenauer said. Most of the patent suits come from “patent trolls” whose primary business function is acquiring patents and suing for royalties. In those cases, having a large patent collection is of little use since the patent troll has no products of its own for which it can be countersued. But Microsoft’s patent portfolio has other uses such as licensing its technology to companies such as Novell or bullying Linux.

Microsoft’ has become so prolific filing patents that it dedicated a staff of 100 people including 40 attorneys that focus solely on the 2500-3000 U.S. patent applications the company files each year.

This news bodes poorly for independent software vendors, for whom it is nearly impossible to create original software without violating literally thousands of patents.

Story at CNET

Patent Office Rejects Claims on Subdomains

timm — Thu, 22 Jan 2009 16:35:32 +0000

We are constantly bombarded with news of stupid software patents, so it’s nice to see the U.S. Patent and Trademark Office (USPTO) actually reject a stupid patent once in a while.

The USPTO rejected all 20 patent claims for Internet subdomains held by the Hoshiko company. The USPTO ruled that the idea of subdomains — domains hosted within larger domains, such as mail.google.com — is too obvious to patent. Hoshiko was using the patents to litigate against large web companies like Google and LiveJournal, which hosts more than 3 million personalized subdomains for its users.

The story started in 1999 when the IdeaFlood company applied for a patent on Internet subdomains. As usual, the USPTO blindly approved the patents in 2004. IdeaFlood immediately went to court, filing suit against Google and About.com. The Google case was dismissed, and About.com settled out of court. IdeaFlood then transferred the patents to Hoshiko.

Since neither Google nor About.com strongly challenged the patent, the nonprofit Electronic Frontier Foundation (EFF) took up the fight and requested that the patent be re-examined. The EFF was able to prove that the idea of virtual subdomains was developed long before the patent was filed in 1999.

Have a Nice Day and Get Sued for It ;-)

timm — Fri, 12 Dec 2008 15:51:36 +0000

Apparently America hasn’t cornered the market on stupid patents and trademarks. A Russian businessman has obtained a Russian trademark for the emoticon ;-) which is used to convey a wink in text messages and e-mail.

Oleg Teterin, president of the mobile ad company Superfone, said he doesn’t plan to sue individual users. “I want to highlight that this is only directed at corporations, companies that are trying to make a profit without the permission of the trademark holder,” Teterin said. He plans to send legal warnings to companies that use the symbol without his permission. “Legal use will be possible after buying an annual license from us,” Teterin continued. “It won’t cost that much — tens of thousands of dollars.” He also said similar emoticons :-) or ;) or :) resemble his trademarked symbol and therefore fall under his ownership.

“Imagine the next wise-guy who trademarks the 33 letters of the Russian alphabet and then says anyone who uses the Russian alphabet has to send him money. It’s absurd,” said Alexander Manis, director of a broadband Internet and mobile company.

Scott Fahlman, a Carnegie Mellon professor, believes the trademark is invalid due to prior art. Fahlman claims he was the first to use three keystrokes — a colon followed by a hyphen and a parenthesis — as a horizontal “smiley face” in a computer message 25 years ago.

Microsoft Sues to Defend Visual Studio Users

timm — Wed, 19 Nov 2008 16:05:36 +0000

This is scary, folks. If you use Microsoft Visual Studio to create web services, you could be subject to lawsuits for patent infringement. Yes, simply using a software program puts your company and livelihood at legal risk, yet another sign of how terribly flawed is the U.S. software patent system.

Fortunately, Microsoft is coming to save the day. Microsoft filed a lawsuit in U.S. District Court in San Francisco last week to defend users of its Visual Studio development tools. The lawsuit seeks to invalidate several patents that WebXchange is using to sue three large companies: Allstate Insurance, Dell computer and FedEx.

WebXchange is an online transaction services provider based in Menlo Park, California. The WebXchange lawsuits claim the online services offered by the three companies violate its patents. For example, WebXchange alleges FedEx infringes three patents in an online system FedEx launched four years ago that enables customers to send print jobs to its Kinko’s stores.

