Microsoft, Apple Sued Over Software Update Patent

mark_wilkins writes "Microsoft and Apple have been sued by Teleshuttle Technologies, LLC, alleging that their online software updating technology infringes a patent on providing online updates to software with a menuing system to permit the user to pick the updates. Apparently the work on which the patent is based supposedly goes back to 1990."

Um, this is a decent patent

[oldosadmin]

This patent looks in order. Early enough that there's a low likelyhood of prior art, and it pretty well covers any auto-updating system.

My only thought is that maybe we could kill it with the obviousness clause.

Re:Patent system is messed up

[SmlFreshwaterBuffalo]

...just on a plastic model alone with some BS blueprints

Technically, I don't think you even need the model, just the blueprints. You basically have to give a good enough description that someone with a reasonable understanding of the technology could produce a working model.

Re:Menuing system

[Tim C]

No, but RedHat's automatic update thing at least is almost certainly in violation...

end result

[Anonymous Coward]

I see two possible forks in the fate of this.

microsoft buys patent
microsoft sues Apple
microsoft sues Red Hat etc.

or

patent battsle with sco vs. everyone resolved ==> many years

patent battle with teleshuttle vs. microsoft resolved ==> 2 meetings with counsel

go figure.

this might stop some software patents

[Facekhan]

Programming Language creators should include a provision in their license that forces programmers to use the copyright system and not the patent system with programs written in their language. In addition all software patent applications should require actual working code that is complex and novel enough to actually warrant a patent for the idea itself and not just a single expression of the idea as in copyright.

In the meantime congress should simply ban new software patents until the USPTO can be fixed.

Re:Menuing system

[jb.hl.com]

No, but it could kick the shit out of aptitude, dselect, synaptic et al; maybe even Gentoo's porthole.

Could someone explain this?

[Anonymous Coward]

I really don't get it. I could see if the code was ripped off line for line, but if two different programs have the same effect, but get it with two different ways, shouldn't they be concidered two different pattents? As an anlogy, a record player, a CD player, and an mp3 player all have the same basic function, to play back audio recordings. But thy're all protected by different patents. If I invent a new way to play back sound recordings, I can't be sued by the mp3-player patent holders.

However, if I write a piece of software, and include a function that someone has already patented, even if I write my code from scratch, I can be sued?

Isn't this the same as patenting an idea? Isn't there something in the patent law against this? Am I Missing something?

Re:Menuing system

[smallfries]

This patent has to be struck down for being overly broad. It patents the entire idea of looking at information already on the local station and then downloading new stuff from a server. Surely USENET is prior art for this even though it wasn't specifically limited to software, and didn't automatically install the software.

Re:Um, this is a decent patent

[Gorbag]

My only thought is that maybe we could kill it with the obviousness clause.

That's not very easy, you'd have to show it'd be obvious to the average practitioner at the time the first disclosure was made. Generally, that only happens if there are lots of similar examples so the innovative leap is very very small.

Could you please be more abstract?

[Dekar]

From the patent [uspto.gov]:

"A method for distributing information to a plurality of uncoordinated user stations each of which is configured for communications with a multiplicity of independently-operated servers via a non-proprietary network includes steps for providing a distribution service that distributes updates for a plurality of different products, and providing a transporter software component to each of the plurality of uncoordinated user stations, wherein the transporter software component at each user station automatically effects communication sessions with the distribution service via the non-proprietary network for the purpose of obtaining updates for each of at least a subset of the plurality of different products that are installed on that user station."

It sounds awfully complicated, and that's only the first sentence. They could probably claim they own pretty much every updating technology with that...

Seriously though, providing "updates to software with a menuing system to permit the user to pick the updates" has been in every system I used, and I don't believe that adding the word "online" in front of it makes it a new super-innovative technology.

Even if it's Microsoft, if they were to lose on this one, it would be a shame.

Re:Patent system is messed up

[stratjakt]

Is this true?

I remember reading of a patent granted for an "invisibility cloak" that would refract light around you so you couldnt be seen.

I highly doubt anyone on earth has a reasonable understanding of the "technology" which doesn't exist, and I'm damn sure noone could produce a working model.

