decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Saturday, April 24 2004 @ 11:24 PM EDT

"Forgent is committed to developing all of its assets and technologies to maximize shareholder value," said Richard Snyder, chairman and CEO of the company.

Don't those words just chill you to the bone? Maximizing shareholder value. As if that excuses everything. Maximizing shareholder value, no matter who gets hurt. That's the proprietary way. The problem is, software is too vital to the public interest for it to be held hostage by every greedy patent-holding pig on the planet. The same goes for his shareholder piglets, too. True to the piggy template, Forgent announced it has sued everybody and his cousin for "infringing" its patent on JPEGs, a standard format that everyone used in good faith for ages. The patent is almost two decades old, and now they want their money. Gotcha. The Proprietary IP Business Model.

Snort! says the pig. We find we own the patent on JPEGs and now that you are all accustomed to what you thought was an open standard format, ha ha, everybody has to pay us:

"Forgent Networks announced today that its subsidiary, Compression Labs, has initiated litigation against 31 companies for infringement of U.S. Patent No. 4,698,672 -- the so-called '672 compression patent -- in the U.S. District Court for the Eastern District of Texas, Marshall Division.

"Forgent has engaged in aggressive pursuit of royalties related to JPEG image compression since first publicizing its claim to the patents in July 2002. In February 2003, for example, the software maker won a US$16 million licensing agreement from Sony based on the '672 patent. Over the last two years, its intellectual-property business reportedly has generated approximately $90 million from licensing the '672 patent to 30 different companies in Asia, Europe and the United States."

Could somebody please fix the patent system? Software and patents should never have even started to date, let alone get married. The relationship isn't working out. And it's time for these two to get a divorce.

If you would like to read the complaints, here and here you go. There are two complaints, with 31 defendants, a veritable Who's Who in software. Maybe this will convince one and all that patents and software don't belong together.

I asked Dan Ravicher, Executive Director of PubPat Foundation if he'd care to comment on this news. He took a look at the complaints, and here are his initial thoughts, which he gave me permission to share with you:

"These cases will be only about money, as although Compression Labs (i.e. Forgent Networks) has asked for a permanent injunction, the asserted patent expires October 6 this year, which is well before any decision from the court, even the relatively speedy Eastern District of Texas, will be made. Therefore, no injunction could issue because practicing the technology disclosed in an expired patent is not unlawful. Of course, this fact will likely not stop Forgent from seeking an injunction as an attempt to gain leverage in negotiating a settlement, something which I'm sure these defendants are sophisticated enough to see through.

"Further, this case will be about only a relatively small amount of money, as it is highly unlikely Forgent will be able to receive lost profits, since, to do so, it must prove that it could've made all the sales of the accused infringing devices that each of the Defendant's made. This leaves Forgent with only the possibility of receiving a reasonable royalty. Since they've granted so many licenses already, and since they've already offered licenses to these defendants, whatever the royalty is in those agreements will likely be the same as or similar to what the court will eventually find is 'reasonable.'

"For this reason, there is really no downside for these defendants, absent the cost of litigation ($2 - 4M), for having not signed a license with Forgent. Worst case, they'll pay what they would've paid plus the cost of litigation. Best case, they will end up paying nothing other than the cost of litigation. For example, if we assume a defendant with an exposure equivalent to what Sony paid, $16M, it makes perfect sense for that defendant to litigate, at a cost of $2 - 4M, for a 2/3 chance of paying nothing. The calculus would be that $16M (or whatever they think their exposure is) is greater than $2 - 4M (the cost of going to court) plus a 1/3rd chance of paying $16M (or whatever they think their exposure is). Taking this a step further means that any defendant with exposure greater than about $5M has economic incentive to litigate rather than settle.

"It is possible that Forgent will seek enhanced damages (a judge can treble the actual damages awarded if she finds that the defendant acted with willful disregard for the patent), but that attempt will most likely be futile since these defendants will undoubtedly have an opinion letter from counsel stating that Forgent's patent is invalid and / or not infringed. Such letters per se defeat a charge of willfulness, which eliminates any potential for enhanced damages.

"Thus, in the end, Forgent will, even if entirely successful on its claims, get at most a reasonably royalty roughly equivalent to the amount it has already been willing to accept from others. It won't get any kind of injunction for this patent against these defendants, or any other potential defendant. For these reasons, individuals and small businesses will most likely not be pursued by Forgent, as they don't have pockets deep enough to make such pursuit worthwhile."

Not as awful as you thought, huh? Still, Forgent's CEO is talking like Genghis Khan: "We believe we will prevail in this litigation, as the '672 Patent is valid, enforceable and infringed."

How simple it all is, if you don't care who gets hurt. Money is so peculiar. What it can do to people. Of course, the idea is: you need what we own, so we get piles and piles of money from you poor suckers. However, what will really happen is folks will have another clear reason to despise proprietary software and will all switch to PNG, as the article points out:

"Such image-compression lawsuits are not without precedent. Several years ago, there was a broad move to use the PNG graphics format to avoid any ties to proprietary compression standards. Today's lawsuit filing likely will reinvigorate attempts to push Web designers and graphic artists to rely more heavily on open standards and royalty-free compression formats."

It does seem to be the only real solution. Otherwise, we are all just walking along through the software forest, singing a happy song, when, fwewp, we walk into a trap some meanie has set for us, hidden under the leaves and branches, and suddenly, there we are, hanging by one leg upside down from a tree.

It's time to quit this patent nonsense. You proprietary dudes need to find an honest way to make some money and leave software alone, if you can't play nice with others. Of course, since the proprietary software world enjoys playing war games so much, maybe the defendants can dig around in their patent war chests and find some ammo, like some prior art or something, to throw back at Forgent. I know I'd be happy to try to find some. If you know of any, this would be a good time to speak up. ZDNet back in 2002 indicated that at least some believe prior art exists:

"Other companies have resorted to a controversial tactic of applying for patents while pushing the technology in question in standards committees.

"In 1995, Dell Computer agreed not to enforce its patent rights for the technology included in the VL-bus graphics standards, as part of an agreement with the Federal Trade Commission. The FTC had charged Dell with pushing for the adoption of a technology in the standards committee, without disclosing when asked, that the company held a patent. Sun Microsystems and Rambus have both been investigated for similar actions.

"Who was first?

Forgent didn't do any of the original work of the patent that they now own; that was done by Compression Labs' Wen-Hsiung Chen and Daniel Klenke. Chen, who joined Cisco after selling Compression Labs to Forgent and a second firm to the networking giant, published several papers in the 1970s and 1980s on image compression and transformation. Some experts credit him with the creation of a specific kind of image manipulation--the discrete cosine transform--used in the JPEG format.

"Yet he or others may have published all the components of the 672 patent more than a year before the application date for the patent. Known as prior art, such publications can undermine a patent.

"'There is a lot of work around that can predate the Forgent patent,' said the JPEG's Clark. 'Most of the JPEG standard was pretty well formulated by the time this patent came out.'"

Meanwhile, the free and open source world watches with jaw-dropping horror at the hordes of proprietary warriors ruining the world for the rest of us with their license battles. "Maximizing shareholder value" just doesn't outweigh the public's interest in being able to use open standards in peace. As PubPat says on its website, unsound patent policy harms the public interest. Personally, I gave up GIFs when it counted, and I'm perfectly happy to give up JPEGs too. If Forgent wins, I will. If we all do the same, every time such patent piggydom occurs, it won't be long before that particular IP Business will have to hang up a Going-Out-of-Business sign.

