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Getting Back to Patent Application Bug Spraying...
Tuesday, September 04 2007 @ 09:20 PM EDT

We've been pretty busy with other tasks recently, and now I'm getting concerned about the Peer-to-Patent project participation, because I see some looming deadlines, and I forgot to tell you about them.

For sure I don't want any patents getting approved that might be used against FOSS someday because I wasn't paying attention. My worry is that because we have been busy elsewhere, the Microsoft patent submission might slide by, get approved by default despite there being prior art we neglected to mention, and then the FUD machine can start up about how it's now a super strong patent that made it through a FOSS community examination. I can see some Microsoft blogger now: "Hey guys, this is so great. Groklaw approves of this patent and says it's valid."

EEK. What a nightmare! Please, get to work. There is only a month left to comment on that application.

It's a business method patent application, which is the type I despise the most. How do you find prior art for that? Finding prior art for a business method patent application is exactly like finding prior art for anything else. It could be things such as publications that describe partial aspects of the claimed business method or invention, which if you combined them with other elements would obviously lead to the claimed business method, by the way. But you can also submit comments on obviousness. Also, look through the comments on the article when we first mentioned this patent application, and make sure important information has been sent to Peer to Patent.

There are now 17 open applications currently posted for public review and participation. I know. They added some while we were sleeping. There are three I didn't even notice or tell you about, so I will now. Here's the current list. Another goal that you can help achieve by participating is to demonstrate to the USPTO that the patent examination process works better when it's open. It for sure didn't work well when it was closed. This is an experiment, remember, but the USPTO won't keep doing it unless they are convinced there is value in the process. You are the value.

If you wish to contribute to the Peer to Patent project, what can you do? Review the patent applications. Comment on any of the claims. Submit relevant prior art. Annotate prior art submitted by other members of the community. Anyone can sign up to become a reviewer for Peer-to-Patent. In fact, even though the pilot is limited to patent applications pending in Technology Center 2100 (covering computer architecture, software, and information security), only 39% of participants consider themselves to be computer professionals/technologists. Reviewers have listed their professional roles as anything from students to engineers, journalists to business/industry experts, and everything in between. So, now let's get into the specifics of what needs doing.

The Microsoft Patent Application:

The application from Microsoft is for "Offline Economies for Digital Media". This extremely broad application describes a business method whereby media devices, such as iPods (or in their minds more likely Zunes), would communicate with each other to remunerate the copyright holder even when the buyer re-sells digital content. I gather they wish to find a way to make money from P2P file sharers on- and offline. The Microsoft application cites no prior art. That's where you come in. The patent examiner really needs the community to help find prior publications, products, or code if you want to help with narrowing or even defeating this application, DRM and all. There is less than one month left to participate in reviewing that application. I feel fairly sure that unless you guys find prior art, the USPTO is unlikely to know much about file sharing applications. Would they be likely to know what is obvious in P2P? I see only three prior art comments so far on this application.

3 New Patent Applications:

Here are three *new* ones that have been posted that will be available for the next four months:

An application from IBM, available here. The application describes a system of security management for software applications associated with multiple user registries that includes an integrated console configured to host one or more applications or resource objects in corresponding realms. This is the fourth patent application from IBM and will be available for review until November 26, 2007.

An application from Softwired AG, available here. It describes a method for operating a gateway for wireless mobile clients in a messaging system, a core messaging system, and at least one gateway process or gateway acting as a proxy on behalf of the clients. This is the first application from Softwired AG and will be available for review until December 10, 2007.

An application from Sun Microsystems, available here. The application relates to a system for implementing synchronized objects in software transactional memory comprising one or more processors. It also provides for a memory comprising program instructions executable by the processor in order to implement a transactional- memory manager that is configured to coordinate memory access requests directed at the memory from a plurality of transactions. This is the second application from Sun Microsystems and will be available for review until December 17, 2007.

Short deadlines:

Then there are the first three applications posted, which you have already participated in reviewing. But if you have anything further to add, the deadline is September 12, so it's now or never:

An application from Hewlett Packard, available here. The application relates to a computing system that implements user selectable management alert formats in order for a user to configure one or more devices coupled to the computing system. There are 30 members in this community who have submitted 9 instances of prior art.

