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Microsoft Patents

Microsoft Copies Idea, Admits It, Then Patents It 333

Posted by CowboyNeal
from the we'll-take-that-too dept.
An anonymous reader writes "BlueJ is a popular academic IDE which lets students have a visual programming interface. Microsoft copied the design in their 'Object Test Bench' feature in Visual Studio 2005 and even admitted it. Now, a patent application has come to light which patents the very same feature, blatantly ignoring prior art."
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Microsoft Copies Idea, Admits It, Then Patents It

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  • by Reverse Gear (891207) * on Saturday January 27, 2007 @11:06AM (#17783100) Homepage
    If Microsoft get this patent, which from previous granted software patents doesn't seem unlikely, this again shows that software patents do not deserve the name "patent".
    A patent used to be something that had invented something new, if whatever they had come up with was already out in the open and common knowledge then there a patent could not be granted.

    So many things have been patented late, as far as I know these patents did now show up until a few years ago, yet all kinds of things that has been out in the open has been patented.
    Software patents doesn't seem to have anything to do with who invented anything, it is about who first comes up with patenting something and get the application in.

    So far I have never heard a sensible argument for why software patents is a good thing. It doesn't look like the big companies that keep on filing these patents would stop developing because there was no such thing as a software patent, they did so long before software patents would ever show up. I haven't heard of a single case where the lone programmer (inventor?) gets a patent for some smart code he invented and the big companies will pay him for his efforts. All that I heard of is big companies (or maybe small companies that invent nothing but has made it their business to file patents for things that already exist) that have asked money from another big company because of these patents.

    • by Dufftron 9000 (762001) on Saturday January 27, 2007 @11:24AM (#17783206)
      For $180 you can submit the reference to the USPTO to make sure they see it. I fully preemptively agree that paying sucks, but unfortunately it is your only course of action if you actually care about it.


      How-to submit the reference: http://www.uspto.gov/web/offices/pac/mpep/document s/appxr_1_99.htm [uspto.gov]

      • by lymond01 (314120) on Saturday January 27, 2007 @12:28PM (#17783586)
        I see a website which takes and publicly sums donations from people using Paypal, to collect money to combat bad patents. The sie could allow people to vote on which dodgy patents the money will go towards combatting.

        I should so patent that idea.
        • by RareButSeriousSideEf (968810) on Saturday January 27, 2007 @02:51PM (#17784528) Homepage Journal
          Like so many of my personal / pet projects, my Taxonomy of Obvious Ideas site (http://tooi.org) is languishing undeveloped as I haven't had the time to follow through on the original inspiration. The parent's idea falls right in line with the sort of things I intended to do there though, so...

          I will donate domain space and bandwidth -- and put some of my own cash in the pot -- if people are willing to help design, write and manage the app. I'm vacationing with sporadic access for the next week & a half, but after that I'll try to get all the responders in touch with each other & offer whatever I can to the endeavor. I'm a C# / Asp.NET developer myself, but I'm open to other architectures, e.g. PHP on a virtual LAMP server to start, perhaps? Some sort of mod system would be needed to pair filing suggestions with available funds; nobody would want a system with hundreds of filings just a little bit short of the needed fees, while cumulatively enough dollars were tied up in the pot to address at least some of them. But those are implementation details that could be discussed later...

          Right now, the domain is basically "parked" on a host (mind you, with no ads or "Your One Stop Portal for All Your Obvious Ideas Searches" type crap), but yes, I do have my own physical servers & lines when it's time to start real work.

          I'm not intent on ultimately controlling the domain & project, by the way. If there's a sensible way to put everything into motivated, collective hands, that'd probably be best.
          • by gklinger (571901) on Saturday January 27, 2007 @03:20PM (#17784684)
            If you're looking for a name, might I suggest: "patentlywrong.org" (it's available). Not a bad name, if I do say so myself, for an invaluable tool. I would contribute in the hope that the madness might end.
            • by RareButSeriousSideEf (968810) on Saturday January 27, 2007 @04:13PM (#17785026) Homepage Journal
              Good idea, and... done.

              Again, in the spirit of what this whole endeavor is about, I grabbed this for community & not personal visibility.

              I wonder if the patent objection filing process has provisions for objections on Obviousness grounds, or only on Prior Art grounds? If the Taxonomy ever gets off the ground, it would make a handy "incorporate-by-reference" resource if the former type of objection is permissible.

              Anyway, hopefully there will be enough competent & motivated souls stepping up to help make this all happen.
          • by lymond01 (314120) on Saturday January 27, 2007 @03:49PM (#17784892)
            So we've got donors, a web host, programming it wouldn't be difficult, though I'd likely get shot for using PHP instead of Python...

            But here's the tricky part: the finding of incoming patents with obvious prior art, and the time to fill out those forms, review them, and submit them. As a community project, this might be easier than it looks, if the articles can be peer reviewed, commented upon, etc.

            So...