Even the FTC is looking to fix the patent system, by the way. Here is a paper they put out in 2003 and recently there was a conference on patents by chaired by the Federal Trade Commission, the National Academy of Sciences and the Berkeley Center for Law and Technology. In digging around the FTC site, I found some remarks by Susan DeSanti, Director, Policy Planning, Federal Trade Commission, before the Conference: Antitrust for High-Tech Companies Business Development Associates in San Francisco, CA back in 1996. She explained quite clearly what isn't right about patents and particularly what is unique about software and patents. Media coverage on the conference here ("The U.S. patent process is deeply broken, according to the IT companies. As the number of patent applications has exploded, the quality has gone down. The result is boom times for lawyers and a lifetime of litigation for corporate counsel.") and here. Here is part of what Ms. DeSanti said:

"To set the framework for my discussion of hearings testimony, let me begin by setting out two dichotomies that are probably familiar to all of you. The first dichotomy is that both intellectual property protection and competition are necessary in order to spur innovation efforts,(1) but they each achieve that result through different means. Intellectual property law focuses on providing inventors and creators with a return on their work that is intended to remedy various “public good” problems that may arise in connection with intellectual property. Antitrust law focuses on maintaining competitive markets in which competition among inventors and creators provides the spur to innovation.

"The second dichotomy is between first-generation and second- (or successive-) generation innovators. On one hand, the first-generation innovators emphasize their need for broad and strong intellectual property protection in order to reward their innovation efforts appropriately. On the other hand, follow-on innovators emphasize their need for access to the intellectual property of the first-generation innovators, so that follow-on innovators can develop the improvements to and next generation of the first-generation’s invention or creation.

"For public policy purposes, these two dichotomies require a difficult and delicate balancing of the value to innovation incentives that intellectual property protection and competition each provide. The tensions in this balancing exercise were addressed by the very first speaker at the hearings, Joseph Stiglitz, Chairman of the Council of Economic Advisors. Among other things, his opening remarks pointed out that firms may impede innovation by making overbroad assertions of intellectual property rights, and he explained this point as follows:

'We often talk about how important patents are to promote innovation, because without patents, people don’t appropriate the returns to their innovation activity, and I certainly very strongly subscribe to that. . . . It was so important that it was included in the Constitution, so it gives you a sense of how important it was. On the other hand, some people jump from that to the conclusion that the broader the patent rights are, the better it is for innovation, and that isn’t always correct, because we have an innovation system in which one innovation builds on another. If you get monopoly rights down at the bottom, you may stifle competition that uses those patents later on, and so . . . the breadth and utilization of patent rights can be used not only to stifle competition, but also have adverse effects in the long run on innovation. We have to strike a balance.'

"Professor Carey Heckman of Stanford Law School highlighted the problems that high-technology industries encounter in trying to achieve a balance between initial and follow-on innovation. In high-technology industries, many of the products and services are combinations of more than one company’s technology. According to Professor Heckman, 'Technology is multi-faceted, multi-dimensional; it doesn’t come in neat sequences. It’s difficult to characterize what’s going on. Overall, people just aren’t sure what is owned by someone else. We have all stood on the top of the shoulders of our predecessors. Early developers don’t want their technology ripped off, but new developers would say that it’s ridiculous to start from scratch.'

"Some participants expressed concern that the creation of the United States Court of Appeals for the Federal Circuit has led to stronger and broader patent enforcement, which may have important implications for incremental and follow-on innovation. The Federal Circuit has exclusive jurisdiction of appeals from the U.S. Patent and Trademark Office with respect to patent applications and interferences and of appeals from judgments in civil actions for patent infringement. The Federal Circuit was formed partly in response to concerns about lack of uniformity in patent law decisions.

"According to several participants, the trend of the Federal Circuit’s patent decisions has been to uphold patents against attack and thereby effectively to strengthen the value of patents. Professor Barton suggested that the creation of the Federal Circuit has 'invigorated a nearly moribund patent law,' because the Federal Circuit is enforcing patents more than other courts in the past. In patent infringements suits, the Federal Circuit has been more likely to find that the patent is valid and thus infringed, according to Cecil Quillen, Jr. He writes that, as of three years ago, 'something like two thirds or more of patents which are litigated now are found to be valid and infringed' in contrast to ten years before when 'something like two thirds . . . were found invalid.'

"Professor Scherer agreed that the creation of the Federal Circuit has led to important, substantive changes in the law--changes, he argued, that were not intended by Congress. As a result, he reported, patents have been strengthened greatly, and firms are recognizing that a good patent is a powerful instrument to have. The impact of this change in the legal environment is that smaller firms, and even some rather large firms trying to develop a new product, are essentially finding themselves in a mine field, according to Professor Scherer. He suggested that 'there are lots of unexploded patents out there, and you might step on one and have your corporate leg blown off.' . . .

"In the opinion of some participants, copyright protection for software generally does not produce value on its own. Esther Dyson, president of EDventure Holdings, testified that copyright protection, especially in the software industry, in and of itself does not produce value, because the protected product is so rapidly overtaken by the next generation of products. Instead, companies derive value from their brand name, the support services around their software, and their ability to continue to develop new versions of the software.

"Ms. Dyson explained that in the software industry, venture capitalists do ask whether the software is copyrighted or patented; therefore, the existence of intellectual property does help a small company to raise money. She reported, however, that this is now changing, because funders are beginning to understand that simply having something tangible to invest in will not get you very far. Rather, in her view, it is more crucial to invest in the software programmers who know how to produce the next product. Although Ms. Dyson stated that she did not object to strong patent and copyright protection for software, she viewed firms that enforced such protections as likely to be market bottlenecks to be 'routed around.' Moreover, she cautioned that, if copyright protection is too broadly applied, then progress and development would be stifled, because 'software, more than anything, is a series of inventions piled on top of each other.'

"Robert Kohn, General Counsel for Borland International, expressed concern that overbroad copyright protection could stunt subsequent innovation in the software industry. He observed that originality for purposes of copyright requires just a trivial level of creativity and characterized copyright protection as 'uncritical and virtually automatic.' If copyright protection is extended to interface standards, he warned, then the consequent risk is that copyright owners will be overcompensated. . . .

"Professor Scherer agreed that, for bottlenecks that block any possible progress in software, “there ought to be some way of making those interfaces public domain, subject at most to a modest royalty.'"

That was in 1996, but it takes a while for ideas to gel and a consensus to build. And you can't make a change in a system until you know what to change it to. That is what the most recent FTC conference was about. FTC Commissioner Mozelle Thompson announced a new tech industry working group that will try to reform the patent process. Guess who is on the team? Microsoft.


  


Forgent Proves Once Again That Patents and Software Need to Get a Divorce | 419 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: bbaston on Sunday, April 25 2004 @ 12:52 AM EDT
PJ,

Us Groklawyers had some comments on this earlier, and I'm glad you included
"if they win".

My thought is that, like SCO's claims, something that's been okay for some years
isn't to be abandoned on a simple 'claim' (or complex claim). Yea, I'll migrat
to PNG, but not at a faster pace because of Forgent's greed.

---
Ben
-------------
IMBW, IANAL2, IMHO, IAVO, {;)}
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,

[ Reply to This | # ]

Corrections Here Please
Authored by: josmith42 on Sunday, April 25 2004 @ 12:59 AM EDT
n/t

---
Forty-two: the answer to the question of life, the universe, and everything.

[ Reply to This | # ]

Updates and new info here please.
Authored by: raindog on Sunday, April 25 2004 @ 01:05 AM EDT
And, I guess, OT stuff too ;)

[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: Philip Stephens on Sunday, April 25 2004 @ 01:12 AM EDT
Given that the GIF patent has already expired, and the JPEG patent is about to,
the good news is that both of these standard graphics formats can continue to be
royalty-free standards far into the future. We can count our lucky stars that
Unisys and Forgent both got their grubby, greedy hands on these patents too late
to actually make obscene profits from them.