Microsoft is not named in any of the WebXchange lawsuits. In its suit, Microsoft asks the court to declare WebXchange’s patents invalid because they are overly broad and clearly based on existing technologies. These are common symptoms of bad software patents, of which there are way too many these days. Microsoft has attempted to negotiate with WebXchange, but WebXchange has refused to talk and has instead chosen to fight in court.

Allstate, Dell and FedEx have all sought indemnification from Microsoft. Most large software vendors indemnify their customers and accept responsibility for patent infringement and other legal problems caused by use of their products. It’s great to see Microsoft step up to the plate to fight bad software patents.

More at ComputerWorld

Today is "World Day Against Software Patents"

timm — Wed, 24 Sep 2008 15:23:01 +0000

As currently implemented in the United States, software patents suck. Microsoft’s recent patent of page up/down proves by example how flawed the system is. DevTopics supports the protection of intellectual property, but is against the current software patent system, which hinders innovation, rewards bureaucracy, and fails to protect the little guy.

We are not alone in this belief. Today, September 24, is World Day Against Software Patents, a campaign designed to bring awareness to this bureaucratic nightmare that threatens all software developers. The StopSoftwarePatents.org coalition has produced a comprehensive list of why software patents are bad.

Here is a cute but informative video on the software patent system:

Click here to view the embedded video.

Protect Your Software with Patents, Copyrights and Trademarks

timm — Fri, 06 Jun 2008 15:47:34 +0000

You’ve spent thousands of hours developing a new software program. Now how do you ensure that your competitors don’t copy your program and steal your market? The sad truth is you can’t, as Apple discovered when Microsoft “borrowed” its graphical user interface to build Windows and corner the PC operating system market. But there are steps you can take to give you an edge over your competition and make it more difficult for others to copy or steal your work. You can protect your software with patents, copyrights and trademarks.

Patents

A patent grants an inventor the right to exclude others from making, using, importing or selling an invention in the United States. The U.S. Patent & Trademark Office (USPTO) issues patents, which are valid for 20 years from the date when the patent was filed, subject to payment of maintenance fees. U.S. patents are valid only within the United States, U.S. territories and possessions.

How Patents Protect Software

Patents can prevent a competitor from making or selling software that utilizes technology covered by your patent. Software companies often use patents to block competitors or extract licensing or royalty fees.

Computer software has only recently become patentable. Currently you can patent computer software, data structures and business methods in the United States. The invention must be sufficiently different from what has been used or described before such that it is “nonobvious to a person having ordinary skill in the area of technology related to the invention.”

How to Obtain a Patent

You must file for a patent within one year of the date your invention was used or sold publicly in this country. You are strongly encouraged to hire a qualified patent attorney to prepare and file your patent. Patents typically cost between $5,000-$10,000 to obtain and several thousand dollars more to maintain. It usually takes several months to prepare a patent, then 1-2 years for the patent office to review and approve the patent.

To obtain a patent:

Perform preliminary patentability search. Because of the significant expense in securing a patent, it’s wise to ensure your invention is novel and there is no “prior art.” This will cost between $500-$1,000. You can do this yourself or hire an attorney. A good place to start is the USPTO Patent Database.
Prepare the patent application. This includes an abstract, detailed description, claims and supporting drawings. This is a difficult task and typically should be performed by an experienced patent attorney. You can save some money by initially preparing the documents yourself, but you should have a patent attorney review your application thoroughly before filing. Cost will range from $2,000-$7,000 or more, depending on the complexity of the patent.
File the patent with the USPTO. This can be done online or via express mail. Filing fee is $355.
Amend the patent as needed. After you file the patent application, you enter the “prosecution phase” during which the USPTO may ask for changes or additional information. It’s not unusual for the USPTO to require 2-3 amendments costing $500-$2,000 each.
Issue the final patent. After the prosecution phase, the USPTO will issue a Notice of Allowance. At this point, you must submit formal patent drawings to replace your original informal drawings, finalize the application, and pay a $685 issue fee.
After your patent is granted, you must pay maintenance fees 3.5, 7.5, and 11.5 years after the grant date. These fees range from $465 to $3,910 depending on patent age and company size.

