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
Hunting for Prior Art on the Acacia Patent and Other Strategies
Saturday, July 03 2004 @ 04:16 AM EDT

The Register has an article by Robin Bloor on a patent, Patent No. 5,132,992 being used as a litigation weapon by Acacia Technologies. The article's title indicates that it is a special threat to open source. Actually, it's a threat to anyone with a web site and streaming video or audio. The article correctly points that out, and it goes on to mention the submarine patent threat to open source.

A Groklaw reader asked for more information on this patent, so here it is. It turns out that the Register article doesn't tell you that you may be able to do something about this patent.

It is numero uno on EFF's new Patent Busting Project's list of what they are calling their Ten Most Wanted Patents, wanted in a playful sense for "Crimes Against the Public Domain; Willful Ignorance of Prior Art; Egregious Display of Obviousness". Here's the purpose of the project:

"B. Challenging The Patents

"Once it has identified some of the worst offenders, EFF will begin filing challenges to each in the form of a 're-examination request' to the U.S. Patent and Trademark Office. These requests create a forum to affirmatively invalidate patents rather than forcing technology users to await the threat of suit. Under this procedure, EFF can choose particularly egregious patents, submit the prior art it has collected, and argue that the patent should be revoked. EFF will collaborate with members of the software and Internet communities as well as legal clinics and pro bono cooperating attorneys to help in these efforts."

From their announcement:

"EFF Announces Ten Most-Wanted Patents

"Start forming your patent-busting posses! Today, the Electronic Frontier Foundation's Patent Busting Project announced which patents the organization will target first in its campaign to rid the world of frivolous patent infringement lawsuits. After sifting through dozens of software and Internet-related patents submitted to its patent busting contest, EFF targeted ten whose crimes have made them enemies of the public domain. All the most-wanted patents are dangerously overbroad; many pose a threat to freedom of expression online. And every single one of the targeted patents is held by an entity that has threatened or brought lawsuits against small businesses, individuals, or nonprofits. Target number one is Acacia, a company that has litigated relentlessly against small businesses to enforce patents that it claims cover a broad array of technologies used to send and receive streaming media online. Victims of Acacia's legal threats include websites that host home videos and several 'mom-and-pop' adult media companies."

Here is what EFF says about the threat from this patent, from their page on the Acacia patent: "Laughably broad patent would cover everything from online distribution of home movies to scanned documents and MP3s." They are asking for help in bringing down this patent, specifically by searching for prior art. If you wish to help, here is the information you need:

The Accused: Acacia Technologies
Patent Name: Audio and video receiving and transmission system
Patent Number: 5,132,992
Description: Patent covers the sending and receiving of streaming audio and video over the Internet.
Critical Date: January 7, 1991

How to help:

Click here if you are a law student, prior art searcher, or a patent attorney interested in helping bust this patent.

Click here if you are a technologist interested in providing technical analysis to help bust this patent.

Click here to submit prior art to help bust this patent.

EFF also lists some links for more info:

http://www.streamingmedia.com/patent/patent.asp
http://www.extremetech.com/article2/0,1558,1195937,00.asp
http://www.avn.com/index.php?Primary_Navigation=Articles& Action=View_Article&Content_ID=105933

http://www.fightthepatent.com/

You might enjoy reading about one patent that recently foundered on the equitable doctrine of "prosecution laches" [sometimes, as in this document, spelled latches] -- the courts ruled that the inventor waited too long to prosecute (in one case 39 years), so the patents were declared unenforceable. If you'd like to read a transcript of the testimony of a patent expert trying to say the patents were valid, here's the transcript of a John Witherspoon's direct testimony at trial. He evidently worked for the Patent Office, on the Board of Appeals. It will give you an idea of what patent trials can be like (zzzzzzz) and also that they are normally experts dueling with one another. In this case, Mr. Witherspoon's expert testimony did not carry the day.

If you think that only organizations like EFF think the patent system needs fixing, you might also like to read the Opening Statement [PDF] of HP's Associate General Counsel, Director of Intellectual Property, Stephen P. Fox in February, 2002, before the FTC/DOJ Hearings on Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy. [HTML] Here's one part of what he said:

"The current state of the patent law system is problematic from HP's standpoint. We have witnessed in recent years a vast proliferation of patent grants by a seriously understaffed PTO and an equally vast proliferation of complex litigation over patent validity and scope. Notwithstanding the centralization of patent law development in the Federal Circuit over the past two decades, the governing standards for patentability and patent law jurisprudence generally remain plagued by unpredictability in their application, particularly with respect to patents bearing on new or emerging technologies. The result is pervasive uncertainty about legal rights, both in terms of ability to enforce one's own patents and ability to avoid rapidly escalating exposures to infringement claims by others. And that uncertainty heightens risks surrounding innovation investment decisions.

