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Microsoft Patents The Courts United States Your Rights Online

Justices Question Microsoft's Vision of Patent Law 106

Posted by Soulskill from the pipe-down-clarence dept.
angry tapir writes "US Supreme Court justices on Monday questioned whether they should side with Microsoft and weaken the legal standard needed to invalidate a patent, with some justices suggesting there are alternatives to changing established law. The issue arose as part of the case involving Redmond and i4i."
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Justices Question Microsoft's Vision of Patent Law More

Justices Question Microsoft's Vision of Patent Law

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  • Microsoft, which lost a US$290 million decision in a U.S. district court, has argued that i4i began selling a product with the XML editor included a year before it applied for the patent. The U.S. Patent and Trademark Office (USPTO) didn't consider this so-called prior art in granting the patent, but the district court should have, Microsoft lawyer Thomas Hungar argued Monday.

    It sounds like they're arguing a product i4i released should count as prior art against a patent i4i later filed.

    Huh?

    • Re:I'm confused (Score:4, Insightful)

      by clang_jangle ( 975789 ) on Monday April 18, 2011 @11:38PM (#35864506) Journal
      I think the idea is "they released it without protection and after it had been on the market available for copying and/or reverse-engineering then they screwed us by seeking a patent".

    • Re:I'm confused (Score:5, Funny)

      by Samantha Wright ( 1324923 ) on Monday April 18, 2011 @11:43PM (#35864534) Homepage Journal

      I guess that, in Microsoft's world, you can't patent something after releasing it. i4i isn't so impressed by that idea:

      Microsoft's assertions that i4i included the XML editor in a product before applying for the patent and that it destroyed source code are "utter nonsense," Owen added.

      Still, this is all just a bucket of dren. No one should be able to patent anything involving XML, and the reasoning is simple: the kind of cruft that accumulates in XML files (and, by extension, application-specific XML parsers) is analogous to biological evolution, and therefore XML is a phenomenon outside of human control. It would be like patenting natural genes or something! And we all know that would never be legalized.

      • the kind of cruft that accumulates in XML files (and, by extension, application-specific XML parsers) is analogous to biological evolution, and therefore XML is a phenomenon outside of human control

        Ummmm ... what?

        How is a structured document type, and ideally one which uses DTDs and the like "analogous to biological evolution" and "outside of human control"????

        I don't know what kind of mutant XML you've worked with, but the XML I've worked with changes under pretty well-defined rules, which are applied cons

        • Essential to this process is (1) a poorly written software spec handed down from the PHBs that constantly contradicts itself and (2) a bit of a sense of humour. Every company server is a potential Miller experiment, but only some have the right atmospheric mixture.

        • That rushing sound you're hearing isn't the winds of April. It's the sound of the joke that just passed over your head.

          Hint: Genes have been patented.

          • That rushing sound you're hearing isn't the winds of April. It's the sound of the joke that just passed over your head.

            WHAT? I can't hear you. ;-)

      • Re: (Score:2)

        by 2short ( 466733 )

        "I guess that, in Microsoft's world, you can't patent something after releasing it."

        Which is indisputably true.

        And note that i4i doesn't take the ridiculous position of disputing this foundational concept of patent law. They dispute whether the district court can decide whether they previously released it, or whether they have to assume the Patent Office's previous determination that they did not release it is correct.

        So the choice is between admitting MS is right in this one case, versus saying the Patent

    • Re: (Score:3, Interesting)

      by Anonymous Coward

      patents have to be filed within 1 year of the invention being made public

    • Re:I'm confused (Score:5, Informative)

      by Arguendo ( 931986 ) on Monday April 18, 2011 @11:54PM (#35864586)
      Yup. You don't get to release a product to the public and then 20 years later try and go patent it. You've got one year from the release of the product to file for a patent. If not, you are out of luck.

      • Perhaps in our new digital age 1 year is far too long. Just file the patent before it comes out, you just have to "file" it, you don't need to receive the patent.

        Perhaps for small companies this could be relevant, but any midsize or bigger company (this includes basically every tech company) knows how to file patents, has patent lawyers, and really has no excuse not to file, unless this is exactly what they intended.

        • Re: (Score:2, Informative)

          by artor3 ( 1344997 )

          Actually, you pretty much describe the system as it exists. The 1 year period the GP refers to is for a provisional patent. You file the provisional patent saying "I'm about to release a cool new invention that does X" and then you have one year to release it and file for a non-provisional patent, which lasts for 20 (or 14 if it's a design patent covering the form rather than the function).

          • And if you don't file the provisional patent, but instead do release the product, then you still get a year to apply for a patent.

            A provisional patent is NOT required, that's the issue.

