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USPTO Rules Fogent JPEG Patent Invalid 240

Posted by Zonk from the burn dept.
fistfullast33l writes "Groklaw has reported that the USPTO has ruled the broadest claims of the JPEG Patent held by Fogent to be invalid. PUBPAT, the organization that requested the review, released the news earlier today. According to PJ, the ruling will be hard to overturn as the 'submitters knew about the prior art but failed to tell the USPTO about it.'"
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USPTO Rules Fogent JPEG Patent Invalid More

USPTO Rules Fogent JPEG Patent Invalid

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  • Good (Score:3, Insightful)

    by fitten ( 521191 ) on Friday May 26, 2006 @12:53PM (#15410646)
    Wow... it's nice to know that they are at least looking at things better.

  • Hard to overturn but... (Score:5, Insightful)

    by rolfwind ( 528248 ) on Friday May 26, 2006 @12:53PM (#15410652)
    According to PJ, the ruling will be hard to overturn as the 'submitters knew about the prior art but failed to tell the USPTO about it.'"


    Even if they didn't know about the prior art, why should it affect the ruling if prior art was involved? Since they knew about prior art but didn't report it, they should be fined.

    • Re:Hard to overturn but...Not Enough! (Score:5, Insightful)

      by Nom du Keyboard ( 633989 ) on Friday May 26, 2006 @12:56PM (#15410685)
      Since they knew about prior art but didn't report it, they should be fined.

      I vote for jailed. Fines are just a part of doing business, and do not appear to be much of a deterrent these days.

      • Re:Hard to overturn but...Not Enough! (Score:5, Insightful)

        by ClosedSource ( 238333 ) on Friday May 26, 2006 @01:09PM (#15410777)
        Don't forget that the primary purpose of corporations is to avoid personal liability and responsibility. It is both difficult to jail a corporation or jail individuals working for a corporation for corporate misbehavior.

        • Re:Hard to overturn but...Not Enough! (Score:5, Informative)

          by sangreal66 ( 740295 ) on Friday May 26, 2006 @01:29PM (#15410895)
          Don't forget that the primary purpose of corporations is to avoid personal liability and responsibility. It is both difficult to jail a corporation or jail individuals working for a corporation for corporate misbehavior.
          The primary purpose of a corporation is the shield the owners from liability and responsibility. Individuals working for a corporation are still responsible for any criminal offenses they commit or conspire to commit.

          • Re:Hard to overturn but...Not Enough! (Score:4, Insightful)

            by mpe ( 36238 ) on Friday May 26, 2006 @04:35PM (#15412335)
            The primary purpose of a corporation is the shield the owners from liability and responsibility.

            The original concept idea was to encourage people to put money into business, because if it failed the owners would not be liable for any debts it left. Your liability was limited to however much you had put in.

            Individuals working for a corporation are still responsible for any criminal offenses they commit or conspire to commit.

            Even if the people involved are the owners their limited liability for debts was never intended as a shield for criminal behaviour.
        • "Don't forget that the primary purpose of corporations is to avoid personal liability and responsibility. It is both difficult to jail a corporation or jail individuals working for a corporation for corporate misbehavior."

          Talk to Ken Lay and Jeffrey Skilling about that, I'm sure they'll be glad to hear.
        • There's a name on the patent. Jail that person.

          Then maybe when a company tells one of their programmers that they need to patent something blatantly stupid, they'll show some backbone and say "no, its not patentable. It would be a waste of money and time."

        • Re:Hard to overturn but...Not Enough! (Score:5, Informative)

          by sharkb8 ( 723587 ) on Friday May 26, 2006 @03:27PM (#15411778)
          Corporations are not gtranted patents in the U.S., people are. The corporations get an assignment from their emplyees, which essentially means that the company owns the patent, but the Applicants are always one or more individuals. However, no one goes to jail over this, the patent just gets invalidated.

