Sloppy Reporting on Patent Cases

by on March 1, 2007 · 20 comments

EFF linked to this summary of Microsoft v. AT&T which, unfortunately, completely misunderstands the thrust of the case:

AT&T’s position is that its speech recognition software is protected by US patent, on the grounds that it constitutes a “component of a patented invention.” Microsoft was apparently granted license to utilize that software in the US, but AT&T contends that the duplication of that software outside of US boundaries, with the intent to sell the duplicates overseas, is a violation of that license. That view was upheld by the Federal Court of Appeals, and Microsoft is appealing that decision…

Olson built a case against AT&T’s position: For foreign replication to work, a golden disk is shipped abroad to the replication service, containing the master of the Vista operating system that includes AT&T’s drivers. It’s not software at that point, Olson says, because no one can execute it. When it’s installed onto a hard drive, then it becomes software, and it’s the end customer who does that.
If you accept that argument, Olson’s case goes on, then Microsoft did not copy AT&T’s software. And since the physical components – the hard drive, processor, and optical drive – necessary for the copying process to happen may or may not have been supplied by manufacturers in the US, then US courts may not have jurisdiction anyway.


This is confused on a number of levels, but the most fundamental error—and, frankly, the one that causes people to be a lot more sympathetic to software patents than they ought to be—is that Microsoft is accused of copying AT&T’s software. AT&T has never claimed that Microsoft’s software is in any way derived from AT&T software. They certainly don’t claim that Microsoft bundled AT&T drivers with Windows. If that were the case, AT&T would have an open-and-shut case under copyright law.

The claim, rather, is that some of the functionality of Microsoft’s software matches the claims in AT&T’s patents. This does not mean that Microsoft based its software on AT&T’s designs. It’s quite common for one company to patent an idea like “one click shopping” or “wireless email” and then for another company to have the misfortune of inadvertently developing a product that falls within the scope of the patent.

Although journalists certainly should do their homework, I don’t think it’s entirely fair to blame Beta News for the oversight. You frequently see stories on patent cases in which it says that Company A is accused of “stealing company B’s technology,” as thought they broke into company A’s offices and stole their blueprints. But in fact, in most cases, the only “technology” they share is a vague description in a patent application, such as “one click shopping” or “wireless email.” In many cases, the infringing company is not even aware of the original company’s products or patents until they’ve already released it and get a nasty-gram from the company’s patent lawyers.

I think that if journalists did a better job of explaining that, there would be a lot less public sympathy for the current patent system, and for patent trolls like NTP. People are naturally sympathetic to the plucky inventor who invents something and then has a big company copy his design without paying something for it. But in reality, that seems to happen pretty rarely. Far more common are inventors like Donald Stout who invent something, patent it, fail in the marketplace, and then start suing anyone who happens to have a similar product, regardless of whether the technology was developed independently or not. I think the general public would be far less sympathetic to patent trolls if that were clearly understood, and journalists writing about patent cases should do a better job of conveying that to the reader.

If you’ll forgive the shameless self-promotion, I think my write-up for Ars did a better job of explaining the legal issues in the case.

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

    ***This is confused on a number of levels, but the most fundamental error—and, frankly, the one that causes people to be a lot more sympathetic to software patents than they ought to be***

    Great to see you taking my advice Tim, and especially because you wrote a whole self-promoting post on taking my advice. I only told you at least 3 times coping is not necessarily pertinent when it comes to patents. Most recently, I gave this feedback to your American patent article.

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

    ***This is confused on a number of levels, but the most fundamental error—and, frankly, the one that causes people to be a lot more sympathetic to software patents than they ought to be***

    Great to see you taking my advice Tim, and especially because you wrote a whole self-promoting post on taking my advice. I only told you at least 3 times coping is not necessarily pertinent when it comes to patents. Most recently, I gave this feedback to your American patent article.

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

    Here are the posts (without hyperlinks in order to avoid the TLF spam filter):

    1) TLF Post: Copying Innovation is Hard
    2) TLF Post: But What Are Software Patents Good For? (where you famously noted that copying can be competition)
    3) IPcentral Post: Patently Ridiculous, Really

    Now, I’m not trying to claim that you are misinformed or newly informed Tim, I’m just suggesting that you probably should go easier on EFF and Beta News for making a, well, reasonable mistake.

    Also, good job correcting Donald (not David) Stout’s name. He needs all the press hits:)

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

    Here are the posts (without hyperlinks in order to avoid the TLF spam filter):

    1) TLF Post: Copying Innovation is Hard
    2) TLF Post: But What Are Software Patents Good For? (where you famously noted that copying can be competition)
    3) IPcentral Post: Patently Ridiculous, Really

    Now, I’m not trying to claim that you are misinformed or newly informed Tim, I’m just suggesting that you probably should go easier on EFF and Beta News for making a, well, reasonable mistake.

    Also, good job correcting Donald (not David) Stout’s name. He needs all the press hits:)

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

    Noel, do you have some kind of personal vendetta against me? If you’re going to play these ridiculous games of “gotcha,” you should at least make sure you understand the posts you criticize. Let me quote from the second post you cite above:

    It’s certainly true that patents provide “more certain protection against the copying of the function of a program more broadly.” But it’s far from obvious that “protection against copying” is always desirable. Outside the patent context, such copying is often known as “competition,” and public policy generally aims to enhance it.

    Let me see if I can spell this out for you: Copyright covers the actual string of 1s and 0s that make up a particular piece of software against copying. Patents cover the “function of a program more broadly” against copying.

