Microsoft patent trolls Salesforce
37signals.com
37signals.com
Take, for instance, patent #8, "Method and system for identifying and obtaining computer software from a remote computer" (see http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sec... for details). It covers a system for having lots of machines keep themselves up to date with a central repository. Obvious, right? We can all think of a ton of examples. For instance Debian's apt fits virtually all of the claims except the ones involving payment. (For some reason Debian doesn't worry about that much. :-) )
But look when it was filed. November 27, 1995. That's well before apt. In fact it was the same year that Debian first released dselect. I don't know if dselect was advanced enough back then match the patent. If so then that is prior art and I'd suggest that Salesforce's lawyers look carefully at it.
If it is not, then finding prior art may be a challenge. People today are used to subscription-based software distribution. But pick up Founders at Work and read the interview with Arthur van Hoff about Marimba, which was founded in 1996 (after the patent was filed) and was in the business of subscription-based software with automatic updates. He talks a bit about how new the idea was, and how it was difficult to get people to try it.
That tells me that, at the time and with the way people were used to working, this technology really was new and innovative. Now I really, really hope that someone can find prior art and smack Microsoft down. I don't want this kind of patent to threaten software I use.
But as far as patents go, this seems relatively good. (The fact that it is still bad is an argument against software patents in general, and not this particular patent.)
This had definitely been implemented and in regular use before 1995.
I am very familiar with reimaging machines from a central server, booting machines off of remote images, and roving profiles. All were in use before this technology. None fits the claims of the patent in any way. The key point of the patent being that it lets you get incremental updates to software whenever you want. The incremental bits avoids having to copy the whole thing, which is important when your connections aren't that good.
Incidentally rsync was publicly announced in 1996 so I very strongly doubt that they were using it in 1995.
Patents are a net cost to society, and software and business patents are teeing up to explode those costs. A large tax on the real economy this way comes, with the spoils largely to lawyers and financiers who produce nothing of real value.
But the recollections of the Marimba founder, and my memories of how people around me reacted to apt, both confirm my point that the technology seemed very innovative to most people at the time.
That said, the patent filing is accurate in claiming that Java was not immediately used for menus. When we look back at things that far back it is easy to confuse things we saw and did a couple of years later with what was happening at that point of time. However it didn't take long to get there. Domino 4.5 (released in December of that year, under development when the patent was filed) definitely used Java applets for menus. Lotus 4.0 released in January of that year, did a lot of stuff, but don't know if they had interactive menus. Still they clearly had the idea, even if they hadn't implemented it yet. And lots of people were doing it by the end of 1997.
15 years is far too long a life for a software patent.
But I don't accept this premise. Even if automatically updating software over the network was prescient and innovative in 1995, that doesn't mean it would be prescient and innovative in 2000, or 2005, or 2010, even if this patent had not come into existence. I strongly believe that this kind of technique was inevitable as networks became ubiquitous, and getting the government involved in granting a monopoly on the technique is iniquitous and harmful to innovation.
In the first paragraph I open by pointing out that I don't like the existence of these patents. In the last paragraph I point out that the fact that the particular patent I selected is bad is an indictment of the patent system, and not the particular patent. Both statements run directly counter to any assumption that I think that government protected monopolies on once innovative ideas are good things.
In between I explain why, according to the rules for granting patents, this particular patent is relatively good. Note the critical qualification. I didn't make up those rules, nor do I agree with them. But those rules matter because they are the rules that this will be argued by in the courts.
And finally you aren't the first in this discussion to point out that this innovation was inevitable in the long run. To repeat what I said earlier on this point, the fact that I can point to two independent reinventions between the time this patent was filed and issued serves as strong evidence for that inevitability. However the argument that a given innovation was inevitable over time is irrelevant to any discussion of patents in the courts.
As a result of the Defendant’s unlawful infringement of the Microsoft patents-in-suit, Microsoft has suffered and will continue to suffer damage.
The patent system's primary goal seems to have become protecting patent holders, which really ought to be only a secondary function. The original purpose of patents was to encourage innovations that would benefit society. It was a simple trade: if you invent something that will help society, society will give you protection against competition for some period of time. Somehow the system has morphed from a tool for encouraging innovation into a panicked land grab. And in the case of software patents like the ones in this suit, society receives very little benefit for the protection it provides.
Exactly. How do you have one without the other? Should Microsoft (or any other patent holder) go to court and argue on the basis that society is not being well served?
The patent owner needs to show harm, which is what patent law was supposed to protect them from. The stated reason for such laws is "to promote the progress of science and useful arts", but if you are a patent or copyright holder your argument needs to be that you are not being provided the protection you had expected under the law.
"And in the case of software patents like the ones in this suit, society receives very little benefit for the protection it provides."
