The article shows me why education about patents and the patent process is important, as I see some misunderstanding about how it works. As you'll see, the article includes a complaint about the USPTO, that when someone with prior art to offer contacted the USPTO, he was more or less turned away. There's a reason for that, and the explanation will help you to understand the purpose for setting up the Peer to Patent project.

In defense of the USPTO examiners, they are not normally allowed to chat with you about prior art. You can't just call them up and tell them you have some or write to the examiner and explain why the patent application is dancing baloney, although you can submit documents, but without any explanation as to why they are prior art. There is a process, one that currently leaves quite an information deficit at the USPTO, and that's what the Peer to Patent project, in cooperation with the USPTO, is trying to fix.

But it's a test project. And at the moment, unless Apple submitted its patent application to the Peer to Patent project, it won't be possible to submit prior art that way. If you think it would be better if patent applications could be commented on and prior art submitted before the applications issue as patents, then you'll want to help the project find prior art so as to convince the USPTO that this is worth doing permanently and across the board. Of course, if your best hope is that the process falls and breaks to smithereens, you may not want to lift a finger. It's up to you. If I thought that could happen, I'd join you, but I don't think it's realistic. And this Apple patent application is a very clear, real-life situation where I see the value of a system where those knowledgeable about prior art have a way to tell the USPTO before another stupid patent issues and ruins someone's business or life.

Here are some tutorials on how to find prior art. Most of you have life experience with the tech, so it's not like a pop quiz or anything stressful. Just tell what you already know. Others can tie it all together. Here's a FAQ in case you have questions about the project.

By the way, this is a good time to remind you that there are some new patents in that project I'm guessing you want to take a look at and knock down with prior art, if you can. Here's one new one, Automatic tracking of user data and reputation checking. Ugh. Microsoft, naturally. No prior art listed yet. Here are two more of Microsoft's entered in the project, if you wish to focus, and I hope you do. As you can see, you can search by name of company.

Here's a patent application by HP, System and method for managing virtual collaboration systems, and after the LANCOR suit against OLPC, I suggest taking it seriously and knocking it out. Not that HP would do the same thing, but hey, you never know. Companies go out of business, sell their patents, things happen. Corporate types are forever telling me that corporations can't be ethical because they have to care about shareholder value. So let's believe them and make sure nothing that could stop the OLPC project slips through.

The other new one is Method and apparatus for determining the switch port to which an end-node device is connected. Um. Say. Anyone know anything about that? There are older ones there too, some with only 5 days left.

After the LANCOR business, I'm thinking patent applications are like mosquitos. You have to swat them any time you see them. You can't leave even one buzzing around the room, no matter how tired you are. If you do, you'll regret it later.

And with that, here's the article on Apple's new patent application.

********************************

Apple's new patent application ignores prior developments

iPhone coffee ordering isn't a new idea

By John Oram in California

Last Thursday, Forbes in an article titled, Apple's Piping Hot Innovation trumpeted Steve Jobs’ latest iPhone variation claiming soon you will be able to order a cup of coffee at a local Starbucks or a fresh burger at the nearest fast food restaurant from your iPhone.

Apple applied for a U.S. Patent #20070291710 on December 20, noting about seventy-five items, including a statement their iPhone idea of a graphical interface and wireless POS (point of sale) for ordering food in a restaurant is original.

Odd isn't it, that a February 2004 article in the USA Today TECH section explained how ViewTouch, an Oregon POS developer, already had a fully operational system doing everything Steve Jobs’ patent application seems to claim. ViewTouch sells the complete package of equipment, software, and support services that make up a comprehensive front-to-back turnkey POS solution for restaurants.

I asked Gene Mosher, the owner and developer of ViewTouch software and hardware, how it all works. He said, “By 1979, I had proved, in my own restaurants, that it was possible to take a restaurant order on a PC from a customer entering the front door and get the food on the table before the customer sat down."

Mosher explained the ViewTouch system this way: “Anyone can record their order by pressing the screen of a handheld electronic tablet. The order is then sent via wireless radio to the restaurant's main computer, where a ticket prints out in the kitchen. Then a cook grabs it and gets to work. The orders are accurate. There's no need to decipher a waiter's handwriting. Plus the orders arrive instantly at the kitchen in a consistent, readable format.”