Unfortunately, there are plenty of submarine patents left to rear their ugly
heads when they are least wanted. We've seen British Telecom try to
"monetise" hyperlinks, and whatitsname try to extort money for browser
plugins (though the US patent office was convinced to revisit that patent, and
will hopefully invalidate it). I think we're going to see a lot more of this
rubbish before "IP" companies finally realise that they're going to be
fought tooth-and-nail and won't be able to see the magical profits they'd hoped
for. But until all software patents are invalidated and not a single new one
issued, we've got to keep on our toes.

[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: Anonymous on Sunday, April 25 2004 @ 01:13 AM EDT
I started a software company some years ago and we had some pretty good
IP. By IP I mean that the staff knew a lot about our field and we were able to

develop software that met our customer's needs.

However, the investors didn't see it that way, they believed that IP was patents

and trademarks. We developed a new software product that was very
impressive to customers and was based on our extensive knowledge of what
users wanted. This looked so interesting the investors pushed for us to write
a patent application which we did. We didn't do a huge amount of hunting
for prior art, nor did the patent atourneys that we used do so either. We just

wrote it and stuck it into the patent office.

At this point the investors decided that the company had something worth
much more than people and a fight happened over who controlled the IP.
End result, the company ran out of cash because we couldn't raise any money
while there was this fight, specifically some investors wanted the company to
run out of cash so they could pick it up on the cheap and get control of the
patent which was considered very valuable.

In the end the company went bust and everything was sold to pay off the staff
and creditors, I personally lost a large chunk of cash and am now doing temp
work to pay my mortgage (which I had to increase to cover the lost salary and
my own personal investment in the company). The people that bought the
remains were instrumental in killing the company and they now think they
have the most valuable asset, this patent application. The funny thing is if
you care to look there is a pile of prior art that describes every feature of
the
application, yet I still expect it to get awarded because the patent office
doesn't do a very good job, especially with software.

So, the company I started was wrecked, the people (the real IP) are scattered,
and the thing that caused it all is a worthless patent application that should
never have been applied for in the first place. I agree, software and patents
have no place together and the only ones trying to do so are the people who
think that IP is something of great value that can be owned and controlled.
The concept of IP and patents is simply about money, it is not about expertise
and invention, it is about setting up toll booths on well travelled roads and
hoping someone will be stupid enough to pay you rather than fight.

[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: kbwojo on Sunday, April 25 2004 @ 01:14 AM EDT
According to this article someone doesn't think that the 672 Patent is as valid and as enforceable as Forgnet is claiming.

[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: Anonymous on Sunday, April 25 2004 @ 01:18 AM EDT
It cannot be healthy for you to hold yourself back like this, PJ. Why don't you
tell us how you really feel?

-AIB.

[ Reply to This | # ]

Forgent Proves Once Again ...
Authored by: Anonymous on Sunday, April 25 2004 @ 01:23 AM EDT

maybe some of us don't know it but the US is a better place than Europe. In the US you have a patend system that is bad, you see it in practise that it is bad and some people are trying to change it.

Here in europe we have a patend system that is better in that it does not allow SW to be patended ... and a lot of high positioned people are NOW TRYING TO MAKE IT INCLUDE SW!!!

Am i the only one filling this is a crazy world!

BTW if anybody has any info regarding the current EU situation please drop a comment / url

[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: Anonymous on Sunday, April 25 2004 @ 01:29 AM EDT
Everywhere people are quoting the fact that the patent expires soon, but that is not my understanding. Here is a typical article describing the terms of patents in the US, given the harmonization of US patent laws with those of the rest of the world. It would seem that this patent would falls squarely into the category of those that are due the longer of 17 years from grant or 20 years from first filing. If so, the patent will not expire for another two years (if the 1986 date of patent filing is, in fact, the "first filing" of this patent application).

In the end, I unfortunately have to, for once, disagree with our fair weblogmistress. In every field, patents are just as harsh and just as hated as they are in software, it's just that with software people haven't been brought up since the beginning of their education with the knowledge that patents are part of their life. How is the description of a chemical process different than software? How is the RC circuit that controls intermittent windshield wiper activation different than a timing loop in a program? Modern technology is mathematics embedded in silicon and copper, just as programming is mathematics encoded into machine language.

I hate software patents. When called to, I fight them with every fiber of my being. I know that the software patent genie, once released from its bottle, will slow software development to a crawl. But, its no better in other fields of engineering -- except that the obvious stuff analogous to what is being patented in software today was patented in other disciplines 50 or 200 years ago. I'm told that the original Watt steam engine used a rediculous complex gear train to couple the engine to a pump because the crank (an offset handle, basically) had a valid patent in force at the time. At least patents expire, something that copyrights will likely never do again.

Thad Beier

[ Reply to This | # ]

Ouch.
Authored by: Anonymous on Sunday, April 25 2004 @ 01:35 AM EDT
Don't those words just chill you to the bone? Maximizing shareholder value. As if that excuses everything. Maximizing shareholder value, no matter who gets hurt. That's the proprietary way. The problem is, software is too vital to the public interest for it to be held hostage by every greedy patent-holding pig on the planet. The same goes for his shareholder piglets, too. True to the piggy template, Forgent announced it has sued everybody and his cousin for "infringing" its patent on JPEGs, a standard format that everyone used in good faith for ages. The patent is almost two decades old, and now they want their money. Gotcha. The Proprietary IP Business Model.

Ouch.

That's a little strong, no? Should we also paint everyone who makes a living off an adversarial legal system with the same brush just because that system occasionally produces results like someone getting awarded millions of dollars because they found out the hard way that hot coffee is in fact hot?

As someone who makes a living writing software, I seriously doubt that I'd be up at 1 AM on a Saturday night/Sunday morning while my whole family is asleep innovating something if there wasn't the promise that I would be able to retire early if the damn thing works like we hope. If only so I never have to go on a business trip a few thousand miles away from my home again.

And that IP system is part of what's called an incentive.

Is it a little wacky at times? Yes. Are there bad apples like SCO and Forgent? Obviously.

But what would you suggest as a replacement? Something along the lines of "From each according to his abilities, to each according to his needs"? I think that has been tried a few times in the past. Never seemed to work, though.

Never forget the system you're bashing produces a standard of living so high that we worry if the poorest members of our society are watching too much TV or spending too much on lottery tickets. Not if they get enough food. Kinda telling, isn't it?

[ Reply to This | # ]

Prior Art?
Authored by: Anonymous on Sunday, April 25 2004 @ 01:38 AM EDT
http://zdnet.com.com/2100-1104-945735.html
Wen-Hsiung Chen may be the key person in this.

[ Reply to This | # ]

Too easily abused.
Authored by: mobrien_12 on Sunday, April 25 2004 @ 02:00 AM EDT
The biggest problem that I see is that SW patents are too easily abused, even
more easily than real, physical inventions.

JPEG was supposed to be an unencumbered standard. It was always an open
standard. Why did these people wait until it was estabilshed before they said,
"wait we own this, give us money." There is something wrong with
this.

You don't even have to do any work. You just brainstorm an idea, do not even
try to develop a prototype/proof of concept, and sit on it until someone or
someones come up with the same idea and do alot of work to implement it. Then
sue.



Profit, no work.



[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: roman_mir on Sunday, April 25 2004 @ 02:03 AM EDT
Forgent sues a bunch of companies for patent infringement, and IBM is named as
one of them. I am sure Forgent is infringing on some patents that IBM holds,
like the patent that describes a process for oxygenation of blood by an
atmosphere of circulating air, and an air circulation driving muscular
contractions powered by a sympatic system. I wouldn't be surprised if IBM
revoked the rights of the Forgent and even of its high management to such an
important technique.