An application from Intel, available here. It describes an apparatus and method for prefetching based on register tracking, including a register tracker and a pre-computation slice. There are 16 members in this community who have submitted 4 instances of prior art.

An application from Red Hat, available here. The application is for a system, method and computer program product for allocating physical memory to processes. There are 13 members in this community who have submitted 8 instances of prior art.

You might want to check on those three to make sure any input you made here also got successfully added to Peer to Patent. On Red Hat, my personal view is that I would like Red Hat, and all other FOSS companies, to get as many valid patents as possible for as long as the patent system allows software patents, or until software and patents get a final divorce decree. I think they are important for defense. No. Vital.

You know it was Red Hat's General Counsel Mark Webbink who first came up with the idea of Red Hat's patent promise years ago, years before IBM and others like Open Invention Network started making their patents available that way. He worked with a developer who provided test cases and challenges, and then Webbink drafted the language to answer or accommodate those concerns. The goal was to retain sufficient rights to be able to use the patents defensively, while at the same time letting the community know they would never be used against FOSS. It's a good example of lawyer-geek cooperation.

His other significant contribution was in formulating the legal construct to Red Hat's subscription model that has proven so successful. Now that I think of it, he helped midwife OIN too. He's just sort of retired from Red Hat after working there since 2000, when he became the company's first general counsel. By sort of, I mean he will still represent the company as special counsel on certain legal tasks regarding intellectual property, but he'll have his own legal practice and will be teaching a class in licensing in the fall at Duke University. He'll cover all forms of IP, but definitely he'll cover Open Source and Creative Commons licenses, so if you can find a way to take his class, I surely do recommend it. He's unique. It isn't every person that can say they thought of something first. In that sense, he changed the FOSS world in a way that turned out to matter tremendously. That is what good lawyers do, you know. They look ahead and try to figure out what *might* go wrong, and then they think up a strategy for you to take steps to avoid problems or ameliorate them. You may remember the article of his that Groklaw republished in 2003, "Understanding Open Source Software". He explained a number of things about copyright law, but I think it's worth repeating one small section, to help you understand why I don't personally believe that the model train software case so many of you have written to me about, which is about the Artistic license, has any worrisome relevance to the GPL:

Types of Open Source Licenses

Open source licenses may be broadly categorized into the following types: (1) those that apply no restrictions on the distribution of derivative works (we will call these Non-Protective Licenses because they do not protect the code from being used in non-Open Source applications); and (2) those that do apply such restrictions (we will call these Protective Licenses because they ensure that the code will always remain open/free).

To better appreciate the nature of these licenses, it is helpful to picture software licenses on a continuum based on the rights in copyright extended to the licensee....

Software that has been placed in the public domain is free of all restrictions, all rights under copyright having been granted to the public at large. Licensors of Non-Protective Open Source licenses retain their copyright, but they grant all rights under copyright to the licensee. Licensors of Protective Open Source licenses retain their copyright, grant all rights under copyright to the licensee, but apply at least one restriction, typically that the redistribution of the software, whether modified or unmodified, must be under the same license. Licensors of propriety licenses retain their copyright and only grant a few rights under copyright, typically only the rights to perform and display....

Non-Protective Open Source licenses include: Academic Free License v.1.2; Apache Software License v.1.1; Artistic; Attribution Assurance license; BSD License; Eiffel Forum License; Intel Open Source License for CDSA/CSSM Implementation; MIT License; Open Group Test Suite License; Q Public License v.1.0; Sleepycat License; Sun Industry Standards Source License; University of Illinois/NCSA Open Source License; Vovida Software License v.1.0; W3C Software Notice and License; X.Net, Inc. License; zlib/libpng License; and Zope Public License v.2.0.

