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Microsoft, Others, File "Stealth" Patents 26

Posted by timothy from the on-padded-feet dept.
bobwyman writes "Microsoft and others seem to be filing large numbers of "stealth patent applications" that hide the identify of the "assignee", or owner, of a patent application even though the legal principle of 'Duty of Candor' may legally require them to disclose their interest in the patent. Concealment of patent assignees permits a number of opportunities for fraud in the patent process while also making it more difficult to study patterns of application activity and 'inventiveness.' If not already illegal to conceal assignments, there should be laws written to make it illegal in the future."
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Microsoft, Others, File "Stealth" Patents More

Microsoft, Others, File "Stealth" Patents

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  • This is a.... (Score:1, Funny)

    by Anonymous Coward
    ....stealth first post. Shhhh, don't tell anyone.

  • Great point... (Score:4, Insightful)

    by GreyWolf3000 ( 468618 ) on Thursday February 06, 2003 @04:52PM (#5245055) Journal
    Since the patent process confers upon those with an interest in a patent an exceptional economic benefit in the form of a legal monopoly, it is particularly important for competitors to be aware when companies who already enjoy an effective monopoly are to augment their monopoly with patents. This is very much the case with a company such as Microsoft that has been ruled, in court, to have an effective monopoly. In such cases, one would assume that practices that might be forgiven others would not be forgiven to the monopolists. Such companies should be expected to have, if anything, an augmented duty of candor when pursuing the legal monopolies granted by the patent process.

    If Microsoft can continue to perpetuate their monopoly vis-a-vis managing content and applications for their platform (e.g. MSN appearing broken to Opera users [slashdot.org], or in the more distant past with modifications to Java), their patents will not only be another slap in the face to competition, but will work with other unfair practices for a synergistic effect. They will use their platform to make standard their own quirks and extensions which are either closed-source, or too dynamic to follow; their patents can and will make it effectively illegal to try.

  • Oooh, now there's a punishment (Score:5, Insightful)

    by freerangegeek ( 451133 ) on Thursday February 06, 2003 @05:30PM (#5245437)
    A proper punishment for illegal abuse of monopoly power could be that you have to surrender all patents granted during the period of abuse to the public domain?

    I know, I'm way off topic....
    • Great idea, especially as today there is no real punishment for companies.
    • "Lord Vader, in light of your blatant abuse of The Force, and as further consequence of your crimes against The Federation, you are hereby ordered to surrender all planets conquered during your reign of terror. The Court Officer will now read aloud the complete list of all 4,238 planets, sub-order moons, off world colonies, virtual space habitats, etc. that will be subsequently returned to the public domain...if you will, please proceed.
    • "Lord Vader, in light of your blatant abuse of The Force, and as further consequence of your crimes against The Federation, you are hereby ordered to surrender all planets conquered during your reign of terror. The Court Officer will now read aloud the complete list of all 4,238 planets, sub-order moons, off-world colonies, floating cities, virtual space habitats, etc. that will be subsequently returned to the public domain...Officer, if you will, please proceed.

  • Whazzat? (Score:3, Interesting)

    by MacAndrew ( 463832 ) on Thursday February 06, 2003 @06:37PM (#5246049) Homepage
    I can understand how the duty of candor [yale.edu] is generally important, and admire the forensic work of the wuthor, but don't understand how using a shell assignee is significant. Companies do this sort of thing to keep competitors in the dark, and I don't see how it is fraudulent.

    So ... can anyone explain how this is significant? How can it be used to conceal prior art? Ideally, shouldn't the examiner be blind to the identity of the applicant/assignee, to avoid bias? It just seems like an academic Q.

    "Inventiveness" is one of the last words I associate with Microsoft. While we're on the topic, and off topic, any predictions for the year Microsoft goes out of business or gets bough out? I'm thinking 2022.

    • Re:Whazzat? (Score:3, Insightful)

      by Anonymous Coward
      The point of the article isn't that filing without an assignee is fraudulent. The point is that not disclosing who the patent is assigned to makes it hard to discover who has the duty of candor. If you don't know who has the duty, the duty is meaningless since you can't enforce the duty of an unknown person. The ability to hide who has the duty of candor encourages or enables fraud. Makes sense to me. It ain't academic.
    • Ideally, shouldn't the examiner be blind to the identity of the applicant/assignee, to avoid bias?

      Why? They are blind to prior art and common sense today, why would you believe that the examimers not knowing the identity of the patent applicant would make any difference?

  • Not fraud (Score:5, Informative)

    by Anonymous Coward on Thursday February 06, 2003 @06:53PM (#5246225)
    As a patent attorney, I read this post with interest. However, the opinion expressed about Microsoft "fraudulently" hiding its ownership of a number of patents is simply not correct. There is no requirement to provide assignee information. When you pay the issue fee, there is a box where you can enter information about the assignee. If you leave the box blank, the assignee name is not printed on the patent. Even if a patent is printed with an assignee, the patent can be re-assigned. However, the Patent Office does not re-print the patent. While the Patent Office has a system for recording assignments on microfilm, recordation is not a requirement. The fact that government agencies are required to promptly forward assignments for recordation does not mean that private entities must do so. Although it may be in the "public interest", it is not a legal requirement. The fact that foreign patents list the name of the assignee is because, in most other countries, the assignee is the applicant. In the U.S., the inventors are always the applicant, regardless of whether the application has been assigned. The duty of candor relates to actions during prosecution of the patent. For example, if you become aware of relevant "prior art," you have a duty to disclose it to the patent office. I could see one scenario where someone filed a continuation application and falsely claimed that it was commonly assigned. That could be a duty of candor problem. However, that is not the situation here. The bottom line is that there is no "fraud" if Microsoft chooses not to identify its ownership of a patent.
    • Don't you just hate it when someone who actually knows something about the issue makes a post. It totally kills off the debate...AC, you've just ruined it for the rest of us.