That may be. Some patents are for essentially trivial ideas, or ideas that have been in the ether for quite some time. Other patents are indeed clever, and more to the point are the results of an investment of time and money. Without some assurance of recouping that investment some number of valuable ideas would not see the light of day. (Or so I believe. I don't have any citations to back this up.)
Any article that simply refers to a patent abstract as proof of the triviality of a patent is itself trolling. Patent abstracts offer a very broad description; it is the detailed body of the patent that distinguishes it.
If obvious patents are granted, society will be giving it's protection at a net loss. For society there is a cost incurred in enforcing protection as well as an opportunity cost in forbidding competition (assuming you believe competition creates better products). This trade-off could be worth it, but only if if the invention would not have emerged, or would have taken a long time to emerge, without protection.
-Should Microsoft (or any other patent holder) go to court and argue on the basis that society is not being well served?
Absolutely not. They should never have to argue for anyone but themselves in court. Microsoft is just playing the patent game by the rules that exist today. My problem is with a system that is neglecting its purpose. The problem seems to be rooted in patent rules that are massively out of touch with the current state (and pace) of technology.
-Any article that simply refers to a patent abstract as proof of the triviality of a patent is itself trolling. Patent abstracts offer a very broad description; it is the detailed body of the patent that distinguishes it.
You're absolutely right in saying that it's not fair to criticize a patent simply by its abstract. The problem is that often the detailed description in the body of the patent is far too broad. Many patents have less to do with a specific invention and more to do with gaining blanket coverage of a large swath of IP. This is the game that large companies and their patent lawyers are playing. I would argue that a system where "he who has the most lawyers wins" is very counterproductive to invention and innovation.
It was known even to them that patents were a tool for controlling innovation to their interests (unnaccessible fees, even to poor people). The point is a "patent" of an "invention" should be a right of a citizen, without additional fees. It's not a product, it's a right within the community!
EDIT: We all want to believe that our founders were truly ingenuous good people. But the truth is, they'll never be.
A troll has no real business other than acquiring patents and suing companies (or arranging for them to be sued).
Today people tend to apply 'patent troll' to situations where they feel that the plaintiff is 'trolling' the defendant through the use of patent law. This is applied more-so when the patents are thought to be invalid or the business reasons for filing suit are deemed to be anti-competitive.
MS is trying to be a troll under the bridge for Salesforce, and if you look at the patents, they are so broad and non-innovative that using them in an offensive manner constitutes trolling.
If you put in time doing research and then spend time and money patenting that research because you believe it to be innovative (subjective), would you just suck it up and "try to make your own software better" if someone copied your work?
This is not patent trolling because Microsoft actually uses these patents in their software.
Most users here are saying that "ethically" MS is doing wrong. This is not an ethical issue, it's a legal one (MS isn't the only one, recently Apple, Nokia, etc). The problem of patents it's been around for decades, or at least years, why haven't anyone fixed it. America is a democracy, right? Now go and change the law, if you can.
Or, wait for a replacement of the current patent system, I think it's only a matter of years, now.
EDIT: Of the 5 patents I was talking about, none of them use the invention on an actual product.
EDIT2: clarified 2nd par.
The problem is, the system is set up in such a way that it's impossible for a small company to stay legal. Even if you grew into a medium sized company, and you managed to spend the time required to research all the patents you're infringing on, the licensing costs for all those patents would be greater than all the money your company will make over its entire lifetime. Because you now know about all the patents, even the silly ones, and you can't actually afford to challenge all of them, so you just have to license them.
That is what would happen if a small / medium company did its best to stay legal when it comes to patents. It's absurd.
EDIT: I'm not trolling, nor I would ever want to do so. It's just that people here are forgetting how the system works (you're a hacker, find your way out). See last paragraph http://news.ycombinator.com/item?id=1363080
But here we're going in a total different direction. You're telling me that you shouldn't look at patents. Weren't the patents invented for being publicly accessible, so you can see if you infringe, and license them?
You can't see it, can you? You look at the patents, copy every feature of them, than incorporate your company somewhere where there aren't international copyright/patent agreements. Sure you can't have the same resources as everyone else, but you're free to create them too.
People should do what is moral, not act as selfishly as they can without overstepping the bounds of the law. Enforcing patents against software is immoral. As Bill Gates famously pointed out, if software had been considered patentable when Microsoft started, the industry would have been at a standstill decades ago.
The fact that it's possibly legal does not make it moral. You can list any number of actions that are legal but immoral if you think about it for two minutes.
> If you put in time doing research and then spend time and money patenting that research because you believe it to be innovative (subjective), would you just suck it up and "try to make your own software better" if someone copied your work?
No copying is being alleged here. Presumably people who can see that enforcing patents against software is immoral would do exactly what you're saying, and furthermore would rarely spend time and money patenting in the first place.
