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Bilski - What It Means, Part 5 (Conclusion) -- What About Microsoft's Patent Threats?
Monday, November 24 2008 @ 02:48 AM EST

Let's conclude our series of articles on In Re Bilski by looking at what the ruling may mean for Microsoft's threats against Linux. We can start by figuring out what kinds of patents Microsoft might think it owns.

We've already seen that Microsoft acknowledged in its amicus brief that it owns "process patents", which is the category that the ruling was addressing, and by submitting the brief, clearly Microsoft thought Bilski could impact its software portfolio. When the ruling first issued, you'll recall patent lawyer Gene Quinn immediately wrote that it was bad news for Microsoft, that "much of the Microsoft patent portfolio has gone up in smoke" because, as Quinn's partner John White pointed out to him, "Microsoft doesn't make machines." Not just Microsoft. His analysis was that many software patents that had issued prior to Bilski, depending on how they were drafted, "are almost certainly now worthless." [Update: The links to Quinn's article no longer resolve. However, you can find what he wrote here.]

Much of Microsoft's portfolio, then, must be process patents. He was not the only attorney to think about Microsoft in writing about Bilski.

A tax attorney, Linda M. Beale, in an article on the blog, A Taxing Matter, wrote about the effect of Bilski on State Street and on Microsoft:

There remains much to be determined about the meaning of the Bilski decision (about which I will write more on a future posting). The court did not completely overrule State Street, leaving it unclear what the "tied to a particular machine" language may encompass. As the Nixon Peabody blog post illustrates, the decision will likely lead to a change in the way patent applications are framed (attempting to claim a requirement for computerization, for example, or emphasizing the "transformative" nature of the process described in the patent application). Suffice it to say for now that this will undoubtedly have an immediate impact on businesses, especially those that have taken out a large number of business method patents for proprietary computer programs. (It has been suggested that Microsoft has patented an entire arsenal of business methods since the State Street decision. See, e.g., this post.) It is likely that a substantial number of business method process patents that have been obtained since State Street would not qualify under the Bilski decision--maybe even the State Street process itself.
What is that saying? I read it as saying that a lot of weak patents just got weaker, if not overturned completely. Do you not read it that way? So what does that mean for the threats against Linux? Red Hat VP and Assistant General Counsel Rob Tiller writes:
In its new opinion, the court declined to settle the issue of when, if ever, software based inventions should be patentable. Even so, the new test in Bilski will probably limit the patentability of software.

Future cases will shed further light on this issue. In the meantime, the holder of a poor quality software patent is likely to think more carefully about bringing a lawsuit, because the patent may be ruled invalid.

In a lawyer's careful way, I believe he is indicating that Microsoft, and any other software vendor holding process patents, will think twice now before trying to throw such patents around in a courtroom.

Sam Ramji gave us another big hint last year about what kind of patents Microsoft had in mind when threatening Linux in a talk at the 2007 Olliance Group's Open Source Think Tank conference in California, at which Ramji was asked by a member of the audience about Microsoft's patent threats against Linux. Ramji replied by saying that Microsoft's claims have to do with "cloned technologies". What are "cloned technologies"? Since we are speaking in a legal context, let's let United States District Judge Colleen Kollar-Kotelly, who is handling the mopping up operation regarding the US antitrust cases against Microsoft, answer, as she does in this Memorandum Opinion and Order in The State of New York v. Microsoft:

By cloning, the Court means the creation of a piece of software which replicates the functions of another piece of software, even if the replication is accomplished by some means other than the literal repetition of the same source code.... In most instances, where a clone is created without a copyright violation, the clone emerges from a process of reverse engineering -- which consists of the study of functionality in the original product and the attempt to produce a product which accomplishes the same end.... The process of cloning the functionality of a competitor's product is usually an expensive and time-consuming undertaking which, if successful, will enable the cloned product to function as a replacement for the original product.
The judge says this kind of cloning could be done without infringing Microsoft's copyrights, but how about its patents? Prior to Bilski, one might give one answer. Now, one might give another.

The Bilski ruling was that abstract ideas are not patentable, and the court tossed overboard the State Street "useful, concrete, and tangible result” test that made it possible for software to be patented in the first place. Now a process has to be either tied to a particular machine or apparatus or must transform an article. So while the court didn't decide the question of whether or not software is patentable, or to what degree, because In Re Bilski wasn't a case about software, I think Microsoft has to know that the rug is being pulled out from underneath its feet, to whatever degree to be decided by future cases.