[ Reply to This | # ]

PNG is NOT the answer!
Authored by: kuwan on Sunday, April 25 2004 @ 02:11 AM EDT

I don't know how many times this is going to have to be repeated, but PNG IS NOT THE ANSWER! Period. End of story. Move on people.

The reason why PNG is not the answer is because it is a lossless format (Zero loss in image quality) and JPEG is a lossy image format. This means that while a good JPEG photo might be only 200 KB, a PNG of the same image could easily be 1 MB (1000 KB) or more. Switching all the JPEGs on the Internet would be catastrophic in terms of bandwidth. You'd only be able to view images if you had broadband.

So, please everyone, stop telling us all to switch to PNG, it is not designed for the same job as the JPEG format. It'd be like telling a construction worker to do your taxes. Sure, a construction worker may be great at what he does, but I'd rather have a professional accountant do my taxes. JPEG and PNG are two different formats designed for two entirely different things.

JPEG2000 on the other hand does not infringe on this patent in any way and would be a viable alternative. Perhaps these lawsuits will help to speed up its adoption.

[ Reply to This | # ]

There's nothing wrong with software patents...
Authored by: Anonymous on Sunday, April 25 2004 @ 02:16 AM EDT
Hate to disagree with PJ on this one. But there's nothing wrong with patents (on
software) per se. The problems are two fold:-

1. Software being virtual: it's hard to spot the "obvious" patents,
and stop them being granted. The PO needs more resources to tackle this.

2. "Submarine" patents should automatically be excluded. A law needs
to exist (does?) so that the patent-holder has to inform an infringer within 6
months of becoming aware of a patent-infringement.

A simple letter or announcement would suffice, and (by default) any publically
used standard (e.g. JPEG) would automatically be in the clear.

I believe, at the beginning of the transistor era, someone did a whole bunch of
patents about how transistors might be used. And made a fortune years later when
people used them.

Perhaps this problem should have been tackled earlier.

If you fight software+patents you will LOSE. However, if you fight the abuse of
patents then many more poeple will be on your side.

Pick the right fight.

[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: SJonesMCNE on Sunday, April 25 2004 @ 02:34 AM EDT
I am confused about a lot of recent IP-related litigation like this. Maybe
someone can help me understand...

For over five years now, I've worked for a large company with a significant body
of IP protected under patents, copyrights and registered trademarks. We receive
training on how to manage IP. An important point always made in the training is
that we (and any other IP owner) must do more than simply register a copyright
or be awarded a patent number to be able to enforce our legal rights.

We are told that the IP owner must clearly demonstrate a consistent intent to
enforce ownership and that by failing to enforce a patent or copyright,
especially over a long period of time, we compromise our ability to claim
infringement. So, for example, we are obsessive about ensuring the correct
markup of products and documents with "TM," circled letters and patent
numbers.

I always took this to mean that if we knew that an infringement (strictly
speaking) was occurring and that we failed to act (whether intentionally or
through negligence), we couldn't suddenly change our minds a few years later and
start enforcing a claim. After all, that smacks of entrapment. It would be
like saying, "hey, we see that a bunch of people are infringing on or
patent -- probably unknowingly -- but we're going to wait a few years until the
infringement gets really big so we can get more money when we do start filing
suits." That would be pretty sleazy, and ought to be illegal if it isn't.

How can a company like Forgent reasonably or legally enforce a patent where the
owners have established a clear precedent of non-enforcement over a period of
nearly two decades? Shouldn't their Legal department have said to the person
who came up with that idea that no, it can't fly? Or is my legal department the
one that's nuts?

[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: geoff lane on Sunday, April 25 2004 @ 02:49 AM EDT

Patents are intended to perform two basic tasks a) allow an inventor to profit from their new idea by awarding a limited time monopoly and b) require the inventor to describe their invention in sufficient detail to allow others to benefit from the increase in public knowledge.

In most of the world a patent for a genuinely new invention is awarded to the first person to apply for the patent; in the US the law awards to the "first to invent" - a hugely difficult thing to prove. A simple change to "first to apply" would eliminate submarine patents over night.

As for the apparent inability of patent inspectors to do their job - they are overwhelmed and underfunded. The obvious fix for that is an open process similar to Groklaw where patents are published and comments are provided by the public. The patent officer would act as an expert moderator.

Personally I would require all patents to be written in plain english. The complex legal language used now is supposed to make the application unambiguious, perhaps it once did, but now it seems to just encourage legal activity. I would also require applicants to provide a working example to prevent the "if an invisible widget existed I could do a million different things in theory" type of patent.

[ Reply to This | # ]

Cool down, PJ
Authored by: Anonymous on Sunday, April 25 2004 @ 02:52 AM EDT
Maximizing shareholder value, no matter who gets hurt. That's the proprietary way. The problem is, software is too vital to the public interest for it to be held hostage by every greedy patent-holding pig on the planet.
Hold it, PJ. Lots of things are vital to the public interest. Food. Water. Land. Clothing. Housing. In fact, those things are a damn sight more vital than software. Are you saying that none of them should be subject to ownership?

The key difference, of course, is that "IP" is a completely artificial concept. The problem with patents, especially software patents, is that legislators have created "property rights" which are (on balance) harmful.
This problem will be extremely difficult to solve, because the main use of patents today is to prevent competition by preventing new companies from entering an established field. This means that almost all large companies have a big interest in the continuation of the present system. And of course our political system is almost entirely controlled, via campaign donations, by big companies.

[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: Anonymous on Sunday, April 25 2004 @ 03:24 AM EDT
This is idiocy. But the OSS community is wrong due to the inane rantings of
Stallman. Software deserves patent protection. It does not deserve copyright,
as it is not art, it is process. Patent expires quickly (though in terms of
software, it doesn't). Copyright does not.

What we need is a ruling saying that (like trademark) if you don't defend it you
lose the right to enforce it. We also need a bunch of compentent-for-computers
grantors, who understand that you have to grant only to inventors, not simply to
the first application.

JPEG is and will be a solid format. You cannot use patent law to ambush users.
If they had enforced this from the get-go it would have died. You can't let a
guy eat your carrot, and when he's finished sue him for theft. You have to
prevent it if you can.

[ Reply to This | # ]

Knowing the wood from the trees
Authored by: rss on Sunday, April 25 2004 @ 03:29 AM EDT
What is most annoying about this debate is that people in general don't seem to
understand the difference between *copyright* and *patent* laws. SCO is playing
this confusion pretty damn well - and it doesn't take us any futher by adding to
the confusion by not making a clear distinction between the two. Most open
source/free software authors enforce/adhere to copyright but are totally
opposed to patents.

"Ms. Dyson explained that in the software industry, venture capitalists do
ask whether the software is copyrighted or patented;"

[ Reply to This | # ]

IP depression
Authored by: Anonymous on Sunday, April 25 2004 @ 03:46 AM EDT
All these anti-competitive, anti-invention issues in our intellectual property
system makes me very depressed.

I'm working on my PhD right now, and I'm distressed that I might have the rug
ripped out from under me. What if I want to take one of the ideas I come up
with and produce a product? It seems like the risk of stepping on one of these
patent land-mines is too great to bother. The idea that after several years of
work on my product, I get slapped with a lawsuit from some IP warehouse for
infringing their rights, seems like it would be too emotionally crushing for me
to bear.

Why bother with the effort just to have my life's work taken away from me?