ViewTouch's website says it is the original point of sale software company. I asked Mosher to back up those claims. He told me: “I built and/or operated several restaurants -- six of them, in the period between 1973 and 1983. We invented the graphic touch-screen point of sale, virtual point of sale solution for eating establishments.

“Our story began in 1977 with the development of order-entry POS software on a PC, using an Apple and Apple floppy disk. Next came the development of remote printing in the kitchen using an Apple Silentype in June, 1979.

“Our major step forward was originating a color, graphical user interface and touch-screen in POS, with an Atari 520ST, which we unveiled at ComDex, Las Vegas in 1986. We were the first to develop the same system for UNIX in 1995, Linux in 1997, and FreeBSD in 1998. In 2003, we began working with wireless, touch-screen, handheld devices. We are in our third generation of these small form-factor devices. Each of our restaurant installations is more profitable because of ViewTouch POS solutions.”

Mosher went on to say this about Apple's announcement: “It really saddens me when Steve Jobs claims in his U.S. Patent Application #20070291710 that there was no prior art, because since early 2003, ViewTouch has been doing all of it.”

Mosher claims: “If you accept the idea that a restaurant 'manufactures' its food, then the intent of this patent is amazingly comparable to what I set out to do 30 years ago, and was able to achieve 23 years ago.

“The big problem I see with the Patent Application is Apple has a 'closed API' for all their products, including the iPhone. So a developer is restrained from porting their existing applications to the Apple product line. Thus, Steve Jobs and Apple can develop their own in-house POS application and snag the profits from the software.

“The sneaky part of this scenario with Starbucks/iPhone/unnamed hamburger joint will be advertising sales 'spiffs' for preferential POS placement on the iPhone network. That will be an ongoing revenue stream to Apple and the mobile telco carrier.

“Compare Apple's restricted environment to Google's Android open source environment which will change every mobile application developer's game plan. Someone like us (ViewTouch) could port their existing POS application directly to Android. The customers would gain the use of software with over twenty years experience in solving the problems of POS. Conversely, I know Apple's iPhone software will be just like anyone else's Version One Point Oh software: buggy, long on promise, and short on delivery.”

I asked Gene if he plans to challenge Apple's iPhone GUI application patent, and if so, how. Mosher said this about the U.S. Patent Office process: “When we called the Patent Office they told us we cannot do anything now that the Application is published. What a bunch of weasel words. The patenting of a user interface is an abomination. The only winners are the giant corporations who have on staff patent attorneys to litigate forever.

“How can the U.S. Patent Office give preferential treatment for something like how you hold and use a tool? If that were tried today with a hammer, they would be laughed out of town. Yet corporate lobbyists rewrote our patent laws to allow exorbitant fees for an obvious.”

Mosher believes there is ample published prior art to question the assumption in U. S. Patent Application# 20070291710. The Abstract says:

A processing system is described that includes a wireless communication interface that wirelessly communicates with one or more wireless client devices in the vicinity of an establishment. The wireless communication interface receives a remote order corresponding to an item selected by at least one of the wireless client devices. A local server computer located in proximity to the establishment generates instructions for processing the remote order received from the wireless communication interface. The local server computer then passes the processing instructions to an order processing queue in preparation for processing of the remote order.

“Just read that abstract," Mosher said, "and look at their first claim. They are talking about a graphical touch screen interface to POS with wireless communications over to a server. We are now using our third generation wireless device. This one is an ARM-powered handheld with our POS program embedded in its internal flash. As with all our handheld devices, it sits on the wireless network as a network-attached application.

“What we have been doing since 2003 is really everything that Apple is claiming in their patent application. But what can I do? The advice I got over the phone from the USPTO last Friday,” Mosher said, “is I will have to pursue this as an individual under 37 CFR 1.99 unless/until I can get some other parties interested. So for starters, I'll be submitting the newspaper article and photograph to the USPTO. I'm allowed ten exhibits. Clearly there is prior art and I'll find it.”

We asked Mosher if he had explored any other options. He confided, “This weekend I started the process with Peer-To-Patent. They look like a very direct and efficient means of getting involved in the patent pre-review process with my specific intention of being able to have my knowledge given a 'fair' exposure.