      • WTF? (Score:2, Funny)

        by Anonymous Coward
        I find it interesting that attourneys are now reading /. closely enough to get third post.
    • Blockquoth the poster:

      The bottom line is that there is no "fraud" if Microsoft chooses not to identify its ownership of a patent.

      Synopsis: It's probably not illegal. It probably should be. Oh, joy, yet another mess in the area of intellectual "property".
    • You are correct. For the US case.

      However, in the rest of the world, things are somewhat different. For example, for other countries than US, the US assignee is the applicant and is printed on the publication of the patent application. This cannot be hidden (you can only hide the names of the inventors, when they agree).

      So, instead of using the USPTO database, you use the search engine of the EPO, Esp@cenet [espacenet.com]. For Japan, there's the JPO [jpo.go.jp].

      You just search for microsoft as the applicant. Europe 288, Japan 293. Then, you search for Horvitz in Europe as applicant: no result. Same for JPO.

      Next, I have searched for Horvitz in the EPO database and checked the applications with inventor Horvitz, without a criterion for applicant. All Eric Horvitz are with Microsoft.

      My conclusion is therefore, that Microsoft does not file stealth stuff in Europe.

      The number of applications in the US might be more, since some European patent applications claim priority of multiple US & PCT applications.

      Just as well, I recommend the Esp@cenet search engine anyway; it cover the world instead of just the US.

  • An abuse company that sometimes supplies software (Score:5, Interesting)

    by Futurepower(R) ( 558542 ) on Thursday February 06, 2003 @07:32PM (#5246609) Homepage

    Often it seems that Microsoft is not a software company that is sometimes abusive, but is an abuse company that sometimes supplies software.

    For example, Microsoft keeps control [hevanet.com] describes ways in which Microsoft has made Windows XP more difficult for the customer.

    Earlier on Slashdot today there was an article about Microsoft deliberately trying to sabotage the Opera browser.

  • Free software needs a patent portfolio (Score:4, Interesting)

    by thogard ( 43403 ) on Friday February 07, 2003 @10:35PM (#5256008) Homepage
    What needs to happen is someone like the FSF or EFF need to set up a patent application for something about as generic as the pattent lawyers can think of. Then add every neat trick in the linux kernel and other free software as claim. Provide a database of "prior art" since the patent office can't disclose what you tell them is prior art, I would recomend finding a way to send them a copy of google's archives as a source for prior art. Once this nonsense has happend, it will be impossable for the patent office to issue a patent on it or any other software or business methods patent for at least a decade while they try to fiugre out whats going on. It will cost a bit of money (there may be a charge per claim)

    Whne I was a student working at a goverment office, one of the long time engineers told me that changing the goverment was like tring to stop a boulder rolling down a hill, you can't stop it but you can nudge it in a better direction. The problem is this nudge will cost a fortune but is worth it.
  • "Lord Vader, in light of your blatant abuse of The Force, and as further consequence of your crimes against The Federation, you are hereby ordered to surrender all planets conquered during your reign of terror. The Court Officer will now read aloud the complete list of all 4,238 planets, sub-order moons, off-world colonies, floating cities, virtual space habitats, etc. that will be subsequently returned to the public domain. Officer of The Court, if you will, please proceed.
  • thogard wrote:

    >FSF or EFF [should]Provide a database of 'prior art

    There is already a tool for collecting prior art! This is one purpose for the pubsub.org [pubsub.org] site. The idea is that if you find a patent or patent application for which you have or seek prior art, you can get it listed on the site and record your prior art. This makes a permanent record that others will be able to use as a source when filing "third party" prior art with the PTO as well as when defending against infringement cases in the future.

    Today, there are many discussions of specific patents or applications scattered all over the web. This makes it difficult for those with a real interest in defending against some patent or application to find the prior art they need. However, on PubSub.org [pubsub.org], you can write a comment directly linked to a specific patent or application and identify the prior art or other argument you might have for why the patent should not be (or have been) granted. Try it. If you don't find a patent or application that you're interested in, just use the "request new thread" option to get the patent listed.

    The system on pubsub.org is different from what you'll find on other sites like BountyQuest [bountyquest.com] where they are only collect prior art on "major" patents. At PubSub.org, you can provide prior art on *any* patent or application and what you provide will be publicly available and reviewable.

    If there is demand to do so, I'll expand the scope of what we do at PubSub.org to include providing a place to record "defensive" or "Open Prior Art." This would allow anyone who has a method that they consider patentable to "block" anyone else from getting a patent on the same method. The PTO considers "internet publications" to be valid prior art as long as they are accessible. Should I do this?

    bob wyman

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