            1) Paypal account to accept donations
            2) System of displaying donation totals and expenditures for which patent
            3) Submission of bad patent requests for review
            4) Submission of prior art claims for those patents
            5) Submission of final Patent form for review
            6) Voting system on which Patents we submit against
                - this last needs to come last because there's not point on voting against patents you haven't proven are false
            7) A system where you can review your donation and which patent it went to block

            NGTW!
            • Re: (Score:3, Interesting)

              <flattery>You're obviously adept at organizational tasks.</flattery> That sounds like a pretty good breakdown of the task. I'm open to Python. Is there a robust, serverless DB system (i.e., purely filesystem based) that's at all scalable? I have MSSQL & MySql installations, and I don't ses a problem with doing FireBird or Postgre either, but I just the portability of self-contained, dependency-free systems wherever possible. (Though FireBird may already meet that criteria...)

              Since I'm leer

        • Re: (Score:3, Informative)

          by Ptraci (584179) *
          Isn't that similar to what these guys do? http://www.pubpat.org/ [pubpat.org]
      • by RallyDriver (49641) on Saturday January 27, 2007 @04:37PM (#17785168) Homepage

        If you do, and as is typical the patent office drops the ball and issues the patent, then that prior art is lost forever to you as an anti-patent defence, and cannot be used in a court case.

        This is why companies rarely challenge inappropriate patent filings via the USPTO, and save prior art until they need it in a court of law to challenege enforcement of a bad patent, so they can have it argued by their own experts.

        The system is broken in many ways, this is just one more.

    • by Anonymous Coward
      Sorry I just patented complaining about patents. I'm sending you a cease and desist letter.
    • by teh kurisu (701097) on Saturday January 27, 2007 @12:07PM (#17783464) Homepage

      The problem is that it is the responsibility of the party filing the patent to check for prior art, and report their findings to the patent office. This is a clear conflict of interest. However, this is not unique to software patents, only that the effects are more pronounced because the industry moves so much quicker than most.

      Reform of the patents system, not abolition of the concept, is required to ensure that they fulfil their purpose.

      • BUZZZTT Wrong! (Score:4, Interesting)

        by dilute (74234) on Saturday January 27, 2007 @01:06PM (#17783794)
        There is no obligation (certainly not in the U.S.) to search for prior art before filing a patent. Maybe "is" is a typo and you meant "should be." It WOULD be a reform to require people to do a pre-filing search and report the results. There is a new program right now where you are required to perform and submit a search in order to (optionally) pursue accelerated handling in the patent office. They require you (in that case) to do a better search than they usually do themselves. If the program works out, it might be a good model for across-the-board adoption.
        • Re: (Score:3, Insightful)

          by markov_chain (202465)
          In addition, maybe there should be stiff penalties for filing patents in bad faith, that is, filing a patent with knowledge of prior art, hoping that the PTO doesn't catch it. It seems that many patents nowadays could fall under this category. The test for "knowledge of prior art" could be broadened to include obvious prior art.
      • by Anonymous Coward on Saturday January 27, 2007 @03:08PM (#17784610)
        Reform of the patents system? By this i hope you mean "throw out software patents".

        The patent system was setup to encourage invention, and give incentives for people to make their work public. Patents are only needed in areas in which invention or innovation are lacking, or are regarded with to much secrecy so as the industry doesn't move forward. Software is a industry where problem solving is a everyday occurrence, and there is no need to give any huge incentives to people. Software is also covered by copywrite, and is one of the few industries protected by copywrite AND patents (the only one i know of actually, but im sure there are a few others probably).

        Software is not a industry of the physical world, in which invention needs encouragement, the entire idea of software requires the ability to solve problems, to do things not done before, and overall, to innovate. If a company wants to succeed in software, then they must produce software that keeps on innovating, or they will soon fall behind and customers will then jump to some other software company to get the services they need.

        When patents get involved, things go bad. Patents give inventors incentives by giving them a temporary monopoly on their patented idea, forbidding other companies from taking that idea without permission, or until the patent expires. This monopoly immediately discourages innovation within the claims of the patent due to the government approved (thus legally binding) monopoly that cant be removed. Normally, this downside is outweighed by the benefits of the invention within the public domain, once the patent expires, the monopoly ends, and the patent falls into the public domain for any use.

        The need for invention is the key to patents. Monopolies granted by patents is a big turnoff to innovation, and this must be remembered when deciding what should or should not be allowed to be patented. Software is already protected by copywrites, also important to remember. Software requires innovation, something patents discourage in the short term (short being the patent expiration term), in the long term, does the software industry really benefit from patents? The answer would be no. Software patents only cover ideas used in software, not actual software. The ideas used would have been created by the need for them by a programmer. Sooner or later, some other programmer would have also come up with the same ideas. Not only that, but software patents try to be generic as possible, they don't just cover implementation, but the whole idea of something. This is what kills innovation in software. Without patents, innovation will flourish as companies wont be scared to death about coming under fire by patents, allowing them to innovate and move the industry as a whole forward. Without software patents, the industry will not suffer from a lack of invention, as stated, the industry requires it just to exist, and if a company did decide "hey, without patents, why should i invent anything?", with will soon find themselfs in a world of hurt when their customers start switching to other software makers (hey, just look what happened to Microsoft and Mozilla, Microsoft won the browser wars with Netscape, and from then on didn't work on IE, Mozilla meanwhile caught up to IE and even surpassed it, forcing Microsoft to update their browser in fear of losing even more people to Mozilla/Firefox and other browsers gaining headway.).