“I also spoke with our corporate attorney who said we will probably need assistance with patent counsel. I hope we can generate some interest from the open source community from places like Electronic Frontier Foundation like they did with the Test.com Internet test-taking method patent.

What’s a small businessman to do against a corporate giant? Is this another case of David and Goliath? How will our David, Gene Mosher of ViewTouch, find a slingshot big enough to topple the patent applied for by Steve Jobs?

Update:

More on Apple's iPhone Patent Application and prior art discoveries
By John Oram in California

New information has jumped up since I first wrote about Apple's iPhone Patent Application and ViewTouch's claim of prior art. Bottom line: there appears to be prior art which brings into question many, if not all, of Apple's POS (point of sale) Patent Application claims.

Groklaw readers are a wonderful source of hands-on knowledge and common sense. A great Groklaw comment came from 'bwbees0' on Saturday, January 05 2008, ”As I read this article, I am left wondering how obvious does something have to be before it is so obvious that it is not patent-worthy. I am not a lawyer, but I thought patents were reserved for new ideas.”

The Groklaw community shared their own experiences. Especially enlightening were the links to non-USA examples of “prior art”. A comment on Groklaw Sunday, January 06 about Helsinki Vaanta Airport, Finland:

“... during 1997 or 1998 Nokia installed a soda vending machine where you ordered a drink by dialing the phone number listed for each slot from your mobile phone.”

I have been sending emails to others asking if they knew of prior art on this one. Robert X. Cringley substantiated Groklaw's story, pointing me to his video "Electric Money – Bills to Bytes", produced by David Davis for PBS. In the segment about purchasing with a mobile phone, Bob Cringley and Seppo Vihinen of the Finnish Telecom company Sonera are shown demonstrating, in 1999, the then-advanced applications of the mobile phone, including purchasing products and services.

Bob said this about making his video:

“I ordered coffee with my cellphone at a coffee shop in Helsinki. Sonora, the Finnish mobile phone carrier, has thousands of things you can order and pay for by phone, from car washes to soft drink machines, but most are unmanned. The coffee shop was an exception in that I ordered by phone something that was made and delivered by hand."

Below are time stamp references from the beginning of his "Electric Money" video, with the audio in quotes and the video action described in brackets:

• 6:04:min.: “Once the cell phone becomes a wireless computer it can be used to access your bank account or to replace your credit cards. In some places your phone is already as good as money. [Video shows a vending machine dispenses a drink after activation by a cell phone.]
• 30:00 min.: “So let's buy something. How do we do it? The cell phone has become a wireless handheld computer, sending and receiving payment information either directly or over the Internet. It can charge something to your phone bill or your credit card or directly debit your bank account. [Video shows a mobile phones touch screen with transaction detail. There are choices showing that can be made using the mobile phone. A mobile phone user enters their pin code and the vending machine gives a printed receipt, while the mobile phone user has an electronic receipt displayed.]
• 31:30 min.: “Now because their customers are such proficient users of the mobile phones, a Finnish company, Sonera, has seen a wonderful opportunity to turn those phones into payment machines, into a substitute for cash.” [The mobile phone is shown being used to purchase a car wash.]

That reminded this author of past experiences with wireless vending machines. In the late 1980's, we were a VAR for PoqetPC which was bought by FPSI (Fujitsu Personal Systems Inc). We sold FPSI touch-screen, tablet/laptop into several vertical markets along with Motorola's two-way alpha-paging and Proxim wireless 802.1x communications. In 1994, we got a call from Tom Stutzman, FPSI-Santa Clara's techy guru, to come watch him demo a rudimentary POS approach which used Proxim's 802.1b wireless communications to “buy” a can of soda from a vending machine. Back then we didn't call wireless 802.1x hardware, WiFi.

The patent office's ability to even judge the uniqueness of a software product application has come under fire. As PJ previously pointed out, the Peer to Patent Project opens the patent examination process to public participation for the first time. From their press release:

Peer-to-Patent is giving the public the opportunity in a pilot program to contribute information to the patent office in order to help the examiner make the determination about whether in fact an application or the invention deserves this enormous grant of 20 years of monopoly rights. Basically, it's very hard for the patent office with a million applications -- soon to be a million applications on backlog -- and only about 18 to 20 hours to examine each application, an application that may turn into the next Blackberry or the next iPod, to get all the information that it needs to make that important decision.