"Those risks, moreover, are a growing menace to innovation efforts across the information technology landscape. Given how much they burden and impair a company as resourceful as HP, the loss to society from their cumulative impact on companies large and small including the most otherwise promising start-ups unable to raise capital for their projects in this environment must be considerable. It is without doubt a serious drag on the technological and scientific progress that the patent system was designed to promote.

"Competition policy is deeply implicated in this unsatisfactory situation. An unknown but undoubtedly significant number of invalid patents are issued; an unknown but undoubtedly significant number of patents generate lawsuits or threatened lawsuits involving overbroad claims. Both phenomena create serious impediments to competition, both from existing products on the market and from new products in the development stage. Litigation has become a poor means of addressing these problems, in part because of the unacceptably high cost and length of the litigation process and in part because of the already mentioned unpredictability of litigation outcomes. There are high stakes for plaintiffs and defendants alike in these suits. There are, however, equally high unrepresented stakes for the public in these same suits. Courts are called upon to adjudicate sharply conflicting arguments over IP rights without hearing from a voice on behalf of the public's interest in results consistent with innovation-encouraging competitive markets.

"We would respectfully suggest a new role for the Federal Trade Commission and the Department of Justice in filling that gap. Specifically, both agencies could look for appropriate cases in which they would participate in an amicus capacity to present their perspectives on issues of patent law with significant competition policy implications. There are many issues of this sort on which the Federal Circuit in particular could benefit from FTC or DOJ input. Examples of issues on which the Federal Circuit could benefit from your agencies' thoughtful analysis of competitive effects include all of the following: (i) patent claim certainty versus the doctrine of equivalents; (ii) licensee estoppel; (iii) when patent misuse should and should not coincide with antitrust liability, (iv) prosecution latches or late claiming; and (v) the proper role of juries in patent cases."

The FTC in October of 2003, after the hearings, put out a report, which made recommendations for the patent system. The PDF of the report itself is here. Among the important recommendations were these:

"Specifically, the report recommends:

"Creating a new administrative procedure that will make it easier for firms to challenge a patent’s validity at the U.S. Patent and Trademark Office (PTO), without having to raise an expensive and time-consuming federal court challenge; and

"Allowing courts to find patents invalid based on the preponderance of the evidence, without having to find that clear and convincing evidence compels that result. The current standard of 'clear and convincing evidence' undermines courts’ ability to weed out questionable patents. This is especially troubling, since certain PTO procedures and rules tend to favor the issuance of patents.

"The report also recommends that Congress limit the award of treble damages for willful patent infringement. Some hearings participants explained that they do not read their competitors’ patents because of concern that learning about others’ innovations will expose them to treble damages infringement liability. Failure to read competitors’ patents, however, can harm innovation and competition. . . . .

"The FTC also outlines in the report several steps it will take to increase communication between the antitrust enforcement agencies such as the FTC and the PTO. In particular, the FTC will: "Continue to file amicus briefs in important patent cases that affect competition;

"Ask the PTO Director in appropriate circumstances to reexamine questionable patents that raise competitive concerns; and

"Urge the creation of a Liaison Panel between the FTC, the DOJ, and the PTO to permit the exchange of policy views on important issues as they arise."

Obviously, somebody would be supposed to care if patents were ever to be used as an anticompetitive weapon against FOSS, and there is a process in place. The National Academy of Sciences also released recommendations on fixing the patent process, and they suggest that Congress pass legislation to create an "open review procedure" for third parties to challenge recently issued patents before the USPTO's administrative patent judges, leaving federal district courts free to focus on patent-infringement issues.

While they debate, the EFF is moving on the prior art front. If you feel like working on the EFF's prior art project, happy hunting! And if you have technical expertise, you might want to know that the Public Patent Foundation is seeking technical experts willing to work on a pro bono basis. If you wish to volunteer, you can do so via their web site. Here's what they are looking for:

"Technical experts work with PUBPAT's legal staff to analyze specific patents within their field of expertise. Example projects include researching and drafting reports on specific technological fields and providing written or oral testimony in support of PUBPAT's legal services."


  


Hunting for Prior Art on the Acacia Patent and Other Strategies | 202 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here pls.
Authored by: PJ on Saturday, July 03 2004 @ 07:31 AM EDT
Pls. put all mistakes here for me. Thank you.

[ Reply to This | # ]

Patent Problems
Authored by: Anonymous on Saturday, July 03 2004 @ 07:58 AM EDT
My applause to the EFF (and others) who are addressing patent problems in a very positive manner.

Obviously there are a lot of us who feel that software shouldn't be subject to patents. However, this is the real world, and software is patentable.

The very idea of a patent was conceived in a time when the pace of technological progress was relatively slow, so apparently nearly two decades seemed a reasonable time frame. But in today's frantic pace of development, especially in the fields of electronics, medicine/biology and software, a shorter time frame for patents would seem reasonable.

So perhaps, since patents will be there in one form or another, an approach to consider would be to limit software patents (for example) to a three or maybe five year life.