Protective Open Source licenses include: Apple Public Source License v.1.2; Artistic License; Common Public License v.1.0; GNU General Public License v.2.0; GNU Lesser General Public License v.2.1; IBM Public License v.1.0; Jabber Open Source License v.1.0; MITRE Collaborative Virtual Workspace License; Motosoto Open Source License v.0.9.1; Mozilla Public License v.1.0 and v.1.1; Nethack General Public License; Noika Open Source License v.1.0a; OCLC Research Public License v.1.0; Open Software License v.1.1; Python License; Python Software Foundation License v.2.1.1; Ricoh Source Code Public License v.1.0; and Sun Public License v.1.0.

See what I mean? They are not in the same bucket.

Since it launched on June 15, 2007, has had nearly 130,000 page views from over 21,000 unique visitors in 109 countries, I'm told. 1,416 visitors have signed up to be peer reviewers and have submitted 66 instances of prior art. Beth Noveck, the force behind Peer-to-Patent, was also recently named one of Managing Intellectual Property's 50 Most Influential People in IP, largely for her work in bringing the project to fruition. You need a free subscription to actually verify that last bit, or just trust me.

: )

Nah. That's not the Groklaw way. Groklaw's way is: trust but verify.


Getting Back to Patent Application Bug Spraying... | 182 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: Anonymous on Tuesday, September 04 2007 @ 09:40 PM EDT
As needed.

--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

Off topic thread here
Authored by: Totosplatz on Tuesday, September 04 2007 @ 09:41 PM EDT
Please make links clicky ...

All the best to one and all.

[ Reply to This | # ]

NewsPicks commentary
Authored by: Anonymous on Tuesday, September 04 2007 @ 09:41 PM EDT
As desired

--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

Hate to say I told you so ...
Authored by: Anonymous on Tuesday, September 04 2007 @ 10:02 PM EDT
... but this is the precise danger that those of us who have refused to
participate in the process were worried about.

No such process is ever going to be successful in batting away all patents that
come before it. Maintaining the process requires considerable sustained effort
by unpaid volunteers, much greater effort than is required to bombard the patent
office with a blizzard of new applications. Those who fail will simply reword
and try again. Inevitably patents will slip through.

Some will slip through as it becomes impossible to maintain the sustained effort
to defend against them. Others will slip through simply because the criteria
for rejecting them are so constrained. There may actually be no prior art.

Those patent applications that survive the process will be portrayed as being
validated and endorsed by the community. This process is a process ultimately
for validating and endorsing patents. The patent office might think this is a
fine idea, but I don't want a bar of it.

Why should unpaid volunteers contribute intense effort to help the patent office
prop up a system that is dysfunctional and philosophically objectionable to

PJ - you mustered this army of volunteers on the grounds that doing it for a
little while would be an interesting exercise and would teach us much about
patents. Fine. But now how do you propose to get them out of it?

[ Reply to This | # ]

Noone would buy a product based on that patent anyway
Authored by: kawabago on Tuesday, September 04 2007 @ 10:09 PM EDT
This is just another 'keep paying Microsoft' scheme that no one with a
functioning brain cell will buy into. Well, except the usual 'last to see the
light' crowd Didio et al.

[ Reply to This | # ]

[PtoP] Offline Economies for Digital Media
Authored by: tce on Tuesday, September 04 2007 @ 10:31 PM EDT
Really, comments need to go to here:

From the site:
Peer-to-Patent opens the patent examination process to public participation for
the first time.

Become part of this historic pilot program. Help the USPTO find the information
relevant to assessing the claims of pending patent applications.

Become a community reviewer and improve the quality of patents.

[ Reply to This | # ]

About the Offline Economies...flashback
Authored by: Anonymous on Wednesday, September 05 2007 @ 12:31 AM EDT
I was looking on the peer2patent website and someone mentioned personics mix CDs you could buy at record stores in malls. I was thinking in the late 80s you could buy cassettes too. I vaguely recalled the name Sharples from an article I read years ago in some magazine. Searched Sharples and Personics and...this comes up. I doubt it's of any use, but who knows.

[ Reply to This | # ]

Say "Peer-to-Patent project participation" quickly 10 times...
Authored by: Anonymous on Wednesday, September 05 2007 @ 01:46 AM EDT

[ Reply to This | # ]

Patents are slavery
Authored by: Anonymous on Wednesday, September 05 2007 @ 02:10 AM EDT
Patents are modern day slavery. Until they are all abolished, we will continue
to be the modern day equivalent of slaves.

