Software Patent of the Week: Activating Perverse Incentives

by on August 24, 2006 · 10 comments

Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. This week’s patent received extensive publicity this week when a judge slapped a $25 million fine on Microsoft for “misconduct,” including treating the patent holder, z4 Technologies, as “a small and irrelevant company that was not worthy of Microsoft’s time and attention.” Which as far as I can tell, it was, aside from the fact that it happened to have a patent on the kind of copy protection Microsoft uses in Windows XP.

There are two closely related patents at issue. The older of the two is Patent #6,044,471, “Method and apparatus for securing software to reduce unauthorized use.” (Strangely enough, the other patent was filed in 2002 and issued in 2004. It’s hard to see how Windows XP, released in 2001, could infringe it.)


Here’s the patent abstract:

A method and apparatus for securing software to reduce unauthorized use include associating a password or series of passwords with each copy of group of authorized software and requiring entry of a first password obtained from the developer or authorized representative of the software after exchanging registration information. The method and apparatus may also subsequently require entry of a second password from the series associated with the software to continue using the software. A password or authorization code series may be associated with each authorized copy or with a group of copies such as those distributed to a particular organization or site. Preferably, subsequent passwords or authorization codes are obtained from an authorized software developer, manufacturer, or distributor which gathers current information from the user to monitor compliance with licensing restrictions. The number and frequency of required password updates may be regular or irregular depending upon the application, user, or software manufacturer. A code which disables the software may be communicated if the manufacturer determines that the user is an unauthorized user.

To put this in plan English, this patent claims the concept of requiring a user to call in to the company that made a software product in order to get a password that will make software work. Of course, the patent covers the oh-so-innovative additional steps of requiring passwords multiple times at specified intervals, and of keeping track of registrations to make sure no funny business is going on. But still: that’s an incredibly obvious “invention,” if it can be described as an invention at all.

Looking at the body of the patent, there’s really no “there” there. It basically repeats the abstract, only in excruciating detail. But it’s not technically helpful detail. To wit:

The password or authorization code is communicated to the software as represented by block 84 to make the software operational on the end user’s computer. This may be performed automatically, without user intervention, or manually when initiated by the user using various communication channels, such as regular mail, email, web browser, direct modem connection, etc. The method may optionally require periodic updates at regular, irregular, or random intervals based on elapsed running time, calendar time, or the like, as represented by block 86. The software may prompt the user when the end of the authorization period is approaching to provide an opportunity to obtain a subsequent authorization code for continued use of the software.

These details are, if anything, even more obvious than the general concept described in the abstract. Obviously if you’re going to transmit the password to the software, you’re going to do it via some “communication channel.” Obviously, you might require “periodic updates at regular, irregular, or random intervals.” These aren’t even implementation details–they’re just legal diarrhea designed to fill up space while making the scope of the patent as broad as possible. The actual difficult parts–for example, how you design the software to be resistant to tampering–are barely mentioned at all.

Why should we care? Because incentives matter. The guy in Michigan who “invented” this “technology” has netted a cool $160 million for his trouble. That sends a powerful signal to smart, ambitious young people across the country: if you want to get rich, don’t bother inventing something innovative and selling it in the marketplace. That’s for suckers! The real money is in filing tons of vague, over-broad patents and hoping a large company stumbles onto one of them.

The result will be that the salaries of patent attorneys will be (further) inflated, thereby diverting people who might otherwise do something useful with their lives into careers writing useless software patents. More engineers will be pressured or bribed into putting useful work on hold so they can assist the patent lawyers. The result is that society gets less useful technology, and instead gets more patents describing “inventions” that almost certainly would have been invented anyway.

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

    Is this an instance of a patent troll?!

    This should give you open source folks some hope. Now, imagine that you have a patent, not just any patent, but an obvious patent. Its going to cost you money to enforce it (I think the average cost of litigating a patent is around $2M but that figure might be outdated). So who do you go after? You go after the big guy with the cash, like Microsoft, or even a competitor. Why not go after a smaller player? Well, what would you gain from that, are you going to prove you’re right and that they’re infringers? I’ve not heard of anyone enforcing a patent just for the sake of validating it.

    ***Strangely enough, the other patent was filed in 2002 and issued in 2004. It’s hard to see how Windows XP, released in 2001, could infringe it***

    Interesting. Perhaps a submarine continuation…

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

    Is this an instance of a patent troll?!