        Competition is good in industries, and in the software industry, you compete and succeed by inventing (yes, success is also being bought out by other companies). As noted by Microsoft, without competition, why even bother innovating and inventing? Patents remove competition, and in a industry who's main goal is to innovate and invent, removing competition is what makes companies sit on their ass.
    • Re: (Score:2, Interesting)

      by anorlunda (311253)
      I haven't heard of a single case where the lone programmer (inventor?) gets a patent for some smart code he invented and the big companies will pay him for his efforts. All that I heard of is big companies (or maybe small companies that invent nothing but has made it their business to file patents for things that already exist) that have asked money from another big company because of these patents.

      What planet have you been on? One of the major news stories of 2006 was the case of the lone inventor, Thomas
      • by echinda (948608) on Saturday January 27, 2007 @01:30PM (#17784010)
        Uhh - apparently you wandered in from an alternate universe. The RIM case has been debated ad nauseum on /. but one thing is clear - Campana's "heirs" (which in bizarro universe apparently is the word for lawyers) got a payout that is in no way proportionate to Campana's contributions to the world. No one believes that Campana's inventions added one iota of knowledge to the process that ended up with RIM selling Blackberries. Campana's attorn"heir"s just got incredibly lucky that Campana won the race to file in a moronic patent system.

        And that is a bizarre thing to be trumpeting as a laudable achievement. ... oh yeah ... bizarro world .. backwards is forwards ... I get it now ... you were just exhibiting a sly and subtle wit. Well played my friend, well played indeed.
    • Re: (Score:3, Informative)

      by Scrameustache (459504)

      Software patents doesn't seem to have anything to do with who invented anything, it is about who first comes up with patenting something and get the application in.
      That's not new.

      A lot of what Edison is credited with inventing was invented by someone else, but patented by Edison. There's the case of Tesla and the radio... it's an old scam.
    • by HiThere (15173) <charleshixsn&earthlink,net> on Saturday January 27, 2007 @02:59PM (#17784562)
      It doesn't qualify as invention, but that's not what patent means.

      The original use of patent, that I'm aware of, is either "patently obvious" or "patent of nobility". In both cases it represents the making of knowledge public. (For this reason I don't believe that software "patents" qualify as patents. That would require publication of all source code & tools required for making the software [compilers, etc.]. This isn't even approached.)

      Now what the USPTO is supposed to be granting is a patent of invention, i.e., the making of an invention obvious, so that all those "skilled in the field" can reproduce the invention. Software patents clearly fail this test, but they frequently, as here, even fail to contain the component invention around which the "making obvious" is supposed to revolve.

      I will assert (IANAL) that there has never been a software patent that fulfills the requirements of patent law. This doesn't mean that I believe I have enough money to pay for a challenge, it means that I consider each and every extraction of funds under threat of a patent lawsuit based on patent law to be extortion. And that I consider that the forces of "law" that are complicit in the enforcement of such actions are commiting malfeasance. (Possibly only misfeasance. They may well not know any better.) Believing this doesn't fool me into thinking that I can safely presume that they won't enforce the software patents, it merely causes me to consider the US government to be an illegal conspiracy against the constitution.

      I'll admit that this view causes me to be extremely cynical about any and all governmental pronouncements and justifications. I've yet, however, to notice a time when my cynicism was incorrect. (If the Democrats re-instate habeus corpus, contrary to my predictions, then I'll need to raise my opinion of them slightly.)
    • Re: (Score:3, Informative)

      by Exactament (1056606)
      This isnt the first time. For over 6 years we have been developing an open source authorisation and access control system called PERMIS (see www.openpermis.org) which validates authorisation tokens, including X.509 attribute certificates and Shibboleth attribute assertions, and uses them to make access control decisions. We have many academic papers published about our work. Then in Sept 2006 Microsoft applied through Blair Dillaway for a new patent in the U.S. covering the use of multiple types of security
  • by adam (1231) * on Saturday January 27, 2007 @11:08AM (#17783114)
    Based on their behavior here, Microsoft may also already own the patent on having brass balls!

