Keeping politicians' hands off the Net & everything else related to technology
Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. There haven’t been any major patent controversies this week, so our patent of the week comes from last November. VoiceSignal Technologies has sued Nuance Communications over its voice patent. I’ll discuss the patent below the fold.
Ryan Paul at Ars has a fantastic illustrated timeline of the Microsoft/Novell deal and the subsequent flamewar among tech companies. Here’s his conclusion:
Now that the steady stream of accusations has died down, the implications of the deal are beginning to become more apparent. Although Ballmer validated the critics’ concerns with unsubstantiated patent infringement claims, the claims themselves haven’t negatively affected Linux adoption. Microsoft has been making baseless claims about Linux since 2004, and it seems apparent at this point that few outside of the Linux community really take those claims seriously. It is ironic that the Linux community itself raised the profile of Ballmer’s patent infringement assertion and perpetuated its relevance with such a vehement response. Regardless of the motivations behind Ballmer’s actions, the most detrimental consequence of the entire deal and subsequent fallout is the fragmentation that has resulted from the prevailing divisive attitude that it has engendered in members of the Linux community.
The success of the Linux operating system is largely predicated on the collaboration of the Linux development community, and this petty squabbling impedes that collaboration. What the corporate executives of these companies have declared, with stentorian vehemence, is that they are all abundantly willing to abandon collaboration and take advantage of each other whenever it is convenient.
You should check out the rest of it for the pictures, if nothing else.
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, my starting point is this story reporting that one of National Instruments’ patents on its LabVIEW software has been upheld. I have not been able to determine for certain which patent was upheld, but I’ve arbitrarily chosen this one as a likely candidate. If anyone knows for sure which patent was upheld, or how I can look that up, please let me know.
Here’s the abstract for this week’s patent:
A method for programming a computer to execute a procedure, is based on a graphical interface which utilizes data flow diagrams to represent the procedure. The method stores a plurality of executable functions, scheduling functions, and data types. A data flow diagram is assembled in response to the user input utilizing icons which correspond to the respective executable functions, scheduling functions, and data types which are interconnected by arcs on the screen. A panel, representative of an instrument front panel having input and output formats is likewise assembled for the data flow diagram. An executable program is generated in response to the data flow diagram and the panel utilizing the executable functions, scheduling functions, and data types stored in the memory. Furthermore, the executable functions may include user defined functions that have been generated using the method for programming. In this manner, a hierarchy of procedures is implemented, each represented by a data flow diagram.
Lawrence Ebert says that my American article didn’t quite get the Federal Circuit’s obviousness test right:
Of the “specific documentation” point, Lee wrote: “[The CAFC] held that when a patent covers the combination of two elements, it can be declared obvious only if someone can produce another patent, an academic paper, or other formal documentation that pre-dated the patent application and had a specific ‘teaching, suggestion, or motivation’ to combine the elements in the manner described.”
Lee is wrong in stating that specific documentation must be found. In the CAFC case of In re Kotzab, decided in the year 2000 long before KSR v. Teleflex, the CAFC wrote:
“the teaching, motivation, or suggestion may be implicit from the prior art as a whole. rather than expressly stated in the references… In re Kotzab, 217 F.3d 1365, 1370 (CAFC 2000)”
I stand corrected. Mr. Ebert has a JD and I do not, and he doubtless knows this area of the law much better than I do. In my defense, however, I think I’m in good company: in oral arguments, the Supreme Court justices seemed pretty confused by the Federal Circuit’s precedents themselves. If Justice Breyer finds the TSM test confusing, I don’t feel too bad about getting it wrong myself.
In any event, I appreciate Mr. Ebert’s taking he time to point this out.
Ordinarily, my software patent series focuses on patents that have been granted by the patent office and the subject of litigation. I’m going to break that pattern this week because reader Richard Bennett pointed to one of his own patent applications as an example of a worthwhile software patent. Since I frequently ask supporters of software patents to point out a good one (a request that’s almost always ignored) I thought I’d analyze Bennett’s patent application to see what we can learn. Below the cut are my thoughts on it.
Over at IPCentral, Jim DeLong quotes a lengthy critique of the SFLC brief in the Microsoft v. AT&T case. The critique was written by one Greg Aharonian. A lot of it is the kind of legal inside baseball that I’m not really qualified to comment on, but there’s one theme that runs throughout the critique that’s just flatly wrong:
The first lie of Moglen’s brief is a big lie of omission. Nowhere in his brief does there appear the word “hardware”. It is unethical to talk about the patentability of software without simultaneously talking about the patentability of hardware, especially in light of hardware/software codesigns tools. And even using the word “hardware” is pointless unless you provide rigorous definitions of “hardware” and “software”. Moglen doesn’t. So when Moglen bases his software patent hatred on Benson:
“The holding of Benson is properly applicable to all software, because a computer program, no matter what its function, is nothing more or less than the representation of an algorithm.”
as well, he is arguing hardware patent hatred:
“The holding of Benson is properly applicable to all hardware, because a digital circuit, no matter what its function, is nothing more or less than the representation of an [Boolean] algorithm.”