          • Re:I'm confused (Score:4, Informative)

            by jcorno ( 889560 ) on Tuesday April 19, 2011 @02:03AM (#35865162)

            Actually, you pretty much describe the system as it exists. The 1 year period the GP refers to is for a provisional patent. You file the provisional patent saying "I'm about to release a cool new invention that does X" and then you have one year to release it and file for a non-provisional patent, which lasts for 20 (or 14 if it's a design patent covering the form rather than the function).

            No. It's only considered prior art if it's offered for sale in the U.S. more than 1 year before the filing date. See 35 USC 102(b). This has nothing to do with a provisional application.

    • Re: (Score:3, Informative)

      by Anonymous Coward

      35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.

      A person shall be entitled to a patent unless - ...

      (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States ...

      • So in other words, if someone publishes something, I can get a patent on it if I just file it less than one year after publication (assuming he didn't already)?

        • Re: (Score:1)

          by AJH16 ( 940784 ) *

          But he would have prior art, so they could invalidate your patent.

        • Re: (Score:2)

          by 2short ( 466733 )

          You'll note that the Coward quotes a section of the law labeled "(b)". Does this make you wonder if there are any other sections?

  • here's a good rule (Score:3)

    by shentino ( 1139071 ) <shentino@gmail.com> on Monday April 18, 2011 @11:40PM (#35864516)

    Any subject matter that's close enough to infringe a patent AFTER it's been filed should be likewise close enough to count as prior art BEFORE it's filed.

    The two standards for each point, whatsoever they may be, have to match, or you'll have predatory patents pulling the rug out from under established projects.

    Again, if it's bad enough to infringe, it's also good enough to invalidate.

    • Any subject matter that's close enough to infringe a patent AFTER it's been filed should be likewise close enough to count as prior art BEFORE it's filed.

      Are you trying to say that that should be the rule? If so, you're too late, because that already is how it works. The only difference between something infringing and something being prior art is the publication date.

      • Is it really that way in practice?

        What with the standards of proof and whatnot?

        Considering there's now a case in SCOTUS regarding this very issue I wouldn't be so quick to draw any conclusions.

        • You're right, the standards of proof can make it a little fuzzy. I'd have to check and see exactly how that fits in. I do know that the process is the same to show both prior art and infringement; to show that something is invalidating prior art, you show that it would infringe the patent, and then point to the publication date.

          • Re: (Score:2)

            by psxndc ( 105904 )

            The burden of proof to show infringement is preponderance of the evidence, i.e., more likely than not, i.e., 51% likely.

            The burden of proof for invalidating a patent is clear and convincing evidence. There isn't a numeric equivalent, but I've heard a litigator say "past the 11th inch on a ruler." This is because the system gives deference to the examination performed by the patent office (which tests the validity of a claim during the examination using a standard effectively equivalent to the preponderanc

  • Judges and/or Justices?

  • Ah, (Score:3, Interesting)

    by alienzed ( 732782 ) on Tuesday April 19, 2011 @12:29AM (#35864754) Homepage
    software patents. Insanity and greed at their best.

    • Re:Ah, (Score:4, Interesting)

      by Anonymous Coward on Tuesday April 19, 2011 @03:13AM (#35865422)

      I've said it before and I'll say it again. Patents are government issued monopolies, which completely fail at their primary goal of fostering innovation.

      Not only do patents discourage the patent holder from continuing to innovate by shifting their opportunity cost analysis away from innovating and towards monopoly maintaining, but they prevent other prospective innovators from engaging in progressive collaboration, building off of what those before them have done. --And the real salt in the wound, they even prevent the innovations, that DO get developed, from helping society as much as they could, since the monopoly creates an inefficient level of production.

      I honestly don't know how they are still seen in such a favorable light. Democrats should be against them, since patents tend to favor big business. Republicans should be against them, since republicans should be capitalists and believe in a free market; free from government intervention and monopolies. People who don't affiliate with either party should just straight-up be smart enough to figure this out on their own...

      • Re: (Score:3)

        by Kijori ( 897770 )

        Can you provide any proof for the claim that patents "completely fail at their primary goal of fostering innovation"?

        Schumpeter thought that patents encouraged innovation (Capitalism, Socialism and Democracy), Kenneth Arrow thinks they encourage innovation (e.g. 'Allocation of Resources for Invention'), the WTO thinks they encourage innovation (e.g. TRIPs), the FTC thinks they encourage innovation ('To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy'), the US Courts think the

        • You cite a lot of authorities, but no actual evidence. I can find countless examples of patents harming innovation, going right back to Watt using patents to stifle competition on steam engines (using very similar tactics to modern patent trolls). What examples can you cite where patents have actually encouraged innovation? The only examples that come to mind for me are where the existence of the patent has forced people to work around the patent (e.g. Marching Cubes) and come up with better approaches t

          • Re: (Score:2)

            by gtall ( 79522 )