How does it feel to be a slave, knowing that your freedoms are being robbed from

[ Reply to This | # ]

How far reaching ??
Authored by: Anonymous on Wednesday, September 05 2007 @ 02:17 AM EDT
I wonder exactly which countries honor the patents the U.S issues.

I also wonder about the reciprocal nature of the U.S. honoring other countries'

[ Reply to This | # ]

Patenting Right of First Sale???
Authored by: mobrien_12 on Wednesday, September 05 2007 @ 04:04 AM EDT
"would communicate with each other to remunerate the copyright holder even
when the buyer re-sells digital content."

PJ, I think the P2P thing is a red herring.

What is really going on is MS is trying to patent away the right of first sale.
DRM + MS patent + DMCA = loss of right of first sale.

[ Reply to This | # ]

Will Microsoft go the way of the record companies?
Authored by: Anonymous on Wednesday, September 05 2007 @ 05:11 AM EDT

Article in the New York Times Magazine last weekend profiles
a music industry maverick Columbia records has hired to save
the company, and possibly the record business itself, the
article says.

Well, how did it get so desperate? Have people stopped buying
new CD's because the music is bad, or because of DRM? Or both?
The article said Sony, which owns Columbia, ruined a new Neil
Diamond release because of spyware.

Microsoft is going to encumber its software so much that people
won't want it anymore, not just from IP issues but from price,
which will keep going up and up and up. I wonder if Microsoft
will price itself out of the market, especially if the subscription
and adware models get implemented.

XML is already a standard. SCO and OOXML prove that Microsoft
can be beaten. There are some pretty hard-headed business
execs out there who recognize when they're being fleeced.

Also, once U.S. politicians see that the rest of the world isn't
going along with U.S. patent claims, they will realize that the
U.S. will have to go along with the rest of the world in order
to stay competitive. Otherwise, even more jobs will be lost.

[ Reply to This | # ]

Are you encouraging the continuance of anarchy at the USPTO?
Authored by: Anonymous on Wednesday, September 05 2007 @ 09:02 AM EDT
Dear Groklaw Readers,

Don't you understand what is going on here? This Peer-to-Patent spoof is the
same run-around that that was attempted with the failed Software Patent
Institute in the 1990s. Not surprisingly, it is/was the major software
companies that hold/stand to gain the most software patents which are/were the
biggest supporters of both these projects. HellOOO dear people! Doesn't that
tell you something?

In the 1980s and early 1990s, there was a large debate with deep concerns about
whether software was even patentable. The concerns were further amplified by
the fact that, because software had generally not been considered patentable, no
one had patented it and consequently the USPTO did not have any patented
"prior art" at its immediate disposal. To alleviate such concerns
(and to quietly open the patent flood-gates), IBM shrewdly suggested the
Software Patent Institute, which would be a repository of non-patent software
prior art filled by "Good Samaritan" (and self-policing) software

And so software patents were embraced with open arms, and the flood gates soon
opened. (And IBM became the biggest patentee and has been for the last 13

SPI was a flop. A disaster. The USPTO showed time after time that, it was
incapable of correctly examining software patents so as to promote progress in
the industry, even while it used the non-functional SPI as a publicity crutch.
And so the public outcry against software patents reached a crescendo.

But not to worry, large corporate America had another "invention" up
its sleeve: Peer-to-Patent, the new and improved crutch! And who are the
biggest supporters of this peer-to-patent? You guessed it: 1) The major
software companies who hold and stand to gain the most software patents, 2) the
USPTO whose management doesn't want to be tasked with actually fixing a broken
system (or admitting policy error at the hands of the large patentees), and 3)
ehem, Groklaw!

Groklaw? Are those programmers patent experts, or are they being duped just
like the USPTO was with SPI way back when?

