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Are MS, W3C Barking Up Wrong Prior Art Tree? 97

Posted by timothy from the seeking-patents-is-rational-behavior dept.
theodp writes "CNET reports on how Microsoft and the W3C are spotlighting old technology - Pei Wei's Viola browser and W3C staff member Dave Raggett's HTML+ specification - in an effort to defeat Eolas' Web patent. In his ruling, the Eolas judge agreed that a Wei presentation that included an interactive image of a chessboard came close to prior art, but explained that the late 1994 date of invention excluded it from the ambit of prior art. Perhaps the judge might have ruled differently had he been shown January 1994 correspondence between Tim Berners-Lee, Pei Wei, Dave Raggett, and others in response to a challenge to match the prior art of the interactive, networked games that were operational on the PLATO system in the 70s at the University of Illinois to make it possible to develop browser-based chess games." (Read on for more.)

theodp continues: "If they were up on PLATO history, Microsoft's lawyers could have shown the judge that operational prior art existed two decades earlier than Eolas', Wei's, and Raggett's efforts. Not only that, there are striking similarities between PLATO and Eolas patents. BTW, Eolas patent holder Michael Doyle obtained his degrees from the University of Illinois, where PLATO was developed and widely used."
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Are MS, W3C Barking Up Wrong Prior Art Tree? More

Are MS, W3C Barking Up Wrong Prior Art Tree?

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  • That's why this concept of "prior art" is rediculous. Since any idea can in theory be discovered independently of any other discovery of that idea, all ideas must exist outside of time.

  • No concept of intellectual properties law!!! (Score:3, Informative)

    by Anonymous Coward on Sunday November 02, 2003 @04:54PM (#7373234)
    You cannot use e-mails as a prior art! This is because you cannot patent an idea, you can only patent an implementation of an idea!

    3 people sitting around and talking about something doesn't mean you can't patent it! Whoever creates an implementation of an idea gets the patent.

    You need to show a working implementation of something in order for it to be considered prior art.
    • Their conversation was about an existing system, already implemented some decades earlier.

    • Ever So Sensible (Score:3, Interesting)

      by jefu ( 53450 )
      Can't you can patent something without a working implementation?

      If so can you get a patent without even having a functional version of something? And then use that patent to quash someone else who produces a working version at the same time but files for a patent a day or two later?

      Can you thus patent something without a working version? That is, just patent the general ideas, never bother to actually go though the process of making it work, and use those general ideas to claim fees from someone who d

      • You can certainly patent something without a working implementation. There is no requirement in the law to have an implementation (at least not in Europe but I believe the same holds in the US). However, the application is required to disclose the invention. Basically that is what the description is for, while the claims define exactly what the applicant seeks to protect (monopolize).

      • Re:Ever So Sensible - Answers (Score:4, Informative)

        by servoled ( 174239 ) on Sunday November 02, 2003 @06:40PM (#7374004)
        To answer your questions:

        1) Yes, assuming that the patent in question has utility (ie, whether the implemenation that you are attempting to patent could actually work). See 35 USC 101 for patent utility guidlines.

        2) Yes

        3) Yes (but in the US the patent would go to the person who can prove the earliest invention date. This is not true for the rest of the world, where the first to file would get the patent)

        4) Yes, you can patent something without a working version, but the patent can not just be for the general ideas. For example, you can not patent the idea of one-click shopping, but you can patent a specific implemenation for one-click shopping.

        5) No, 35 USC 102 and 35 USC 103 lay out the guidlines for what can be patent. An invention can not be granted if it would have been obvious to one ordinarily skilled in the art at the time of invention. It is important to note that the obviousness has to be based on the prior art which is already on record somewhere, be it previous patents, products, publications, etc. The basis of obvious is not whether, given the problem at hand, someone of ordinary skill in the art would be able to come up with a solution.
        • 5) No, 35 USC 102 and 35 USC 103 lay out the guidlines for what can be patent. An invention can not be granted if it would have been obvious to one ordinarily skilled in the art at the time of invention. It is important to note that the obviousness has to be based on the prior art which is already on record somewhere, be it previous patents, products, publications, etc. The basis of obvious is not whether, given the problem at hand, someone of ordinary skill in the art would be able to come up with a soluti
          • As I said, there has to be solid proof in public record (previous patents, products, publications, etc). Simply stating that something could be held as obvious after reading it does not stand up as a rejection according to case law.

