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MS Gets 2 New Patents
Tuesday, January 04 2005 @ 09:11 AM EST

Here's a charming start to the day, an article on Microsoft getting two new patents, one on a compiler and the other on an "improved" system and method for editing software. Innovation marches on.

Obviously, if you are a programmer, you probably don't want to be reading patents, but for the rest of us, the compiler patent, U.S. Patent number 6,836,883, titled "Method and system for compiling multiple languages", is here and the editing patent, US Patent 6,836,884 titled "Method and system for editing software programs" is here.

The first is described as a method or "process involving the parsing and analyzing of more than one source language to produce a common language file that may then be read by the same or another front end system."

Well. The world is crying out for a compiler that can do that. The patent cites the Free Software Foundation's GCC in the prior art section. I'll say.

It also references: Gosling, J. et al, "The Java Language Environment. A White Paper", Sun Microsystems Computer Company, Oct. 1, 1995, pp. 1, 4-85, XP 002042922. The second patent appears to be a debugger/editor, which permits line-by-line "execution capabilities", whereby you can stop and edit and then continue where execution left off, and it provides "support for common language runtime environments".

The part that caught my eye in the compiler patent is this language:

"Although the invention has been described in language specific to structural features and/or methodological steps, it is to be understood that the invention defined in the appended claims is not necessarily limited to the specific features or steps described. As an example, other source languages may be included in the front end portion in combination with the first source and the common languages. Therefore, the specific features and steps are disclosed as preferred forms of implementing the claimed invention."

Way cool. We get to guess at all it can do. A patent on a secret. They used the same language in their patent application on .NET. (Mono Project's reaction.) Next they can apply for a patent on their patent, "a method or process of keeping the threat of patent infringement lawsuits against GNU/Linux alive, whereby one obtains patents that could be easily debunked by multitudinous prior art if all the facts were placed on the table, but by means of partial disclosure of what the method or process does, you can hint that there is just enough there to require a court to debunk your claims, all of which costs money, which, happily, the FOSS community doesn't have. This methodology creates anxiety in CEOs about using GPL software, without actually having to sue anyone, thus minimizing costs."

The article says that Microsoft was "unable to comment" on the patents. After all, I thought as I read that sentence, they might get deposed one day. Nothing more annoying than having to explain the why of a thing in a hostile deposition.

They were happy to tell the journalist, however, why they need to get patents:

"'The protection and licensing of intellectual property allows companies and individuals to obtain a return on investment, sustaining business and encouraging future rounds of research and investment in the IT industry,' the Microsoft spokesperson explained to internetnews.com."

Is that English? I recognize English words, but what does it mean? Let me parse that sentence out the way my beloved granny taught me as a child. Let's see. They need patents so they can get money from all of us to fund all the innovating they are doing. Oh. Patents ensure the freedom to innovate. Wait. Wasn't that the reason for integrating the browser into the operating system? And Windows Media Player? Freedom to innovate? I'm thinking they need to come up with a better excu^H^H^H^H reason. That one didn't play too well. They lost two antitrust lawsuits with that tagline. Besides, "you have to cross our palm with silver or we won't innovate" sounds crass, especially coming from such wealthy company. So, how about it? I bet you can come up with a better quotation than that one. If you were Microsoft on truth serum, how would you explain their need for these patents?

Here's my entry:

"We need these patents so we can kill off Free and Open Source software."

No? Too plain-spoken? Too direct? OK, let's see. I'll put it in my own editing/debugging tool, my brain, and after execution and some stop and go, out comes:

"The protection and licensing of intellectual property allows Microsoft to get buckets of dough to sustain our bully business without having to actually innovate, because it permits us, by cutting off the oxygen supply of our competition, to overprice our software, because you'll have no other practical choice but to buy and use our software, and all that money you give us will pay us for continued, ahem, research and investment and oppression in the IT industry. Patents enable us to kill off the babies in the innovative software industry, so to speak, particularly pesky Free and Open Source competition, which is threatening our monopoly business model (think Firefox). We'd like to remain still the one and only overbearing monopoly player, the only real game in town, thanks to the wonderful USPTO's patent system. We'll license our patented software under 'reasonable' terms that block all GPL software because of incompatible language, and presto! They are cut out of the loop, and money will flow in to us like a tsunami from all you suckers who didn't pay attention to Groklaw's early warning system that notified you that we'd use software patents to destroy free and open source software, ha ha ha ha ha. "

Perhaps you can tell that I've been reading transcripts of the US v. Microsoft antitrust trial for a a week? Of course, my debugging/editing tool is old and I neglected to file a patent on it, so it could be missing something innovative here. If so, I'm sure you will let me know. It's so old-fashioned, it could have sworn there was invalidating prior art all over the place. Do the examiners at the USPTO need a crash computer course? I'm sure we have volunteers galore willing to give them a helping hand.

Of course, to solve a problem, you need to recognize you have one. In an interview, the head of the USPTO says he thinks things are going along swimmingly there. The problem is, in his view, critics aren't experts in the law, and so they imagine problems that don't exist:

"The bottom line is there is a lot of misunderstandings about patents and that may lead to some of this rhetoric, but the bottom line is it's a pretty specialized area of the law and it takes experts to understand the patentability -- what the process is, how we determine whether to issue a patent or not, how the prior art defines the scope of coverage that an applicant is entitled to, and so on and so forth.

"And what you get is a lot of people that look at the title of the invention or some abstract or whatever and just come to these conclusions with respect to, 'how could the USPTO issue a patent' on such and such? But they haven't actually looked at the legal scope of coverage; they're more or less looking at a broad concept that's described in the patent as opposed to the claims that define the legal scope of the coverage."

Really? With all due respect, may I point out that Microsoft's patent on the FAT file system ended up being rejected, thanks to PubPat.org's requesting a reexamination procedure and presenting prior art? There are patent lawyers who see a problem with patents being issued that are not legitimate. And they do know how to read a patent claim and figure out the legal scope of coverage. I asked Dan Ravicher of Pubpat.org if he would care to comment on the new patents, and he said this: "These two patents specifically have effective filing dates in 2000 and 2001, respectively. So, anything that was publicly available a year before those dates would be prior art to them." A master of economical speech.

The FOSS community would appreciate it very much if the USPTO didn't issue patents so broadly that it is forced to go the trouble and expense of finding prior art after a patent is issued, although we will certainly be willing to continue to do so, if needed. But is there no way we could set up a process to help you find prior art *before* the invalid patent issues? Wouldn't that be more efficient? We're happy to give you a helping hand, if only you'd let us.

Speaking of patents, I wondered how it is that software patents are issued in Europe when supposedly patents on software are not permitted. I have found the answer, and it goes like this:

Europe already has uniform rules about what is patentable and what not.

They are laid down in the European Patent Convention of 1973. In Article 52, the Convention states that mathematical methods, intellectual methods, business methods, computer programs, presentation of information etc are not inventions in the sense of patent law. There is a systematic reason for that: in the legal tradition patents have been for concrete applications of natural science (technical inventions), whereas patents on software cover abstract ideas. When patents are applied to software, the result is such that instead of patenting a specific mousetrap, you patent any "means of trapping mammals" (or, for an actual example, any means of trapping data in an emulated environment).

In 1986 the European Patent Office (EPO) started granting patents that were directed to computer programs but presented in the guise of process claims, typically phrased as follows:

1. process for [using general-purpose computing equipment], characterised by ...

The patents granted on this basis were considered as hypothetical, because the program as such, when distributed on a disk or via the Internet, did not constitute a process and was not an invention. To resolve this ambiguity, the European Patent Office took the final step toward patentability of pure software in 1998 by authorising program claims, i.e. claims of the following form:

2. computer program, characterised by that [with its help a process according to claim 1 can be executed].

Hmmm... "computer program characterised by ..." Microsoft's two new patents, with a minor tweak, would seem to qualify, no? They both begin, "a method or process for". Call them instead "a computer program characterised by", and they are off and running. Of course, they are too clever to apply now in Europe. It might tip off everybody there as to the big picture. First they get software patents permitted, and *then* they apply for patents on a compiler and a debugger/editor.

EU? Are you paying attention? I hope so. Do you want GNU/Linux to be available to you or not? If you do, please read these patents, think about your backdoor patent arrangement and the whole software patents question, and connect the dots, before it is too late. We who love GNU/Linux software are counting on you.


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