I told you that not all lawyers were unhappy with the Bilski decision and that tax lawyers are actually happy about it. Here's Linda Beale's article, Tax Patents: At the Crossroads of Tax and Patent Law. Patently-O says that "the tax strategy business community has been largely anti-patent – going so far as to lobby congress to introduce legislation to create a specific exception that would block enforcement of those patents." Here's another, Paul L. Caron, Associate Dean of Faculty, Charles Hartsock Professor of Law, at the University of Cincinnati College of Law, in an article on the Bilski ruling, "Aprill: Bilski Means More Uncertainty for Tax Strategy Patents":

Applying the test, the Federal Circuit determined that Bilski’s process for hedging risks in commodities trading sought to claim a “non-transformative process that encompasses a purely mental process of performing requisite calculations without the aid of a computer or any other device.” It thus failed the machine-or-transformation test.

Since tax strategy patents are considered a subclass of business method patents and these patents have been granted on the basis of their having useful, concrete and tangible results, the case is, in general, good news for those of us who question whether tax strategy patents should be patentable.

The Aprill in the title is Ellen Aprill, Associate Dean of Academic Programs, Professor of Law, and John E. Anderson Chair in Tax Law, Loyola Law School, Los Angeles, California, and here's a bit of her testimony in 2006 before the Subcommittee on Select Revenue Measures of the House Committee on Ways and Means, against tax strategy patents:
Mr. Chairman and members of the Subcommittee, thank you for inviting me to speak here today. My name is Ellen Aprill. I am the John E. Anderson Professor of Tax Law and Associate Dean for Academic Programs at Loyola Law School in Los Angeles; I have had the privilege of serving in the Office of Tax Legislative Counsel in the Department of the Treasury in the late 1980’s and as a law clerk to the Hon. Byron R. White, Associate Justice of the United States Supreme Court, in the early 1980’s. I am currently a member of the Council of Directors of the American Bar Association Section of Taxation. While I first became aware of the issues related to the patenting of tax strategies through my involvement on the ABA Tax Section, I am speaking today in my individual capacity as a tax lawyer and tax professor. My comments represent my own personal views and are not necessarily those of Loyola Law School or any other organization with which I am affiliated.

Tax strategy patents are considered a subcategory of business method patents.... The topic of patenting tax strategies raises a broad range of issues, from the most theoretical to the most practical. Questions of theory and policy include whether it is desirable for the patent law to authorize tax strategy patents and whether the government monopoly granted to a patent holder is fundamentally inconsistent with the policies underlying our tax system. Important practical issues include the impact on how tax practitioners advise their clients and their potential liability for inducing patent infringement. Issues in the middle of this spectrum include questions of institutional capacity, namely how best to ensure the quality of such patents.

Like other tax lawyers who have looked at this issue, I have concerns both about tax strategy patents that may not meet the patent criteria of novelty and non-obviousness and about others that may be novel and innovative, but are inconsistent with our tax laws....

A. Tax Strategy Patents Could Change and Burden the Practice of Tax Law

Compliance with the tax laws is enormously expensive and time consuming. However diligent and well-intentioned taxpayers and their advisers may be, compliance becomes more difficult every year. Proliferation of tax strategy patents will add to that difficulty. Tax practitioners and taxpayers will have to become more sensitive to the possibility that a tax strategy has been patented and adjust behavior accordingly.

The adverse consequences for violating or inducing the violation of patents can be substantial. Patent holders generally seek injunctions against alleged infringers as well as any inducers of infringement to bar them from acting without paying damages equal to lost profits or a reasonable royalty. A taxpayer can infringe a patent without intent or actual knowledge of the patent; ignorance of an applicable patent is not a defense to an infringement action. Moreover, patents have a presumption of validity; an alleged infringer defending use of a technique must show the invalidity of a patent by clear and convincing evidence. Patent infringement litigation is extraordinarily expensive.[4] Tax advisers whose clients face patent infringement suits may themselves face malpractice claims.