    A quick USPTO search doesn't find any specifically covering brass balls as big as these ones, so look for them to file for that patent pretty soon. Amusing sidenote.. I actually did search, and did come across this [colitz.com]. And a backup (less amusing) source [freepatentsonline.com] if first goes down.
  • WTF? (Score:3, Interesting)

    by bcmm (768152) on Saturday January 27, 2007 @11:08AM (#17783116)
    Given that this time, they really really know there is prior art, are they just assuming no one can be bothered to have a long lawsuit with someone that rich?
    • Re:WTF? (Score:4, Interesting)

      by mustafap (452510) on Saturday January 27, 2007 @11:31AM (#17783254)
      Exactly. Patents are like hands in poker.

      A patent means nothing until it has been defended in court.

      On the other hand, a patent award gives one a warm feeling and looks great on a CV.

      • Re: (Score:3, Interesting)

        by AusIV (950840)
        So does this mean Microsoft is going to turn around and sue BlueJ for a patent violation, BlueJ is going to sue Microsoft for patenting their prior art (can you even do that), or that Microsoft is just going to sit on this patent so they can make broad claims about other projects violating intellectual property?
        • Or perhaps none of the above? Wasnt Microsoft one of the organisations that fairly recently called for patent reform [com.com]? Maybe this patent application has something to do with that?
          • Re: (Score:3, Insightful)

            by AusIV (950840)
            FTA:

            Published: April 25, 2005, 8:53 AM PDT

            I'd hardly call that recent. Since then Microsoft has asserted that Linux violates Microsoft "Intellectual Property" but has declined to specify what IP that would be exactly. I don't think anyone would claim that's to help patent reform.

            This current incident also reeks of foul play, and Microsoft is going to have to turn around pretty quickly and say "Look how stupid the patent office is for giving us this patent," lest they look bad for the incident. If Micros

      • Re: (Score:3, Insightful)

        An apt analogy. Someone with a crappy patent can still "win" if they have a dominating chip advantage over an opponent that doesn't have so many chips and can't afford to go all in.
  • More Evidence (Score:4, Insightful)

    by mfh (56) on Saturday January 27, 2007 @11:11AM (#17783130) Journal
    That this is no longer a world of great men, but a world of committees.
    • by oohshiny (998054)
      That this is no longer a world of great men, but a world of committees.

      Actually, when companies get away with this on a big scale, they get to write history. So, you can look forward to people believing 100 years from now that Bill Gates invented the Internet, object-oriented development, personal computing, graphical user interfaces, and visual development environments. Well, maybe Microsoft will share some of the credit with Steve Jobs, which is just as erroneous.
  • by rjdegraaf (712353) on Saturday January 27, 2007 @11:12AM (#17783138)
    Vote with your money against such business practices, use competitive products.
    • Re: (Score:3, Interesting)

      by Cheerio Boy (82178)
      Vote with your money against such business practices, use competitive products.

      Indeed. With RealBasic being priced about equal to Visual Basic and Ubuntu being free I see very little reason to develop for a proprietary platform these days.

      Now granted the user base is *ahem* considerably larger for Windows but I think that will change and is changing now.

      To use the old cliche "Build it and they will come."

      Especially if you can show a cost savings to the upper level of manglement. ;-)
  • by mbone (558574) on Saturday January 27, 2007 @11:21AM (#17783188)
    The whole purpose of publishing patent applications was so that people could submit prior art to the examiner.

    So, if you care, and if you think you have prior art, submit it to the examiner.
    • Antipatents? (Score:5, Interesting)

      by Richard Kirk (535523) on Saturday January 27, 2007 @11:55AM (#17783394)
      Back in the 1980's, the UK patent search used to be pretty lightweight, the European patent search as more thorough but that was sometimes patchy, and the standard of patent searches was the US. In the intervening years, the US patent search quality has gone from the top to the bottom. Part of this is an inevitable response to the recent deluge of software patents, buisness practice patents, and other dubious stuff. Part of this is because the USA is perhaps 1/3 of the world market for most electronic and technological products, and so a single patent there is worth more than anywhere else.

      How much searching ought you to do for a patent? If your country signed up to the international patent agreements, then for your patent to be valid, there must be no published or sold prior art anywhere in the world or in any language. This is an impossible search, so the assumption is always that any prior art search is incomplete. If all patent applications are incomplete, then some people may wonder why we start at all. You could just do a cursory search of the current online patents, and allow the application. Microsoft have lobbied for a more open system where patent application becomes easier, and the public community does more of the searching. Unfortunately, patent applications have titles, summaries, and patent indexes that make them easy to search, while products are not searchable in the same way. If you searched for prior art on the Microsoft product, then you would be very unlikely to discover BlueJ.

      I do not think the public should be required to support the prior art searh effort, but if they are going to be enlisted, then they ought to have the right tools. What I would like to see is some searchable index of prior art or prior ideas. This could be classified the same way as patents. For my particular field of image colour transforms, I would list all the different ways in which would could generate and combine and apply different forms of colour transform, invert them, apply them, with all the different variations we could think of. Other people could generalize this list, or add more specific implementations, as a patent can cover a simplification as well as a refinement. We would include references to prior art where examples could be found. This would not stop existing patent applications for stuff we know has been around for ages, but it could frustrate all future attempts.