One day in the future perhaps some brilliant technician will actually invent this device, only to be sued into oblivion by the patent holder.

The systems busted, which is sad, because the original intent of patents is, IMO, a good one.

Re:Um, this is a decent patent

[Brand X]

IMNAL, and I don't play one on TV, but...
Actually, the filing date is April, 2000... the 1996 filing that this is a continuance of doesn't mention any of the relevant claims, aside from the selection of updates (hello, anyone remember the pre-web info-mac archives?!), so the actual claims they are saying Apple and Microsoft violated were filed after the first beta versions of their respective update technologies shipped!!!
Sounds like someone got greedy...

Does this one qualify as a submarine?

[optimus2861]

From the patent:

This is a combined Continuation of U.S. application Ser. No. 08/641,010, filed on Apr. 29, 1996, and entitled "COMPUTER-IMPLEMENTED TRANSPORT OF ELECTRONIC INFORMATION OBJECTS," which is a Continuation-in-Part of U.S. application Ser. No. 08/251,824, filed on May 31, 1994, and entitled "SYSTEM FOR AUTOMATIC UNATTENDED ELECTRONIC INFORMATION TRANSPORT BETWEEN A SERVER AND A CLIENT BY A VENDOR PROVIDED TRANSPORT SOFTWARE WITH A MANIFEST LIST," which as U.S. Pat. No. 5,420,820 on May 30, 1995, and U.S. application Ser. No. 08/982,157, filed on Dec. 1, 1997, now U.S. Pat. No. 6,125,388 and entitled "COMPUTER-IMPLEMENTED TRANSPORT OF ELECTRONIC INFORMATION OBJECTS," which is a Continuation of the aforementioned Ser. No.08/251,724 filed May 31, 1994 (now U.S. Pat. No. 5,694,546). All of the above-identified applications are incorporated herein by reference in their entirety.

I count three "Continuation"'s in there, dating as far back as 1994.

Re:Gimme a billion dollars, I'm a genius, I swear.

[Gorbag]

Actually, ever since other countries have allowed patents that more or less do exactly that (patent applications of non-existent technology, aka conceptual patents), the US, in defense, has allowed the same. Many companies now file reams of such patents defensively, on the basis of very early reports of technologies coming out of their own labs, to prevent unscrupulous competitors from essentially patenting every possible application and then forcing them into a cross-licensing agreement (you have the tech, but can't do anything with it, so you give it to the bogon with the raft of concept patents, and thus secure the rights to market while they secure the technology). The only advantage the technology developer has is in creating improvements to the original technology, so the trick is to patent something stupid, cross license, then quickly improve on the original innovation (but not cross license that). Alas, (they be Bogons, but not stupid Bogons) typically cross licensing agreements have come to anticipate such behavior, and all improvements or extensions are automatically cross-licensed as well.

Patents are not so evel after all, if you think

[Anonymous Coward]

I was a very anti-patent follower and just now realized that patents do exectly what they ment to do, help(motivate) people to inovate. You must think that i am trolling, no just think a bit. Company X patents some idea and it is so good that every other company wants to use it. Ok, say patents did not exist then all other companies start to use it and no one want to invate anymore. In real world if you want to copy that idea and slack on R&D then you just pay some money and here you go. On the other hand Company Y desides that it needs something simillar and start R&D to develope some better or worse idea on how to acomplish same thing but in a better way. Now you got something to choose from - Company X or Y or etc...
Look at it, how many good things came out because of the nasty patent (PNG,OGG,some other things I can not remmember). So in the end people win , because they get more choice and better alternatives.
My 0.02JPY

Re:The lightning rod

[kfg]

(ok, the patent system didn't exist then)

Yes, it did. You forget that Franklin was British. The British patent system dates from the first quarter of the 17th century, and before that the King could grant them directly.

He actually had a patent on the Franklin stove, but did not enforce it.

KFG

Re:Um, this is a decent patent

[afidel]

It looks to me like they asked for and recieved a patent on the ability to update software remotely regardless of the actual method used or the target device, they list:
pre scheduled
unscheduled
user scheduled
server scheduled
etc

and for devices they list:
computer
cable television controller
video game player
information kiosk
wired personal communicator
wireless personal communicator
personal information communicator
personal digital assistant
information appliance
and system controller

How the heck can they give a patent that covers the updating of software across the entire electronics sector? It's not like these guys were the first to think of remotely updated software, as their long list of prior art shows.