Granted that it will take legislation to make the change, and it wouldn't cure all the ills, but it's an approach I've not yet seen mentioned anywhere, and it might be a compromise that could reduce the ill effects, to a degree.

Just food for thought.


Larry N.

[ Reply to This | # ]

Hunting for Prior Art on the Acacia Patent and Other Strategies
Authored by: Sunny Penguin on Saturday, July 03 2004 @ 08:02 AM EDT
"Audio and video receiving and transmission system"

Uh, I am not sure if this covers but, Streaming video over IP;
One small step for man one giant leap for mankind.

Was this not a point to point transmission.....
All TV signals are in a cable at some time.

---
Litigation is no sustituite for Innovation.
Say No to SCO.
IMHO IANAL IAALINUXGEEK

[ Reply to This | # ]

Hunting for Prior Art on the Acacia Patent and Other Strategies
Authored by: Anonymous on Saturday, July 03 2004 @ 09:38 AM EDT
Morse telegraph: spoken words compressed by the telegraph operator to digital
signals which sent over to an other destination when it was read someone aloud.
It might be not fully real time, but it depends of the speaker and the telegraph
operator...

[ Reply to This | # ]

Remember DMcB was a submariner
Authored by: Anonymous on Saturday, July 03 2004 @ 09:40 AM EDT
I hope we can stop improper patent use. I recall that Darl and his buddy,
Anderer, engaged in submarine patent extortion prior to his becoming software's
most notorious idiot. If Acacia can be stopped, we might prevent funding
another Darl. Good luck EFF and others. I am grateful for your efforts and
only which I knew about patent law or technology so that I could help.

[ Reply to This | # ]

Hunting for Prior Art on the Acacia Patent and Other Strategies
Authored by: rongage on Saturday, July 03 2004 @ 09:40 AM EDT
Just a thought...

Has anyone given any serious thought to pushing for a change in the term
(lifetime) of - for example - software patents or internet related patents?

As I recall, patents are valid for 17 years with a possible 10 year extension on
application to the USPTO. Now I don't know about you but I can't think of
anyone who is using 17 year old software, save possibly some mainframe type
applications (banking, air traffic control, etc...)

I would offer 2 different proposals - 1) Software patents being valid for a term
not to exceed 1 year from date of issue and cannot be renewed. 2) Internet
patents being valid for a term of 9 months from date of issue with a maximum
extension of 6 months on demonstration of actual financial harm to inventor
should patent be allowed to expire.

I believe this would solve many problems that we are seeing today, especially
the "patent as a weapon" problem that is presently being discussed.
This would ultimately create a public policy (in software and internet) of
"if you are going to patent it, use it". Sitting on a patent waiting
to one day use it against some other organization for financial gain would
effectively be eliminated.

Remember that the constitution, the document that created the idea of patents,
only proscribed a "limited time" clause and did not enumerate what
"limited" was to mean. I am suggesting that we lobby Congress to
re-evaluate the definition of "limited" in the context of software and
internet patents and that this reevaluation be applied retroactively.

Have I lost anyone yet?

---
Ron Gage - Linux Consultant
LPI1, MCP, A+, NET+
Pontiac, Michigan

[ Reply to This | # ]

Hunting for Prior Art on the Acacia Patent and Other Strategies
Authored by: Anonymous on Saturday, July 03 2004 @ 09:45 AM EDT
Smoke signal: Audio signal given by the chieftan processed to smoke signals,
which was broadcasted by light and decompressed by the other side who watch the
smoke.

[ Reply to This | # ]

BOUNTY Hunting for Prior Art on the Acacia Patent and Other Strategies
Authored by: Anonymous on Saturday, July 03 2004 @ 10:00 AM EDT
Any way to offer some sort of bounty (cash or recognition) for those who dig up
the smoking gun prior art? How about an EFF "Patent Buster Award of
Honor?"

Might make this task a bit more fun.

[ Reply to This | # ]

The intuitive obvious patent
Authored by: jpgraves on Saturday, July 03 2004 @ 10:07 AM EDT
It appears that the easy path to money is to patent the intuitively obvious.
But the hard part has got to be finding the intutively obvious that hasn't
already been patented.

From what I can tell, it appears that there is an attempt to patent the idea of
a digital VCR and a digital jukebox. They are combining this patent with
several claims about transmission. However, I can think of several reasons this
patent should fail.

1) The phone companies have been doing analog to digital and digital to analog
conversions with compression years before this patent was filed.

2) Client/server processing has been on the internet long before the advent of
the WWW or should I say HTTP. The whole idea behind client/server processing is
to take part of your application and run it transparently on a different
computer. All of the patents that claim "over the internet" kinda
fall into this category. HTTP is just another form of data transport actually
wrapped around internet protocols.

3) Accessing a compressed video stream over a NFS mounted file system was
certainly possible prior to 1991. And such access covers every aspect of the
broad interpretation sought in this case. And by using a named pipe on the NFS
server, it could be delivered in real-time.