For More Information

Copyrights

A copyright grants the owner the exclusive right to reproduce the copyrighted work, prepare derivative works, distribute copies of the copyrighted work, and display the copyrighted work publicly. Copyrights apply to “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The Copyright Office of the Library of Congress issues copyrights, which are typically valid for the life of the owner plus 70 years.

How Copyrights Protect Software

Copyrights can prevent a competitor from replicating your software program, documentation and code. This includes the structure, sequence, organization and “look and feel” of a program. However, copyrights protect only the expression of an idea, not the idea itself. Copyrights do not protect program logic, algorithms, systems, methods, concepts, or output layouts.

How to Obtain a Copyright

Your software, code and documentation is automatically copyrighted the moment you publish it. However, there are advantages to formally registering a copyright:

Establishes a public record of the copyright,
Establishes prima facie evidence of the copyright (if filed within 5 years of publication),
Allows you to sue for copyright infringement,
Allows you to recover statutory damages and attorney fees in court (only if you register the copyright within 3 months of publication; otherwise, you can only recover actual damages), and
Enables the U.S. Customs Service to prevent importation of infringing copies.

To obtain a copyright:

Complete copyright application Form TX.
Include the filing fee (typically $45) and one copy of the material to be copyrighted.
Send to: Library of Congress, Copyright Office, 101 Independence Avenue SE, Washington, DC 20559-6000.

For More Information

Trademarks

A trademark grants the owner the exclusive use of a word, name or symbol (mark) to describe a product and distinguish it from other products. A service mark is a trademark for services. The USPTO issues trademarks, which are valid potentially forever, provided the owner continues to use the trademark and comply with renewal requirements. However, if the owner stops using the trademark for three years or more, this is considered “abandonment” and may result in losing the trademark.

How Trademarks Protect Software

Trademarks can protect the name of a software company, its products and taglines, and prevent competitors from using similar names. Trademarks protect software brands, but not the software or code itself.

How to Obtain a Trademark

You can claim a trademark simply by adding “TM” to a name. But obtaining a federally registered trademark has several advantages:

Serves as public notice of your mark ownership and enables you to use the ® symbol,
Provides a legal presumption of your ownership nationwide, and
Grants you the exclusive right to use the mark.

Obtaining a trademark is fairly easy:

Choose one or more marks to register. These names should uniquely describe your company or product(s) and not be confusing with other registered trademarks.
Search the trademark database to ensure that nobody is currently using your mark. You can also hire a lawyer to perform a more thorough search including unregistered trademarks, but this is often unnecessary unless your mark is close to an existing trademark or in some dispute.
File your trademark application online and pay by credit card or electronic funds transfer. You can also file by regular mail. Fees range from $75 to $310 or more, depending on company size and other factors.

For More Information

Brief History of Software Patents

timm — Thu, 17 Apr 2008 14:56:29 +0000

A patent is a set of exclusive rights granted by a government to an inventor for a fixed period of time in exchange for disclosure of an invention. The patent enables the inventor to exclude others from making, using, selling or importing the invention. (wiki)

History of Patents

Evidence suggests the ancient Greeks were the first society to grant special rights to inventors. Italy awarded the first patent in 1421 and passed the first patent law in 1474.

In America, the early colonies granted a few inventors “monopolies” to produce and sell their inventions starting in 1646. James Madison helped create “The Patent and Copyright Clause” of the US Constitution in 1788:

The Congress shall have power . . . to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries.

The U.S. Patent Commission was created in 1790 and run by Secretary of State Thomas Jefferson. It granted the first patent on July 30, 1790 to Samuel Hopkins of Philadelphia for a method of producing potash, an essential ingredient used in making soap, glass and gunpowder. (wiki)

The U.S. Patent and Trademark Office (USPTO) was established in 1903 as one of 15 executive departments of the U.S. government. It is headed by the Secretary of Commerce, who is appointed by the President and confirmed by the Senate. (source)

1970s and Before: No Software Patents

The USPTO originally refused to grant patents for computer software. In the 1970s, the USPTO would deny a patent if the invention “utilized a calculation made by a computer” (source). The rationale was that patents could be granted only for “processes, machines, articles of manufacture, and compositions of matter” and not for “scientific truths or mathematical expressions of it.” The USPTO viewed software as mathematical algorithms–not processes or machines–and hence granted no software patents.

