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.
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Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. The Wall Street Journal reported yesterday that Friendster has been granted a patent on social networking software. (Not surprisingly, Techdirt beat the Journal by three weeks) The patent in question is # 7,069,308, “System, method and apparatus for connecting users in an online computer system based on their relationships within social networks.” Here’s a sample from the “BRIEF DESCRIPTION OF THE INVENTION”:
An invitation system allows users to invite friends or acquaintances to join the system. Invitations may be sent, for example, by e-mail. The invited friend or acquaintance may accept the invitation, and then become a user of the system, as a `friend` of the inviting user. The new user is prompted to provide descriptive data and the relationship data for friends or acquaintances who they would like to join the system. It is a unique and important feature of the invention that the invitation system (as well as related communication systems within the invention) allows two users to confirm that they are “friends”, and therefore become designated as such in the system.
Users in the system further have the ability to provide information about one another. For example, one user might write a positive comment about a second user’s personality. In one implementation, the second user may accept or reject display of the comment. Further, in this implementation, any other users who are connected to the second user through any number of acquaintance pathways may see the comment as part of the “descriptive data” about the second user.
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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 software patent is held by Telephia, a provider of “performance measurement information to the mobile industry.” They have sued a competitor, M:Metrics, for violating multiple patents, including patent #6,754,470, “System and method for measuring wireless device and network usage and performance metrics.”
The patent is rather vague, but Telephia seems to effectively be claiming the very concept of collecting information from mobile devices. Here’s the first claim:
A mobile wireless device comprising: electronic memory encoded with, data gathering software which gathers information pertaining to device usage from actual use of the mobile wireless device by a user, the gathered information including event data and association of respective events with respective location information indicative of device location during the occurrences of such respective events; and data transfer software which provides the gathered information for transmission.
That describes almost any conceivable onboard system for monitoring mobile device usage. Somehow, I don’t think Telephia was the first to think of digitally collecting information about mobile device usage. And I don’t think that filing this patent ought to give Telephia a monopoly in such data-gathering activities.
I’ll conclude by quoting Mike Masnick’s write-up of the patent from last month.
Both firms are fairly well known in the wireless space for providing data on mobile data usage. However, the idea that one of them should own patents on the idea of measuring such things seems ridiculous. Measuring data usage on computing devices is quite common–and the idea that just because something moves to a mobile device it’s unique enough to deserve patent protection is silly and has little to do with promoting innovation. It’s not as if collecting mobile data usage metrics wouldn’t have happened without patents. It’s an obvious step for the market that has always thrived on data usage metrics. However, even more importantly, these are two research firms. Shouldn’t they be competing on the quality of their data–not who has a patent on the research method?
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 I’m going to look at this patent, “System and method for protecting a computer and a network from hostile downloadables,” which I believe forms the basis for this lawsuit against Secure Computing.
In a nutshell, what Finjan patented was the digital equivalent of a bouncer. A bouncer stands at the entrance to a club, examines each prospective patron, checks his name and ID against a list of names (either the guest list of people to let in or a blacklist) and then admit the ones who meet the requirements. Replace “bouncer” with “server” and replace “patron” with “downloadable program,” and you’ve pretty much summed up Finjan’s patent. Finjan describes a system that allows a systems administrator to establish rules describing what kinds of executable programs are allowed on client computers, and Finjan’s software enforces the policy.
There’s literally nothing more to this patent. Don’t believe me? Take a look at the patent itself. Tell me the “Summary of the Invention” isn’t a jargon-laden description of what a bar bouncer does. Even by the low standards of your typical software patent, this is a bad patent.
Michael Perelman of Against Monopoly points out this Business Week story about probably the world’s largest patent troll invention company, Intellectual Ventures:
Nathan Myhrvold, Microsoft’s first chief technology officer, has a plan for Intellectual Property. First he gathers leading scientists and patent attorneys to brainstorm and come up with ideas that his company, Intellectual Ventures, can license to others. They plan to produce nothing but patents. You know what comes next.
The company also offers to “immunize” corporations from patent suits for a $50 million fee. The company will go around and buy patents before other patent trolls do, thereby “protecting” the clients. Others, of course, will have to face the consequences of not having ponied up the $50 million.
Does the word “blackmail” have any relevance here?
An excellent question! I found the phrase “culture of infringement” particularly chilling. Companies in the software industry don’t infringe because they’re uninterested in doing the right thing. They infringe because they realize that finding and paying off everyone who holds a patent that describes something they could do is logistically impossible. “Ending the culture of infringement” in the software industry means ending the freedom to develop software without spending tens of thousands of dollars on legal advice first.
Which, in practice, means limiting the software industry to a handful of large companies staffed mostly with lawyers. Hey, come to think of it, that sounds a lot like Intellectual Ventures!
Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. Open source advocate Bruce Parens makes my job easy this week by explaining what’s so troubling about last week’s patent infringement lawsuit against Red Hat:
The suit against Red Hat’s concerns the use of software “objects” to encapsulate a database record and make it easier to access, a technology called Object Relational Mapping or The ActiveRecord Pattern. That technology is used in the Hibernate software developed by jBoss, which Red Hat recently purchased. FireStar Software claims that it invented the technology, and that it is covered by its U.S. patent number 6,101,502. However, over the past two decades there has been much prior art for object-oriented databases, including TopLink, an object relational system developed in the early 90’s and now owned by Oracle, so it may be that the filers of FireStar’s patent made no invention.
There’s also the question of obviousness, whether the principles claimed in the patent would be obvious to a normally-skilled practitioner of the software art and thus not be an invention at all. The function of an object is to encapsulate data, and object-oriented programming has been known since the Simula language introduced it in 1967. The U.S. Supreme Court is currently reviewing another patent lawsuit in which the defense claims that there should be a much higher standard below which purported inventions would be considered obvious and thus not patentable. A higher standard of obviousness could help, but the real solution is to go back to the original intent of the Patent Office and stop granting patents on software.
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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 software patent was highlighted by last week’s ruling that Microsoft had to pay its holder $6.1 million.
This is the relevant patent. None of the news stories I could find said which patent it was, probably because the inventor’s name is listed as Carlos Amada in the patent while, the news stories all give it as Carlos Amado. The patent is extremely long, weighing in at more than 20,000 words. It describes, in great detail, the features of a graphical database program that Mr. Armado apparently developed in the early 1990s. From the description, it sounds like it may have been an impressive piece of software, with many useful features integrated in a user-friendly manner.
Is this patent obvious? And did granting it likely promote innovation? I’ll explore those questions below the fold…
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Daniel Markham takes me to task for being one of those “software patents are destroying the world!” types:
Imagine for a minute that I just got off a time machine from the year 5600. I know how to make truly intelligent machines, so I sit down and write a patent on how to make computer intelligence. Now at the heart of my patent will be arrays, indexes, memory cores–all of the usual computer stuff. It’s all just ones and zeros, folks. But obviously my patent has tremendous value to society.
This is a silly example, but since it IS possible to make an example where software patents make sense, the question isn’t whether they are useful or not, the question is how to tell the difference. That’s a big point that a lot of folks miss. Get rid of the bath water, keep the baby.
This is a silly example for a number of reasons, and not just the obvious ones. In the first place, it’s unlikely that somebody’s going to sit down at his computer and come up with a single breakthrough that makes computers instantly intelligent. More likely, there will be a long series of incremental improvements. Each advancement will give its creator a short-term advantage in the marketplace before another firm comes up with another incremental improvement that puts it ahead. This process of incremental improvement and imitation is the way the software industry has worked for decades.
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Mike Masnick makes a good point about “patent trolls”:
Rep. Lamar Smith… held hearings today to see if Congress could come up with a working definition of a patent troll. While it’s good to see Congress recognizing that patent hoarding can hold back innovation, defining just what a patent troll is doesn’t seem like it’s going to help. The issue isn’t whether or not anyone is a patent troll, but whether the patent system is being used to hold back innovation. Trying to define what a patent troll is will simply confuse the issue, and lead companies to focus on avoiding the specific definitions of a patent troll, while trying to accuse every one they get into a patent lawsuit with of meeting the regulatory definition of patent troll. A much more important issue would be to focus on making sure the patent system is actually encouraging innovation.
I suspect this reflects the distorted view you get when the legislative process is dominated by industry lobbyists. For the most part, big companies don’t mind over-broad patents so much. They have a lot of patents of their own, which they can use as barriers to entry against smaller competitors, while they sign cross-licensing agreements with other big companies to minimize litigation. The only problem comes when a small company dares to sue them. Then they’re pissed!
In a sense, patent trolls are canaries in the coal mine of our patent system. They’re a signal that certain parts of the patent system is becoming harmful to innovation. But instead of figuring out how to fix the patent system, Rep. Smith seems to think the solution is to shoot the canaries.
This week’s software patent is held by Skyline Software Systems, a “leading provider of network-based 3D Earth visualization software and service.” Naturally, Google Earth is one of its primary competitors. Google Earth was originally developed by Keyhole, which Google acquired in October 2004.
When Google acquired Keyhole, it inherited a legal spat with Skyline as well. Last week, the judge in the case declined to order Google Earth shut down pending the outcome of the litigation. But the case goes on.
According to CNet, the patent in question is this one. It describes:
A method of providing data blocks describing three-dimensional terrain to a renderer. The data blocks belong to a hierarchical structure which includes blocks at a plurality of different resolution levels. The method includes receiving from the renderer one or more coordinates in the terrain along with indication of a respective resolution level, providing the renderer with a first data block which includes data corresponding to the one or more coordinates, from a local memory, and downloading from a remote server one or more additional data blocks which include data corresponding to the one or more coordinates if the provided block from the local memory is not at the indicated resolution level.
Is this an obvious patent?
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