          What Dan Ravicher was referring to is the duty to disclose any known prior art found prior to, or during patent prosecution. Courts have frequently punished patent holders for knowing failing to disclose prior art by invalidating the entire patent. This usually only happens in court when someone gets sued for patent infringement, or when a party takes the issue to court to get a declaratory judgment finding the patent invalid. Surely no one out there wants to spend the money it'd take to get this invalidated in court.

          When the issue gets brought up before the PTO, they generally just invalidate the broadest claims, and narrow the scope of the patent until it's worthless.

      • The overflowing jails are in large part filled with those who can't afford quality lawyers. (Oxymoron? You get my gist.) The college educated crowd loses houses, cars, wives and children when they get sent up so, it would be a deterrent.

        Another poster mentioned that the purpose of a corporation was to protect risk takers from liability: this is true but, it only refers to civil liability. Criminal behavior is NOT protected. Admittedly, failure to report prior art seems minor if compared to Ken Lay or a se
      • I vote for jailed. Fines are just a part of doing business, ...

        I vote beating them on the bottom of their feet like a Singapore graffiti sprayer.

        And that was the nicest thing I could think of.
    • It has been a while since I have read patent law, but part of the oath or declaration they sign states that they understand a duty to disclose. Usually if it is proven they have failed to disclose prior art, then their patent can be ruled invalid without any argument. The director (and maybe some other individual or body with the power) can revoke the patent outright. I am pretty sure by failing to disclose they technically broke the law since I am pretty sure that it is a part of or hinted at in the ac

    • Re:Hard to overturn but... (Score:5, Interesting)

      by Mistshadow2k4 ( 748958 ) on Friday May 26, 2006 @01:55PM (#15411078) Journal
      Considering that they knew about the prior art and have been trolling with the patent against software-makers using the jpeg format, I vote for them being tried for extortion. Why is it that in cases where some company claims they have a patent or copyright on something and its later proven that they don't that they're not charged with extortion (yeah, I'm thinking of SCO too)?

    • Re:Hard to overturn but... (Score:5, Informative)

      by tinkerghost ( 944862 ) on Friday May 26, 2006 @02:36PM (#15411351) Homepage
      Even if they didn't know about the prior art, why should it affect the ruling if prior art was involved? Since they knew about prior art but didn't report it, they should be fined.
      Why is it harder to get an invalidation ruling overturned after you failed to mention known prior art? Because every detail of your submission is gone over with a finetoothed comb and you never get the benifit of any doubt.
      The rules for prior art are fairly clear, when you file your patent you have to include all of the related prior art you know about and defend why your patent is not covered by the disclosure therein - there are several rules including
      • timeframe - a published prior art must be dated 18mths prior to application date
      • relatedness - OK it looks similar but it's not really the same thing because....
      • progression - Yes A is prior art and B is prior art, but there is no prior art showing A can be linked directly to B. - IE the 'on the internet' loophole.
      Groklaw [groklaw.net] has a writeup by an IP lawyer about what is & isn't useful prior art, but I can't find it at the moment.
      When you get to relatedness and progression, there is a lot of subjectivity - and having knowingly failed to provide information relavent - all of this will be reviewed with some prejudice against you.
      If you knew about a prior art, and did not file it with the patent, you have also done a bunch of things:
      • you committed purjury because you have to state you know of no additional prior art when you sign the patent application.
      • if the prior art would have been enough to invalidate your patent, you have committed fraud - obtaining services/goods under false pretense.
      • made more work for the USPTO. If you file prior art & the reason it's not enough to invalidate your patent, the patent office will blow off the first round of protests, using that prior art, as 'reviewed and deamed insufficient' meaning "we looked at it before we gave the patent & think you're grasping at straws". Puting most of the work on the person seeking to invalidate the patent not the USPTO. On the other hand, if you don't present the prior art, they have to completely review the whole patent.
      So in a perfect world, if they failed to file known prior art, this would be a 'bad monkey - no patent for you' moment. They didn't play by the rules, therefore the whole patent and all information contained therein is transfered to the public domain. That's how you make a company play by the rules, you set it up so getting caught cheating not only hurts them, but helps their competition. Unfortunately we all know it's only a perfect world if you have the money to buy the legal system.
      In this situation, where they have already received the patent and forced companies to pay on the patent, I think those companies might have a civil case for fraud based on the fraud perpetrated on the USPTO ($108M + triple damages isn't pocket change to anyone but MS & GM). Note that if it's just a bad patent and you didn't withhold any information, then there's no fraud, just incompetence on the USPTO's part.
      IANAL but this is what I have gathered from Groklaw and a few other sources. If someone wants to correct me please feel free.
    • Comment removed based on user account deletion
    • Since they knew about prior art but didn't report it, they should be fined.

