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Wednesday, February 25, 2009

Microsoft Sues TomTom over patents

I saw a link to Microsoft suing a Linux-based GPS maker, TomTom, which made me wonder what Microsoft is up to. Some people were saying that this is Microsoft's way of attacking Linux, but I thought not. I figured Microsoft probably has something more sly up it's sleeve.

Actually, I was disappointed.

I went into the legal document (the complaint) to find out what patents Microsoft is suing over... and was astounded by how bad the patents are. Given the recent decision in the Bilski ruling, I think this is really Microsoft looking for a soft target in which it's able to test the waters and see how valid it's patents are in the post-Bilski court environment... Of course, I think these are probably some of Microsoft's softest patents. I have a hard time seeing how any of them will stand up in court. (Aka, pass the obviousness test and, simultaneously, the transformative test proposed in Bilski.)

If Microsoft wins this case, it'll be back to claiming Linux violates 200+ patents. If it loses the case, I'm willing to be we won't hear that particular line of FUD again. I can't imagine any of the 200+ patents it says that Linux violates are any better than the crap it's enforcing here.

Anyhow, for your perusal, if you'd like to see what Microsoft engineers have been patenting in the last decade, here are the 8 that Microsoft is trying to enforce. Happy reading:


Summary: Attaching any form of a computer to a car.


Summary: Giving driving instructions from the perspective of the driver.


Summary: having an interface that lets you scroll and pan around, changing the focus of the scroll.


Summary: A computer that interacts or docks with a car stereo.


Summary: A computer in your car... with Internet access!


Summary: File names that aren't all the same length - in one operating system.


Summary: File names that aren't all the same length - in one operating system... again.


Summary: A file system for flash-erasable, programmable, read-only memory (FEProm).

Overwhelmed by the brilliance at Microsoft yet? (-;

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Anonymous Anonymous said...

Bilski decrees a MACHINE OR Transformation test.

I agree that many of the claims appear weak ...but the examiner couldn't invalidate them...

And I think you will find that they are all tightly tied to a machine...

So, they pass the Bilski test.

February 27, 2009 3:46:00 AM PST  
Blogger Anthony Fejes said...

Hi Anonymous,

Thanks for your comment. Unfortunately, I disagree with your interpretation of Bilski. And, while I'm at it, I'd like to bring up KSR international v. Telflex into a rebuttle.

Bilski basically said (as I understood it, and I'm not a lawyer), that business methods are not patentable, even when tied to a machine. Hence, the interpretation that software algorithms (which are not patentable) are still not patentable when tied to a a machine. Between the Bilksi test, which the justices hinted should require a material transformation of some sort, and the KSR test in which the bar for obviousness has been raised, I doubt that Microsoft's patents really have much of a leg to stand on.

Additionally, I'd also point you to a recent groklaw article where you can find out more about Bilski, and where you can find that a whole lot of prior art has been already been quickly dug up on most of those patents.

No matter how you look at it, I think Microsoft will be lucky to escape with any valid patents from this excursion.

February 27, 2009 8:59:00 AM PST  
Anonymous Anonymous said...

From In re Bilski (which did not address the "machine" prong of the test:

We now turn to the facts of this case. As outlined
above, the operative question before this court is
whether Applicants' claim 1 satisfies the transformation
branch of the machine-or-transformation test.
[21][22] We hold that the Applicants' process as
claimed does not transform any article to a different
state or thing. Purported transformations or manipulations
simply of public or private legal obligations
or relationships, business risks, or other such abstractions
cannot meet the test because they are not
physical objects or substances, and they are not representative
of physical objects or substances. Applicants'*
964 process at most incorporates only
such ineligible transformations. See Appellants' Br.
at 11 (“[The claimed process] transforms the relationships
between the commodity provider, the consumers
and market participants ....”) As discussed
earlier, the process as claimed encompasses the exchange
of only options, which are simply legal
rights to purchase some commodity at a given price
in a given time period. See J.A. at 86-87. The
claim only refers to “transactions” involving the exchange
of these legal rights at a “fixed rate corresponding
to a risk position.” See '892 application
cl.1. Thus, claim 1 does not involve the transformation
of any physical object or substance, or an electronic
signal representative of any physical object
or substance. Given its admitted failure to meet the
machine implementation part of the test as well, the
claim entirely fails the machine-or-transformation
test and is not drawn to patent-eligible subject matter.