    This should give you open source folks some hope. Now, imagine that you have a patent, not just any patent, but an obvious patent. Its going to cost you money to enforce it (I think the average cost of litigating a patent is around $2M but that figure might be outdated). So who do you go after? You go after the big guy with the cash, like Microsoft, or even a competitor. Why not go after a smaller player? Well, what would you gain from that, are you going to prove you’re right and that they’re infringers? I’ve not heard of anyone enforcing a patent just for the sake of validating it.

    ***Strangely enough, the other patent was filed in 2002 and issued in 2004. It’s hard to see how Windows XP, released in 2001, could infringe it***

    Interesting. Perhaps a submarine continuation…

  • Mike

    Typical software patent. Who’s surprised anymore? Though I’m not necessarily a fan of Microsoft, I really hate to see anyone victimized by software patents.

    One word solution: moratorium.

  • Mike

    Typical software patent. Who’s surprised anymore? Though I’m not necessarily a fan of Microsoft, I really hate to see anyone victimized by software patents.

    One word solution: moratorium.

  • http://www.WikiPatents.com/ Kevin

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    has a responsibility to do everything it can to improve America’s patent
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    putting forth quality and efficiency proposals for the patent community
    to give us feedback,” said Under Secretary of Commerce for Intellectual
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    focus on quality of applications and closure of the examination process
    will provide more certainty. Everyone agrees that better quality input
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    merits of issued patents, the WikiPatents Community provides an
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    Anyone can join the WikiPatents Community for free and voice concerns,
    praise, comments, and opinions on any issued patent. As a member, you
    can:

    - Add prior art, and vote and comment on its relevancy and implications
    - Add relevant links and other useful resources
    - Promote specific patents by linking them to social news, bookmarking,
    and networking sites
    - Comment and vote on the legal strength and technical merits of patents
    - Value patents by calculating market size, market share, and reasonable
    royalties
    - Discuss licensing options
    - Add relevant information about the inventor(s) and/or owner(s) of
    patents
    - Comment on the legal strength and technical merits of patents
    - Download free patent PDFs.

    WikiPatents has exciting plans beyond its initial “beta launch” to
    improve and expand the site into a thriving community of public
    commentary on patents and pending patent applications. Please support
    the site’s launch by adding your comments to a patent of interest.

  • http://www.WikiPatents.com/ Kevin

    Announcing… WikiPatents.com – Community Patent Review! WikiPatents
    recently became the first and only web site to enable organized public
    comment on issued patents and, soon, pending patent applications.
    WikiPatents was developed to strengthen the U.S. patent system by
    providing increased visibility into the legal strength, technical
    merits, and market aspects of each patent through public comment.
    Through our combined support and participation, WikiPatents will become
    an indispensable resource to increase certainty for patent Examiners,
    law firms, future litigants, licensees, potential investors, inventors,
    and patent owners.

    The WikiPatents Community was established largely in response to the
    USPTO’s recent focus on improving patent quality. “The USPTO clearly
    has a responsibility to do everything it can to improve America’s patent
    system. That is why we are undertaking this collaborative approach -
    putting forth quality and efficiency proposals for the patent community
    to give us feedback,” said Under Secretary of Commerce for Intellectual
    Property Jon Dudas. “Applicants and the public deserve certainty. This
    focus on quality of applications and closure of the examination process
    will provide more certainty. Everyone agrees that better quality input
    will result in a better quality end product.” (See
    http://www.uspto.gov/web/offices/com/speeches/0…) By adding and
    voting on overlooked prior art and submitting public comments on the
    merits of issued patents, the WikiPatents Community provides an
    invaluable resource to patent Examiners reviewing related pending
    applications.

    Anyone can join the WikiPatents Community for free and voice concerns,
    praise, comments, and opinions on any issued patent. As a member, you
    can:

    - Add prior art, and vote and comment on its relevancy and implications
    - Add relevant links and other useful resources
    - Promote specific patents by linking them to social news, bookmarking,
    and networking sites
    - Comment and vote on the legal strength and technical merits of patents
    - Value patents by calculating market size, market share, and reasonable
    royalties
    - Discuss licensing options
    - Add relevant information about the inventor(s) and/or owner(s) of
    patents
    - Comment on the legal strength and technical merits of patents
    - Download free patent PDFs.

    WikiPatents has exciting plans beyond its initial “beta launch” to
    improve and expand the site into a thriving community of public
    commentary on patents and pending patent applications. Please support
    the site’s launch by adding your comments to a patent of interest.

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