      As a software writer and a filer of patents, I think we would be better off with no software patents. If we have to have them, let's make them good ones before they bring the whole patent system into disrepute.

      • Re:Antipatents? (Score:4, Informative)

        by Grond (15515) on Saturday January 27, 2007 @02:01PM (#17784204) Homepage
        There already is such a system: the Statutory Invention Registration [wikipedia.org]. Basically, it has all the same information as a patent but doesn't confer any rights on the submitter the way a patent grant does. Once it's submitted, it joins the PTO's database, which is the one place a patent examiner is guaranteed to look when reviewing a patent.

        This is also one reason why "defensive patents" are complete hokum. If a company really wanted to get a patent just to make sure no one else could, they would just file a SIR: it has all the same information, it gets searched by examiners, and it's a public record. But of course SIRs are actually very rare: it's so easy to get a patent that companies would rather get the patent 'just in case' they need to sue anyone later.
        • Re:Antipatents? (Score:4, Insightful)

          by flimflam (21332) on Saturday January 27, 2007 @03:24PM (#17784712) Homepage
          I thought that the idea of a defensive patent wasn't to protect yourself from getting sued for that invention, but to be used as a bargaining chip in case you get sued for a different patent infringement. That way a company with a huge patent portfolio (such as IBM) is able to negotiate a cross-licensing agreement with any company that may be inclined to sue them for patent infringement. Of course it doesn't protect against patent trolls who have no need to license anybody else's patents since they don't actually produce anything....
           
    • by mr_death (106532) on Saturday January 27, 2007 @11:58AM (#17783410)
      The whole purpose of publishing patent applications was so that people could submit prior art to the examiner.

      Umm, no (at least in the USA.) Publishing a patent app after 18 months thwarts the well-known tactic of constantly amending your app so that it stays below the radar for years -- the submarine patent. People would file a patent app, delay its prosecution until a market developed, then get it approved and demand infringement damages from all the legitimate companies that had been working on the problem for years.
    • 18. The system of claim 17 wherein the expression evaluation component is associated with a programming language compatible with .NET.
      Does BlueJ work with .NET languages?
  • Patents and Perjury (Score:5, Informative)

    by NZheretic (23872) on Saturday January 27, 2007 @11:23AM (#17783200) Homepage Journal
    To quote Bruce Perens' 2006 State of Open Source press conference

    Perjury:

    When one applies for a patent, an oath is sworn. The penalty for falsehoods under that oath [http://www4.law.cornell.edu/uscode/html/uscode18/ usc_sec_18_00001001----000-.html [cornell.edu]] in theory - is currently 5 years imprisonment, or a fine, or both. That's in theory. Now, let's talk about practice. At the meeting, Robert Clark, Deputy Director of the Office of Patent Legal Administration, said that there _was_ a patent perjury case: in 1974, and that one comes along every 25 years or so. Yet, we are aware of, for example, a much more recent patent in which the claims included verbatim text of a published paper by a researcher not connected with the applicant. And there are examples like Microsoft's two-click patent, in which there does not seem to have been any excuse for the filer to have been unaware of prior art. There's a strong financial incentive for the unscrupulous to eavesdrop on the open discussion lists of standards organizations or Open Source projects and to make pre-dated patent filings with that information, another form of perjury.

    My premise in bringing this up is that there does not seem to be any sense of peril for those who game the system. The worst that can happen to a perjurer is that his patent claim is denied, and he can get a continuation from the patent office and eventually get the patent anyway. Contrast this to how courts treat perjury in non-patent matters: impeachment of a witness for unreliable testimony is often followed by prosecution for perjury and a lengthy jail sentence.

    This creates a quandry for the patent examiner, because the total lack of enforcement against perjury means that the examiner should not assume that any patent application has been made in good faith. That examiner might not get a whole day in which to evaluate a patent application, and the fact that we can't rely on the applicant telling the truth makes a job with an impossible time constraint even more preposterous.

    Perjury is not a victimless crime: it creates intellectual _poverty_ because its victims will be unjustly denied use of technology covered by a patent claim that, in general, they can't afford to litigate.

    In some cases, the perjurer is hiding behind an attorney or a patent agent who believes in the honesty of the claim. But the applicant should be counseled on the peril of perjury in making an application, and the peril should be real.

    Today's policy seems to be denial that a problem exists. I submit that improving software patent quality should improve the active pursuit of perjurers: referral of applications from an examiner to a criminal investigator during examination or re-examination, and we must carry that process through to conviction on a regular basis.

    This is something that the U.S. Patent Office can do without changing a single law. The law-enforcement authorities exist, the public sympathy is there for enforcement against white-collar crime, nobody's whining that Ken Lay got in trouble. So, United States Patent Office, let's hear an annoucement that you are going to be vigilant about referring perjurers for criminal enforcement, more than four times a century.