            Show me a piece of dated prior art that shows exercizing a cat with a laser pointer, if you can't the patent stands. I am willing to bet that you can't.
      • You can patent without the slightest idea of how such an object will be represented in the physical world.
      • >If so can you get a patent without even having a >functional version of something?

        You don't need an actual working implementation of the invention, but you need an "enabling disclosure." Basically, you need enough that the rest is SMOP

        >And then use that patent to quash someone else >who produces a working version at the same time >but files for a patent a day or two later?

        In the US, it depends on who conceived the invention first.

        >Can you thus patent something without a working >v
    • Except in this case the "implementation" is computer code, a mathmatical algorithm.

      In other words, nothing but an idea.

      This is the sort of sticky wicket that was opened up by allowing the patenting of algorithms and business plans (again, nothing but an idea. There is no "thing" attached to a business plan).

      The idea that you had to show a working implementation died many, many years ago. See the Seldon Patents and the modern allowance of perpetual motion machines. This is the sort of nonsense that ensues
      • E-mails along those lines do count as prior art, provided that the e-mail was to a public forum. E-mail from one person to another does not count as a public disclosure. It is not required that an invention was already implemented. It is required that the invention was already disclosed at the date of filing (or alleged date of invention in the US system).

        In addition, if you can show that at the date of filing the invention would have been 'obvious', the patent is also invalid. To show obviousness, you usu
        • E-mails along those lines do count as prior art, provided that the e-mail was to a public forum. E-mail from one person to another does not count as a public disclosure.

          Yes, this is an additional constraint on my challange. I had thought I had made that implict in my wording, but review shows I did not. Thank you for pointing that out.

          It is not required that an invention was already implemented.

          Indeed. My entire post was in refutation that you did, including the challange. If you missed this point th
          • Well, you'd have a hard time showing that cats go crazy using a mirror and sunlight, because typically they don't. A flashlight is a bit closer, but still easy to show that only a limited number of cats go crazy over them. Only a laser has the peculiar quality of making nearly every cat on earth go crazy.

            I'm afraid you have just shown that this "Cat Exercise Device" is inventive: you put known things together, but the combination has a surprising effect ("peculiar quality"). Now I would really need to see

            • I'm afraid you have just shown that this "Cat Exercise Device" is inventive: you put known things together, but the combination has a surprising effect ("peculiar quality").

              whereas I say it's enough to either show an anticipation of the technique, or some proof that the effect was known

              Which is easy enough to do. We have the submiters own word that he was aware that the effect was widely known before filling.

              Ah, but my primary claim wasn't actually based on the obviousness of the "invention." In fact,
    • No. Patents cover ideas. Designs and Copyrights cover implementations of the idea.

      There are plenty of patents for things that have not been implemented yet. It is pretty common for someone to come up with an idea, patent it, and then look for investors to implement the idea, safe in the knowledge that they can't "steal" the idea. That is pretty much the whole point of the patent system.
      • Not really true. Patents are indeed some kind of ideas, but they must be ideas of *how* to do something, not just *what*, and they must be technical (at least in Europe... not anymore in the US where you can get patents on business methods).

        Copyrights cover only creative works in certain well-defined categories such as literature, music, paintings, movies, computer programs (I might have missed a few). Copyrights do not cover say an improved tennis racket or a new medicine. You need patents for that.

        Desig
    • Postings to a public mailing list certainly count as prior art. As long as you can prove the date and the mail discloses all the features that are in the claim, the patent is invalid. If it misses some of the features the question is whether the difference is "obvious" or not.

      Patent offices might not allow pure ideas to be patented, they certainly allow ideas of implementations to be patented. The letter of the law only requires you to disclose enough so that the "skilled person" will be able to practise t

    • Re:No concept of intellectual properties law!!! (Score:4, Informative)

      by AJWM ( 19027 ) on Sunday November 02, 2003 @06:54PM (#7374139) Homepage
      You seem to be confusing copyright law and patent law.

      You can't copyright an idea, only an expression of that idea. The opposite, however, is true of patents and prior art.

      You need to show a working implementation of something in order for it to be considered prior art.

      You most certainly do not. The most celebrated counterexample is the rejection of Halcyon's (IIRC) attempts to patent the water bed, because of prior description of something very similar in a Robert A. Heinlein novel.

      You merely need to show a description of it sufficient that someone "skilled in the art" could produce it. So to the extent a generic description wouldn't suffice, you're right. But a detailed description, even short of actual implementation, would be enough.

      • You need to show a working implementation of something in order for it to be considered prior art.

        You most certainly do not... You merely need to show a description of it sufficient that someone "skilled in the art" could produce it.