This is silly. I would be very interested to see the boolean algorithm that is equivalent to, say, an LCD panel. Some characteristics of hardware can be described as equivalent to software algorithms, but other aspects (such as, say, the ability to display information to the user) cannot.
Every week (more or less), I look at a software patent that’s been in the news. You can see previous installments in the series here. There haven’t been any big patent disputes in the news the last couple of weeks, so this week we’ll look at a patent that’s at the center of a lawsuit that was filed last August by Altnet against Streamcast. You can read about the long and tangled history of the two companies in the link above.
Here is one of the patents at issue in the case. It covers “Data processing system using substantially unique identifiers to identify data items, whereby identical data items have the same identifiers.” Here’s a description of how the patent differs from prior art:
In all of the prior data processing systems the names or identifiers provided to identify data items (the data items being files, directories, records in the database, objects in object-oriented programming, locations in memory or on a physical device, or the like) are always defined relative to a specific context. For instance, the file identified by a particular file name can only be determined when the directory containing the file (the context) is known. The file identified by a pathname can be determined only when the file system (context) is known. Similarly, the addresses in a process address space, the keys in a database table, or domain names on a global computer network such as the Internet are meaningful only because they are specified relative to a context.
I’m excited to report that the good folks at Ars Technica, probably the best source of in-depth technology news and analysis on the web, has asked me to contribute to their site. Ars will be familiar to regular TLF readers because we link to them all the time. If you aren’t already a regular reader, you should be. And not just because you’ll occasionally find my writing there.
My first contribution focuses on Alan Cox’s application for a patent on digital rights management technology:
It’s unlikely that Cox’s patent is part of a grand plan to rid the software industry of digital rights management technology. Rather, the patent application is probably part of Red Hat’s patent self-defense strategy. Microsoft has darkly hinted that Linux and other free software infringes on Microsoft’s patents. Red Hat is responding with defensive stockpiling, applying for about two dozen patents in the last two years. Most likely, it’s working to build a patent portfolio extensive enough that it will be able to retaliate should it become the target of patent litigation.
The fact that even Red Hat, a company publicly opposed to software patents and unlikely to assert them against anyone, feels the need to apply for dozens of patents suggests that there are serious problems with the American patent system. The resources Red Hat spends hiring lawyers to obtain patents it will most likely never use could be more productively spent hiring programmers and customer support personnel to do useful work.
Mike Masnick offers another example related to last week’s discussion of whether patents are needed to protect software innovations:
Microsoft has long viewed Google as a serious competitor, and apparently Bill Gates and the folks in Redmond have been pulling out all the stops to compete with Google. In many cases, they’ve created products that seem as good, if not better, than Google’s versions. Yet, despite all of that, they’re losing traffic while Google gains it. Once again, it’s not just about the technology, but the perceived view people have of Google as compared to Microsoft. Microsoft just hasn’t been able to convince that many people that its search and mapping solutions are as good or better than Google’s. Despite the claim that there are “no switching costs” for users to go elsewhere, that’s not quite true. The perception that Google is better (and the feeling that it’s “good enough”) means that there’s no reason for people to look elsewhere, and a Microsoft offering would need to be not just better, but significantly better to attract attention. Alternatively, they can work on increasing their brand value as well, in the space of online services. In other words, there are plenty of things that go into being able to innovate and build a successful product–and simply copying someone else’s technology is often a small part of that (and usually not a particularly good strategy). Patent protection only protects that aspect of copying (business model patents are another issue completely), but if they’re supposed to encourage innovation, and the technology is only a small part of innovation, then the incentives are mis-aligned. The market can reward innovation without needing government monopolies and protectionist policies. The trick is to continually innovate, not just in the technology, but in the quality, the service and the brand as well.
Quite so. It needs to be stressed that the goal of patent law is to provide sufficient incentive to “promote the progress of science and the useful arts,” not to maximize the profits of innovators. Clearly, Google has been able to turn a tidy profit (to put it mildly) from its search engine without any significant recourse to patent law. Even after five years, one of the wealthiest companies on the planet has apparently not been able to produce a search engine that consumers perceive as being equivalent to Google’s offering. This suggests, I think, that a software innovator retains significant market advantages even after competitors have succeeded in cloning the major features of its product. And that, in turn, casts serious doubt on the notion that innovative products like the iPhone or Google wouldn’t exist but for the patent system.
Mike Masnick has some good comments on the iPhone. Most interestingly, he points out that many of the technologies have been demonstrated before. Here is a really cool video demonstrating multi-touch interfaces from last February. The only thing it’s missing is Steve’s legendary Reality Distortion Field.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