  • by nurb432 (527695) on Saturday January 27, 2007 @11:27AM (#17783230) Homepage Journal
    Only problem is that the USPTO cant know *everything*. So things will slip thru by nature.

    The real test is you present valid prior art to them, and see if they revoke it on the spot.
    • by delt0r (999393) on Saturday January 27, 2007 @12:05PM (#17783448)
      The number of downright stupid patents is not summed up by the words "sliped through". Sure they my be overworked and under paid. But toys that are fuled with farts, sticks to entertain dogs, or "one click" online crapola. Its stupid to assume thats novel, inventive or anything other than plain stupid.

      There is no cost to the patent office for granting patents that are stupid. There is no or little cost to the applicant for appling for a stupid patent. Thats the problem.
    • A solution (Score:4, Interesting)

      by Aapje (237149) on Saturday January 27, 2007 @06:26PM (#17785814) Journal
      A good solution for this might be to turn the system around. The patent office should do only a cursory check for similar patents and focus mostly on the quality of the patent (no prior art check at all). Then anyone should be able to challenge a patent easily by submitting prior art or previous patent with a fee of about 100 dollars. The patent office checks whether the challenge is valid. If it is, the patent is revoked and the challenger gets his fee back, with an added bonus to be paid by the (former) patent holder (say, 500 dollars). The patent office can add their own fee, also to be paid by the (former) patent holder.

      The advantages are:
      • Patents will be cheaper and faster to obtain (less work to approve a patent)
      • Good patents are cheap and filing bad patents will be costly
      • Patent challenges are much less costly since no court challenge is necessary (normally, it should still be an option). They can even be profitable if a good percentage of the challenges are accepted (some people might even make it their job).
      • The people at the patent office do not feel the need to obstruct a challenge. In the current system, a succesful challenge means that they failed their job, which bruises their ego. When prior art and extensive patent searches are no longer their job, this will go away.
  • by Doc Ruby (173196) on Saturday January 27, 2007 @11:27AM (#17783236) Homepage Journal
    This kind of patent abuse should be remedied with action against the abuser. At the very least the patent attorneys should be barred from filing or working on patents for a period of at least 10% of the duration of the patents they are abusing. And the filer (eg. Microsoft), if guilty of conspiracy to abuse (provable by repeated offenses) should be barred from filing or working on patents for a similar period.

    That kind of consequences would force the filers to carry most of the responsibility for researching prior art and other patent invalidators, rather than the incompetent/overloaded PTO. And weed out many of the crooked patent lawyers who make money regardless of how badly they construct the artificial government monopolies they attempt to create.
  • Go To The Source (Score:4, Insightful)

    by MrNonchalant (767683) on Saturday January 27, 2007 @11:29AM (#17783250)
    That's the final straw. How feasible would it be to take the USPTO to court for not fulfilling their chartered duty and as a result causing millions of dollars of damage? There have been liability suits against the government, I think. How is this one different?
    • by Dufftron 9000 (762001) on Saturday January 27, 2007 @11:37AM (#17783298)
      Aside from the fact that this is an APPLICATION and not a GRANTED Patent? What are you going to charge them with? Allowing someone to file a patent application? If it gets granted, then by all means go nuts on them, but if the reference is easy to find it will likely get rejected.
    • Re: (Score:3, Funny)

      by master0ne (655374)
      Because this course of action has already been patented by the USPTO, and as such, you would be infringing on their rights...
  • by erroneus (253617) on Saturday January 27, 2007 @11:30AM (#17783252) Homepage
    They will do whatever they think they can get away with... and more. They always have and they always will. Their patent people know quite well what patents are for and what the rules are. They do it anyway. I think if it can be shown through some sort of evidence that they were compelled to files these patents by some sort of directive, that they should actually be barred from filing any further patents if not forever, then for a specific and damaging amount of time. Abusers of 'the system' should be blocked from using the system.
  • by Anonymous Coward on Saturday January 27, 2007 @11:36AM (#17783286)
    Why not link to the patent application itself? From the USPTO here [uspto.gov].

    (Posting AC = No karma whoring)
  • Hard to defend (Score:2, Insightful)

    by LaughingCoder (914424)
    As someone who often finds himself defending MS on this forum, I find this particular transgression on Microsoft's part difficult to rationalize. I read the blog and find it, as presented, believable and condemning. But in keeping with my tendency to challenge /. group-think, I will comment on the following sentence from the article:

    As a result, a product like BlueJ, developed for the education community, that has helped thousands of students to learn programming, may be muscled out of existence by corpo

    • Re: (Score:3, Interesting)