Re:Prior art.

[stratjakt]

This is a combined Continuation of U.S. application Ser. No. 08/641,010, filed on Apr. 29, 1996, and entitled "COMPUTER-IMPLEMENTED TRANSPORT OF ELECTRONIC INFORMATION OBJECTS," which is a Continuation-in-Part of U.S. application Ser. No. 08/251,824, filed on May 31, 1994, and entitled "SYSTEM FOR AUTOMATIC UNATTENDED ELECTRONIC INFORMATION TRANSPORT BETWEEN A SERVER AND A CLIENT BY A VENDOR PROVIDED TRANSPORT SOFTWARE WITH A MANIFEST LIST," which as U.S. Pat. No. 5,420,820 on May 30, 1995, and U.S. application Ser. No. 08/982,157, filed on Dec. 1, 1997, now U.S. Pat. No. 6,125,388 and entitled "COMPUTER-IMPLEMENTED TRANSPORT OF ELECTRONIC INFORMATION OBJECTS," which is a Continuation of the aforementioned Ser. No.08/251,724 filed May 31, 1994 (now U.S. Pat. No. 5,694,546). All of the above-identified applications are incorporated herein by reference in their entirety.

This "iteration" of the application was filed in 2000, but to show prior art you probably have to untangle all of that crap, and show something that existed back before May of '94.

Oh, and go fix mono, it's broken. Thx.

In case you're wondering who they are...

[Mordaximus]

About BTG
BTG creates value by investing in intellectual property and technology development, and in early stage ventures. We realize value through technology licensing, patent assertion and sale of equity investments. Through a multidisciplinary approach, we apply intellectual property and commercial expertise, together with specialist skills in science and technology, to create major product opportunities in the health and high tech sectors. BTG has commercialized important innovations, including Magnetic Resonance Imaging, working closely with Professor Sir Peter Mansfield, who was jointly awarded the 2003 Nobel Prize for Medicine, and others who made contributory inventions to MRI. BTG has also commercialized Multilevel Cell Memory, Campath(R) (alemtuzumab), the first monoclonal antibody treatment for chronic lymphocytic leukemia, and recombinant Factor IX blood clotting protein. BTG operates through wholly owned subsidiaries BTG International Ltd. and BTG International Inc. in the UK and USA, respectively.

Or, to summarise, they do nothing.

Re:Menuing system

[eric76]

Not quite.

The "HTML Viewer" claims apply to implementations. You don't have to violate all the claims -- any one will do.

For example, Claims 2 through 15 are dependent on Claim 1. Claim 11 (and other claims that depend on other independent claims) concerns the HTML Viewer.

There are also independent Claims 16, 31, 46, 61, 76, 91, 106, 121, 136, 151, 166, 181, 196, ... with a number of dependent claims on each independent claim.

As I understand it, the reason for the dependent claims is in case the an independent claim gets shot down in court, they have the dependent claim to fall back on.

Thus, if claim 1 gets tossed, but the infringer is using an HTML viewer, they may still have a case with claim 11.

Re:ahahahaha!

[Anonymous Coward]

commission based lawsuits are good thing. they allow for 2 things to happen.
1 people without mney can have access to court. if there is a tort,or liability, almost every company in existence has the policy of completely ignoring the other party claims until they are dragged to the door of the courtroom. simply put, this is a free bet, that the plaintif might just go away,and if this happens it cost the company exatly zero to do this.
2 it makes for more honestlawyers. why? because no lawyer in their right mind will take on a case they feel will lose. this equates to not only a lossof time,money (filing, costs, ect), but also reputation. nothing worse than being a lawyer with a rep for being a loser.

in conclusion, almost everylawsuit is "on shaky ground". Law is not a real science. Physics, chemistry, etc are real sciences. They have proven repeatable results. Law does not. It is a human art, at best, and con art most of the time, with money and connections (usually bought with money) as the closest thing you will see to proven, repeatable results in any field of law.

Re:Could you please be more abstract?

