06 Oct 2004

Microsoft’s Evaporating Patents

I have been writing recently about the problem of defending free software against the threat posed by patents on supposed software “inventions,” particularly when those patents are in hands hostile to the very existence of the Free World. This past summer was a period of intense rumors, fear, uncertainty and doubt. But with the cooler weather in the US comes also some refreshing news. Fighting back is effective.

Last year, for the first time, Microsoft announced that it was commercializing a collection of its patents. Six patents had been granted to Microsoft in connection with the FAT filesystem, also known as “the DOS file system.” The company sought royalties on every compact flash card or other portable storage medium sold with a preformatted FAT filesystem, for use primarily in digital cameras, and on the cameras and other appliances that format such filesystems onto internal or removable media.

Had Microsoft succeeded in licensing these patents for royalties in accord with its announcement, it would have added millions of dollars annually to consumers’ expenses for digital photo storage, and raised the cost of digital cameras throughout the world. It would also have created a precedent for claiming that the BSD and Linux operating system kernels, which interoperate with DOS-formatted floppy disks and hard drive partitions, infringe those same patents.

But Microsoft won’t be doing any of those things, now or ever. At the request of the Public Patent Foundation, www.pubpat.org, through a patent reexamination petition filed by my colleague Daniel Ravicher, PubPat’s Executive Director, the US Patent and Trademark Office last week found that the claims of Microsoft’s lead patent in the area are invalid. All the patent’s claims, the PTO found, were fully anticipated by published prior art cited to the PTO by PubPat. Microsoft has a right to appeal the PTO’s decision, but such appeals almost never succeed. As of now, the key patent on which Microsoft was basing its licensing effort no longer exists.

Microsoft’s ‘517 patent on the FAT filesystem claimed as novel and unobvious inventions aspects of file storage architecture and the encoding of long file names that were not even close to original with Microsoft. PubPat showed the PTO that techniques claimed as novel by the patent were fully disclosed by publication in mass market PC magazines more than five years before the date of the patent application. Indeed, those techniques were as old as the hills at the time of those cited publications.

The ease with which the Patent Office appreciated the significance of the prior art provided by PubPat mates jarringly with the similar ease with which the patent was originally awarded in 1996, and with which five more patents were swiftly built on top of the invalid platform thus created.

This situation is a fair example of the difficulties created by easy patenting of computer program components during the 1990s. Back then, the US Patent Office was completely ill-equipped to handle a flood of applications in a field which had been traditionally understood as lying outside the scope of patent law, and in which not only the US, but also European and Japanese patent offices were woefully understaffed. Patent examiners around the world with whom I speak frequently all take pains to distinguish the current behavior of their agencies from the “bad old days” at the US PTO. Granting that standards for the issuance of patents may be more tightly adhered to now, there remain tens or even hundreds of thousands of bad patents collectively posing a menace to navigation, each potentially disruptive of the freedom to make, use and sell computer software freely. Microsoft files more than ten patent applications a week in the US alone. In the end, only a comprehensive reform of the patent system will suffice to bring to an end the headaches posed by inappropriate patenting. As my friend and colleague Richard Stallman says, you’ll never be able to stop malaria by swatting mosquitos: you have to drain the swamp.

But fundamental patent law reform is a complex global political task, involving mobilization of public opinion in different societies around the world. It may take the free software movement years to begin making fundamental progress against the better-funded opposition of those who benefit from the patent system, including Microsoft. Our success in identifying and removing particular patent threats to the freedom of free software will be crucial in the interim. The FAT filesystem patent controversy was a very sharp test. We didn’t pick those patents; Microsoft picked them. Microsoft chose what to commercialize, and we had to deal with the situation thus created. We won this round convincingly, on their chosen terrain, and we will be following up our victory in coming weeks. Patent exploitation isn’t business as usual anymore. Because we can defend the Free World we have created, in the fight to reform the patent system Free Software Matters.

This column was first published in the UK in Linux User. It is also available in PostScript and PDF formats.

permalink | columns/lu | 2004.10.06-00:00.00

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