I hope that you might take to heart the old saying, dear Groklaw Readers, fool
me once, shame on you, fool me twice, shame on me. It is not my intention to be
condescending: I am amazed at what you have accomplished against SCO an OOXML.
But please study a little history before jumping in the Peer-to-Patent waters.
Because this time, you'll be swimming in the deep waters, with sharks.

Keep up the good work.

[ Reply to This | # ]

Avoid P2P
Authored by: Anonymous on Wednesday, September 05 2007 @ 11:52 AM EDT
Neither Richard Stallman nor Bruce Perens approves of participation in the P2P
project. This is not a good thing for the community to be involved with.

[ Reply to This | # ]

Find the Flaw
Authored by: BassSinger on Wednesday, September 05 2007 @ 05:32 PM EDT
Somebody please check my reasoning on this:

A method, comprising:
performing a secure off-line transfer of a digital media content from a first
media playback device of a first user to a second media playback device of a
second user for a price via an off-line transaction; securely storing a proof of
the off-line transaction; providing a first percentage of the price to an owner
of a copyright of the digital media content based on the stored proof; and
providing a second percentage of the price to the first user based on the stored

This is no different from a cash sale of a CD over the counter in a store after
the purchaser has listened to it on the store's player then the purchaser
placing it into his/her own player for listening.

performing a secure off-line transfer = handing over the item purchased

of a digital media content = CD

from a first media playback device = CD player

of a first user = store

to a second media playback device = CD player

of a second user = purchaser

for a price via an off-line transaction; = cash sale

securely storing a proof of the off-line transaction; = saving the sales

providing a first percentage of the price = royalty paid by the CD manufacturer

to an owner of a copyright = music writer/arranger/producer

of the digital media content = song recorded digitally

based on the stored proof = sales price on sales slip

and providing a second percentage of the price = profit

to the first user = store

based on the stored proof = sales slip/record

By Golly! Microsoft claims to have invented over the counter sales!

In A Chord,


"We cannot solve our problems with the same thinking we used when we created
them." -- Albert Einstein

[ Reply to This | # ]

Is it wise to reveal your legal strategy before you have your day in court?
Authored by: Jose on Wednesday, September 05 2007 @ 06:09 PM EDT
This post is a little disorganized, but I think it does get across a few
important points. Unfortunately, I don't have much more time to spend cleaning
it up now.

For those that are able and willing to go through patent applications, you can
do so and keep a heads up for prior art to preserve it, but this effort (whether
or not it is done quietly) is potentially a huge waste of time. Of all the time
researching (multiplied by all the people) how much of it will be wasted because
a patent will never end up in court? This is less time that may have been spent
contributing to FLOSS in other ways.

We can also be gamed. Imagine 10 patent application of 11 where only one is
sought possibly legit by the applicant. They may know of prior art (or highly
suspect it) for 10 of them but wants to have the waters tested for that 11th and
maybe even get some favorable suprises/analysis/offers w.r.t. the other 10.

This could work out in our favor. There are such scenarios. My biggest problem
is potentially the huge waste of time and the fact we are getting dirty to begin
with (you are legitimizing a dirty game and them playing it with a real dirty

How much is our time worth? And are we making things easier or more difficult
for them? This is one of the two really big issues I see. Are we being smart
with our resources or dumm? Are we gaining ground or giving it up? Letting bogus
applications through in large numbers not only creates an unworkable system
which arguably benefits us (to pressure real change instead of lip service or
band-aids), but it wastes their time as they consider the risks of relying on
various patents and the many strategies they may pursue. Being overwhelmed with
bogus patents can create nightmares for the other side. This goes back to the
subject line of not revealing too much until they have wasted their time and
have taken real risks by jumping into a lawsuit. You don't want to make their
case easy. You don't want to reveal your ignorance. The scientific spirit in
many of us would want to get as close as possible to confirming that a
potentially legit patent would in fact be legit. This is not smart (under the
current legal atmosphere in the US) since the end result isn't to advance human
knowledge but to make it easy for a dirty adversary to take a bunch of money
from the community (including from businesses and/or potential clients). And
this last point also covers what I think is the second item that is really