February 27, 2009 12:10:00 PM PST  
Blogger Anthony Fejes said...

Thank you - that last sentence is a pretty convincing argument. I can't believe I missed something that obvious.. thank goodness I'm not a lawyer! Although I recall reading a lot of the Bilski judgment, I'm sure I missed other good nuggets in there. Thanks for correcting me on that point.

To defend my position, however, I recalled reading something about this from Groklaw, so I'll quote that here:

"...two rulings by the US PTO Board of Patent Appeals, Ex parte Langemyr [PDF] and Ex parte Wasynczuk [PDF], which already held that "A general purpose computer is not a particular machine, and thus innovative software processes are unpatentable if they are tied only to a general purpose computer," an issue this court seems to view as still to be decided by future cases. And hopefully that is just what will happen next." [from Groklaw]

At any rate, this might just be the case for that to be decided. Testing those waters might even be Microsoft's intention.

February 27, 2009 12:25:00 PM PST  
Anonymous Anonymous said...

The Board has gone off the deep end.

...and the Board is of course below the Federal Circuit...

Here's what the Bilski court said about general purpose computers:

As to machine implementation, Applicants themselves
admit that the language of claim 1 does not
limit any process step to any specific machine or
apparatus. See Appellants' Br. at 11. As a result, issues
specific to the machine implementation part of
the test are not before us today. We leave to future
cases the elaboration of the precise contours of machine
implementation, as well as the answers to
particular questions, such as whether or when recitation
of a computer suffices to tie a process claim
to a particular machine.

February 27, 2009 2:45:00 PM PST  
Blogger Anthony Fejes said...

This is one of the more interesting conversations I've had recently on the blog. Thanks for following up - and for pointing out my glaring errors. Although, at this point, I'm not sure we differ too much in what we believe is in Bilski. (Thanks again for putting me on the right track), but I still don't see how Microsoft is trying to do anything except test out where the line is in machine/computer transformations.

I have the general sense that Bilski, KSR and other court cases are slowly swinging the pendulum away from software patents. Only time will tell - and I think Microsoft will be one of the companies trying to give it a push, one way or another.

February 27, 2009 2:54:00 PM PST  
Anonymous Anonymous said...

KSR, on its face is a nightmare for anyone trying to patent anything. KSR was about break pedals, not software, by the way.

In practice, the examiners don't have the time, or in many cases the verbal skills, to do what little KSR requires of them; articulate a reason why it would have been obvious to connect/combine the teachings of the multiple references they are citing against the claims of an application.

I agree that many of the other 7 patents are pretty lame. The long file name claims are also a bit lame....we developed an operating system that can't deal with reasonable file names and we've come up with the band-aid where we associate a short name with a long name, the user uses the long name and the operating system uses the short name....still....they did come up with it, so its 'em their quarter

February 28, 2009 2:34:00 AM PST  
Blogger Anthony Fejes said...

Of course the KSR case was about break pedals - but the decision was mainly about obviousness. If you have two well developed items, sticking them together is no longer a defensible patent, unless it does something non-obvious.

In this case, one of the patents clearly appears to be Microsoft putting together a generic computer and a generic car... and making... well... a car and a computer.

At any rate, no one doubts that the patent office is overworked, and that crappy patents have gotten through. In fact, I've long heard the paradigm that a US patent isn't necessarily enforceable until a court decides it as such.

Which leads me back to my theory that this really is Microsoft's way of testing the strength of it's patents.

Alas, to rebut your last point, Microsoft came up with an OS that could only handle short filenames, OS/2 came up with a way around it, and microsft patented it 4 years later. If the court decides that the evidence isn't in favour of the prior art, that the patent isn't too obvious, or that the patent clerks weren't just overworked and let a bad one through, THEN (and only then) is it time to pay up.


March 1, 2009 9:23:00 PM PST  

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