        Actually, there are two elements to this. A patent needs to be for something that is novel (new) and inventive (not obvious).

        Prior art is something actually implemented that shows the thing is not new (not novel). It's the easiest way to invalidate a patent if you can fi

    • Your backwards explanation is a good example of how the phrase "intellectual property [gnu.org]" has worked to muddle people's understanding of copyright and patent law.

      Whatever you think you know about copyright law probably isn't true about patent law--they cover different things, the power one gains lasts for different amounts of time, they are acquired in different ways, they cost different amounts of money to acquire, they also cost different amounts of money to keep. What little they have in common pales in

  • Must be cos everybody's busy torching each other in that Gun censorship thread... :)

  • PLATO rocked (Score:5, Informative)

    by Waffle Iron ( 339739 ) on Sunday November 02, 2003 @05:03PM (#7373290)
    It was like a preview of the World Wide Web, 25 years ahead of the real thing. (It also had email, newsgroup and chat functionality as well). The high-res orange plasma terminals looked cool too, especially the way they drew graphics in a vector-like fashion, like someone drawing a blueprint at high speed. They weren't very bright, so the terminal rooms had to be kept very dark. The low light and orange glow enhanced the atmosphere.

    The entry-level physics course had the option of using PLATO for all of the homework. The system could show animated demonstrations of the mechanics problems you had to solve.

    It was amazing that they usually got fairly responsive interactive performance even when hundreds of users shared a single mainframe that probably had less power than a 386.

    Some of the later plasma terminals had their own microprocessors and could be set to run programs locally. It was good to use those terminals because some of the best games used the local mode. I wonder if downloading these programs on demand to the terminals could be considered a "plug-in".

    • Re:PLATO rocked (Score:5, Interesting)

      by Geotopia ( 692701 ) on Sunday November 02, 2003 @05:11PM (#7373346) Homepage Journal
      Ah, Plato. No one ever talks about it so I always thought it was a local system. I used it when I was at the University of Lethbridge to send email to my brother at the University of Alberta (Edmonton) and to play this awesome (for the time) flight emulation program that was truly the first multiplayer game (of which I have any knowledge). This was back in 1982. Anyone know how many/which other universities had Plato terminals? I do remember the flight emulator getting slower and slower until it was no longer playable - possibly due to more people tying up the main frame. But the vector display rocked! I thought that that was the way to go for graphics.
      Later, ('84), I used a logic program on Plato that would allow you to create circuits using NAND gates and JK Flipflops. That was fun but I remember not being able to save my work - at least not locally. Ahhhh, 8-bit nostalgia!

    • I love these PLATO stories.

      I was a law student at SIU in Carbondale when I first encountered PLATO. I slept about six hours from 1979 to 1981, since the terminal in the law library was only available for "non-educational" use after 10:00 PM, and the system usually went down for maintenance about 4:30 or 5 in the morning. Needless to say, I found Oub and Emp infinitely more interesting than torts and contracts. Sheesh, I wouldn't even go home for holiday breaks during the school year -- with little or no l

    • From a networking point of view PLATO did some interesting stuff.

      NovaNET, the successor PLATO system designed by CERL at UIUC to replace the aging CDC Cybers, did a national network using a T1 speed satellite system for the downstream path and a 56k long haul leased line as the return path as a solution for remote sites. This was in 1986 - 1987, mind you. This allowed other universities and places like high schools to gain access to PLATO without having to own one of their own, or use long-haul T1s, whi
    • The entry-level physics course had the option of using PLATO for all of the homework. The system could show animated demonstrations of the mechanics problems you had to solve.


      Ahh who could forget the E and M homework quiz sets on PLATO for Physics 107. Of the joy of ferverishly working a problem typing in the answer as 107V, and getting PLATO to say :

      No.

      Only to find that the correct answer was 107 V

      Joy Joy Joy.

  • I relish the idea microsoft getting handed a half billion dollar IP judgement. With what they have been trying to pull with SCO I can only hope their legal budget is forced to exceed their software development budget and marketing budgets combined.

    The other aspects of this that I love are 1. Microsoft may wind up footing the bill for starting the process of getting our patent and copyright system cleaned up. Seeing as they have in the past been a giant beneficiary of it being screwed up, I welcome the ir
    • If the patent stands, we'll have to rewrite every web site that uses plug-ins. The irony of seeing Microsoft shafted over patents is delicious, but it's not worth the pain of rewriting the web.
      • There are three plugins i use on a regular basis:

        1) Flash... this would not be a big loss, css lets you do silly menu bars, and downloading silly flash animations wouldn't be that bad, maybe they could do something where you download a 'play list' and then the flash player grabs the file you wanted, so you can still do the silly loading bar.