      Remember what M$ did with IE to get the upper hand against Netscape.
      They made their previously saleable heap of dung called Internet Explorer FREE.
      Sales of Netscape crashed.
      I see (to my simple non legal mind) the same sort of behaviour here.
      -Find a product that already exists and made by a small company.
      -Copy functionality of said product
      -Make it Free but closed source
      -Original Company goes bust
      -Start charging for previously free software
      -Profit!
      or for the last two
      -Lock in. All users of this neat funcyional
      • Grasping at straws here, but suppose Microsoft hates patents, having been burned by them a few times, and decided that the potential to use them for evil doesn't justify their continued existence. How to force abolishment of software patents, or at least patent reform? Publicly show prior art, apply for patent, if patent is granted, you have a smoking gun showing that USPTO just rubber stamps and never actually looks at the prior art. But the big question is, once they have that, will they be able to res
        • I don't think this is a far fetched as it might seem. I know from experience that large companies with lots of money think of patents as defensive rather than offensive. They are constantly under siege with every Tom, Dick and Harry claiming to have invented something they now happen to sell. Patents are a huge cost for large businesses like Microsoft. Most companies resign themselves to trying to build a large portfolio of "IP" in order to assure mutual assured destruction to prevent other large or well-he
      • Your scenario suffers from one minor flaw. From the article:

        BlueJ is an academic project, started in 1998, and the software is, and always has been, free.

        The "original company" is a university. The product is already and always has been free. Why would this "company" go bust if Microsoft gives away Visual Studio Express containing similar functionality? In fact, the concern BlueJ raised was that Microsoft "might" exercize this patent and prevent them from distributing BlueJ. However, this has not happened

    • Re: (Score:2, Insightful)

      by Thawk9455 (1037874)
      Or Microsoft simply gives away the Express version of their software hoping any student is only taught that in school (because it is a standard Microsoft product) and then will only know how to use it when they are out of school. Now they only use Microsoft's paid professional programs and only develop for the Microsoft Windows operating system which means more apps are Windows only. It's a sweet deal. The kids are stuck using Windows and so are ALL of their future customers.
    • Re: (Score:3, Informative)

      by jbengt (874751)
      According to linked articles, MS doen't offer this feature in the Express version.
    • I couldn't have said it better myself.
    • by ettlz (639203)

      Perhaps their motives are not so pure and they now see their chance at big bucks from the big, rich nasty corporation?

      No, I don't think that's the case. However, I'm more than a little apprehensive about an academic package that's not open source or Free Software, and whose license prohibits disassembly [bluej.org].

  • Surely by version 3.0, you will understand that Microsoft has done nothing wrong? If not, just run Windows update until the whole thing stops bothering you.
  • by ashwinds (743227)
    If no one has patented it yet, I want to patent patenting - everyone who wants to patent something, come to me first... :-)
  • > Now, a patent application has come to light which patents the very same feature, blatantly ignoring prior art.

    Bet the USPTO grants the patent anyway. Really.
  • evil (Score:5, Insightful)

    by oohshiny (998054) on Saturday January 27, 2007 @12:06PM (#17783456)
    Yes, this is evil. But you're underestimating the problem if you think it's just Microsoft or that we can stop it by reigning in a single company. Apple does the same thing, for example, as do many other companies.

    The only solution is a total overhaul of the patent system.

    (As for the BlueJ feature itself, I'm not exactly sure what's supposed to be new about it anyway. People have been doing that kind of testing since the days of Smalltalk.)
  • What happens is the deelopment department works on something. Then the patent and legal department takes a look at the features, and finds anything that looks innovative. They do a prior art search, and if there are no patents in the field, they patent it. It is possible, that the patents department simply didn't know that this idea was taken from another.
  • by Per Abrahamsen (1397) on Saturday January 27, 2007 @12:19PM (#17783528) Homepage
    Except in the legal sense, Microsoft is not a single entity. It is a collection of people who does not always know what each other do.

    The story seems to go like this:

    BlueJ becomes popular in academia. When Microsoft ask people in academia which new features they would like to see in Visual Studio, naturally they suggest some of the features that makes BlueJ popular.

    Now some people from Microsoft gets assigned to implement this new feature, and for extra credit also write a patent application (or submit the idea to the people who write the patent application).

    Later, another person from another subdivision, who happen to be an active blogger, get wind of the BlueJ people are angry that Visual Studio has a new feature copied from BlueJ without acknowledgment. So the blogger find out that it was most likely BlueJ that inspired the academicians to suggest the feature, and acknowledge the fact.

    And now, because people think of Microsoft as a single entity, they are angry because Microsoft both patent the idea, and at the same time acknowledge where it came from.
     
    • by ThinkFr33ly (902481) on Saturday January 27, 2007 @12:58PM (#17783760)
      Quiet you. Logical and rational thinking like that has no place on Slashdot.
    • Re: (Score:2, Insightful)

      by Anonymous Coward
      Except that surely in filing the patent someone had to say "I invented this".

      If the person implementing the feature didn't write the code then they can't.

      If the person who implemented the feature just followed a spec then they can't

      If the person who wrote the spec "invented" it by copying other people's suggestions then they can't.