Patrick Graves


[ Reply to This | # ]

What are the rules these days?
Authored by: Anonymous on Saturday, July 03 2004 @ 10:37 AM EDT
The rules about what can be patented obviously have changed since I was a puppy.
In olden times, inventors would usually build a working model of the invention.
I get the impression that this is no longer the case. Is it necessary to show
a working model to get a patent?

How hazy can a concept be and still get a patent or count as prior art? For
instance, does the fact that a 'space elevator' was described in science fiction
prevent anyone from getting a patent for a 'space elevator'? I guess what I am
asking is: "What counts as prior art?" If an academic speculated
about the possibility of streaming video in a paper in 1969, does that count as
prior art?

Many authors have tried to predict what the possibilities of new technology
would be. The speculation goes like this: "Given the trends that we
observe, we predict that the technology will have these capacities. It seems
obvious, given these capacities, that people will take advantage of them in a
particular manner." In the present case, it has been obvious for a long
time that, given lots of cheap bandwidth, people would use that bandwidth to
transmit video. Transmitting video over ip is a foregone conclusion. Even if
an academic speculation about the possibilities of emerging technologies does
not count as prior art, perhaps they can help in another way. Suppose that an
academic predicted that an emerging technology would allow a certain thing to
happen. When the technology has advanced sufficiently to allow that thing to
happen, then the fact that it had been predicted seems to mean that the idea
should have been obvious to a "skilled practitioner in the art".

I realize that the most convincing prior art consists of somebody having
actually done something. I wonder if the fact that somebody has predicted
something proves that it is "obvious to a skilled practitioner". Has
someone ever successfully invalidated a patent that way?

[ Reply to This | # ]

HTML
Authored by: moogy on Saturday, July 03 2004 @ 10:39 AM EDT

This article is being displayed much too wide. The width seems to be forced by the html. Perhaps the very long url in the article. I don't kniow but it makes the page unreadable without scrolling left/right for every line read. I know I am not the only one seeing this effect.

---
Mike Tuxford - irc.fdfnet.net #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win -Gandhi

[ Reply to This | # ]

  • HTML - Authored by: PJ on Saturday, July 03 2004 @ 11:19 AM EDT
    • HTML - Authored by: moogy on Saturday, July 03 2004 @ 11:49 AM EDT
  • You're not the only one - Authored by: Anonymous on Saturday, July 03 2004 @ 11:26 AM EDT
  • Now it's OK, for me - Authored by: Anonymous on Saturday, July 03 2004 @ 11:28 AM EDT
I hear MS have restarted IE development
Authored by: Anonymous on Saturday, July 03 2004 @ 10:45 AM EDT
So we can expect patents on popup blocking and tabbed browsing real soon now.

[ Reply to This | # ]

Hunting for Prior Art on the Acacia Patent and Other Strategies
Authored by: oldgreybeard on Saturday, July 03 2004 @ 11:16 AM EDT
Let us harken back to pre www time, back in the good ole days of CIS and the old
BBS systems.

From that time period I would say that zmodem shipping a lyra music file would
qualify as prior art.

Sorry I just could not resist ;-).

And ISTR back in the early '80s a device that did multi channel
compression/decompression and multiplexing/demultiplexing ... seems one put such
a beast in a rack and hooked it up to a (gasp) telephone circuit.

He he, now I've got to do some digging to find out who made that little puppy.

Let's see we used equipment from AT&T, Motorola, Racal Milgo (sp?), Black
Box, IBM, CDC, Memorex, ITT, and several others.

Probably it had a patent or two on it as well.

[ Reply to This | # ]

Question about willful infringement
Authored by: Jude on Saturday, July 03 2004 @ 11:34 AM EDT
I have seen numerous Groklaw posters comment that there are extra penalties for
willful infringment of a patent, and that the existence of these extra penalties
often discourages people from doing patent searches prior to developing a new
product.

Is this true? If so, what is needed to show willful infringement? Suppose I do
a patent search, and I find a patent that is related to my planned product, but
my legal counsel tells me there's no infringment. If I am subsequently found to
have infringed this patent, does merely being aware that the patent existed make
me guilty of willful infringment, or is it neccessary for plaintiff to establish
that I knew I was infringing?

[ Reply to This | # ]

Another reason to repeal IP treaties with U.S.
Authored by: Anonymous on Saturday, July 03 2004 @ 11:35 AM EDT

Microsoft and SCO aren't alone in abusing IP. This is just another reason
for other nations to repeal their IP treaties with the U.S.

Another step would be to modify the Berne Convention to address this problem.
The U.N. might be useful for this, too.

The U.S. Patent Office is obviously too crippled, too incompetent, or
both, to do its job.

[ Reply to This | # ]

How about this for prior art?
Authored by: Jude on Saturday, July 03 2004 @ 11:45 AM EDT
A history of video conferencing (VC) technology

I remember seeing the picturephone demo'ed at the 1964 World's Fair in New York.
It certainly purported to deliver real-time audio and video over telephone lines. I don't
know if there was any compression involved, it was kinda hard to do back in those days.
However, it looks like the idea was the subject of fairly continual effort ever since Bell
first came up with it.