Public group work (like science and FOSS) probably should not be prostituted in
the name of helping support a patent system that should not exist. The two
spirits don't match. This reminds me of.. let me see.. Mathew 7 "Do not
give dogs what is sacred; do not throw your pearls to pigs. If you do, they may
trample them under their feet, and then turn and tear you to pieces." The
results of our careful and meticulous work will help lead to a easy victory for
them followed by a million dollar judgement or injunction against us. Believe it
or not, in war, some would find no shame at all in being on such a winning

And there are other issues as well. Consider that the time spent looking is less
time to write up software and designs. This will cost us in the future as
applications come into the USPTO that may be legally legit but which we could
have come up with sooner if we had wasted less time. By spending too much time
with today's existing applications, we are distracted and are playing catch up.
We aren't creating new road blocks (ie, prior art) for tomorrow's challenges.
It's like mining the same mountain for nuggets and failing to prospect in other
locations. It's like carelessly spending money instead of saving. It's like
putting money in the bank instead of investing in R&D (simple saving instead
of smart investments).

One positive scenario if we find prior art (AND it looks like it is an original
invention published within the last year) is if the author decides to get a
patent they weren't thinking of getting and are willing to use it to defend
FLOSS. On the other hand, what if they decide to sell it to Microsoft for a
million dollars?

I think that working quietly (in groups perhaps but keeping the results under
wraps if possible) or actually writing up patents to be used in defense of FLOSS
are better use of time (for those that would bother with patents) than to help
the enemy that will be sueing you in the future by helping them clean their
house and hone their weapons as they prepare their court cases against you.

I think that this peer work should only be done AFTER we have gotten some laws
changed (or legal promises, whatever) so that the collaborative effort
progresses in the name of science and doesn't hurt our community.

Also, we should generally wait until sued. In part, this would ensure we don't
waste time but work focused and diligently. I find it difficult to work
efficiently (if at all) with the potential gains or losses only being
theoretical and perhaps improbable. I am actually describing human nature, a
maximizing the bang for buck. This is related to why capitalism generally
results in more gains than communism or feudalism, etc. We don't just turn on to
full power at will. It's too costly to do for trivial cases [Darwinism]. Of
course, some might already be motivated enough despite everything I've mentioned
(for example, they might be looking out to build their own patents).

I'd love to hear counter-arguments because, after all, this is Microsoft that we
might be hurting if we focus on them. I worry though that the chances of
backfiring are greater (even if only by wasting our time to save them time and
hence giving up ground). And don't forget, tomorrow's foe may not be Microsoft
but someone for whom we left ourselves unprepared. it might even be someone for
whom we have paved a nice clean road to victory.

....oh, yeah, on the positive side, it might be bad PR if Microsoft uses against
us the case we build in the name of progress. But then, I think we can give MS
enough bad PR without helping them. Why give them swords and then ask they be
honorable when we could just give them nothing? [The assumption, as expressed
above, is that we would be giving them things by playing this game.] What they
will say is that they were curteous to us by voting for ODF yet we fought OOXML.
Yes, they will use this argument/excuse even though OOXML and ODF were
completely different beast when up before ISO.

[ Reply to This | # ]

Getting Back to Patent Application Bug Spraying...
Authored by: Anonymous on Wednesday, September 05 2007 @ 08:13 PM EDT
For a comparison, do you think needle exchange programs
are worth the effort? I think that in any of these efforts
one does not just focus on the current battle, what ever
it may be. One fights on many fronts. It is not a trivial
issue. Just because you are trying to prevent bad
S/W patents does not mean that you are not campaigning
against S/W patents altogether. Although some would have
you believe otherwise, the world is just not that simple.
Until firefighters can figure out how to truely prevent
forest fires with 100% surity, they will continue to fight

[ Reply to This | # ]

In other news
Authored by: jseigh on Thursday, September 06 2007 @ 06:29 AM EDT
NetApp is suing Sun over a patent. See this netapp blog for explanation and link to patent. Both this patent and Sun's patent application are related to transaction based techniques. I/O in the former case, and memory in the latter. Seems to be a hot area recently.

[ Reply to This | # ]

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