As a result, taxpayers, their advisers, and others may need to begin considering whether to conduct patent searches in connection with any tax planning activity, whether to seek expert advice, and depending on the results, what course of action to pursue in response to a possible patent claim. One prominent practitioner recently told me that a holder of a tax strategy patent obtained the list of all the attendees at a meeting held to consider the area of tax law involved in the patent. The patent holder sent all of the attendees a letter saying that their business activities might be infringing his patent. Some of those who received the letter in fact paid royalties, as the least costly course of action; others went though the burden and expense of asking their lawyers to review the patent to ensure that they were not guilty of any infringement.

As you see, it isn't only software programmers who are adversely affected by patents. Actually, the American Institute of Certified Public Accountants, or AICPA, filed an amicus brief [PDF] in Bilski, opposing business methods patents, specifically tax strategy patents. Here's part of what AICPA said:
"Tax strategies" are one subset of business methods that increasingly have been patented since State Street. ... Since this Court's decision in State Street, 65 patents that include claims for tax strategies have been granted, and 110 additional patent applications for tax strategies are pending. Patents for tax strategies have been granted in a variety of areas, including the use of financial products, charitable giving, estate and gift tax, pension plans, tax deferred real estate exchanges, and deferred exchanges.

Tax strategies are not proper patentable subject matter under Section 101 of the Patent Act or the Patent Clause of the Constitution because they (1) preempt the public's free use of certain provisions of the tax laws, (2) do not meet the Supreme Court's criteria for patentability of processes, and (3) fail to promote the useful arts. ...

Furthermore, lawyers and accountants may be unable to challenge the validity of tax strategy patents or to defend themselves from patent infringement lawsuits because of their professional obligations of privilege and confidentiality to their clients.

I wanted you to see this, because some of you generalize about lawyers, and you need to understand that nothing is simple. Not that simple, anyway.

Bilski was about a methods patent, a method of trading weather risk, as this article explains. Interestingly, although the article was written prior to the decision in Bilski issuing, it might give us some deeper context:

Many may also know that Bilski is about a method of trading weather risk invented by two former energy company executives who are founders of Pittsburgh-based WeatherWise USA Inc. But far fewer know that, miles away from Washington, D.C., another group of lawyers is scrutinizing WeatherWise's business methods: attorneys in the Minnesota attorney general's office.

The very company whose case is likely to set precedent for every business method patent to come -- and raise the bar for those already issued -- is being hauled over the coals right now by government investigators, with its patent-pending method at the center of the controversy. In a complaint filed last year with the state's Public Utilities Commission, the Minnesota AG said that WeatherWise set up a fixed-price billing system for two local energy companies that has overcharged consumers by nearly $33 million since 2001. In four out of the five years studied, the vast majority of consumers on WeatherWise's programs paid 12 percent to 63 percent more than they would have on a standard billing program. The programs were ordered shut down at the end of 2007....

Warsaw insists that he's done nothing improper.... State lawyers say that call center employees -- possibly working with WeatherWise -- refused to let dissatisfied customers go back to standard billing, telling one consumer that the only way to leave the program "was to die or be sent to Iraq."

Capice? One of the worst things about process patents, in my view, is the type of folks attracted to them. In an article titled Patently Absurd on the Tax Update Blog, the author, Joe Kristan, provides a link to the USPTO's list of such tax patents, and he expresses the kind of appalled distress many of you feel about software patents:
As a loyal resident of the Hartford of the prairie, I'm all for anything that will sell insurance policies. Yet if people get serious about enforcing tax patents, you have a real problem. What could be the public policy argument for allowing only royalty-paying taxpayers to use a given legal tax planning technique? For example, one patent is for "methods and investment instruments for perfoming tax deferred real estate exchanges." People do Section 1031 exchanges every day. Would like-kind exchange specialists be subject to subpoena to see whether they are using a "patented" method to do these relatively routine deals?

Absent ridiculous fishing-expedition subpoenas, tax privacy rules would make these things impossible to enforce. It seems only way a patent could ever be enforced would be when a case makes it to court and it becomes public record. That puts the patent-holder in a bind. The only reason they would be aware of the patent "violation" is because the IRS is attacking it - hardly a good advertisement. Would they continue to seek royalties if their strategy fails in court?

It's not like these tax scientists are curing a disease with a new medicine or stamping out hunger with a new miracle plant strain. It's likely these patents will just generate a bunch of rent-seeking patent jackals trying to extract royalties from routine transactions.