[ Reply to This | # ]

The Princeton Engine predates this patent
Authored by: PeteS on Saturday, July 03 2004 @ 12:22 PM EDT
As somone who actually worked on this (and helped design it's successor), I am familiar with the history of the system.

The Princeton Engine was a massively parallel computer (the largest was 320 parallel processors each with it's own DRAM/SRAM and hard disk) designed specifically for video streaming. It was invented in 1983 IIRC (it is on the 80s page Here)

It was invented by a few guys at Sarnoff Research Labs in Princeton, NJ (Hence the name).

It has a c itation at the ACM Portal.

A Google search yields lot of hits. To refine the search, add Stan Knight and Danny Chin to the search (they were the co-inventors).

This does precisely what the patent in question seems to cover, with the only difference being the medium (internet) - but this system was designed to be medium agnostic - it could be used over any medium with suitable access APIs

It was used by a number of cable companies for Video-On-Demand in the 90s and early 2000s.

Pete S

---
Today's subliminal thought is:

[ Reply to This | # ]

What about the reverse situation?
Authored by: Night Flyer on Saturday, July 03 2004 @ 01:24 PM EDT
Suppose I have a new idea, which is relatively pivotal in some emerging
technology, make a patent application and, for personal reasons, I decide to
transfer it to Linus T., (or the public domain or FOSS).

In my scenerio MS and perhaps others would try to bankrupt (bury) me with legal
challenges at this point, by showing a range of their prior art, their patents
and applications.

Basically, the one with the idea is bullied into submission, and the idea is
frisked into the coffers of a major corporation.

What is your proposal to prevent this?

------------------------------------------
My family Motto: Veritas Vincit: Truth Conquers

[ Reply to This | # ]

Software Patents should be outlawed
Authored by: kb8rln on Saturday, July 03 2004 @ 02:16 PM EDT

Here are the reasons the software patents should be outlaws:

If you look at the patents systems in the US it had been changed 60 times now over the start of the failed system. Now lets look at the reason for the changes.

In 1790 the first bill was pass. So how long this bill lasts, 3 years. Why, because the patent office could not keep up with the work.

So from 1793 - 1863 an inventor simply submitted a description of the invention, drawings and a model, and paid a fee. This system--no examination--put the burden of determining validity on the courts. Does this not sound like today?

What happen in 1863? Well Without a system for examination, inventors were taking out patents at the rate of more than 600 per year. How did the bar changed it now require a working prototype of the patent. What would they say now with one company filing over 1000 per year.

So what is next. We need a monopoly for longer perior of time. Look at copyright now at 70 years + life of writer

So where are we here today. The major addition at this point was the requirement that the patented matter must be "not obvious."

When Microsoft can patent mouse clicking. Where is the not obvious, truely unique idea here, or the where is working prototype. The writing of these patent in obscure dialect to hide the real meaning of the patents. The patent system bar is really to low so really need to at lease changed the burder of prof back on too the plaintiff. Layers must love this state of patent chaos.


Paten t Laws History
The Patent Office Pony; A History of the Early Patent Office
Law Office Idea of patents and history
Reluctant to grant patents on inventions relating to computer software.
http://penguinman.com about me

---
Director Of Infrastructure Technology (DOIT)
Really this is my Title so I not a Lawyer.

[ Reply to This | # ]

I hate it! I Hate It!!! I HATE IT!!!!!!!
Authored by: PolR on Saturday, July 03 2004 @ 02:35 PM EDT
There is an implicit slogan in this whole approach:

"The patent system is broken. Let's fix it".

This is what a well meaning, rational but relatively uninformed person will
conclude when reading this kind of story. Just watch what the US government do:
they implement a way to reverse a handful of the more evident and egregious
patents. In the mean time they keep accepting dozens of new patents every day.
EFF and Pubpat jump rigth into the trap by spending valuable time and efforts
without addressing the fundamental issues.

Please do not let the trees hide the forest. Software patents are a bad idea,
period.

Wether or not there is prior art is a red herring.

Wether or not the patent is obvious is a red herring.

Wether or not the patent is submarining is a red herring.

Wether or not the patent holder abuses the system is a red herring.

Fix all of the above and the patent system would still not be working. Why?
Because the real issue is that software is adequately protected by copyrigths.
The software industry has grown spectacularly and has delived plenty of
innovations that changed everyone's life without the help of patents. If we add
patents to the mix, the only added value is to enable some crooks to install
tolls on bridges everyone wants to cross, introduce more rights management
overhead and generate work for lawyers. There is no added value in terms of
innovation or productive activities.

A broken patent system is a wonderful opportunity. It brings attention to the
patent issue because the flaws are so egregious. Let us not waste this
opportunity by focusing of the wrong issues. We need to explain why there should
be no software patent in the first place, even if we fix the system.

