Microsoft patent trolls Salesforce(37signals.com)
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Microsoft patent trolls Salesforce
http://37signals.com/svn/posts/2341-microsoft-patent-trolls-salesforce
72 comments
This is an example of an obvious idea - only it won't be obvious until people start using networked computers for some time and realize the need. Unfortunately we have a low bar for what is not obvious, e.g. when no one else has yet had the need for it. Being the first to do something should not give anyone the right to prevent others from doing it.
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.
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.
I absolutely agree. The fact that I know of 2 independent reinventions in the period between filing and issuance underscores your point.
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.
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.
I was at Carnegie Mellon University in 1995. The machines in the computer clusters there downloaded a central image from central servers to overwrite the machine, regularly. I imagine it used rsync, though I don't know for sure.
This had definitely been implemented and in regular use before 1995.
This had definitely been implemented and in regular use before 1995.
Did you actually read the patent?
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.
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.
A plain old Java applet with a menu that is embedded in a web page? That's a relatively good patent? It's pretty much exactly what Java was for when the patent was filed. That's like one person patenting a method of harvesting grain with a combine harvester.
First of all when I say "relatively good patent" I'm damning with faint praise. Secondly I said it about patent #8, and not about the applet one. Thirdly I'd say that the applet one is one of the weaker patents that Microsoft is using. And fourth, Microsoft do major damage even if most of their patents are rejected.
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.
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.
"But look when it was filed. November 27, 1995."
15 years is far too long a life for a software patent.
15 years is far too long a life for a software patent.
Your statement seems to presuppose that granting a government-protected monopoly to the first person to come up with something new and innovative is a desirable outcome in software. That's necessary for you to apply the value judgement of "good".
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.
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.
I'm sorry, but it appears that you didn't read my statement very carefully. Your conclusion about my presuppositions could not be farther from my actual beliefs as documented in that statement.
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.
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.
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From the suit:
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.
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.
"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."
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.
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.
-Exactly. How do you have one without the other?
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.
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.
I will be downmodded that much, that I would see the core of Earth, but I have to say it: "a tool for encouraging innovation into a panicked land grab" was the primary goal. Think: who was the people who created patents young/pour inventors, or elite ones that wanted protection from the hungry ones?
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.
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.
It's not a patent troll when a competitor goes after you with patents they acquired doing R&D for real products. The patents sound like they shouldn't have been issued, but that's a different problem.
A troll has no real business other than acquiring patents and suing companies (or arranging for them to be sued).
A troll has no real business other than acquiring patents and suing companies (or arranging for them to be sued).
I think this is semantics. You don't have to be a patent troll-an entity like you describe with no other real business, in order to go patent trolling.
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.
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.
I don't think you can evaluate this by looking at the patents. If your sole business is patent suits, you're going to sue every time. If your business has paying customers, there's a chance you're going to spend more of your attention on them than your patent portfolio.
I kind-of thought that was what a patent-troll did these days: get as many wide-ranging patents as possible, no matter whether they should've been granted, and use them to either batter the competition (i.e. with license fees or unending court battles) or getting your "cut" with little actual effort... ?
Patent trolls have traditionally been groups whose only (or just main) business/source of income comes from buying up patents and suing over them.
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.
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.
Maybe this is just the ol' good MS trying to get more customers to its Microsoft Dynamics business solutions.
I understand the need for people on HN to play devil's advocate and try to defend Microsoft's actions, but I don't think there's much of a case here in their favor, even if one did really dig into the patents. Microsoft should be spending its time and resources making their own software better, not suing other successful companies. To me this whole debacle stinks of desperation. Microsoft can't figure out how to find success in the web applications space and out of frustration are simply choosing to sue the most successful SaaS companies. I knew things were getting bad at MS, but I didn't realize they were this bad.
I'm sorry but that's a pretty weak argument. So does that mean that any company with patents should just suck it up if someone infringes instead of defending their IP? Regardless of what you think of the validity of patent, it was granted and MS has a right to defend it.
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?
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?
Among all the companies out there that are arguably violating these patents, they choose to go after a high profile, successful, primarily online company who has been in business using these technologies for years. This is highly selective and to me indicates that the GP's point probably has some validity. Can anyone really argue that Salesforce of all companies has somehow infringed on Microsoft's IP? If they had been enforcing these patents earlier on and enforcing them uniformly, it would have seemed much less of a patent-troll style maneuver.
If they had instead gone after lots of small companies, you would be complaining that they were abusing the little guy who couldn't defend himself.
This is not patent trolling because Microsoft actually uses these patents in their software.
This is not patent trolling because Microsoft actually uses these patents in their software.
> So does that mean that any company with patents should just suck it up if someone infringes instead of defending their IP? Regardless of what you think of the validity of patent, it was granted and MS has a right to defend it.
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.
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.
Defending your IP is not the same thing as using patents as a weapon to go after a specific company that you see as a strategic threat.
Well, Salesforce should have done their homework, the first thing you have to do (when you start to get pretty big) is check if you infringe any patents.
I don't believe there exists a technology company in the world that doesn't infringe on patents (mostly unintentionally). I think if most of them really looked they'd find thousands patents they are infringing.
I know. My current project goes near 4 claims on 5 patents, till now (I don't make infringement, but still have found myself near some mines). However my point is that you can't blame MS for this, but the patent law. Either change it, use it, or remove it. You have 3 options.
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.
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.
Now you're starting to make some sense. I guess you can't trust a large company to behave ethically, only to stay within the law.