That's telling it true. Speaking of software patents, here's another attorney agreeing that Bilski has particular meaning for software, quoted in the Wall St. Journal's Law Blog:
Randy Lipsitz, a patent specialist at Kramer Levin in New York says the ruling is likely to hit certain industries, namely insurance, banking, accounting and software, particularly hard. “You’re going to see fewer applications from these industries,” he says.
I hope he's right about that.

And finally, Patently-O:

Thus under Bilski/Benson, tying a software algorithm to particular computer hardware may well be unpatentable subject matter if the patent would still preclude all practical uses of the otherwise unpatentable algorithm.
That goes to the heart of the cloning issue, don't you think? If patents are not to be used to "preclude all practical uses" of an algorithm, how do you block all cloned technologies? At any rate, what I understand is that your ability to do so just got smaller and narrower. There are still several issues unresolved by Bilski, most especially whether a process tied to a regular desktop computer is sufficient for patentability. Where is the line? The ruling in Bilski said, "We leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine." Not just "when", but also "whether". I find that encouraging. Most tax patents, after all, are for methods tied to a computer, even though I seriously doubt most of them, if not all, can't be done inside a human brain, with maybe some paper and pencil handy. All software is tied to computers, so I look forward to that "particular machine" question being answered.

And so, while there is no doubt that patent lawyers will do whatever it takes in drafting patent applications and trying to revise the ones already granted but now endangered by Bilski to try to qualify them, the more they repeat their aggressive behavior, the worse it will be for them, I think, just as the egregious patent hustling of the past led to Bilski. Here's some recent advice patent lawyers are giving:

Clients with issued software patents, medical method patents, and other similar patents may want to run a "Bilski test" on the claims of those patents, particularly if there is a likelihood that the patents will be asserted in the future. If those patents raise any concerns, it may be advisable to correct potential problems or insure against them (e.g., by adding new, more-patentable claims) via reissue proceedings or continuation practice. However, clients should understand that amendments made in a reissue proceeding can provide competitors with additional defenses against a patent. As for patent applications that are still pending, applicants should develop strategies for adding the sorts of elements identified by the Federal Circuit to the claims - in most cases, we expect this can be done without significantly affecting the strength of the claims. For patents currently in litigation, defendants should re-check their defenses, but should be careful not to over-read Bilski, and plaintiffs may really want to look into correcting suspect patents.
Blech. So, time to watch the USPTO closely for such activity, I'd guess, for those free to do so. But reading all these attorneys writing about the impact of Bilski on software, even without knowing all the specifics unanswered by Bilski, still I think you don't need to be a weatherman to know which way the wind blows. Speaking for myself, I'd have to say I feel a lot less threatened by Microsoft than I did a year ago. Don't you? I can't help but wonder if there ever would have been a "patent peace" deal between Novell and Microsoft if Bilski had been decided earlier.


Bilski - What It Means, Part 5 (Conclusion) -- What About Microsoft's Patent Threats? | 224 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: ankylosaurus on Monday, November 24 2008 @ 03:07 AM EST
Post any corrections here. Mitsake --> Correct in the title is often useful.

The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Off Topic
Authored by: ankylosaurus on Monday, November 24 2008 @ 03:09 AM EST
Off topic discussions go here. Please make links clickable using the
instructions - and remember to post in HTML.

The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Corrections thread? Could I be first?
Authored by: talldad on Monday, November 24 2008 @ 03:13 AM EST
Amazing for someone down under to be first in!
"American Association of Certified Public Accountants" -->
"American Institute of Certified Public Accountants"

John Angelico
Down Under fan &
OS/2 SIG Co-Ordinator

[ Reply to This | # ]

News picks
Authored by: ankylosaurus on Monday, November 24 2008 @ 03:17 AM EST
Discussion about the news picks on the RHS of the Groklaw home page.

The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Does this free up Mono too?
Authored by: MadTom1999 on Monday, November 24 2008 @ 03:46 AM EST
If this releases Mono from its invisible handcuffs can we all sit back and enjoy
watching FLOSS produce a massive collection of Mono tools that completely
obviates MS?