Jacob

[ Reply to This | # ]

[OT][FUN] The UNIX (R) trademark
Authored by: vruz on Sunday, April 25 2004 @ 04:31 AM EDT
I'm still LMAO

From Dennis Ritchie's (one of the original UNIX (R) creators) website at Bell
Labs:

It seems there's a lot of people to be sued out there :-)
http://cm.bell-labs.com/cm/cs/who/dmr/otherunix.html

Thankfully, Mr Ritchie also pointed us to a website that teaches us the correct
use for the word UNIX
http://www.opennc.org/trademarks.htm

oh well !!!


PS: UNIX is a trademark some people say they own, but few have been able to
demonstrate that so far.






---
--- the vruz

[ Reply to This | # ]

use jpg in embedded swf file
Authored by: Anonymous on Sunday, April 25 2004 @ 06:31 AM EDT
Would the whole issue vanish if you publish jpg into an (open-standard) swf
file?
Both can be viewed through browsers anyhow.

[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: Anonymous on Sunday, April 25 2004 @ 06:33 AM EDT
Apparently, there is still some people (including some
troll-wannabes perhaps... hard sometimes to make the
difference between a good troll and someone who just wants
you to think a little bit...) to think that software patents
is good.

I work in a image processing lab. All the compression
techniques, image analysis techniques are scientific
knowledge shared amoung the community. Hell, just
browse the Internet and check all the numerous papers.
Still, some greedy people are able to patent some of these
ideas... Talk about stealing people's work for your own
unjust enrichment.

These software patents like the one PJ is dicussing here,
are akin to me as patents on algorithms, mathematical
knowledge or nature properties. Image a world where the
E=mc2 formula would be patented! Or even best, where
the very concept of addition is patented! (I can image the
request file to USPTO: "A process whereby two entities are
mathematical processed to result in another different entity
whose very nature embodies the knowledge of the two initial
numbers -called operands- without these two initial entities
being extractable from the resulting entity -called the sum-")
Of couse, there will be some people here to think that my analogy
is utterly stupid. To them, I say: let's see what will happen in the
next decade is the system goes unchanged. You will see that such
absurd patent ideas will emerge.

Actually I remember an australian guy (I think) you was able to
patent the very concept of wheel! (just to show how absurd some
patents can be). I don't remember the details, so please, correct
me if I'm wrong.

[ Reply to This | # ]

Thank Sony and Another for Funding Forgent's Grab
Authored by: grouch on Sunday, April 25 2004 @ 07:18 AM EDT
See Patent Claim May Spell End of JPEG Standard from July 22, 2002:

Sony settled with Forgent in May 2002 for a lump-sum payment that covers past and future use. The other company, which reached an agreement with Forgent in April 2002, paid US$15 million at that time and apparently will make ongoing payments to Forgent.

[ ... ]

The patent may well be Forgent's most valuable asset. The $15 million fee collected in April increased the company's quarterly earnings by more than 200 percent compared with the previous year.

Of course, there was no Groklaw back then, so this did not get the public airing it deserved at the time. Perhaps Sony would have considered fighting if there had been some consolidated research available on some public website.

---
Can you trust your computer?
http://www.gnu.org/philosophy/can-you-trust.html

[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: prammy on Sunday, April 25 2004 @ 08:05 AM EDT
Well the whole problem here isnt just Software patents, its that a company which
has a 'patent' on a public standard is now enforcing it.

The punishments to companies for being on a standards committee and not
disclosing their patents and waiting for it to be a standard and threatening
others should be severe.

Personally I think any company who does this sort of underhanded garbage should
have ALL their patents made Public Domain as a punishment.

- pram

[ Reply to This | # ]

Another failing company raises a stink
Authored by: Anonymous on Sunday, April 25 2004 @ 10:09 AM EDT
Looking at the company's stock history, the price hit a high of $24 in 1995.
Its latest peak was $8 during the "dot com boom." The current stock
price is $1.63. It looks like this is just another failing company trying
desperately to survive.

The two big questions are: (1) Are they really going to sue anybody? and (2) If
so, who? I don't think they will. Even if they do and win, the money they get
won't cover the costs.

One of these days, at my leisure, I may well get rid of all of the JPEGs of my
site. I'm not afraid of being sued. It's more a matter of not wanting to use
somethin that's owned by slime. Maybe I'm fortunate that my site is relatively
small and I can easily convert.

[ Reply to This | # ]

Corrective Proposal: Get the sharks eating themselves
Authored by: Anonymous on Sunday, April 25 2004 @ 10:13 AM EDT
Perhaps one possible corrective to the broken system would be allowing fines and
damages --- enough to hurt --- to be awarded to successful challenges to
patents. This would turn the patent litigators on themselves instead of on the
public. What a feeding frenzy!

[ Reply to This | # ]

This is not a Software Patent
Authored by: dlamming on Sunday, April 25 2004 @ 10:21 AM EDT
Repeat after me: this is not about a software patent. Someone (presumably at Compression Labs) came up with an algorithim to compress images. It's probably a good algorithim, because people around the world use it. You may be able to argue that it's an obvious technqiue (ala LZW/GIF). As someone who hasn't studied compression theory, I don't know... but I do know most of you probably didn't come up with it on your own.

So why should we be able to patent compression algorithms? Well, some people have devoted a lot of time and money to making new ones (ala mp3, the mpeg standards, even ogg). Except in the last case, those people want their money back, and the alternative (to them) would be to keep it a trade secret... preventing interoperabilty. Instead, they just charge a fairly modest royalty.

Now I grant you that obvious techniques shouldn't be granted patents... but if you've spent a year or two designing the best compression technique ever, wouldn't you want to be compensated?

[ Reply to This | # ]

Not out of the blue
Authored by: Anonymous on Sunday, April 25 2004 @ 11:22 AM EDT
I don't know where I stand on this issue, not once having invented anything
on my own.
But one thing I know: everybody knew JPEG is proprietary and a license is
needed to use the format in programs and devices. And that the rights lay
with a portfolio company.
Everybody chose to ignore it, taking a gamble so to say.

It's maybe worth mentioning this - especially in the light of the availability
of
other excellent formats like PNG - made because JPEG was licensed.
There is this reality of patents and ownership. And companies - big
companies - are used to deal with this stuff. They however very much
calculate what the can steal and what not. Then they sit back and see the
lawsuits coming.

I'm not so sure if I'm at all that sympathetic - even if I really like some of
the
companies involved. It may not be right or nice, but when I'm choosing what
to get excited about, you know, there's a whole world out there with real
issues, shark eating small helpless fish so to speak. I don't think I have the
energy to find this - shark trying to eat shark - all that important.

[ Reply to This | # ]

Prior Art? I think there's plenty
Authored by: Anonymous on Sunday, April 25 2004 @ 11:24 AM EDT

``Forgent didn't do any of the original work of the patent that they now own; that was done by Compression Labs' Wen-Hsiung Chen and Daniel Klenke. Chen, who joined Cisco after selling Compression Labs to Forgent and a second firm to the networking giant, published several papers in the 1970s and 1980s on image compression and transformation. Some experts credit him with the creation of a specific kind of image manipulation--the discrete cosine transform--used in the JPEG format.''

I used to work in image compression in the late '70s/early '80s. The discrete cosine transform -- which is the heart of the JPEG format -- was common knowledge back then. It was deemed about the best one could do in a 2-D transform of imagery without using the Karhunen-Loeve transform (which, while shown to be optimal, was too computationally expensive in those days). Most of the textbooks that I used as references back in those days are packed away in the basement. However, the one that I've kept on the bookshelf is ``Digital Image Processing'' by William Pratt (1978, ISBN 0-471-01888-0). Considering the length of time that it took for a textbook to be written, reviewed, and published back then, one could show that the technology that Forgent is claiming predates their patent by at least a decade. And... in the Pratt text, I do not see any mention of Wen-Hsiung Chen or Daniel Klenke. (There is mention of a ``W. Chen'' in chapter 23 for a paper titled ``Adaptive Coding of Color Images Using Cosine Transform'' which was, apparently, presented at a conference in Philadelphia in 1976. Could be the same guy.) I strongly suspect that this particular Chen is not the originator of the discrete cosine transform. This paper seems to deal with an adaptive encoding of the coefficients that fall out of the 2-D DCT transform of images. And there were others doing work and publishing papers in this area of research (including me but I never published any papers on the topic, being a lowly grad student and all).