            Drugs. I will be the first to admit that Big Pharma has misused drug patents. However, no drug company is going spend the billions it takes to get a drug developed and through approval (it used to take about 10-12 years and only a small fraction of promising compounds actually turn out to be useful) without patent protection. And even after the drug gets approved, sometimes the deleterious side effects do not show up until the ambulance chasing lawyers have been properly briefed leading to years of legal fi

            • Lots of supposition, but all that I see is an example of patents protecting profits, not encouraging innovation. On the contrary, lots of drugs are protected by perpetual patents where they file patents on subtly different techniques that make it impossible to create generic versions of the drugs even after the patents have expired. Meanwhile, a significant number of pharmaceuticals are developed in university labs, funded by various governments. Patent-free drugs (like asprin, for example) are still man

              • Re: (Score:2)

                by rwv ( 1636355 )

                Patents on high-cost-to-develop products are not evil. The university labs you cite are likely patenting their major inventions and milking them through licensing deals to fund future research (which correctly spurs innovation rather than stifling it because it correctly separates research businesses from manufacturing businesses. Innovation is stiffed when it comes from companies that have no intention to sell it or license it (i.e. strategically keep it out of the market). In general, though, companies

              • For drug companies, profits do encourage innovation. This will happen whenever the invention can't be used without a long certification process, or other serious preliminary costs.

                One really expensive part of drug development is getting it approved by the FDA or corresponding agencies. This involves clinical trials and such. Since not all drugs turn out to be safe and effective enough to go to market, getting one drug on the market requires several such studies.

                Without drug patents, there would be n

              • Re: (Score:2)

                by 2short ( 466733 )

                "You could replace pharmaceutical patents with something like a 4-year monopoly on sale of the drugs in question by the company (or consortium) that paid for the FDA approval process."

                You want to give companies that develop new drugs the exclusive right to sell the drug for a limited time, as an alternative to patents?

                • No, I want to give companies that pay for the certification of drugs a time-limited monopoly, not companies that invent them. That way, there's no incentive to sit on an invention for 20 years until your monopoly on the old drug runs out - one (or more) of your competitors can equally easily finance the certification.

          • Re: (Score:2)

            by Kijori ( 897770 )

            You cite a lot of authorities, but no actual evidence. I can find countless examples of patents harming innovation, going right back to Watt using patents to stifle competition on steam engines (using very similar tactics to modern patent trolls). What examples can you cite where patents have actually encouraged innovation? The only examples that come to mind for me are where the existence of the patent has forced people to work around the patent (e.g. Marching Cubes) and come up with better approaches than the original.

            I'm not sure I really understand your objection to citing authorities rather than "evidence", or indeed the distinction you are drawing. Any evaluation of the positive or negative impact of patent legislation must be based on some combination of research, economic models, and theoretical discussion. I find the suggestion that a few examples provided by a normal Slashdotter like me would be more convincing than a consensus of recognised experts who provide reasoned analysis a little odd.

            That said, I will try

            • Re: (Score:1)

              by dwandy ( 907337 )

              so there is a need to incentivize research and development.

              If you start with this (incorrect) position, then of course patents seem necessary.

              Who would invest hundreds of millions of dollars in research...

              The simplest answer is that you don't need to spend hundreds of millions of dollars if you do incremental improvement -- which is only possible if there are no patent protections. The patent system itself makes itself appear necessary. The simplest example of this is the inherent differences between how

            • This doesn't inherently mean more innovation, but the number of patent filings is up over the past 15 years or so.

  • From their website http://www.i4i.com/x4w.htm [i4i.com]. Seems an program that edits binary files /text files would be prior art including my favorite editor http://www.vim.org/ [vim.org].
    • Open binary file
    • Load into some internal metadata format for processing, ie image editor, text editor shit almost anything.
    • Transform back to original format

    Code folds would be another example.

  • I seem to remember a product from Bluestone which was released at Fall Internet World in 1999. I seem to recall it had an XML Editor in it. Surely this is Prior Art. http://www.internetnews.com/dev-news/article.php/234781/Bluestone-Releases-Visual-XML-11.htm [internetnews.com]

    • Re: (Score:2)

      by meza ( 414214 )

      The patent in question, US patent 5787449, was filed on June 2 1994 so that is the date you would have to beat.

  • MS is lobying against software patent law? Did I wake up in bizzarro world this morning?

    • Re: (Score:1)

      by Anonymous Coward

      Microsoft isn't arguing against software patent law - it's arguing that a preponderance of evidence should be the standard of defence against infringement.

      Since they have much more money than most of their oppoonents they can almost always win the preponderance of evidence standard. It is much harder to defeat a smaller company with a patent if the infringer has to show clear and convincing evidence instead of a preponderance of evidence.