[ Reply to This | # ]

PJ is wrong!
Authored by: Ian Al on Monday, November 24 2008 @ 05:50 AM EST
She said
All software is tied to computers.
My first exhibit is a book called 'The C Programming Language' by Brian W. Kernighan and Dennis M. Ritchie. The language may be used to produce software for personal video recorders, mobile phones, mp3 players, routers, network attached storage devices and embedded and personal computers. It is not tied to any of them. The book may be read and its contents and software understood without the use of a computer (although, not necessarily by me [IANACP]). The programming language is a work of abstract thought and is independent of computer hardware or other machinery. The software employing the computer language can be written on a paper napkin. No computer is required. The software is just an abstract set of sequential logic and binary mathematics. Indeed, for a complex piece of software it is best to lay out the logical sequence as a logic diagram and arrange cohesive parts of the diagram as software modules with a defined logic interface. The software can be conveniently checked by using a computer to attempt to compile it. Any contraventions of the abstract syntax in the book will be uncovered. As a convenient byproduct of the compiler, the sequential logic can be expressed in binary codes that, when loaded into the RAM of a personal or other computer and executed by the computer processor, may produce a visible, audible or other indication of what the sequential logic actually does. Chances are that it won't do what the software writer had in mind so there will be substantial use of the compiler and running the logic on the computer before it follows the abstract logic that the programmer had in his mind.

I would accept that the intention of most software is to be run on a compatible computer. Running on your PVR will not work. The software held as punched holes in loops of pasteboard cards is only compatible with Jacquard looms. This software can be read by a competant weaver without the use of the loom, but not by the average computer user. Please note that the Jacquard loom and its card loops were patentable, but the software it runs was not. The software was only protectable by copyright because it was the expression of a design.

'Print "Hello World"' is software that will not run on most personal computers. It is intended for the printed page and human use, only. Well written personal computer program software source code can be read from the printed page and its operation determined by a competant computer programmer.

It is lack of clarity, accuracy and understanding that lead to software patents in the first place. Excuse me while I patronise you a little. The reason software is called software is that it is ephemeral. Software only runs in computer memory. It is stored in long-term storage like hard drives and is only loaded into the 'executive' part of a computer when the user wants to run it. In a quality operating system it need not even be kept in the computer. It can be saved in an external device and loaded from there into memory and run by the computer.

The lobbyists for software patents will soon be claiming that software downloaded from the internet or from a CD or DVD which is written so that it runs on any personal computer may be patented because it is 'tied' to a specific machine. Computer software in stealth bombers that is part of the 'fly-by-wire' controls is tied to the bomber. If the running of the software ceases, the plane crashes. Servo-assisted manual controls would not allow the pilot to fly the aircraft because it is inherently unstable. They ought to patent that! Oh, wait a minute. It had better be a trade secret. No, a national secret.

If the only reason that software runs on a personal computer is because the person chooses to order the computer to load it into short-term memory (RAM) and execute the sequential logic instructions therein, then it is not tied to the machine. You might note that this applies to operating systems, as well. One can run a computer by booting from a live CD or DVD. The only software actually tied to the hardware in any true sense is the bios. Even this can be swapped out for something else (OpenBIOS, u-boot).

The phrase 'All software is tied to computers' is a phrase that should be consigned to history along with 'everything is patentable'.

Ian Al

Linux: Viri can't hear you in free space.

[ Reply to This | # ]

UserFriendly Sunday 24 November 2008
Authored by: cybervegan on Monday, November 24 2008 @ 07:29 AM EST


Need I say more?


Software source code is a bit like underwear - you only want to show it off in public if it's clean and tidy. Refusal could be due to embarrassment or shame...

[ Reply to This | # ]

Authored by: Anonymous on Monday, November 24 2008 @ 08:26 AM EST
I remember reading the Microsoft patent promise from the Novell deal after they
made it public, and thinking to myself, "this is almost all to do with
clones of Microsoft productivity applications like Office, and almost nothing to
do with the Linux operating system, or any other operating system".

That's why they never would specify what patents they were talking about, and
made broad threats about Linux, because most Linux distros include, or Koffice, or something that can read and write MS office
documents. If they had told the world that this is what it was all about, they
would have been laughed out of the spotlight like SCO was once they narrowed
down their specific claims against IBM to a few hundred lines of code (that, it
turned out later, were owned by Novell anyway).

[ Reply to This | # ]

Bilski - What It Means, Part 5 (Conclusion) -- What About Microsoft's Patent Threats?
Authored by: Anonymous on Monday, November 24 2008 @ 09:17 AM EST
wouldn't the section of cloning in this article also covers what Psystar can do,
reverse engineer what apple does and allow installation to another system?