EFF and Pubpat efforts are valuable mostly because they draw attention on
patents. The invalidation of a few egregious patents is not a bad thing, but it
is a red herring unless these efforts are accompanied with a vigorous campaign
that explains the fundamentals while someone is listening. Otherwise everything
will go to waste.

Sorry for the long rant, but I really had to spit it out.

[ Reply to This | # ]

Hunting for Prior Art on the Acacia Patent and Other Strategies
Authored by: midow on Saturday, July 03 2004 @ 03:27 PM EDT
Is there any irony in the HP counsel's remarks when you consider that HP is
applying for a patent on a "Method and system for making purchases over a
computer network"? (search for application number 20040107145)

I thought e-commerce was pretty much a settled technique, I didn't realize HP
invented it.

It's especially interesting considering the activities of Panip, Inc (pan-IP,
get it? They own everything.) which claims to have patents on basically anything
you can do with a computer connected to a network. I'll be interested to see if
the HP patent is granted without invalidating Panip's patents.

[ Reply to This | # ]

Assigning value to an idea
Authored by: Anonymous on Saturday, July 03 2004 @ 04:58 PM EDT
(idea in the following context = a trivial, or obvious idea)

That seems to be like a very dangerous concept to me, initially for the ones on
the "losing side" (the smaller companies and independent developers),
but in the long term I believe everybody loses. The whole idea of
"owning" an idea (and even better, assign a value to it!) is flawed.

I imagine this leading to a "aristocray" of rich countries/companies
using their "IP" to harvest the cash, but using foreign workers to do
the actual work. Sort of like what now is done with mining: the resources reside
elsewhere, but the actual "owner" gets the largest part of the
profit.

Only, when all the actual work is done elsewhere, what value will your ideas
still hold? Controlling natural resources must be easier because it is
centralised and abused are quicly noticed and corrected.

But with ideas, things get far more difficult to control. Especially since I
don't think there will be a lot of 'respect' for a lot of these patented ideas.

Something inside of me keeps saying that software patents are fundamentally
flawed and won't work; and if people try to make them work they will only
backfire.

[ Reply to This | # ]

  • Backfire - Authored by: Jude on Saturday, July 03 2004 @ 08:18 PM EDT
Patent Office fails in it's duty?
Authored by: geoff lane on Saturday, July 03 2004 @ 05:01 PM EDT

The original point of the modern patent was to grant a temporary monopoly in return for making the details of the device or process public so that when the patent ended the knowledge was available to all.

Many modern patents appear to contain no useful new knowledge at all. When someone patents a new widget it seems that there is an entire industry that then examines the widget patent to discover what the patent omits and soon there is a rash of minor patents for red widgets, three wheel widgets, using widgets to improve business and software emulations of widgets used to improve hyperspace bypass technology.

The last example in the previous paragraph isn't a joke. Recently we have seen patents arise from the grave which were awarded years ago before the technology was available to make them viable. The most famous in recent years was BT's attempt to enforce their hyperlink patent. When applied for 30 years ago there was no Internet and no WWW. Yet when Tim Berners-Lee releases a practical implementation of Vannevar Bush's idea of hypertext BT was silent and remained silent for years.

This was an unsuccessful attempt and wasn't really a "submarine patent" as BT didn't plan the scheme from the very start.

Patents are now seen in three major ways, the old way is to seek a patent to protect a new invention, the new way sees a patent as a game token - something to be used in a patent trading game. Then there's the unethical way where a patent is used to hold an entire industry to ransom.

During the dot.com years many small companies preparing for IPO were suddenly faced with a patent infringement claim. No attempt was made to inform the new company when it was first starting out of course; there's much more money to be made when an IPO is on the horizon.

So what to do?

First, a valid patent application should be strictly practical. No more patents on hyperspace enabled widgets!

Second, the US patent office is underfunded and appears to operate on the basis that if there is no obvious problems the patent is granted. Leave any proper checks to the courts. This favours the rich powerful companies over the small inventors and should be stopped.

Third, as the US patent office is underfunded it should open up the process so patents can be better checked by the public before being granted.

Forth, we need an "open" way to ensure "publication" of new inventions. A web site where people can register any inventions they have made and wish to make public and prevent others from co-opting their work. We need a patent version of the copyleft idea.

---
Ten Truths Of Linux -- http://zoe.mcc.ac.uk/tentruths.html

[ Reply to This | # ]

Trade Wars 2000
Authored by: RedBarchetta on Saturday, July 03 2004 @ 05:28 PM EDT
From the EFF Patent Busting project "Wanted" page:
The Accused: Sheldon F. Goldberg

Patent Name: Method and system for playing games on a network

Patent Number: 6,264,560

Description: Real-time multi-player online games, including card games. Claim 92 of the patent alleges to cover real-time updates to ladder rankings for multi-player online games.