        2) PDF... not a big deal to have this run in another window.

        3) Java Applets... this can be replaced with java web start.

        Are there any other plug-ins that you use wit
        • 1) Flash... this would not be a big loss

          Regardless what you think of flash, there are lots and lots of sites that depend on it, and they will have to be changed. That's costly and boring.

          2) PDF... not a big deal to have this run in another window.

          Depends what you use it for. At my work, there are situations where we display a UI on the left, and generate PDF on the right, in response to the user's settings. That would break badly if it were in another window.
          • Regardless what you think of flash, there are lots and lots of sites that depend on it, and they will have to be changed.

            Tell me again where the downside to this is. Flash only works reliably in MS browsers. In others, it's iffy at best. If a site depends on Flash for navigation, they've lost my patronage.

            • Tell me again where the downside to this is.

              The downside is it's a waste of time and money whose purpose is to make things worse than they currently are.

              Flash only works reliably in MS browsers. In others, it's iffy at best.

              In my experience, Flash works very reliably in Mozilla and Firebird.

              If a site depends on Flash for navigation, they've lost my patronage.

              And if you don't use a web site, it should be made to suffer?
      • If the patent stands, we'll have to rewrite every web site that uses plug-ins.

        You say that as if it's a bad thing.

        Daniel
  • let's just put all these patents into public domain and make them invalid to be copyrighted, including microsoft's name.. just for fun.

  • PLATO and NAPLPS are the real prior art (Score:3, Interesting)

    by Anonymous Coward on Sunday November 02, 2003 @05:57PM (#7373736)
    The real prior art for every Internet patent that I've ever seen can be found in PLATO and/or NAPLPS based systems like Telidon. In the Eolas case it is the ability of PLATO to display vidoe disc images on the screen under control of the content sent to the PLATO terminal from the PLATO central server. That is clearly an external application being triggered by the PLATO equivalent of a web page. Yes, the PLATO terminal and videodisc player were hardware but I don't think you can justify a patent by simply implementing a hardware function in software.

    And if you compare the WWW with Canada's NAPLPS-based Telidon system circa 1981 then the similarities are eery. Someone really needs to document this stuff properly before we have completely lost all of the NAPLPS systems and software and content. A lot of this was developed in the Ottawa area and members of the tech community there could probably provide leads. But NAPLPS was also the basis of the pre-Internet Prodigy system and Knight-Ridder news had a NAPLPS-based news service. I believe IBM had a lot to do with those two developments.

  • Two months too late (Score:2, Informative)

    by Anonymous Coward
    Unfortunately for Berners-Lee, et al., this is at least 2 months two late, since it came out at the trial that the UCSF team demonstrated their stuff onstage at a conferene at Xerox PARC, in mid-November of 1993.

  • CDC Plato (Score:2, Interesting)

    by djdavetrouble ( 442175 )
    I love an opportunity to talk about Plato. For many people the first computer that they loved was their first home computer. Not me, I loved the Plato! These were way ahead of their time, with gui's, touch screens, and multi player games.

    I was fortunate to be an 11 year old in berkeley, ca where you could rent time by the hour at the Lawrence Hall of Science on one of 8 or so Plato terminals. The dungeon games were completely amazing for being the first. Years later when the internet came around, I couldnt
  • using computers to put things together...

    Programming is the act of automating complexity by putting simpler complexities together, and done so to make it easy to use and reuse the complexity.

    The act is very recursive and common knowledge even reaching the second nature level.

    This makes it clear that there has been a major failure of computer science to recognize even the most fundamental physics of programming.

    Most software patents are not valid once bounced off the wall of what cannot be patented, for
    • "only the psuedo computer science does back it up"

      should read "only the psuedo computer science does NOT back it up,"
  • How many people remember ALL-IN-1 which was the leading minicomputer based office automation system back in the 80's? ALL-IN-1 was a "form-driven" system that had many similarities to what you see on the Web today and made extensive use of plug-ins and "embedded" programs to allow people to construct arbitrarily complex office systems. If you imagine ALL-IN-1 to be like a Web Browser, what it did was create windows in which you could embed, in frames, just about any application that could run on VMS. You co
  • I just cant wait until someone patents air. PAY UP OR SUFFICATE! Muhahahaha

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