      This is fraud. We should be treated to a 6:00pm perp walk.

  • USPTO (Score:5, Funny)

    by TheMeuge ( 645043 ) on Friday May 26, 2006 @12:53PM (#15410654)
    These days you could probably get a patent for a "process of expelling excess gas generated by metabolic processing of protein and accumulated in the large intestine and colon."

  • Why Oh Why (Score:5, Insightful)

    by Nom du Keyboard ( 633989 ) on Friday May 26, 2006 @12:54PM (#15410662)
    the USPTO has ruled the broadest claims of the JPEG Patent held by Fogent to be invalid.

    Why does it take them so d@mn long to accomplish this in the first place? Even when a patent is finally ruled invalid -- and should have never been granted in the first place -- it seems it happens only after years of legal damage. No one is served well by this, except the lawyers.

  • Excellent timing (Score:5, Interesting)

    by Vengeance ( 46019 ) on Friday May 26, 2006 @12:56PM (#15410672)
    Considering Microsoft's new graphics file format, an unencumbered JPG format is a rather handy thing to have out there.

    • Yeah, but is it enough? (Score:5, Informative)

      by jd ( 1658 ) <imipak@ y a hoo.com> on Friday May 26, 2006 @01:25PM (#15410872) Homepage Journal
      Far as I know, this only affects the basic JPEG. JPEG2000 is still encumbered, as I believe that's a different set of patents. However, that's largely moot - PNG is lossless and often compresses better than JPEG, but JPEG is still the format of choice for, say, digital camera makers and websites. If freedom was sufficient, in itself, the format would have been dead and buried within 60 seconds of the patents being filed. It's not "necessary", there were superior, unencumbered alternatives that most OS' can display well or, at least, equally well to JPEGs.


      No, the core problem wasn't with the patents, although those were bad enough. The core problems are ignorance (most people don't know what options exist), inertia (those who do often won't take advantage of them because it requires change) and stagnation (sufficient inertia kills all incentive to further develop alternatives). I would not be against compulsary education on how to be versatile, for this reason.


      It is hard to blame Fogent alone, when the entire national attitude is based so firmly on milking every old idea for what it's worth, whilst the populace make no effort to avoid being bilked. As with those in Dilbert who have met the "world's most desperate Venture Capitalist", it becomes hard not to just take the money and run.


      This isn't to say such conduct is good or acceptable - it isn't, in my opinion. Rather, it is to say that we should be addressing the whole problem, not merely a selection of the symptoms.

      • Re:Yeah, but is it enough? (Score:5, Insightful)

        by rm999 ( 775449 ) on Friday May 26, 2006 @01:39PM (#15410960)
        "However, that's largely moot - PNG is lossless and often compresses better than JPEG, but JPEG is still the format of choice for, say, digital camera makers and websites"

        PNG was not made to replace JPG, so I wouldn't call anything moot. PNG is not made for photographs, which make up a decent percentage of pictures out there. I actually don't know of any competing formats to jpeg other than this new microsoft one - how come no one has built an open format like PNG for photos?
        • I actually don't know of any competing formats to jpeg other than this new microsoft one

          http://www.djvuzone.org/ [djvuzone.org]

          You do now!!! Although it is meant as a scanned document format it has available a compression similar to JPEG2000.
        • It's called TIFF [wikipedia.org], it's open, extensible, and widely supported by nearly all professional imaging tools. One can use libTIFF [libtiff.org] (BSD-style license) to easily add TIFF reading and writing to any application.