[ Reply to This | # ]

software+machine=patent... I don't think so
Authored by: drh on Monday, November 24 2008 @ 11:04 AM EST
Considering the argument that if software is tied to a specific machine then it
becomes patentable does not work. The reason is that combining two distinct and
separately protected components does not make for a third unique product.

A common scenario demonstrating this is the BIOS chip on the motherboard of a
computer. The software component is protected by copyright and additionally by a
license for distribution. The function of the software is to provide
instructions to the various hardware components on how to start up and work in a
certain way and to provide a method to load additional instructions from a
separate medium that will increase useability.

The chip itself is a physical object that is protected by at least one patent.
The function of the chip is to provide a method to store the software
instructions and allow retrieval of those instructions by the various other
hardware components present on the motherboard, usually the CPU.

When these two components are combined, hardware and software, the result brings
no added functionality, it merely allows each component to do what it is
designed to do. That bears repeating, each component does what it is designed to
do. The software is still protected by copyright and license, the hardware is
still protected by it's patent, but the combination has no added or third
function, and is therefore not eligible for additional protection.

I cannot think of a single instance where a combination of software and hardware
produces a third unique and distinct product. (although I am sure somebody out
there might well know of one).

Just another day...

[ Reply to This | # ]

We'll know software is safe from patents when....
Authored by: Anonymous on Monday, November 24 2008 @ 12:39 PM EST

When the Law makers and Law enforcers understand applying software to computers is analogous to the following:

    A: Applying something new on a piece of paper - whether through hieroglyphs, writting, printing, type-setting, etc.
    B: The act of punching in "3+5=" on a calculator and getting the result 8.
    C: Changing the wheels on the Enigma machine to set a new algorithm for your message.
In all the above cases - the Enigma machine application is the closest analogy to software - they share one thing in common:
    The invention - the paper, the calculator, the enigma machine - is being used exactly as intended.
To apply software to a computer is no different. If anything is a marvel, it's that the computer is so good at doing it's task it can handle such an incredibly wide variety of software.

Once the Law makers and Law enforcers recognize that, then the only way software will be patented is to change the underlying freedoms and law surrounding patents to be far more restrictive on society.

Till such realisation, I guess we just have to keep trying to explain the above in as many ways as possible till they understand.


[ Reply to This | # ]

Post Bilski - new lawsuit against Apple about SW patent
Authored by: lukep on Monday, November 24 2008 @ 12:45 PM EST
could be interesting to see what this become post Bilski.

market watch

From the little I've seen it is a typical troll patent one

[ Reply to This | # ]

Bilski - What It Means, Part 5 (Conclusion) -- What About Microsoft's Patent Threats?
Authored by: Anonymous on Monday, November 24 2008 @ 01:58 PM EST
So a company like MS has a huge portfolio of patents. I imagine that portfolio
has some kind of a dollar value.

I wonder what tax/accounting issues are suddenly imposed by those drastically
losing value after a court case. I mean if they were claiming those patents
were worth $10 billion and keeping that on their capital asset sheet, do they
have to write it off?

[ Reply to This | # ]

Thanks to Joe Kristan
Authored by: Anonymous on Monday, November 24 2008 @ 02:57 PM EST

- the tax expert, who provided us with a concise characterization of the people who try to extract money from the efforts of others:

It's likely these patents will just generate a bunch of rent-seeking patent jackals trying to extract royalties from routine transactions.

"Rent-seeking patent jackals." It has a nice ring to it.

[ Reply to This | # ]

Another patent troll just attacked Apple
Authored by: hopethishelps on Monday, November 24 2008 @ 03:03 PM EST

[ Reply to This | # ]

Cloning violates EULA
Authored by: Anonymous on Monday, November 24 2008 @ 04:29 PM EST
Microsoft's End User License Agreements all prohibit reverse engineering,
dis-assembly, etc. Though the burden of proof would seem to be more difficult
than with a patent violation, it seems to me that anything that is protocol /
API / wire compatible with a Microsoft product still leaves a wide legal opening
for Microsoft. Samba, Evolution (connector to Exchange) ability to R/W NTFS file
systems and more are useful examples.