    Now, in the posts you reference above, I’m clearly talking about copying in the latter sense. And in this post, when I talk about “copying,” I’m clearly talking about it in the former sense—the actual 1s and 0s. The problem here isn’t that I don’t understand patent law, it’s that you seem to be going out of your way to misunderstand what I write.

    Also I can’t believe you’re referring people to your post on my Teleflex article, which is probably the most embarrassingly clumsy hit piece you’ve ever written about me. If I were you, I would try to keep people as far away from that post as possible to spare myself any further embarrassment.

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

    Noel, do you have some kind of personal vendetta against me? If you’re going to play these ridiculous games of “gotcha,” you should at least make sure you understand the posts you criticize. Let me quote from the second post you cite above:

    It’s certainly true that patents provide “more certain protection against the copying of the function of a program more broadly.” But it’s far from obvious that “protection against copying” is always desirable. Outside the patent context, such copying is often known as “competition,” and public policy generally aims to enhance it.

    Let me see if I can spell this out for you: Copyright covers the actual string of 1s and 0s that make up a particular piece of software against copying. Patents cover the “function of a program more broadly” against copying.

    Now, in the posts you reference above, I’m clearly talking about copying in the latter sense. And in this post, when I talk about “copying,” I’m clearly talking about it in the former sense—the actual 1s and 0s. The problem here isn’t that I don’t understand patent law, it’s that you seem to be going out of your way to misunderstand what I write.

    Also I can’t believe you’re referring people to your post on my Teleflex article, which is probably the most embarrassingly clumsy hit piece you’ve ever written about me. If I were you, I would try to keep people as far away from that post as possible to spare myself any further embarrassment.

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

    Tim, the piece about you on Teleflex reported on your handling of the context surrounding an important Supreme Court case, where you tried to show your expertise after insulting a professor on the legal team based on a powerpoint. If you don’t get that, well, now I understand your recent writings on Jane Ginsburg, F. Scott Kieff (in which you made Ed Felten look bad, not Professor Kieff), and Richard Epstein.

    And yes, the Teleflex piece was no less clumsy than the Cato paper, which you can’t even defend.

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

    Tim, the piece about you on Teleflex reported on your handling of the context surrounding an important Supreme Court case, where you tried to show your expertise after insulting a professor on the legal team based on a powerpoint. If you don’t get that, well, now I understand your recent writings on Jane Ginsburg, F. Scott Kieff (in which you made Ed Felten look bad, not Professor Kieff), and Richard Epstein.

    And yes, the Teleflex piece was no less clumsy than the Cato paper, which you can’t even defend.

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

    Oh, and no, I don’t have any vendetta against you at all. I think I’ve engaged you in a valuable way so that you articulate some ideas more carefully now. So, no, no vendetta, if that is the question. This was an odd question, to be honest.

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

    Oh, and no, I don’t have any vendetta against you at all. I think I’ve engaged you in a valuable way so that you articulate some ideas more carefully now. So, no, no vendetta, if that is the question. This was an odd question, to be honest.

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

    You tried to show your expertise after insulting a professor on the legal team based on a powerpoint

    I don’t want to get dragged into this swamp of an argument again, but just in case any readers are confused about this: the “insult” to professor Duffy occurred several months before I wrote the Teleflex article and was on a completely different subject.

    And I have no idea what point you’re making here. That I’m not ever allowed to criticize the ideas of people who have greater expertise than me?

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

    You tried to show your expertise after insulting a professor on the legal team based on a powerpoint

    I don’t want to get dragged into this swamp of an argument again, but just in case any readers are confused about this: the “insult” to professor Duffy occurred several months before I wrote the Teleflex article and was on a completely different subject.

    And I have no idea what point you’re making here. That I’m not ever allowed to criticize the ideas of people who have greater expertise than me?

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

    Tim, read above. I think you took my post the wrong way. I was NOT criticizing you for any lack of expertise, and I was not implying that. If thats what was on my mind, you know I would just say it. There is no point beating around the bush or waling on egg shells.

    Rather, I was saying that you should go easy on EFF and Beta News.

    And I called your post self-promoting because YOU said it was so at the end of the post.

    We’ll talk about function copying in patents the next time you write about AT&T v Microsoft, and how your comments above suggest that software patents may be patents for functionality enabled by software:)

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

    Tim, read above. I think you took my post the wrong way. I was NOT criticizing you for any lack of expertise, and I was not implying that. If thats what was on my mind, you know I would just say it. There is no point beating around the bush or waling on egg shells.

    Rather, I was saying that you should go easy on EFF and Beta News.

    And I called your post self-promoting because YOU said it was so at the end of the post.

    We’ll talk about function copying in patents the next time you write about AT&T; v Microsoft, and how your comments above suggest that software patents may be patents for functionality enabled by software:)

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

    Noel, I meant I have no idea what point you were making with respect to my criticisms of Duffy and others.

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

    Noel, I meant I have no idea what point you were making with respect to my criticisms of Duffy and others.

  • http://www.pff.org Noel Le

    Tim, your discussion and analysis can appear dismissive at times; the figures I mention above are not so extreme as to be casually dismissed, even if you disagree w/ them.

  • http://www.pff.org Noel Le

    Tim, your discussion and analysis can appear dismissive at times; the figures I mention above are not so extreme as to be casually dismissed, even if you disagree w/ them.

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

    When did I “casually dismiss” any of them?

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

    When did I “casually dismiss” any of them?

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