Critical Date: January 19, 1997
Does anyone remember when BBS's were prevalent, and one of the most popular games was Trade Wars? It required a local area network to function in multi-player mode.

There used to be a sysop named Ken 'Something' (can't remember his last name) out of Redwood City, California that ran a multi-node version of this game. At the time it was one of the more popular games in the San Francisco Bay Area. I believe there was another guy name Owen 'Something' out of Menlo Park, California that ran a 8 to 10 node dialup network, and I think he ran Trade Wars, but I'm not 100% sure (it's been about 17+ years).

Anyone?

---
Collaborative efforts synergise.

[ Reply to This | # ]

Contribute $ to EFF
Authored by: baomike on Saturday, July 03 2004 @ 06:46 PM EDT
I for one have no knowledge of prior art etc....
I can however, send them a contribution.
www.eff.org , at the bottom is a DONATE button.
As SCO/IBM et al have shown, lawyering costs money.
Help them with some bucks

mike

[ Reply to This | # ]

Hunting for Prior Art on the Acacia Patent and Other Strategies
Authored by: Anonymous on Saturday, July 03 2004 @ 07:20 PM EDT
Go Jr.!

[ Reply to This | # ]

Networked gaming?
Authored by: Anonymous on Saturday, July 03 2004 @ 09:03 PM EDT
From http://www.atarihq.com/2678/3party/cvc.html:

The service, dubbed "The Gameline", allowed owners of the 2600 to tap
a centeral computerized library of video games licensed from leading companies,
on a pay-per-play basis. Gameline was to be the first of a number of CVC
services planned, including electronic mail, news and information, home banking
and financial management. CVC's telecommunications link for the 2600 was its
Master Module, a unique device which was inserted into the game console like a
game cartridge and connected to a telephone or telephone outlet.

[ Reply to This | # ]

Hunting for Prior Art on the Acacia Patent and Other Strategies
Authored by: Anonymous on Saturday, July 03 2004 @ 10:49 PM EDT
I have just spent a couple of hours reading US Patent 5,132,992 (1991) and an
hour or two more trying to learn how to read the language.

The impression I got was that the patent seems to describe a collection of
technologies and methods which, together as a unified system, form the
"invention". There are, I believe, 3 or 4 other subsequent and related
patents which I haven't looked at yet, but on the face of it and bearing in mind
that this was written in 1991, the package looks pretty novel to me.

However, if you look at the elements of the "invention" in detail, it
reminds me of a recipe in a cookery book. Each of the ingredients is familiar to
me today in another context. I jotted down the obvious bits and came up with
this:

1 Source material organisation
2 Compressed transmission programme library
3 Generation of 2 from 1 on the fly (if required)
4 Description of business method associated with distribution of library
content
5 Customer access/display technologies & methods

What I would like to know, if there are any patent experts out there, is what
does a patent protect? If a patent incorporates components which have
application outside the scope of the patent, at what point does some other
recombination of some or all of these components constitute a breach of the
patent?

For instance, the description of the customer's display apparatus indicates that
a TV with a set top box or a specially adapted TV fits the bill. So does a
computer with typical multimedia software and a network connection. But when
does my computer infringe the patent? Do I have to request a video clip from a
web site first? Does that web site have to engage me in a financial transaction?
Does the distributor have to use all of the described elements of library
organisation and product labelling (unique ID numbers and encapsulated programme
information and such)?

Perhaps my computer cannot infringe. Perhaps it is only the media supplier who
can be caught out, but if the patented invention covers data compression and
transmission in time-coded blocks then do I infringe when I use those standard
techniques for transferring my holiday videos to computer for editing and then
sending to friends and family? The organisational elements of the patented
"invention" are missing from this scenario. There is no duplication
here of the details in the handling of requests for material and library
maintenance. There is no distribution "system".

I mentioned at the start that I had tried to understand how language is used in
patent applications. I am still struggling with the implications, but I noted
that "preferably" was a much used word and the phrase "means ...
for" is liberally employed in ways which frequently conflict with good
English style. I found this site, http://www.tifac.org.in/do/pfc/stud/lang.htm,
which helped and also this one,
http://www.ladas.com/BULLETINS/1994/0694Bulletin/US_PatentsMeansFunction.html&qu
ot; which explains about the Means Plus Function stuff. Sadly, it didn't help me
in deciding how to interpret it yet. If you know about patents, does all that
"preferably" qualification in the description section of the patent
application mean that it is all absurdly broad or would it have to appear in the
Claim section to be a problem for the patentee?

In short, then, does this patent apply to the individual components it describes
or only to this specific description of their combination?
Does the "preferably" qualifier extend the scope of the implementation
description in a way which is so broad as to be almost galactic?
Does the use of "comprise" (in the Claim section) in a finite chained
list of claims constitute a definitive list or does it imply that yet more
elements may be included or stated elements omitted without substantially
affecting the function?