          PNG is intended specifically to replace GIF. TIFF is a general purpose container for lossless image data in a variety of formats and lossless* compression methods. TIFF is the defacto standard for exporting/importing data between different applications.

          *TIFF was originally to have included JPEG compressio

          • "Originally created by the company Aldus, jointly with Microsoft" ...and this thing is patent free? There is a God, and he has a sense of humour.

      • Re:Yeah, but is it enough? (Score:5, Interesting)

        by Sycraft-fu ( 314770 ) on Friday May 26, 2006 @01:41PM (#15410975)
        You are correct that JPEG2000 is a new set of patents, despite the name, it's vastly different technology.

        However PNG as good as JPEG, are you out of your damn mind? PNGs are MASSIVE, they aren't as big as RAW files, but that's it. They don't even approach JPEG sizes for photos.

        For example, I have a photo here of a cute kitten loaded in Photoshop. According to PS, it's about 791k raw inside PS itself. If I tell it to save it as a PNG 24-bit, the sizes goes down to 317k. Good bit of compression, but still large for the web. However if I switch it over to JPEG compression and set it to use the maximum quality profile, it is only 69k and is subjectively the exact same quality on my monitor. Medium is the first level where there's noticable degradation, and it's down to 37k there. Even if I give you the benefit of the doubt and assume you meant using 8-bit palettized PNG (which is lossy since you lose colours) it's still 172k, over double the largest JPEG.

        PNG is great for lots of things, but JPEG it ain't. You don't want to try using PNG for large pictures on the web, it'll screw over anyone on dialup. With sizes as much as 10x a JPEG file, it's just not feasable.
      • However, that's largely moot - PNG is lossless and often compresses better than JPEG

        PNG rarely ever compresses better than JPEG. In particular for photographs. You're probably thinking about GIF.

        If freedom was sufficient, in itself, the format would have been dead and buried within 60 seconds of the patents being filed.

        Nonsense. The Forgent patents haven't stopped anyone from using JPEG. The free software libjpeg library from IJG has been out there the whole time, Gimp and similar programs never dropped JPE
      • However, that's largely moot - PNG is lossless and often compresses better than JPEG, but JPEG is still the format of choice for, say, digital camera makers and websites.

        In "magic bits" maybe PNG compresses complex images better than JPG, but otherwise I'll have to disagree completely.

        I love PNG otherwise.

  • Strategic Error (Score:4, Funny)

    by Trails ( 629752 ) on Friday May 26, 2006 @12:59PM (#15410707)
    What they should have done is patent "Web 2.0"....

  • Do they have to refund (Score:4, Informative)

    by rsilvergun ( 571051 ) on Friday May 26, 2006 @01:00PM (#15410713)
    all the money they've been paid in licenses, plus interest?
    • Nope, I'm sure the licence agreements are carefully worded to exclude this scenario.

      Now, there's nothing stopping someone who paid the licence fee from suing Forgent if they believe that they acted fraudulently in demanding the licencing fee in the first place, but that's a different action.

      • Now, there's nothing stopping someone who paid the licence fee from suing Forgent if they believe that they acted fraudulently in demanding the licencing fee in the first place, but that's a different action.

        Given the reason for overturning the patent, I think they might have a pretty good case against Fogent for acting in bad faith.

      • OT:

        Listen to the tomato. Isn't it sad? He can't sing. Poor tomato!

        Wow. Slashdot is the *last* place I expected to see a line from the "Dance of the Cucumber!" :-)

    • That will be interesting. Given that they knew of the prior art, one can imagine a claim for triple damages because of wrong-doing might have some substance. So the amount paid plus interest could conceivably be the low end of claims. Of course if some of the claims are in fact valid, who knows what happens. Of course there is also the age old question of who knew what when.