[grendelkhan]

Indeed, AIX's SMIT software update section has had this for ages, and you can connect to remote repositories with the packages for different programs that you want to install.

Re:Patented in 1990?

[sharkb8]

No. Patents used to last 17 years from the date of issue. In 1996, this was changed to 20 years from the Application date to fix the submaringe patent problem.

An applicant gets the benefit of the the earliest aplication if later patents granted are a continuation of the earlier patents. THis is supposed to be an incentive to file early, with as much information as possible.

If you look at the sheer volume of prior art, it looks like the applicant and the USPTO went round and round on this one. The PTO probably got tired of hearing from the applant and just granted the patent.

Re:Menuing system

[ultranova]

This patent has to be struck down for being overly broad.

Don't worry, it will, on the basis that Microsoft is likely to have more money than TT. There is no firmer legal defense than deep pockets nowadays.

It patents the entire idea of looking at information already on the local station and then downloading new stuff from a server.

Well, if you define "server" and "local station" loosely enough, you could use the table of contents in almost any book as prior art. If you don't define them loosely, then most web pages would be prior art, by the virtue of having links that can be used to download more data.

Better question is, does it matter ? I gave up hope on USPO after realizing that yes, swinging sideways in a swing is really patented in the US.

Surely USENET is prior art for this even though it wasn't specifically limited to software, and didn't automatically install the software.

Based on all those messages that claim to be important updates from Microsoft that keep floating around the binary newsgroups, and the fact that Outlook is capable of viewing said newsgroups, I'd say that yes, Usenet can automatically install software...

If you're searching for prior art...

[cavac]

...here is it.

In an 1980 article about Bulletin Board systems (which are more or less "menu driven" by selecting from the few commands available, displayed at start-up), there was already the idea of swapping files - a way to do software updates: "We also are considering a function that would allow swapping complete programs."

Here's the full article:
http://www.portcommodore.com/commodore/bbs/cbbs.ht ml [portcommodore.com]

Here's even more information on early BBS and even the invention of the XModem-Protocol:
http://www.portcommodore.com/commodore/bbs/bbshist .html [portcommodore.com]

As even some of the earliest implementations of XModem-capable programs showed you a list of downloadable files that you could select with your cursor keys and download by pressing a key - presumable "d" - you could speak of speak of "menu driven downloads". And as this was used by developers to share patches and updated programs it was certainly "menu driven updates over a network".

Given the above facts, they can put their patent where the sun doesn't shine - if there's still space left, that is.

Re:Menuing system

[eric76]

The dependent claims are narrower than the independent claims.

Suppose you had a patent for a hard drive, the first claim might merely state that it is a device comprised of one or more platters, one or more read/write heads, and electronic components that is used to record and read information on the platter.

Then when it goes to court because of an infringement, the court might find the first claim too broad because it might also arguably cover the old LP record players and so claim 1 would be struck out.

But if you had a dependent claim, for the sake of argument, say claim 2, that claimed the invention of claim 1 in which the platter is made of a magnetic material, then you would still have a chance. Claim 1 may be gone for being overly broad, but claim 2 would still cover the invention.

Another claim could be the device of claim 1 in which the platter is made out of paper and the read/write heads punch holes in the paper and/or read the punched holes. Yet another claim might be for the device of claim 1 with the platter made out of an optical material and the read/write heads using laser to read and write from the platter.

In other words, the independent claims are the broadest claims and the dependent claims necessarily restrict the areas covered by the independent claims. They cannot broaden the independent claims.

This also brings up an important point. You could have a patent on a device without the rights to build it if there were underlying patents on the previous devices.

Suppose I had a patent on the hard drive but with only the one independent claim of it being comprised of one or more platters and one or more read/write heads and the necessary electronics. Suppose that you saw the advantages of having the platter made out of a magnetic media and patented that.

Then assuming you couldn't get my patent overturned, since I had the patent on the hard drive, you couldn't build a hard drive using magnetic media without paying me royalties. On the other hand, while I could build hard drives with non-magnetic media, if I were to build one with magnetic media, I would infringe on your patent and would have to pay you royalties.

I thought it a bit strange to find out that you could own a patent and not have the right to build, market, or sell the device in the patent.