I will allow that those two characters might have been relatively unsung individuals from that time. The field was fairly popular back then. The IEEE Transactions on [Computers | Communications | Signal Processing | Information Theory] were lousy with articles on image compression. Sadly, I lost most of my old copies of these in a flood about 20 years ago but the indexes of these old journals are probably available online at the IEEE web site. In case anyone wants to dig deeper.

[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: Timo on Sunday, April 25 2004 @ 11:39 AM EDT
I don't know the details of the patent, but what bothers me is that the concept
is so obvious to anyone in applied math. That a change in basis can lead to
sparsity (and hence compressibility) is a very old result. Maybe there was some
genuine innovation in figuring out how to apply this to image compression. My
guess though is that spectral transforms would be the first impluse of any
reasonably trained engineer asked to cook up an image compression scheme from
scratch.

[ Reply to This | # ]

BTW, notice who Forgent *isn't* suing...
Authored by: Jude on Sunday, April 25 2004 @ 11:43 AM EDT
Microsoft is conspicuously absent from Forgent's list of defendants. MS is also
not one of the original licensees. MS probably the biggest producer of software
that uses jpeg, but they don't get sued. I did, however, find an article in
Computerworld that said Forgent is presently negotiating with MS about licensing
(use Google to search for "forgent jpeg microsoft").

Anybody care to guess why Forgent didn't sue Microsoft? I'll bet it's because
Forgent knows it would be the fastest possible way to get their patent
invalidated. Look what happened to Eolas.

I suspect Forgent knows they are on shaky ground, and are just trying to milk
this for all it's worth before the game is over.

My guess about the outcome is this: MS *will* reach a license agreement with
Forgent, but the terms will be confidential. In reality, MS will pay almost
nothing for their license, and Forgent with let them have it to make their
claims against other companies look legitimate.

[ Reply to This | # ]

This is what is wrong with our society
Authored by: Anonymous on Sunday, April 25 2004 @ 11:55 AM EDT
This is what is really wrong with our society. It is captialism in it's basest,
most evil form. It is profiting from something people have relied on for
decades. I would have been surprised if there weren't patents on distilling
water, or cleaning the air, but there are.

Even that which you need to live - clean water - has been patented, in an
indirect way.

This is just sad. And it shows just how bad this capitalism that America
promotes has become. If America is an example to the world, it is an example of
what not to become. Next we'll have a fascist America.

Just my tinfoil-covered opinion.


<i>If I were your apendages,
I'd hold open your eyes,
To let you see.
There was never meant to be only one.
To be only one.</i>
- Incubus, Meglomaniac

[ Reply to This | # ]

Groklaw still uses GIFs...
Authored by: Anonymous on Sunday, April 25 2004 @ 12:08 PM EDT
I noticed PJ said in her article:

Personally, I gave up GIFs when it counted...

However, looking at the home page of Groklaw, I see 11 GIFs, 1 JPEG and no PNGs at all :( So it seems it's not so easy to move away from GIFs on Web sites after all (it doesn't help that IE is useless with transparent PNGs to the utter disgrace of Microsoft, but only a few of Groklaw's GIFs are transparent...).

[ Reply to This | # ]

Move to Open Source?
Authored by: Anonymous on Sunday, April 25 2004 @ 12:18 PM EDT

You have to wonder if the 31 companies being sued might be better served in the
future to support standards which are derived from open source and GPL
development.

Total cost of ownership and use now has to include these bogus lawsuits?


[ Reply to This | # ]

JPEG 2000 is also at risk from patent claims
Authored by: Anonymous on Sunday, April 25 2004 @ 12:19 PM EDT
It looks like a company called Lizardtech has a patent that they are trying to extend to cover JPEG 2000. See this press release by a company who has been defending themselves against Lizardtech

[ Reply to This | # ]

A more fundamental problem--settlements
Authored by: scott_R on Sunday, April 25 2004 @ 12:38 PM EDT
While I agree that these kind of cases are a major problem, I think it wouldn't
be so bad if we fixed another little quirk with our legal system.

IMNSHO, the only reason this situation exists is because companies like Forgent,
Unisys, SCO, and so on know that it's usually more expensive to go to trial than
it is to simply settle. Also, if you go to trial, there is a risk for both
sides that you're claims will end right then and there. So, Forgent raises this
undefendable claim that everyone is infringing, makes a few settlements, and
gets money from those companies that deem it not worht the trouble to fight it.
Using that settlement money, they go after others, until the steam runs out of
their "patent".

So, my question is, why not fix the settlement process? I'm not saying get rid
of it entirely, although perhaps we need to do that. However, this certainly
isn't working in the best interest of the people, no matter how you look at it.

The claim that it reduces the burden on the judicial system is patently false,
as it still takes time to putz around with these claims, and many wouldn't exist
but for the fact that this "loophole" exists. If anyone has something
in mind, I'd love to hear it, because this is something I've been thinking about
for a long time.

Actually, getting people to rally behind this kind of cause would be pretty
simple, as the majority of people think it's a rich mans game anyway, and this
is the factor that allows people to make "slip and fall" money
grabbing claims. It probably wouldn't hurt a politician's career to push
something like this through, either, but I digress.

Maybe a jury-style (or to be easier on the system, a number of judges) system
could determine whether a case should continue in the interests of the people,
whether both parties wish to settle or not. The problem is, if that decision
costs companies more in the long run, is it right to force companies to pay for
it? For example, SCO will likely be bankrupt by the time their case goes to
court. Had IBM been willing to settle, but the court refused to allow that, who
would foot the bill?

Then again, there's a supply-demand principle at work here. If there weren't so
many cases to deal with, perhaps court costs and lawyer fees wouldn't be so
high. The ideal solution would be to get the lawyers to pay for frivoulous
lawsuits, but I can't see this happening. Actually, I kind of like that idea.
After all, why shouldn't lawyers have to do their homework when accepting a
client, like the rest of the professional world?

Sorry for the rambling thought pattern, but this kind of stuff gets my
adrenaline going. :)

[ Reply to This | # ]

IIRC there was prior art
Authored by: Anonymous on Sunday, April 25 2004 @ 01:58 PM EDT
This JPEG patent issue arose at least a couple years ago. At the time, the
discussions on the Net noted that there were people with proof of prior art just
waiting for Forgent (I guess) to sue someone so that the patent could be
invalidated. Forgent was being coy at that time; just going after companies with
big enough pockets to cough up license fees, but not big enough to bother
fighting in court. The reason I remember this (besides the blind side attack on
JPEG) was the term "prior art", which I hadn't seen before.

Looks like Forgent has run out of willing victims, or figures noone is going to
challenge them successfully.

[ Reply to This | # ]

Expires Oct 6, 2004 or Oct 27, 2006?
Authored by: Kelledin on Sunday, April 25 2004 @ 02:29 PM EDT

Insert standard 'IANAL' disclaimer...

Actually, my understanding of patent law is that since this patent was issued before 1995, it lasts either 17 years from issuance (it was issued Oct 6 1987) or 20 years from filing of the earliest parent application, whichever term lasts longer.