I suppose the good news is that several of these are covered by anti-monopoly
rulings that forced MS to open up protocols. But what others are still legally

[ Reply to This | # ]

Examining the McKibben patent allegedly infringed by Facebook in the light of Bilski
Authored by: macliam on Monday, November 24 2008 @ 04:34 PM EST

There is a News Pick on Groklaw recently posted regarding a patent allegedly infringed by Facebook. The relevant patent is United States Patent 7139761, entitled Dynamic association of electronically stored information with iterative workflow changes. I found this patent reproduced here. The patent will presumably be newsworthy, and I thought it might be interesting to try to analyze it in the context of the Bilski decision.

Much of the language of the claims seems to me to satisfy the 'duck test' for 'abstract ideas'. ("If it looks like a duck, swims like a duck, and quacks like a duck, it probably is a duck.")

Here is the first claim:

1. A computer-implemented network-based system that facilitates management of data, comprising: a computer-implemented context component of the network-based system for capturing context information associated with user-defined data created by user interaction of a user in a first context of the network-based system, the context component dynamically storing the context information in metadata associated with the user-defined data, the user-defined data and metadata stored on a storage component of the network-based system; and a computer-implemented tracking component of the network-based system for tracking a change of the user from the first context to a second context of the network-based system and dynamically updating the stored metadata based on the change, wherein the user accesses the data from the second context.

IANAL, but I presume that this is an 'independent' claim, and that claims 2 to 8 that follow are 'dependent' claims, as they refer to "The system of claim 1" (or of claim 5). Presumably the claim must be drawn to a process, a machine, a manufacture or a composition of matter. We don't seem to be considering either a manufacture or a composition of matter. Also there are further claims to 'methods' that are presumably 'process' claims. So I assume that this 'computer-implemented network-based system' is considered to be a 'machine'. Moreover the machine must have a 'context component', a 'storage component' and a 'tracking component'.

The above claim is followed by a claim for the following:

2. The system of claim 1, the context component is associated with a workspace, which is a collection of data and application functionality related to the user-defined data.

Now this seems to be a remarkably concrete device! ("Hey I am just off down to the retail park to buy myself a collection of data and application functionality. Back in a couple of hours.") Surely 'data' is a somewhat abstract concept, even if it can take the form of 'documents' and 'files' as specified in a later claim, and 'application' seems to me an even more abstract concept. But not merely 'applications' but 'application functionality'?

Moving on to the next claim:

3. The system of claim 1, the context component is associated with a web, which web is a collection of interrelated workspaces, the web maintains a location of data of the respective interrelated workspaces when one or more of the interrelated workspaces are moved into a different workspace interrelationship.

So it seems that these 'workspaces' have the ability to move. So, on average, how many metres through space would a typical workspace travel when it is being "moved" into a "different workspace interrelationship"?

From subsequent claims dependent on claim 1, we learn that the "context component" can capture "context information" that might include various sorts of "relationships" and that can be "tagged" to "metadata". We are surely talking about a computer implementation of an abstract machine, which is an abstract idea made up of three "components", of which surely only the 'storage' component is plausibly concrete and physical.

It is perhaps worth bearing in mind that the Supreme Court of the United States, in Microsoft Corp. v. ATT (2007), ruled that "Abstract software code is an idea without physical embodiment", and noted that, in the context of a certain law prohibiting export of components of patented inventions, abstract software code, as such, does not match the categorization: 'components' amenable to 'combination'. So what is the legal status of the 'components' of the machine of claim 1?

The majority decision of the CAFC in re Bilski deferred to future cases the "elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine". But it does seem arguable that the mere specification of a "computer-implemented network-based system" in this instance is not sufficient to establish the invention of claim 1 as a 'particular machine'.