  • Well this was a stupid summary (Score:4, Informative)

    by technoextreme ( 885694 ) on Friday May 26, 2006 @01:00PM (#15410718)
    The patent has not been completely ruled invalid. Some of the claims have not been addressed by the USPTO according to Forgent

  • News headlines! (Score:5, Funny)

    by Gavin Rogers ( 301715 ) <grogers@vk6hgr.echidna.id.au> on Friday May 26, 2006 @01:00PM (#15410719) Homepage
    US Patent office makes competent ruling! News at 11!

  • Crap... (Score:5, Funny)

    by Duncan3 ( 10537 ) on Friday May 26, 2006 @01:01PM (#15410720) Homepage
    I just burned all my JPEGs...

  • Speaking of image file formats, what has ever happened to JPEG2000? Wasn't that supposed to sweep away everything before it with a much improved format? It doesn't even seem to have made a ripple, and now Microsoft is coming out with PIC to replace everything that came before. How about it?

  • Another proof that the system is broken (Score:5, Insightful)

    by pcause ( 209643 ) on Friday May 26, 2006 @01:07PM (#15410766)
    How many times do we need to go through this before it is clear that the patent system, wrt software, is broken. I am *NOT* necessarily against patents for software, but it is just about impossible to do prior art, becuase there is so much out there for a few years and then gone. Worse, the examiners don't have enough background to do the job, etc.

    The peer review system that is being discussed sounds like a step in the right direction. There also needs to be some significantly less costly way to deal with claims of infringement and the ndefense than the Courts. Small companies can't afford to defend their patents or to challenge someone with deep pockets trying to enforce a patently bogus patent!
    • How many times do we need to go through this before it is clear that the patent system, wrt software, is broken. I am *NOT* necessarily against patents for software, but it is just about impossible to do prior art, becuase there is so much out there for a few years and then gone.

      We will always have to go through this. As far as business interests are concerned, patents are simply assets, and sometimes extremely valuable ones. I doubt that such interests would risk the loss of such valuable assets.

      For

  • Zonk's on a roll. (Score:2, Informative)

    by normal_guy ( 676813 )
    It's Forgent, not Fogent.

  • Check out the actual communication from the USPTO (Score:5, Informative)

    by ffflala ( 793437 ) on Friday May 26, 2006 @01:13PM (#15410805)
    This thoroughly details which claims of the patent have been rejected (page 5) and which claims were found patentable (page 26). http://www.pubpat.org/672OA060525.pdf [pubpat.org]
  • If the broadest claims of the patent are invalid, do the remaining claims have any teeth?
    • They very well could. Broad claims are harder to sustain than narrow claims.
    • In short, yes.

      The broadest claims have the fewest limitations.

      The broadest claims are independent, not citing another claim, or being built upon another claim.

      Dependent claims are narrower, and cite an independent claim, or another depoendent claim, and add at least 1 limitation to the cited claim.

      To have a non-obvious, novel claim, you simply have to have 1 limitation in a claim that is not found in the prior art.

      This is why applicants add additional dependent claims, in cas ethey can't get t

  • Three Things To Think About (Score:5, Insightful)

    by WillAffleckUW ( 858324 ) on Friday May 26, 2006 @01:19PM (#15410841) Homepage Journal
    1. Yes, the patent system is severely broken, and it's flawed. Yes, the European version is better. Yes, patents (my grandfather had a few) should only last 17 years period, as the intention is to force publication of such information/concepts/executions so that everyone may gain from such public knowledge through a time-limited license, and the extensions we currently grant work against such concepts. But, let's face it, unless you have a few billion dollars, they will ignore what we say on this matter, for they are corrupt.

    2. We need more public patents - and we need places like universities and colleges and publicly-funded institutions to file them, or at least on renewal reclassify the patent as a public patent but administer it, with a portion of revenues being used to reform the patent system.

