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A Day to Celebrate and PUBPAT Wins Another: MS FAT Patent to be Reexamined
Friday, June 11 2004 @ 09:39 PM EDT

I slept in and took the whole day off, went clothes shopping, ate some junk food and had some fun. It was a day for celebrating yesterday's victories. Then, when I got back on my horse, what do I read but considerable nonsense about SCO "winning" some things in court.

Like a delay.

I laughed so hard, I almost fell off my horse.

These mainstream media dudes will find out when the case is over that they were wrong, and, if and when the investigations begin, that they were party to something they may not be so proud to tell the kids and grandchildren. You don't win the Pulitzer Prize for being duped.

Some of them don't know any better. SCO talks to them, they don't understand the law, and so they print it. That's not real journalism, but it isn't a sin against humanity either. But some of them, and they know who they are, know better. They let themselves be used, whether for money or to have good contacts they think they need for their careers or to hang on to their jobs, to push a Microsoft agenda.

There. I've said it. What else can we conclude when, after all the stories SCO has told that later proved to be untrue, they dutifully write down the latest SCOHash as if it were gospel? Today was a very good day for noticing who is who, so we know which journalists not to take too seriously any longer.

As for the journalist who droolingly predicted that the open source community would be sad today because SCO wasn't tossed out of the ring completely yesterday and was merely pressed, staggering, against the ropes, I have news for you. We celebrated and enjoyed ourselves all day long.

We had worried SCO might win the remand motion and seriously thought they might win both motions, not because they are in the right on the merits, but just because of the way the law is written and the cases have played out, and so we are ecstatic today. That was, in our opinion, SCO's strongest shot.

It's looking pretty bad for SCO when their best shot gets shot down, and it did. Don't believe me? Try this attorney on for size, Michael R. Graham, intellectual property attorney and partner with the Chicago-based law firm Marshall, Gerstein & Borun LLP. He gets what happened yesterday, and he explained it to eWeek's Steven J. Vaughan-Nichols, who writes that the issue before the court now, thanks to Kimball's ruling, is, does SCO actually own *any* UNIX IP?:

"Graham tells me, 'Judge Kimball's decision is a serious loss for SCO. Not only in its slander of title case against Novell, but in SCO's case against IBM. The threshold issue in both cases is whether SCO owns copyright in the Unix software code.'

"'SCO wanted the case remanded so that the only issue would be contractual: whether the APA [Asset Purchase Agreement] and Amendment No. 2 transferred ownership of the Unix code,' Graham says.

"'But Judge Kimball concluded that a more fundamental issue is whether the APA and Amendment No. 2 constitute the type of 'writing' required under the federal copyright law to effect a transfer of copyright. This federal analysis could prove fatal to SCO's claim.'"

He explains plenty more, including noticing that the judge said that although he denied part of the motion to dismiss, it might be appropriate for either trial or for summary judgment. When a judge says that, it means he thinks there's no there there. Graham notes one other thing, on page 3 of the article:

"Graham comments, 'Judge Kimball wisely notes that even if the APA/Amendment No. 2 documents are held to be a valid transfer of copyright, the question remains what version of the Unix code might have been assigned by it. SCO could only claim copyright in that particular code, and perhaps not in other Unix versions or code. So, this could raise additional issues for SCO.'"

And, of course, that's if they win. If they lose, the ball game is over. So totally, blessedly over. Except for the counterclaims, which will multiply like mushrooms from coast to coast. But that's the fun part.

Want a second attorney opinion? OK. Robert McMillan talked to Jeff Norman, an intellectual property partner with the Chicago law firm of Kirkland Ellis LLP, who told him this:

"'The fact that the judge took this case and decided to keep it is an indication that there is a real dispute about whether the copyrights were transferred,' said Jeff Norman . . .If there are legitimate questions about who owns Unix, it will make it much harder for SCO to prove its slander case against Novell, he said. 'I don't see how SCO is going to prove that there is a slander of title here,' he said.

"The Novell case could have major implications for SCO's lawsuit with IBM Corp., said Norman, if Kimball eventually rules that Novell and not SCO owns the Unix copyright. 'If SCO doesn't own the copyright, then that's it for SCO. The only claim they have then is the contract claim against IBM and related claims.'"

Another PubPat Victory

Something else happened yesterday, but I was too carpal tunneled to tell you about it, so I'll do it now. PubPat has achieved another victory. The Patent Office has issued an order granting their request for reexamination of MS's patent on the FAT file system on the grounds that they had raised "a substantial new question of patentability" regarding that patent claim. Naturally, PubPat is pleased. "This is the first step towards ending the harm being caused to the public by this patent that should have never been issued," said Dan Ravicher in the press release. Here it is in full:

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

MICROSOFT PATENT TO BE REEXAMINED AT PUBPAT'S REQUEST:
NEW YORK -- The United States Patent and Trademark Office has issued an Order granting the Public Patent Foundation's Request for Reexamination of Microsoft's patent on the FAT file system, which Microsoft concedes is "the ubiquitous format used for interchange of media between computers, and, since the advent of inexpensive, removable flash memory, also between digital devices." In its Order, the Patent Office found that PUBPAT's request raised "a substantial new question of patentability" regarding every claim of the patent.

Microsoft now has the opportunity to make an opening statement to the Patent Office, to which PUBPAT has the right to make a response. After opening statements, if any, the Patent Office will proceed to determine whether the patent is indeed invalid in light of the new questions raised by PUBPAT's request. Third party requests for reexamination, like the one filed by PUBPAT, are successful in having the subject patent either narrowed or completely revoked roughly 70% of the time.

"We are obviously very pleased with the Patent Office's decision to grant our request to reexamine Microsoft's FAT patent," said Dan Ravicher, PUBPAT's Executive Director and Founder. "This is the first step towards ending the harm being caused to the public by this patent that should have never been issued."

More information about the Request for Reexamination, including a copy of the Patent Office's Order Granting the request, can be found at http://www.pubpat.org/Protecting.htm.

Contact:

Daniel Ravicher, Executive Director, Public Patent Foundation: 212-545-5337; info at pubpat.org; www.pubpat.org.

About PUBPAT:

The Public Patent Foundation ("PUBPAT") is a not-for-profit legal services organization working to protect the public from the harms caused by the patent system. PUBPAT provides the general public, particularly those persons or businesses otherwise deprived of access to the system governing patents, with representation, advocacy, and education. To be kept informed of PUBPAT News, subscribe to the PUBPAT News List by sending an email with "subscribe" in the subject line to news-request@pubpat.org. To be removed from the PUBPAT News List, send an email with "unsubscribe" in the subject line to: news-request at pubpat.org.


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