Presumably the second and third independent claims are claims 9 and 17:

9. A computer-implemented method of managing data, comprising computer-executable acts of: creating data within a user environment of a web-based computing platform via user interaction with the user environment by a user using an application, the data in the form of at least files and documents; dynamically associating metadata with the data, the data and metadata stored on a storage component of the web-based computing platform, the metadata includes information related to the user, the data, the application, and the user environment; tracking movement of the user from the user environment of the web-based computing platform to a second user environment of the web-based computing platform; and dynamically updating the stored metadata with an association of the data, the application, and the second user environment wherein the user employs at least one of the application and the data from the second environment.
17. A computer-implemented method of managing data, comprising computer-executable acts of: generating a plurality of user environments in a web-based system; ordering two or more of the plurality of user environments according to different arrangements of the user environments; providing a plurality of applications for generating and processing data in the user environments, data of a user environment is dynamically associated with the user environment in metadata that corresponds to the data; creating an association of the data with a second user environment when the data is accessed from the second user environment; dynamically storing the association of the data and the second user environment in the metadata; storing in a storage component ordering information related to the ordering of the two or more of the plurality of user environments; and traversing the different arrangements of the user environments with one or more of the applications based on the ordering information to locate the data associated with the user environments.

So these claims involve "computer-implemented" methods comprising "computer-executable acts" carried out on a "web-based computing platform". They do at least specify that the data and metadata is stored in a "storage component of the web-based computer platform". But where else would you store data on a "computing platform"? Does a process that achieves the mere capture, storage and location of unspecified "data", and the tagging of it with "metadata" that tracks "user environments" meet the 'transformation' fork of the Bilski test? and, if not, does the wording of these claims suffice to tie them to a "particular machine"? (Hopefully these are mere rhetorical questions.)

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time for that software patent lawyer to reply to the tax lawyer
Authored by: Anonymous on Monday, November 24 2008 @ 05:09 PM EST
that tax lawyers and professors of law specializing in tax
know nothing about tax
know nothing about law
and know nothing about patents.

And probably couldn't tie their shoelaces without their spouses to help.

You remember - the lawyer who wrote that software writers know nothing about

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Does Apple Make Machines?
Authored by: Anonymous on Monday, November 24 2008 @ 06:22 PM EST
Does Apple have it's own factory making machines? Or do others make the
machines? I think it's others.

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Bilski - What It Means, all patents are bad
Authored by: Anonymous on Monday, November 24 2008 @ 06:36 PM EST
Before "Bilski part 2" my fight was all about against "Software patents",
This was due a professional tunnel vision; I'm a programmer / software architect
and believed patents for other subjects are not my problem.
Now if I read from Joe Kristan:
What could be the public policy argument for allowing only royalty-paying taxpayers to use a given legal tax planning technique?
It's not like these tax scientists are curing a disease with a new medicine or stamping out hunger with a new miracle plant strain. It's likely these patents will just generate a bunch of rent-seeking patent jackals trying to extract royalties from routine transactions.
I start to think that if you dig in every field where patents a granted you will find major problems.

In comments in the previous episodes of "Re Bilski", Gloklawians tried to explain how stupid software patents are
by imagining patents on lawsuit cases;
For me it looks like patents on tax strategy aren't that different.

What if the scientists is holding a patent for curing a disease but does not utilize his invention
or only uses it to cure the most profitable disease?

Without knowing these patents are holding you hostage.
So now Software folks, Tax lawyers and Patients are shouting.
The rest will follow later.


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Dissenting Opinions?
Authored by: Anonymous on Monday, November 24 2008 @ 08:42 PM EST
Hi PJ (& Others),

I don't know enough to tell whether your analysis of this decision is correct.
Would it be possible to post another article of a dissenting opinion?

I think it would be very valuable - as it stands we have someone (you) that has
a pretty good understanding of the law, quoting others who also have a good
understanding (selectively? objectively?) and coming to a conclusion that we all
would like.

But the world doesn't always work out the way you want and in order to judge the
accuracy of your claims I'd appreciate reading a counter-argument.

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Bilski - What It Means, Part 5 (Conclusion) -- What About Microsoft's Patent Threats?
Authored by: Anonymous on Monday, November 24 2008 @ 09:06 PM EST
While many, if not most replies here place emphasis on how this hurts MS's
patent portfolio. Given MS is a very large company with quite a few intelligent
employees, it may be worth your while to consider how much this ruling helps MS
against all the expensive cases against it regarding software patents. The knife
cuts both ways, and no more software process patents for MS means the same for
the thousands of other software companies too.

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Bilski - What It Means, Part 5 (Conclusion) -- What About Microsoft's Patent Threats?
Authored by: Anonymous on Tuesday, December 02 2008 @ 10:50 AM EST
if patent claims has to be tied to a particular machine to be valid, can we
conclude, that pure software, by definition, cannot infrige on any valid patent?

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