The criticism of the patent office's lack of knowledge about prior art in the computer industry has been fermenting for a long time. In March, 2000 the New York Times had an extensive article about the Amazon 1-click ordering scheme, U.S. Patent No. 5,960,411, a "method and system for placing a purchase order via a communications network." They concluded, “For better or worse, the struggle [over patenting of software] will redefine our understanding of what an invention is in our complex, technocratic age.”

Gregory Aharonian, a consultant and publisher of a widely read patent newsletter, in the same article said, "The U.S. Patent Office is just not competent to examine software patents. Eighty percent of software patents effectively cite nothing from the computing literature. To me it's a kind of contempt." He contends that the patent office has neither the time nor the expertise needed to distinguish good patents from bad. "It's a cold war," he says. "It's just people playing legal games."

In the previously mentioned New York Times article they say that “recent court decisions and patent-office rule-making have made software the fastest growing patent category, and companies are rushing to patent the most basic methods of doing business."

"This is a disaster," says Lawrence Lessig, a Stanford Law School professor and cyberspace law expert. "This is a major change that occurred without anybody thinking through the consequences. In my view, it is the single greatest threat to innovation in cyberspace, and I'm extremely skeptical that anybody's going to get it in time.

“Even under traditional patent rules, many of these software patents will turn out to be bad patents," says Lessig, "but in the meantime they create these little mafia monopoly holders who can go around demanding, with a federal court behind them, that you pay up or we'll shut you down. We're not talking about Thomas Edison inventing the light bulb," says Lessig. "We're not talking about Monsanto spending tons of money on some chemical whatever. We're talking about people taking ways of doing business and, because they put it into software, they say, 'This is now mine.'"

A telling comment from the New York Times article points out, “Patents legendarily protect the lone inventor, the pioneering genius in a garage, against the predation of big companies. In reality the opposite has usually been true. As basic industries like electricity, telephony and broadcasting developed in the 20th century, the great corporations learned to create arsenals of interrelated patents to use as sword and shield. The wise people, with good patent lawyers, patent a whole system," says Thomas P. Hughes, a historian of technology. He continues, “Although small companies can get patents, the big companies can afford to litigate -- when it comes into court, guess who's going to win? Absurd patents can be fought and overthrown, but to challenge a patent costs, on average, more than $1 million.“

"We like to say [a patent is the] right to exploit," then commissioner of Patents and Trademarks, Q. Todd Dickinson, said cheerfully in the aforementioned Times article. The catalyst for this discussion, Gene Mosher at ViewTouch, told us he didn't attempt to patent his ideas way back when because “the common advice in those days, 1985-86, was that you couldn't patent software that performed business processes. Besides it is expensive because you not only have to pay an attorney to help you get the patent, you must pay an attorney to defend your patent.

“For example, early on I paid a lawyer $1,000 to write a letter to a company to tell them that they were using my trademark -- ViewTouch -- without my permission,” Mosher continued. “The cost of developing the product is one part of the big picture. The cost of marketing it is another. The cost of patenting it and defending it is yet another. Even if you have all the money to do these things you can still fail to succeed. It's daunting, to say the least.

“The one thing that was for sure, though, was that if my software designs and ideas were good enough, everybody would copy them, and that was not a small achievement in itself. In 1997, we started using Linux and I became a believer in the free software model because I regard Richard Stallman as really the guy who brought that idea into our daily vocabulary.” One of this author's issues with Apple's iPhone Patent Application is they are patenting an OSI layer 7 application and making claims of uniqueness at OSI layers 2 and 3. After reading their Patent Application's seventy-five claims, although I'm not a lawyer, I really can't see a specific reference to something that is truly unique.

If Apple clearly said their iPhones were now going to use a newly developed security protocol over the mobile telephone networks, then I would say they might really have something which is new and different. But, Apple's latest iPhone Patent Application, unless I'm missing something, simply indicates their layer 7 application does restaurant-style POS, which is clearly neither new nor unique. Yet I worry that Apple's goal for U.S. Patent Application # 20070291710 is to attempt collecting a licensing royalty from every mobile phone which uses any restaurant-oriented POS application and/or to prevent others from being able to make use of that functionality.