    3. Software is not, nor should it every be, patentable. Copyright? Sure. I published freeware and shareware at the dawn of public computing (70s/80s). But not patentable, nor should business processes nor conceptual methods be patentable. It is just plain wrong.

    I don't expect you to agree with me, but I think this latest USPTO ruling brings up the issue on the public JPEG usage. JPEG is from the publicly-funded Jet Propulsion Laboratories - which we pay for with taxes. Open source depends on public patents, or at worst private patents signed over to OSF and other groups to administer.
    • I haven't seen a patent get examined prior to 3 years after filing. If a patent is issued three years from filing, it will have 17 years of life left (as you requested). A patent rarely issues within 3 years from filing. I'd guess an average would be more like 4.5ish. So, if my guess is correct (it's probably close) thats only 15.5 years of life in a patent. I've seen people argue that that is still too long and I'm not sure I disagree. But if you are satisfied with 17 years, you should be pretty happ

  • Forgent says... (Score:4, Informative)

    by XanC ( 644172 ) on Friday May 26, 2006 @01:24PM (#15410865)
    "Majority of Patent Claims are Upheld"

    http://www.corporate-ir.net/ireye/ir_site.zhtml?ti cker=forg&script=410&layout=-6&item_id=861407 [corporate-ir.net]

  • I'm an idiot (Score:3, Insightful)

    by fistfullast33l ( 819270 ) on Friday May 26, 2006 @01:29PM (#15410894) Homepage Journal
    so it's Forgent not Fogent. I managed to do it in the title and the summary. [pats self on back]
  • Does this mean that Linux can now support JPEG, since it's now unencumbered by patents? Hurray!!

  • DAMMIT, EDITORS, DO YOUR JOB (Score:3, Insightful)

    by Rogerborg ( 306625 ) on Friday May 26, 2006 @01:43PM (#15410985) Homepage
    PJ did not say anything about prior art. She said "PubPat's Executive Director, Dan Ravicher, says that the submitters knew about the prior art". Please at least try to pretend that Slashdot is a credible news source.
    • Please at least try to pretend that Slashdot is a credible news source.

      Who said anything about "credible" news? Get your facts straight before you blow a gasket. Hey, it's just the internet.
    • Actually, here is the direct quote from the article:

      Forgent can respond, but it seems they'll have some explaining to do, because PubPat's Executive Director, Dan Ravicher, says that the submitters knew about the prior art but failed to tell the USPTO about it.

      It's not a direct quote of Dan Ravicher, meaning that you can't say those are the exact words he said. Which is why I said PJ and not Dan Ravicher. Instead, it's PJ's summary of what he said. So I'm summarizing PJ's summary of Dan Ravicher. Got it

  • DJVU and IW44 (Score:2, Informative)

    by transami ( 202700 )
    Okay, great. But hey forget JPEG. Drum it up for IW44 and DJVU. I just converted a 3.5MB .jpg to a 400K .djvu and can't tell the difference.
    • If your "JPG" is from a digital camera, they're usually oversized, try making a copy of it, opening it in mspaint.exe, and just doing a file->save

      You'll then see the real difference

  • Thanks, PUBPAT (Score:3, Insightful)

    by displaced80 ( 660282 ) on Friday May 26, 2006 @02:34PM (#15411340)
    I've half-followed PUBPAT since its creation. I don't think I fully grasped how useful it would be when it first emerged.

    It's since showed itself to be absolutely vital in the midst of this software patent madness. It's good that there's lawyers out there ready to go in to bat for us developers. No matter how smart we think we are, and regardless of how much we'd like the system to just go away and stop bothering us, it isn't going to just yet. So PUBPAT are there for us, fighting a fight that must be fought, even if it is crazy that things have got to this stage in the first place.

    Assuming PUBPAT continues its fine work, it will rapidly find itself as a sort of guardian angel of the software developer -- be they OSS, FS, or even commercial writers.
  • so what about all the companies sued by Forgent? do they get their money back? how about companies that went under due to Forgent suing for patent infringement? do they get restitution?

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