Even there, you can't just look at claim 1, because the standard approach is to begin by claiming overbroadly, and then narrowing the claims, so that usually claim 1 wouldn't be expected to hold up, but one of the later ones. Which later ones, you don't know because of the uncertainties of litigation: it's hard to predict what a court will find. As in negotiating, why not ask for as much as possible?
It's a little bit like the dubious criminal defence I didn't kill him, and if I did it was an accident.
btw typo: in "for infringing the following patent", patent should be "patents". That confused me.
Gee I sound like a patent advocate/apologist. It's just that I love inventions.
EDIT I'm not arguing for these particular patents, but against how they're being assessed.
For example, in "Method and system for mapping between logical data and physical data," if Claim 1 is tossed, then claims 2-9 automatically go with it.
Claim 1. A method for surviving, comprising: Cooking a meal.
Claim 2. A method as in claim 1, wherein the meal is breakfast.
Claim 3. A method as in claim 2, wherein the breakfast comprises sausages and bacon.
Claim 4. A method as in claim 3, wherein the sausages and bacon are fried.
and so on. A court might decide that there's some prior art for having meals, and toss out claim 1. But that prior art might only be for lunch and dinner, in which case claim 2 might survive. On the other hand, maybe someone else has had breakfast before (publicly enough to count as prior art). Then claim 2 goes too, but maybe claim 3 survives. Oh, too bad, it turns out that the court thinks having sausage and bacon for breakfast is obvious to one ordinarily skilled in the art. Bye-bye to claim 3, but maybe frying them is an extraordinary new idea that no one else would have thought of.
Of course, similar things can happen during patent prosecution (i.e., filing; the terminology is silly), only now it's the patent office that keeps objecting to your claims and requiring you to fall back to weaker dependent claims.
It's absolutely standard for your first claim to be very broad, and subsequent ones to be narrower. It's absolutely not standard for claim 1 to be "best" in the sense of "least likely to be invalidated".
Salesforce can defend two ways: 1) challenge the validity of the patent, or 2) prove that they don't infringe the patent.
Option 1 is harder. Patents are presumed valid. Defendant (Salesforce) has the burden of proof that the patent should be overturned. Salesforce will have to do that for each alleged infringing claim.
Option 2 is easier. Plaintiff (Microsoft) has the burden of proving infringement. Salesforce just needs to show that they aren't infringing claim 1 and then they also aren't infringing claims 2-9.
Think of your quotation as a claim, that describes the set of all possible inventions that meet that claim. Within that set are all kinds of mappings, between different kinds of logical data and kinds of physical data, in different situations, and using different methods for doing so. Subsequent claims restrict that set, until (the inventor hopes) you get one that is novel and inventive etc enough.
Perhaps you're thinking of the term "dependent claims", which describes claims 2-9 in your example. They're not dependent in that way.
Yup, it's true that sometimes what seems on the face of it a ridiculous patent turns out to be a more sensible one whose title and/or abstract make it look worse than it is. On the other hand, sometimes what seems on the face of it to be a ridiculous patent really is ridiculous.
I hope we can agree that this is one of those.
How did we ever get this far?
Patents should have an "enforce it or lose it" clause. Some of these may have been novel at the time of filing. However, after some time of being unenforced, they become standard practice in an industry. Then after 10 years of standard use some company comes out of nowhere and tries to enforce it? Too late.
Honest question follows after the quote.
http://www.techflash.com/seattle/2010/05/microsoft_sues_sale...
> "Although Microsoft has been a frequent target of patent-infringement claims itself, it's only the fourth time in its history that the Redmond company has filed a patent-infringement suit against a competitor, and the company has said in the past that it views such actions as a last resort when it has been unable to negotiate a licensing deal."
Do you use technology provided by (just throwing out names) Google, Apple, HTC, Oracle, etc.? Have they proven to be less litigious?
If you do use technology provided by other companies, are you also planning on scaling back their use?
(On the whole I don't think Apple have been doing so fantastically in the tech press with their current closed platform anyway.)
The original text: A request for a web page is received from a web browser In response to the request, a web page and an applet associated with the web page are packaged for transmission to the web browser. The web page and the applet are then transmitted to and downloaded by the web browser. When the web page is displayed and the applet is executed by the web browser, the applet creates and manages an embedded menu in the displayed web page under control of the applet . This embedded menu provides a user of the web browser with a plurality of links through one action in the displayed web page
An applet? Does Salesforce use an applet to draw its menus? (that's so '90s). Is the patent valid if Salesforces does its menus only with HTML?
ADDED: May Flash be considered as an applet?
This is insane.
Most of the time companies just pay up, as in the recent Amazon licensing deal. Salesforce apparently decided not to.
Both this situation and the one with Amazon also suggest that they are now specifically targeting online/SaaS companies.
[Disclaimer: I work for salesforce.]