So if there are no parent applications, this patent could last until 2006. But AFAIK the possibility for things like injunctive relief doesn't extend beyond 17 years from issuance, no matter what.

FWIW, I see no parent applications (looking for number [63]) on the cover sheet. Of course, Compression Labs could have failed to list parent applications...

---
<Lionel Hutz> I'll be defending...The SCO Group!!!??? Even if I lose, I'll be famous!

[ Reply to This | # ]

Forgent Proves Once Again That Patents and Software Need to Get a Divorce
Authored by: sbungay on Sunday, April 25 2004 @ 02:50 PM EDT
M$ is on the working group team for patent reform? Forget it, it's already
failed. Gates plays to win, and one of the ways he wins in the face of
overwhelming odds is to change the rules to favor his interests.
Anyone who thinks Mr. Gates is represented on that working group to ensure
patents work fairly for everyone is quite naive. FOSS should be on that team...
not M$.


---
Programmer: A red eyed mumbling mamal that converses with inanimate objects.

IANAL IAAP

[ Reply to This | # ]

What the FTC said
Authored by: Anonymous on Sunday, April 25 2004 @ 03:20 PM EDT
The FTC issued a report last October saying that the US patent system badly needed an overhaul. Some of the FTC's recommendations are:
  • Enact legislation to create an administrative procedure to allow post-grant review of and opposition to patents.
  • Enact legislation to specify that challenges to the validity of a patent are to be determined based on a "preponderence of evidence."
  • Tighten certain legal standards used to evaluate whether a patent is "obvious."
  • Provide adequate funding for the PTO.
  • Enact legislation to require publication of all patent applications 18 months after filing.
  • Enact legislation to create intervening or prior user rights to protect parties from infringement allegations that rely on certain patent claims first introduced in a continuing or similar application.
A complete summary can be found here.

[ Reply to This | # ]

education==evolution
Authored by: Anonymous on Sunday, April 25 2004 @ 03:26 PM EDT
the problem with patents, copyright and 'piracy' is that they are all evolutionary problems--the 'establishment' isn't very good at innovating new business models, so they keep trying to apply their old 'physical bits' thinking to the 'electronic bits' world we are living in today... personally, i can attest with my own situation how 'grokking' the information age economics is an exercise in evolution–-originally from the world of art and design, i started programming, and have come up with an original software concept and prototype--having been through the business world, i made the decision to keep it small, and in my own control--as part of my business plan, i researched the market, and prior art, and realized that i would have a good chance of getting a patent on my software--while my idea may come to seem obvious, it is currently not being done anywhere, and it covers both specific and long-reaching implications...

however, another part of my research has been into licensing, and learning about FOSS--doing so has made me realize that claiming, promoting and enforcing a patent is not a good business model, especially since i am interested in innovation, not litigation!

i plan on releasing my work soon, and will be including an open source component, as well as some copyrighted material--the money will be made from the work around the core software, leveraging my own intellectual input at growing the idea, while still providing free software to promote the general advancement.

almost by definition, VCs and other management types are looking only for HUGE ideas, and they all want to fund the next M$--they understand that the proprietary model is what enables the huge killing that they want to make, irrespective of ANYTHING else--personally, i'm happier keeping my idea small, and thus keeping it away from the soul-crushing machine of big business...

[ Reply to This | # ]

UK Software Patents
Authored by: GaryD on Sunday, April 25 2004 @ 05:22 PM EDT

I happened to be at the ACCU Conference just over a week ago, and, in amongst all the C++, Java, and other technical talks, there was a discussion panel on software patents. One member of the panel was from the UK Patent Office, and he was very interesting to listen to.

Firstly, he explained what (in the UK) a patent is: it's basically an agreement by which a patent holder publishes details of some 'innovation' so that everyone can see it and learn from it, in return for which the Government guarantees to uphold their rights to profit from it and any application of it for a fixed period of time (even if someone else comes up with the same innovation independently).

He then explained that the UK patent process goes like this:

  1. Applicant applies for a patent. It is then (after some period of time) looked at by an official, who will spend up to a couple of days looking for any relevant information - previous patents, public domain info, etc. The official and the applicant may then spend some time improving the application before moving onto stage 2 - though many applications are dropped at this point because it's obvious they won't be granted and it's not worth the further cost.
  2. Patent application is published for public perusal and comment.
  3. At least three months (but usually rather more) later, all submitted comments are put together. The patent may be rejected at this point, or there may be some changes to the application to increase its specificity or to remove conflicts.
  4. If everything up to this point looks OK, the patent is granted and finally published.

Apparently, UK law does allow software to be patented, and in fact has done so since at least the early '70s, but so far, the UK patent office has been pretty good at avoiding granting over-generic or obvious ones. The same cannot necessarily be said for the European Patent Office, which can also grant patents that apply in all EU member states.

Currently, UK and EU patent rules on software are a mixture of some legal wording that doesn't really cover software well, and a large body of case law. This makes things very expensive and confusing for everyone. The EU rules currently being looked at are designed to clarify by summarising everything in one place, without (in theory) changing existing practice - though whether they succeed in this and don't extend the range of software for which patents may be used is open to question. Also, this would obviously be an excellent opportunity to limit the coverage of software in EU patent law.

Anyway, it would seem that, assuming the current EU Commission proposals do get approved, that the best defence is to have patent applications analysed, rewritten to be free of legal jargon, and openly published on a Groklaw-like forum where us techies can see them and start responding with all the prior art.

Note: IANAL - I'm just repeating from memory what I understood from the discussion...

---
Gary Duke

[ Reply to This | # ]

Slightly OT: So do copyrights and trade secrets
Authored by: joef on Sunday, April 25 2004 @ 06:16 PM EDT
I perceive a basic fairness issue in attempts to get both copyright AND trade
secret protection from a given body of work. If one gets a patent on a subject,
it pretty much precludes trade secret protection for the subject (of course,
there are ample opportunities for cheating.) But one can get copyright
protection on works, not publish them in the form that is covered by the
copyright, and still claim trade secret privelege protection for the work.

The patent granting mechanism assumes that the monopoly is given in exchange for
the act of revealing the workings of that which is patented -- at least, that's
what the wording of the constitution certainly implies. Yet one can hold secret
the expression of ideas which copyright protects by means of the trade secret
processes. And now, of course, we have the situation of TSG claiming copyright
protection for its secret source code.

I believe that a similar reading of the constitution, which mentions authors and
inventors in the same breath, would say that "If the public can't inspect
your work, copyright protection does not apply, and you must therefore rely on
trade secret protection." The whole fiaSCO we behold now results from
AT&T's poor record in protecting whatever trade secrets they may have once
had in Unix, and by others' later attempts to fold it into a copyright issue
once the secret cats were out of the bag.

[ Reply to This | # ]

One systemic heart to the problem: PTO as a profit center
Authored by: darkonc on Sunday, April 25 2004 @ 06:44 PM EDT
I'm not sure who first came up with this point, but it strikes home for me:

(part of) The problem with patents is a systemic one. Back in the '70s, congress mandated that the PTO make a profit. The moment that they did this, they created the seeds of a monster.

Mandating that the PTO make a profit turned it into a pseudo company. Unfortunately, it is also a legislated monopoly -- and a (mostly) unregulated one at that -- except for the pricing of the various steps in the patent process.

As almost any economist will point out, an unregulated monopoly with a profit incentive and a fixed price is essentially a recipe for high-volume and low quality.

Add to this the creation (mentioned above) of the federal circuit which has strengthened the presumption of patent validity, and you've got an innovation quagmire.