      The applications lists Goenka; Gautam; (Hyderabad, IN) ; Das; Partho P.; (Hyderabad, IN) ; Unnikrishnan; Umesh; as the inventors so they've declared they invented it. So what did
    • by greg_barton (5551) * <.moc.oohay. .ta. .notrab_gerg.> on Saturday January 27, 2007 @01:44PM (#17784084) Homepage Journal

      And now, because people think of Microsoft as a single entity, they are angry because Microsoft both patent the idea, and at the same time acknowledge where it came from.
      And this is exactly what they signed up for when they applied for corporation status. They want to be recognized as a corporate entity, with all of the rights and responsibilities that entails.

      Your point?
  • If a King controled peoples free speech and that caused great evil, people would use that a clear reason to justify killing his ability to control any speech. Unfortunately with patents we see abuses causing hell everywhere we look, yet there is no desire to kill them, only gently modify them. Every time the abuse gets worse, harsher, more stupid, and more evil, but yet still no general desire to kill patents. This behavior is not rational. It's like the people who wanted to keep slavery in a kinder fo
    • by ardor (673957)
      The original idea of patents is: publish your results, and we will grant you a temporary monopoly over it.
      The alternative? Companies keep their stuff secret.

      So, assuming patents would not exist, the Africans would still be suffering from AIDS, the only difference being that the companies had kept their AIDS drugs a secret. (Good luck with reverse-engineering them.)

      Patents are not a bad idea per se; its their enforcement and granting that are broken. AIDS drugs in Africa should pass as analogous to "fair use
  • Prior art has never been a reason for MS to avoid patenting. They'll try to patent anything they can patent. Remember when they tried to patent a box with numbers in it? [slashdot.org] It's the nature of the business

    In their eyes they have to try to patent anything they've worked on because patents are some form of security on their work, and they have to keep up with companies like IBM that patent a whole lot more stuff than they do. I would imagine doing so is hard though since places like IBM have more revenue str
  • wait a second... (Score:2, Interesting)

    by ridgecritter (934252)
    If an applicant knowingly fails to disclose relevant prior art in their patent application, doesn't that constitute fraud on the patent office? Particularly in this instance, when Microsoft clearly knows of the prior art? IIRC, fraud on the patent office is a cause of action that the P.O. takes pretty seriously.
  • by Grond (15515) on Saturday January 27, 2007 @01:23PM (#17783936) Homepage
    Note: I'm not going to take Microsoft's side on this. Whether or not this was an innocent mistake, they should own up to it now and withdraw their patent application.

    That said, here's what I think might have happened.
    1. A group of people at Microsoft collects suggestions for the next version of Visual Studio: one of the suggestions is for BlueJ-like functionality.
    2. The feedback group sanitizes this information (i.e., removes any explicit references to BlueJ), then passes it on to the devs.
    3. The devs implement the BlueJ functionality, and (as is probably standard practice) a patent is applied for.
    4. The named inventor on the patent application is a developer who doesn't know anything about BlueJ because of the aforementioned sanitizing. As such, there's no perjury or fraud on the patent office.

    That's my theory, anyway. It goes to show that there's a perverse incentive for large corporations to have a system of information hiding so that it can later have plausible deniability about this kind of thing.
  • by RexRhino (769423) on Saturday January 27, 2007 @03:07PM (#17784604)
    Do we really need a patent system?

    Oh, I understand the purpose - The purpose is to allow someone who developes a new technology to be able to make the research costs back by having a monopoly, thereby encouraging innovation.

    But, I see two situations:

    1. The new invention is so clear an obvious that there is no effort at all to reverse engineer it when it comes on the market. (i.e. Sporks, intermittent windshield wipers, etc.)

    2. The new invention is technically sophisticated, and requires significant effort to reverse engineer.

    In case one, we probably don't want those obvious types of things patented anyway. In case two, even if there is no patent, the person will have a monopoly while other companies reverse engineer the product, tool up for production, etc.

    I just don't think that people are going to stop innovating because there are no longer patents. In fact, I think it will ACCELERATE innovation. A company won't be able to develop a product, patent it, and just rake in the bucks from their monopoly anymore - They will have to make constant improvements to be ahead of the curve.
    • Re: (Score:3, Interesting)

      by Evil Pete (73279)

      One solution would be to have software patents treated differently. Ten years for a software patent is a very long time. So instead we could have simple patents apply for 2 years, medium level patents 4 years and complex patents 8 years. Under this scheme "one click" would have lasted 2 years and given Amazon a clear advantage. Whereas some voice synthesis application may have core technology that could be patented for 8 years. The only alternative to anything like this I suspect is just to get rid of softw

  • its perfectly legal (Score:3, Interesting)

    by SQLz (564901) on Saturday January 27, 2007 @03:49PM (#17784890) Homepage Journal
    There is no law stating you can't patent something with prior art then sue the person who actually invented it, ruining their business and their life. There is also no requirment that patent clerks have to check prior art outside of the patent system. Its the American way people, and through 'diplomatic' pressure, it will soon be your country's way too.

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