1980s: Software Patentable as Part of Process/Machine

In 1981, the U.S. Supreme Court forced the USPTO to change its position on software patents. Ruling on the case of Diamond v. Diehr, the Supreme Court determined that the execution of a process controlled by software was patentable. In that case, the invention was a method for heating rubber so that it could be “cured.” The novel part of the invention was a computer program that determined the optimum heating times. So even though the only novel feature was software, since it was included in an otherwise patentable invention, the entire invention was ruled patentable. (source)

After 1981, there was great confusion among the USPTO and inventors trying to determine whether each invention was solely a mathematical algorithm or in fact a patentable invention that contained algorithms. What patent attorneys quickly discovered was that software could indeed be patented as long as it was combined with another patentable process or machine, even if the software was the only thing new or novel about the invention.

1990s: Software Patentable

In the early ’90s, the Federal Circuit (one step below the Supreme Court) attempted to clarify this issue and ruled that the invention as a whole should be examined. If the invention is solely a mathematical algorithm (such as converting decimal to binary numbers), then the invention is not patentable. However, if the invention uses algorithms that manipulate concrete, real-world values (such as analyzing seismic measurements to predict earthquakes), then the invention is a process describing those real-world concepts and hence is patentable.

In 1998, the Federal Circuit issued its State Street Bank & Trust v. Signature Financial Group decision, which further clarified the patentability of computer software in the United States. In this case, Signature Financial had obtained a patent on a “Hub and Spoke” method of running mutual funds. State Street Bank asked the court to declare this invention unpatentable as a mere mathematical algorithm or business method. The Federal Circuit rejected the arguments and upheld the patent by explicitly stating that business methods can form patentable subject matter. (source)

Today: Anything Goes

After the State Street decision, there is little doubt that computer software, data structures and business methods are patentable in the United States. As a result, the number of software patents has exploded with over 325,000 registered software patents and more than 40,000 new software patents approved in 2006 alone.

Coalition Seeks to End Software Patents

timm — Wed, 05 Mar 2008 14:54:38 +0000

Several patent reform organizations have joined forces to abolish software patents. The End Software Patents (ESP) coalition aims to eliminate patents that do not specify a physically innovative step, which would likely include many of the software patents granted today. The coalition was founded by the Free Software Foundation, Public Patent Foundation, and Software Freedom Law Center.

The ESP coalition will fight software patents on two fronts:

Assist companies that challenge software patents in the courts and at the U.S. Patent and Trademark Office (USPTO)
Educate the public about the severe problems with software patents, with the ultimate goal of eliminating many software patents

Nearly every company uses computer software, which means that nearly every company faces real liability from software patents. ESP estimates that U.S. companies spend $11.2 billion a year defending against software patent lawsuits. And these are not just the Microsoft’s and IBM’s of the world, but also non-tech companies like Kraft Foods, Ford Motor and the Green Bay Packers, which face software patent infringement lawsuits simply by using the standard software necessary to run a modern business.

If you have a website or are selling goods online, then you may be violating over 4,300 patents yourself.

The number of software patents has increased 10% annually over the past decade and jumped 40% in 2006 with more than 40,000 new software patents approved. Currently there are over 325,000 registered software patents. In addition, many of these patents are overly broad or sufficiently vague enough to block entire technical areas from any further innovation or development.

ARS Technica sums up the software patent mess:

The rapid proliferation of software patents in recent years has transformed the technology industry into an intellectual property minefield. Software companies have been forced to accumulate massive patent portfolios to use as leverage in elaborate cross-licensing agreements. The resulting situation, which is akin to an arms race, seriously disadvantages independent software developers and has made it increasingly difficult to write conventional software without committing any infringement.

As an independent software vendor, I inadvertently face significant potential liability from software patents everyday simply by doing my job writing code. And yet when I turn to the patent system to protect the code I’ve written, I face a complex, expensive and bureaucratic system that makes it economically infeasible for my small company to protect its intellectual property.

Yes, the software patent system is terribly broken and is failing to protect the very inventors for which it was created. But should we throw out the baby with the bath water and eliminate software patents completely? DevTopics will explore this important topic in a series of articles over the next few months.