Phew! That's enough for now. The birds are stirring themselves and the sky is
getting noticeably lighter. Time for bed.

Richard

[ Reply to This | # ]

Xanadu again?
Authored by: leopardi on Saturday, July 03 2004 @ 11:24 PM EDT
This article on Xanadu dates from November 1990.

In it there are mentions of movies, video and byte streams, eg:

''...those contributions may then be in the form of the contributor's own choosing an essay by someone enhanced with voice comments (How? That's a front-end input problem.), a video sequence accompanied by blow-ups with notes, a diagram attached to a screenful of data, pointing out your own (r)evolutionary insights, all instantly available on the network from the moment they are published.

These contributions will be available as an ordinary byte-stream, easy to distribute at the speed of the delivery network of the day, which is bound to get faster and faster as technology progresses.''

There is also a description of a business model:

''Among the most important aspects of the system is the automatic royalty due on every fragment delivered. "Every document will contain a built-in 'cash register' [...] but the system only works if the price is low. If the price is high then different users will [use and] hand each other dated [paper] copies. If the price is low it'll be more convenient for each user to get [same] material anew from the system." Indeed, the cost of fetching and reading a document from the system should be minute in comparison with other methods. And the royalties for accessing that document will be advanced to all the authors of there transcluded fragments, if applicable, in proportion to the byte-content of their respective contribution.

In fact, the very act of 'publishing a document' will mean signing a [written] contract with a Xanadu storage vendor, in which the author (i.e., the publisher) explicitly gives permission for anyone to link to, to transclude his or her material freely.''

[ Reply to This | # ]

has anybody looked at Engelbart's 1968 demo
Authored by: dlk on Sunday, July 04 2004 @ 12:04 AM EDT
Douglas Engelbart's demo in 1968 had both video and audo components that were
trasnmitted over the network from Menlo Park to the Convention Center in San
Francisco.

[ Reply to This | # ]

Are there some weaknesses in these claims?
Authored by: Jude on Sunday, July 04 2004 @ 10:09 AM EDT
The first claim of patent 5,132,992 appears to the keystone of the entire
patent, and it seems to me that this claim stipulates a particular sequence of
operations that might not be matched by practical systems.

For example, the "conversion means" part says that the data to be
converted is retrieved from the library means. Does this mean this patent
doesn't apply to systems in which the data is converted *before* it is ever
stored anyplace?

Also, the "compression means" part says that compression is applied to
the formatted and sequenced data blocks. Does this mean this patent doesn't
apply to systems that form blocks only *after* the compression is performed?

Finally, the first claim seems to put all of the various steps in a single
"transmission system". Does this patent cover a product that
prepares files containing compressed multimedia content, but does not include a
means of transmission? Likewise, does a product that merely transmits files
infringe? If someone buys both of the aforementioned products and uses the
second to transmit the files prepared by the first, does this person infringe?

[ Reply to This | # ]

Hunting for Prior Art on the Acacia Patent and Other Strategies
Authored by: Anonymous on Sunday, July 04 2004 @ 06:46 PM EDT
I'mnot entirely sure about the methods used but I think that NASA might have
developed something similar in the 1960's-1970's for the Voyager probes. A quick
look at the official website for Voyager goes on about storing data, processing
ready for transmission, transmitting to earth where it the data is stored prior
to transmission to intrested parties. The only bit that isn't clear is how the
data is processed. Iff it is compressed then the process is very similar to the
Acacia patent.

The best example that I can think of is the transmission of the rotation of
Jupiter. Looks like video streaming to me.

[ Reply to This | # ]

Hunting for Prior Art on the Acacia Patent and Other Strategies
Authored by: oldgreybeard on Monday, July 05 2004 @ 11:43 AM EDT
Here is an interesting link dealing with video compression history. Link to a video compression history I have located the name of the vendor of the device I was talking about earlier so I may be able to find some manuals and applications of the device in the backwaters of the internet.

[ Reply to This | # ]

Patent on Possibility?
Authored by: lightsail on Tuesday, July 06 2004 @ 01:25 PM EDT
This patent seems to be a incomplete solution based on pieces of technology
gathered into the possibility of a working-audio video system. Clearly, the
individual parts of the solution were available at the time of filing. I suspect
that the real work of getting the various parts to work together as a system was
NOT FUNCTIONAL AT THE TIME OF FILING. Given that the patent is a forward looking
solution, I would look at other forward looking thinking for "prior
art". Perhaps in a post-graduate CS thesis on the subject. Can a grant
application for a similar system be prior art? The other possibility is that a
cutting edge research university, while not haveing a unified system in place
prior to the filing, may have had all the elements working on campus and the
possibility that they had in fact transmitted audio/video by digital means
across the campus or just across a laboratory can be shown to exist prior to the
filing.

The broadness of the patent make me think that a networked game probably
violates the patent. Analog control input, sound and visual data across a
telephone to another system with data compression. Doom over over POTS? Does it
violate this broad patent?

[ 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 )