Fixing this doesn't just require a rules change -- it requires a fundamental rebuild of the PTO legislation.
____

The other systemic problem is the patent-as-economic-mine. People who sit on a patent while the patented process is built into a standard, wait until it becomes widespread, and then using the patent to, effectively, blackmail developers and users who had no idea that their patent was infringing. A different flavour is the rogue patent-mine... companies looking for and buying up patents that might apply to widely implemented protocols and processes --

The latter problem could be at least mitigated by introducing the idea of indifference estoppel to the patent laws -- if somebody does not make a reasonable effort to ensure that people know, as soon as precticable, that a process is patented, it should be assumed that the owner of a patent is applying acquiescence to that patent's use.
This is much like the way in which trademarks must be actively defended to maintain their validity.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Three USSC cases
Authored by: Anonymous on Sunday, April 25 2004 @ 10:50 PM EDT
Here are three Supreme Court cases on the subject.

Gottschalk v. Benson -- algorithms cannot be patented.
Parker v. Flook -- mathematical formulae cannot be patented.
Diamond v. Diehr -- a process for manufacturing rubber can be patented, even
though the process involves solving a mathematical formula using a computer.


Gottschalk v Benson
409 U.S. 63 (1972)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=409&invol=
63

Parker v. Flook
437 U.S. 584 (1978)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol
=437&invol=584

Diamond v. Diehr
450 U.S. 175 (1981)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&c
ase=/us/450/175.html

[ Reply to This | # ]

thoughts about OSS and software patents
Authored by: Turin on Sunday, April 25 2004 @ 11:47 PM EDT
I wrote software in the early 90's and sold it as shareware - stuff for the BBS
scene. It kept me in beer and cigarettes for about 5 years. No great shakes,
but supplemental income to my real job as an infrastructure guy/manager. I got
married in '94 and shortly thereafter stopped doing it - I didn't enjoy working
in MS Windows - too kludgy (and this compared to DOS!) and confined my efforts
to the occasional application for work, things like remote static IP management
for 95/NT4 and setting audit flags on large NT4 partitions which I held closely
and were used only for my employer.

I look out now and see this patent crap going on and realize that the only way
that I would ever write anything again for the general public would be as FOSS.
That way, someone could host it in some foreign country and I would never have
to hear about the liability issues thereof. Hell, my name wouldn't have to be
on it except as a code contributor. The whole thing scares me to death. Hence,
I don't release anything.

I have heard Microsoft and others (SCO comes to mind) claiming that FOSS is
killing the traditional software business. I would venture to say that the
software patent crap has killed a lot of small scale development, as well as the
price of non-GNU tools - take a look at what Delphi or Visual Studio would cost
you today? I remember a day when you could get a damn good dev environment +
IDE for under $100 and be productive that night, producing easily portable (from
system to system) executables. Contrast that with the state of affairs today in
the Win32 world.

In short, I agree with SCO and Microsoft - it's really hard or impossible to
make money writing software today. The reason why isn't FOSS - it's chilling
effect of software patent leeching and the cost of development tools. 10 years
ago I could take code that i've recently written and make a zipfile out of it
and have people sending me checks in the mail. No longer.

About the only positive benefit of this all is that they've driven me to MinGW,
which is a good place to be overall.

(fyi I don't develop for Linux except some hacking of a mud driver and some php
scripts for the web site for same - not mainstream enough for the kinds of
systems I work with at the job, and i'm super pragmatic about what I write - if
it isn't useful for me i'm not coding it - last useful thing I did was a Veritas
backup log processor for win32. Sorry for not being politically correct but I
work for the customer, not vice versa.)

[ Reply to This | # ]

Patents - A Contrary View
Authored by: emmenjay on Monday, April 26 2004 @ 04:03 AM EDT
> It's time to quit this patent nonsense. You proprietary
> dudes need to find an honest way to make some money and
> leave software alone, if you can't play nice with others.

I've been thinking about this, and I don't think patents themselves are the
problem. I think it is the broken way we handle them.

If you have some technique or algorithm that is genuinely original, I don't see
why they shouldn't have the option to patent it.

However we do two things fundamentally wrong.

1. The patent office seems incapable of distinguishing the truely original from
the rest of the pack. Too many patents are given on things that are already
known, or that are obvious solutions.

2. Patents need to be "use it or lose it". If something is patented,
then OSS people will stear clear of it. Generally that is not too hard. But
when somebody digs up a mouldy old patent on something that is already in wide
use (e.g. jpeg) then that is completely unreasonable.

In fact, that kind of leads to a test for truely good patents. If you patent a
compression algorithm and charge fees, it is unlikely that anybody will use it -
as there are alternatives available. If you come up with a new thing that is so
useful that people will pay you for it, then it probably *is* truely original.

[ Reply to This | # ]

Do we have to wait
Authored by: Anonymous on Monday, April 26 2004 @ 05:40 AM EDT
until the judicial system is overwhelmed with such
opportunist suits before legislators wake up?

[ Reply to This | # ]

The other IP defence
Authored by: Anonymous on Monday, April 26 2004 @ 09:38 AM EDT
There is another method to defend IP that often gets overlooked, but is huge to
the FOSS comunity (if not explicitly stated), Defensive Publication. If you
have an invention, and you publish the details of it, then that excludes patent
protection for anyone else that may subsquently invent it.

I've used this on a couple of occasions (with the company's lawyer's O.K.). If
I develop an invention that may be possible to patent but for whatever reason is
not useful to patent (for example, it would be dificult to detect infringement),
we may opt for defensive publication. Now, the idea is out there. We can still
license it (license the know how, the expertise), but any competitors cannot
patent it and prevent us from practicing it.

I'm stunned at how much money is wasted on patents that would be better served
as defensive publication.

[ Reply to This | # ]

Sitting back and looking at the 'Big Picture' again...
Authored by: OrlandoNative on Monday, April 26 2004 @ 10:42 AM EDT
Hmmm... ...reality check...

Most of us here are against software patents. For that matter, I'm not real
fond of them either. However, PJ's 'commentary' at the top got me thinking a
bit.

How different, really, is a 'valid' software patent from any other kind?

In normal practice, any company building some relatively complex product ends up
utilizing patented technology - some theirs, some owned by someone else, but
used under a license of some sort. Maybe royalty free, but not necessarilly so.
This system has been around for quite some time, and appears to work well - at
least well enough that no one really seems to object to it.

Now, take a look at software. A software application (or even an operating
system), is a complex 'product'. It may be all original, or a composite of many
parts - from many sources - amalgamated into a whole. Just like the physical
product described in the paragraph above.

Why, then, is there such a resistance to software patents? Is it because
software developers are 'too cheap' to license technology they're borrowing for
their own 'composite' product? Is it too much trouble for them to do the same
investigation and licensing deals that a company making a 'physical' product
does? If so, why?

I don't really see any dichotomy between software and non-software patents. As
long as the patent owners are willing to license the use to ANYBODY for royalty
terms... ...and that doesn't necessarilly mean for free.

The problem (as I see it) are the predatory companies that either won't grant
licenses, or else ignore behavior until they feel the pot is big enough to
justify a grab.

It seems simple to me. If something you want to 'borrow' for use in your
product is patented, then contact the patent owner and see what he's willing to
license the use for. If that isn't acceptible, then, like any other company,
find another way of doing what you need to do.

Anything else is basically the old "what's mine is mine and what's thine is
mine also" way of thinking - exactly what most of us here say is the
'proprietary' way of thinking.

[ Reply to This | # ]

Prior Art? Need WIKI on Groklaw!
Authored by: Anonymous on Wednesday, April 28 2004 @ 05:55 PM EDT
What Groklaw seriously needs is a WIKI format for individual patents like these
with a messageboard associated with it, that way we can keep updating the
content, with relevant information... Which also allows us to analyze the patent
piece by piece.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )