Software Patent of the Week: Patents In Outer Space!

by on August 5, 2006 · 28 comments

Let’s say you’ve got a satellite with which you want to transmit video programming. And let’s say that, in addition to providing subscribers with live television programming, you want to provide your subscribers with relatively rapid access to a large library of pre-recorded video content. Your satellite doesn’t have enough bandwidth to stream each video to each customer in real time, so you’ve got to figure out a way to get the videos to as many customers as possible as quickly as possible. How would you do that?

Well, since we stipulated that you don’t have enough bandwidth to stream everyone’s videos to them in real time, the receiving devices will need some local storage so they can store the files until the user is ready to view them. You’ll want to transmit more popular items more frequently in order to minimize how long the user will have to wait until his desired program is transmitted. And you’ll want a mechanism for customers to communicate back to the satellite to request transmission of content that’s not on the regular rotation. Less-popular content can be beamed overnight, when the demand on the satellite is less.

And surprise, the preceding paragraph describes patent #5,404,505, which was granted to the Finisar Corporation back in 1995.


It seems to me that if you’ve got a satellite and you want to use it for “on demand” style programming, the elements of this patent are pretty obvious to people with no technical background whatsoever. Actually implementing such a system is, of course, difficult, but it’s not difficult to come up with the general strategy this patent describes.

Yet Finisar seems to believe that this patent entitles it, not just to a share of the revenue of satellite TV companies, but to decide who may use its “technology” at all.

What’s pernicious about patents like this is that precisely because they’re so obvious they tend to give companies control over not just a particular “invention,” but over entire industries. Finisar’s patent is so vague that any reasonable implementation of on-demand satellite video is likely to infringe it. By the same token, NTP’s “invention” of checking your email wirelessly effectively allows them to extort money from the entire wireless device market. If the obviousness standard were more strictly enforced, not only would fewer patents be granted, but the ones that did would be less likely to give companies arbitrary monopolies over large sectors of the economy.

Luckily, the judge injected a dose of sanity into the case and rejected Finisar’s request for an injunction, allowing DirectTV to continue to use the “technology” upon payment of judicially-determined royalties. Still, a better solution would have been for the Patent Office to reject this obvious patent in the first place.

You can see previous installments in the Software Patent of the Week series here.

  • Steve R.

    Since the words “outer space” popped-up and anti-gravity is a popular concept in outer space, I am reminded of Discover Magazine’s article “Whatever Happened To
    Whatever Happened to Antigravity Research?”
    by Alex Stone (April 2006).

    Mr. Stone wrote: “But the idea won’t die. Last November a Russian physicist received a U.S. patent for an antigravity craft, and then the American Institute of Aeronautics and Astronautics gave an award to two German scientists for inventing a hyperdrive motor capable of Star Trek speeds. These proposed devices, like their predecessors, aim to cancel gravity by wrapping an object in superconducting coils to generate a magnetic field so strong that it warps space. Experiments have failed to back this theory.”

    Besides the obvious question, of how a patent can possibly be granted for a technology that does not yet work, is the question of what happens if someone actually makes a workable anti-gravity device? Will that unnamed Russian physicist actually claim patent infringement?

    Given today’s predilections for using lawsuits as a means of alleging intellectual property ownership (no matter how dubious), the answer would be yes. Clearly, the potential of a threatening lawsuit would have a chilling effect on those wishing to pursue anti-gravity research. If research is discouraged, because of the lawsuit potential, that would delay the development of this nifty technology (assuming it is possible)that would have many useful commercial implications.

  • Steve R.

    After posting, I realized that this is the APRIL edition of Discover Magazine. In celebration of Apirl 1st, they have been known to fabric spoof articles that appear serious. So I hope that my gullibillity index didn’t take a hit.

  • Steve R.

    Since the words “outer space” popped-up and anti-gravity is a popular concept in outer space, I am reminded of Discover Magazine’s article “Whatever Happened To
    Whatever Happened to Antigravity Research?”
    by Alex Stone (April 2006).

    Mr. Stone wrote: “But the idea won’t die. Last November a Russian physicist received a U.S. patent for an antigravity craft, and then the American Institute of Aeronautics and Astronautics gave an award to two German scientists for inventing a hyperdrive motor capable of Star Trek speeds. These proposed devices, like their predecessors, aim to cancel gravity by wrapping an object in superconducting coils to generate a magnetic field so strong that it warps space. Experiments have failed to back this theory.”

    Besides the obvious question, of how a patent can possibly be granted for a technology that does not yet work, is the question of what happens if someone actually makes a workable anti-gravity device? Will that unnamed Russian physicist actually claim patent infringement?

    Given today’s predilections for using lawsuits as a means of alleging intellectual property ownership (no matter how dubious), the answer would be yes. Clearly, the potential of a threatening lawsuit would have a chilling effect on those wishing to pursue anti-gravity research. If research is discouraged, because of the lawsuit potential, that would delay the development of this nifty technology (assuming it is possible)that would have many useful commercial implications.

  • Steve R.

    After posting, I realized that this is the APRIL edition of Discover Magazine. In celebration of Apirl 1st, they have been known to fabric spoof articles that appear serious. So I hope that my gullibillity index didn’t take a hit.

  • Noel

    Tim, while entertaining, your patent section would be more interesting if you did more than criticize some outlying patents. Why not actually address the substantive issues. What you’re doing now is addressing over and over one issue that all agree on: the need to assure patent quality.

  • http://www.techliberation.com/ Tim Lee

    Noel,

    Thanks for commenting! The question I’m exploring is a little bit more specific than that: is there such a thing as a high-quality software patent? My working thesis is that there isn’t such a thing, and so far, I’ve yet to see a single example to the contrary.

    I haven’t been cherry-picking outliers here. I’ve pretty much been typing “software patent” into Google News and examining the most prominent software patent dispute in the preceding week. If you can point me to an example of a software patent that you think is particularly solid and of high quality, I would be thrilled to feature it as this week’s software patent of the week. You can post the example here, or email me at tlee –at– showmeinstitute.org. Thanks!

  • Noel

    Tim, while entertaining, your patent section would be more interesting if you did more than criticize some outlying patents. Why not actually address the substantive issues. What you’re doing now is addressing over and over one issue that all agree on: the need to assure patent quality.

  • http://www.techliberation.com/ Tim Lee

    Noel,

    Thanks for commenting! The question I’m exploring is a little bit more specific than that: is there such a thing as a high-quality software patent? My working thesis is that there isn’t such a thing, and so far, I’ve yet to see a single example to the contrary.

    I haven’t been cherry-picking outliers here. I’ve pretty much been typing “software patent” into Google News and examining the most prominent software patent dispute in the preceding week. If you can point me to an example of a software patent that you think is particularly solid and of high quality, I would be thrilled to feature it as this week’s software patent of the week. You can post the example here, or email me at tlee –at– showmeinstitute.org. Thanks!

  • http://weblog.ipcentral.info/ Noel

    Any way we can look at some of the patents IBM donated to the open source folks?

  • http://weblog.ipcentral.info/ Noel

    Any way we can look at some of the patents IBM donated to the open source folks?

  • http://www.techliberation.com/ Tim

    An excellent idea! Is there a particular patent you’d like me to look at, or shall I choose one at random?

  • Ned Ulbricht

    My understanding is that the 5,442,758 patent, (issued August 15, 1995, and assigned to Sequent before acquisition by IBM), was licensed rather than donated. But if that’s close enough, then here’s a starting point.

  • http://www.techliberation.com/ Tim

    An excellent idea! Is there a particular patent you’d like me to look at, or shall I choose one at random?

  • Ned Ulbricht

    My understanding is that the 5,442,758 patent, (issued August 15, 1995, and assigned to Sequent before acquisition by IBM), was licensed rather than donated. But if that’s close enough, then here’s a starting point.

  • http://www.codemonkeyramblings.com MikeT

    Ned’s patent doesn’t seem to be particularly patent-worthy based on the quick look I took at it. Then again, most software patents, the vast majority in fact, fit that definition.

  • http://www.codemonkeyramblings.com MikeT

    Ned’s patent doesn’t seem to be particularly patent-worthy based on the quick look I took at it. Then again, most software patents, the vast majority in fact, fit that definition.

  • http://weblog.ipcentral.info/ Noel

    Well, Mike, its expired, so let it rest at peace. In any case, I’ll look around, but I still propose that patents currently licensed or the subject of litigation are the most interesting as far as Tim’s purposes go. Otherwise, Tim, you’re just calling out either economically and technologically worthless patents, or merely stirring up patent trolls…

  • http://www.techliberation.com/ Tim Lee

    Almost all of the patents I’ve looked at to date have been the subject of current (or recent at any rate) litigation. The only exceptions are the Friendster and Nintendo patents, both of which were widely cited in the media, including your co-blogger Jim Delong in the later case.

  • http://weblog.ipcentral.info/ Noel

    OK, so the question now, of the patents you’ve considered, have any of them been re-examined by the USPTO, and roughly what kind of money rests on them. I’d really like to hear you say “here’s a bad patent that the USPTO re-examined and confirmed as a valid patent” or “here’s a bad patent upheld by the court for $100m.”

  • http://weblog.ipcentral.info/ Noel

    Well, Mike, its expired, so let it rest at peace. In any case, I’ll look around, but I still propose that patents currently licensed or the subject of litigation are the most interesting as far as Tim’s purposes go. Otherwise, Tim, you’re just calling out either economically and technologically worthless patents, or merely stirring up patent trolls…

  • http://www.techliberation.com/ Tim Lee

    Almost all of the patents I’ve looked at to date have been the subject of current (or recent at any rate) litigation. The only exceptions are the Friendster and Nintendo patents, both of which were widely cited in the media, including your co-blogger Jim Delong in the later case.

  • http://weblog.ipcentral.info/ Noel

    OK, so the question now, of the patents you’ve considered, have any of them been re-examined by the USPTO, and roughly what kind of money rests on them. I’d really like to hear you say “here’s a bad patent that the USPTO re-examined and confirmed as a valid patent” or “here’s a bad patent upheld by the court for $100m.”

  • http://www.techliberation.com/ Tim Lee

    Well the patent I examine in this post is an example of a bad patent that was upheld by the courts, was it not? I don’t know if the patent was challenged before the patent office, but the court upheld it and ordered DirectTV to pay Finisar several million dollars.

    Part of my point, though, is that I think the patent office uses a weird, legalistic, and highly restrictive notion of obviousness that rests largely on the existence of documented prior art. I’ve discussed this with a number of actual programmers, (who would be “of ordinary skill in the art” of computer programming) and almost all of them consider almost every software patent they’ve seen to be obvious. The patent office, however, doesn’t seem to rule that way. I’m not sure why that is exactly, but I think the first step to fixing the problem is to demonstrate the scope of the problem–which, in my opinion–is that virtually all software patents ought to have been rejected as obvious.

  • http://weblog.ipcentral.info/ Noel

    Yes, I understand your issue on the obviousness standard. One thing I’d like to point out though is that the level of abstraction (or, more likely generality) at which a patent claim is made is often obvious to those well versed and practiced in the art. However, its important not to confuse “obviousness” with “comprehension.” Simply because you comprehend something does not make it obvious in the patent context meaning. Further, the way you describe lack of obviousness conferring monopoly rights over entire industries for existing software patents implies that courts cannot interpret patents narrowly, well within the actual (obvious) patent claim.

    I’m on your side with raising the standard for obviousness, but I think there’s some flexibility in the courts and USPTO (re)examaination process to efficiently address bad patents rather than merely invalidating them across the board.

  • http://www.techliberation.com/ Tim Lee

    Well the patent I examine in this post is an example of a bad patent that was upheld by the courts, was it not? I don’t know if the patent was challenged before the patent office, but the court upheld it and ordered DirectTV to pay Finisar several million dollars.

    Part of my point, though, is that I think the patent office uses a weird, legalistic, and highly restrictive notion of obviousness that rests largely on the existence of documented prior art. I’ve discussed this with a number of actual programmers, (who would be “of ordinary skill in the art” of computer programming) and almost all of them consider almost every software patent they’ve seen to be obvious. The patent office, however, doesn’t seem to rule that way. I’m not sure why that is exactly, but I think the first step to fixing the problem is to demonstrate the scope of the problem–which, in my opinion–is that virtually all software patents ought to have been rejected as obvious.

  • http://weblog.ipcentral.info/ Noel

    Yes, I understand your issue on the obviousness standard. One thing I’d like to point out though is that the level of abstraction (or, more likely generality) at which a patent claim is made is often obvious to those well versed and practiced in the art. However, its important not to confuse “obviousness” with “comprehension.” Simply because you comprehend something does not make it obvious in the patent context meaning. Further, the way you describe lack of obviousness conferring monopoly rights over entire industries for existing software patents implies that courts cannot interpret patents narrowly, well within the actual (obvious) patent claim.

    I’m on your side with raising the standard for obviousness, but I think there’s some flexibility in the courts and USPTO (re)examaination process to efficiently address bad patents rather than merely invalidating them across the board.

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