      It seems the big companies are supporting this because it means that t

    • Re: (Score:2)

      by PPH ( 736903 )
      You didn't wake up. You're dreaming and your cat is sleeping on your face.

    • Most big IT companies do, actually. Google and Apple are in the same boat. If you watch patent-related court cases, you'll often see all of those file amicus curae briefs in favor of weaker patents. The reason is that, between big corps, patents are not particularly useful, since they usually have large portfolios, so if you sue you just get sued back over something else. On the other hand, big corps are the ones first targeted by actual patent trolls (a "patent troll" is a company that owns a patent solely

  • You be the judge (Score:3)

    by jamesl ( 106902 ) on Tuesday April 19, 2011 @04:29AM (#35865738)

    Full transcript here.
    http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-290.pdf [supremecourt.gov]

  • Patents are for Lawyers, Not Inventors (Score:3)

    by Doc Ruby ( 173196 ) on Tuesday April 19, 2011 @06:16AM (#35866120) Homepage Journal

    If they push patent examination further up into the Supreme Court, they will ensure that only the richest corporations can benefit from the patent system. Which is more important to the richest corporations than any other aspect of the patent system.

    It's already set up so that practically any assertion can be documented enough to be patented through a patent "examiner". The patent system now requires that any serious question be tried in a patent defense appeals court, the first time that a judge with any real experience in patents and inventions makes the decision. Which already favors richer corporations, rather than mere inventors. Microsoft and other corporations that trade their equity in stock markets based on government issued monopolies ("patents") want an expensive legal process, that only they can afford, to protect their entire patent business from surprising new entrants.

    They want complex and lengthy legal processes to protect their patents. They've got it. And as only lawyers and their sponsoring corporations get to argue about how much more wrangling is part of the process, they'll get ever more of it.

    Because actual inventors are the enemy of these incumbent monopolists.

  • What's the catch? (Score:3)

    by starfishsystems ( 834319 ) on Tuesday April 19, 2011 @10:39AM (#35868658) Homepage
    The only plausible reason why Microsoft would go out of its way to reduce patent protections is because the existing "clear and convincing evidence" protection is not in its interest. Given Microsoft's huge patent portfolio, that can only mean that it has greater concern for weakening other patents than it has for protecting its own. Why would that be?

    Now we get into speculation. I can imagine two complementary reasons why Microsoft would initiate this course - and remember, Microsoft is not defending itself in court here, it's bringing this action on its own initiative. One reason could be that Microsoft is not producing its own inventions as fast as it could raid others. That's the motive. The other reason is that patents would be more expensive to defend if the law were more ambiguous. Microsoft is big enough to wear out most of its opponents in patent court. That's the means.

    Stay classy, Microsoft.

    • Or maybe Microsoft hates patents as much as any other software company, and the only reason they have such a large portfolio themselves is (rightly) to defend themselves against the likes of Eolas?

      I mean, I don't like how US healthcare works, but I still have health insurance. You'd come by and tell me it's impossible for me to support healthcare reform, unless there's some crazy conspiracy.

      • Or maybe Microsoft hates patents as much as any other software company, and the only reason they have such a large portfolio themselves is (rightly) to defend themselves against the likes of Eolas?

        That's not a credible explanation. The evidence contradicts it. Microsoft systematically uses patent threat against open source, among other targets. It used OOXML to ensure that document standards would be encumbered by its patents. So clearly it's not the only reason, as you claim it is.

        You're also arg
      • Your hypothesis is incorrect. Microsoft does not hate software patents. To the contrary, for years they have been advocating software patents in countries that don't (yet) recognise them. And they are still at it. [msdn.com]

        -a.d.-

    • Re: (Score:2)

      by 2short ( 466733 )

      Seems a lot simpler than that to me:

      Microsoft (like many others) pursues their own self-interest. They decide what outcome they want based on what's good for them. They don't consider whether it is good for the world. So one would expect them to sometimes take a reasonable position by chance. Just deciding everything MS favors must be bad is an easy metric, but not very helpful.

  • In principle, it should be difficult to overturn a patent. If a patent merely had a 50/50 chance of holding-up in court, then they become nearly worthless. That gives less protection to inventors. The point of issuing the patent is firmly assert that this is an invention.

    In practice, the patent office is not doing their job. They are issuing garbage patents and not re-examining them. But is the appropriate solution to take the power away from that office? Are we so sure that the courts and juries are

  • I question the Supreme court for the questioning, NONBFN
  • I sometimes wonder if the bigger companies secretly wish they could reduce the number of patents that both they and their competitors hold. Having a bunch of patents makes you a formidable enemy to anyone who doesn't have any, but when two big patent holders go up against each other it's more like nuclear cold war. Do both sides really want this, or do at least some people in the upper echelons secretly wish that everything could simmer down a bit?

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