Microsoft Copies Idea, Admits It, Then Patents It

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."

Sick Software "Patents"

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.

Re:Sick Software "Patents"

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]

Re:Sick Software "Patents"

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.

Re:Sick Software "Patents"

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.

Re:Sick Software "Patents"

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.

Re:Sick Software "Patents"

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.

Re:Sick Software "Patents"

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!

Beware of Submitting Prior Art

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.

Re:Sick Software "Patents"

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!

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:Sick Software "Patents"

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:Sick Software "Patents"

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:Sick Software "Patents"

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:Sick Software "Patents"

It also might have something to do with that in the US we consider a corporation to be a "corporate personhood". So a corporation is practically indistinguishable from a person under our laws.

Re:Sick Software "Patents"

You are partly correct:

The idea that corporations are "artificial persons" (slightly different wording, same basic idea) originated in England well before the U.S. was formed.

Is correct, however the "artificial persons" concept is more limited than that of a "corporate personhood" [wikipedia.org] (at least according to the Wikipedia article). For example, in the United States a corporate personhood is entitled to basic human rights (where most other countries draw a distinction since corporations are not humans).

And, FYI, they aren't "practically indistinguishable" either, they have a distinct subset of the abilities of a regular person.

Sure, they can't vote or hold office. They can however:
* be found guilty of a crime
* be sentenced to pay restitution
* petition the government as a citizen
* not have their charter revoked by the state (killed)

and a host of other things. From my (admittedly limited) viewpoint of the subject I would consider that "practically indistinguishable" under our law.

Re:Sick Software "Patents"

in the US we consider a corporation to be a "corporate personhood". So a corporation is practically indistinguishable from a person under our laws.

Actually, there are many differences:

• Corporations cannot be sentenced to death or sent to jail. Humans cannot be ordered to be split up.
• Corporations do not have the vote.
• Corporations pay different taxes.
• Corporations cannot hold passports or driving licenses.
• Corporations cannot marry or adopt children.
• Corporations do not have to have been incorporated for 21 years before they are permitted to purchase alcohol, nor do they have to have been incorporated for 14-18 years before they are permitted to screw their customers.

Re:Sick Software "Patents"

Besides, if people object to "Microsoft are", how do they react to "Windows is shutting down"?

Re:Sick Software "Patents"

how do they react to "Windows is shutting down"?

I react very positively to that. "This nightmare is over" is usually my thought.

Oh, it gets worse...

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?

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?

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.

Is anybody really surprised by this?

Anybody?

*crickets chirping*

Yeah...me neither...

Ubuntu and the like are pretty close and things like Eclipse and RealBasic are giving people the tools to develop for the Linux platform easily. Hopefully it won't be long before people start moving the majority to Linux or OS X rather than the minority.

More Evidence

That this is no longer a world of great men, but a world of committees.

Vote with your money

Vote with your money against such business practices, use competitive products.

Submit the prior art

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?

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?

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?

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....
 

Re:Submit the prior art

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.

anyone can file an application...

the patent game is just that - a game. it doens't cost that much to file an application, and if it gets granted, the game is tilted way in your favor - it is now up to the other party to prove that the patent is bad.

also, you have internal IP depts, and others, whoose yearly evaluation is probably dependent on the number of apps they file.

Beyond that, it is well known that there are many, many patnets that seem ludicrous; this is really dog bites man

Patents and Perjury

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.

Link to the full transcipt

State of Open Source [technocrat.net]

Granted, but revoakable

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.

Re:Granted, but revoakable

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

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.

Burden of Patent on the Patenter

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

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?

Re:Go To The Source

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.

Microsoft has no legal/ethical/moral boundaries

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.

What, no link to the patent application?

Why not link to the patent application itself? From the USPTO here [uspto.gov].

(Posting AC = No karma whoring)

Hard to defend

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 corporate greed.

As it happens, Visual Studio Express is a free download from Microsoft. Having recently visited a college with my high school aged son I learned that the students in the Computer Science department all used Studio Express for their school projects. So I think ascribing this behavior to "corporate greed" may be reaching a bit. In fact, the author of the blog laments the fact that they (BlueJ) are only trying to educate, not make money. Given that, they should be happy that their ideas have been adopted and given much wider exposure via Visual Studio. Perhaps their motives are not so pure and they now see their chance at big bucks from the big, rich nasty corporation?

If it were Microsoft company policy to steal ideas that are plainly in the public domain and then patent them, a company with Microsoft's money pile would be the target of thousands of these types of accusations, and rightly so. Rather, I suspect this transgression is the result of some overzealous individuals, perhaps trying to meet patent quotas or gain some upward mobility in an enormously large corporation where it is hard to get noticed. Regardless, should Microsoft ever take the next step and go after BlueJ, I will have to eat these words, because that truly would be an unforgivable act.