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.
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.
The last thing you should do is look at patents. If you knowingly infringe a patent, your "willful" infringement opens you up to triple damages. It's actually better to not know.
The problem is you can't recognize when someone is infringing a patent knowingly or not, based on what they're saying (unless they've got a request for licensing).
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.
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.
And then? What do you propose is the next logical step once you have the list of patents you infringe on? Go to Microsoft and say "please sue us now"? Because if you were going to suggest that they re-develop in order to avoid infringing any patents, you're either from another planet or a troll.
Then nothing. You should expect this. If the court sets a fine, you should pay it.
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
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
I expected the downmod. That's why I said I shouldn't tell this[1]. People here appear to be so worried about ethics, that forgot everything else. Will you please explain to me, the invalidity of the case? I mean they made patent infringement, and if the infringement is judged as valid, than what are we discussing?
1. http://news.ycombinator.com/item?id=1361888
1. http://news.ycombinator.com/item?id=1361888
It's pointless looking at patent titles (or abstracts), You have to examine the claims.
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.
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.
Yup, you have to examine the claims. So I took a look at the claims for US patent 5,742,768 ("System and method for providing and displaying a web page having an embedded menu"). Claim 1 is (I'm paraphrasing a bit) having a web page with an applet that displays a menu in which there are some links. You might think "oh yeah, that's a typically overbroad claim 1", but the others don't restrict it in at-all-interesting ways. Doing it over the internet. Doing it on a private internet. Doing it in Java. And -- this is as innovative as it gets -- having the applet pop up a menu when the user's pointer moves over a hot spot in the web page.
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.
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.
> 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?
I hope we can agree that this is one of those.
How did we ever get this far?
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If claim 1 is tossed then subsequent claims based on claim 1, which will probably be many, are automatically tossed. Therefore claim 1 better be your best claim.
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.
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.
No, you've got that backwards. Suppose you have:
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".
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".
Yes, but if you're not doing Claim 1 ... i.e. you're not cooking a meal ... even if your meal is breakfast, and the breakfast comprises sausages and bacon and those are fried ... you're not infringing.
Exactly.
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.
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.
That's only because if you're not doing all the claims, you're not infringing.
That's not the case.
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.
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.
Some of these patents were assigned in the mid-90's. Where has Microsoft been all this time?
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.
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.
Trademarks have the "enforce it or lose it" clause. This causes companies to be forced to go after all non-commercial use of the trademark, causing hassles for the people they are going after, and money for the company. That doesn't necessarily mean that your idea is a bad one, jut that you have to watch out for unintended consequences.
It would have the awesome intended consequence of exposing how patents actually hinder innovation, not improve it.
I say this with some reluctance because I've written quite a lot of Mono/C# code, but to me this absolutely proves beyond any reasonable doubt that the software patent threat from Microsoft is real and not just some abstract academic debate. I think I'll be limiting or scaling down my use of .NET on linux in future as a consequence.
> to me this absolutely proves beyond any reasonable doubt that the software patent threat from Microsoft is real and not just some abstract academic debate.
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?
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?
I'm thinking in terms of programming languages rather than products from particular companies. Recently I've gone back to using C/C++ and might also start using Python. As far as I know there are no software patent issues with those languages.
I don't care if I get down voted to oblivion for this, but I can't take the assholery anymore. When Apple et. al. file such suits its strategic, when they arbitrarily try to kill stuff its also strategic and jobs being jesus.Microsoft so much as moves a muscle and Apple trolls that have infested todays 'new' media and companies such as the above swing into action. Fucking 37 signals, what a sad day indeed.
I agree with your observation. Also I think some of the posters here of HN are trying to hard to play devil's advocate based on how much they like that particular devil.
To be fair I think we can all agree that Microsoft's use of these patents is strategic. Lots of things can be strategic. The question is whether or not its right - which, since software patents are involved, a lot of people don't think it is.
(On the whole I don't think Apple have been doing so fantastically in the tech press with their current closed platform anyway.)
(On the whole I don't think Apple have been doing so fantastically in the tech press with their current closed platform anyway.)
My karma goes down 4 then up 4, and is pretty much stagnant. I should make a clarification here, I do not support patents at all. The above rant is merely directed towards double standards.
I've some questions about "A method for providing a web page having an embedded menu to a web browser and for displaying the web page to a user of the web browser are provided."
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?
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?
Based on the patent claims, they are talking about absolutely nothing more than a Java applet with a menu in it.
This is insane.
This is insane.
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This is unusual behavior for MS. I wonder if this is the opening move in a buyout/takeover gambit.
The lawsuit might be unusual, but it's not unusual for Microsoft to try to get companies to pay licensing for trivial patents in its portfolio. They've been engaged in aggressively pursuing licensing deals around their patents for a number of years: http://news.cnet.com/Microsoft--license-to-deal/2100-1012_3-...
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.
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.
expanding on "unusual" its only the 4th time they have done this.
I don't have the specifics but I believe the other times were narrower claims against specific technologies. This is a broad brush stroke against an entire industry segment.
Is it really hacker news every time some idiot writes yet another inaccurate article about a patent lawsuit?
I think this is a pretty bullshit move by MS but I have a hard time feeling back for Salesforce. Their software really sucks.
Can you be more specific?
[Disclaimer: I work for salesforce.]
[Disclaimer: I work for salesforce.]
Your API is terrible. That wouldn't be such an issue if the documentation was any good. Getting an answer from tech support even though we were paying customers never happened.
Again, can you be more specific? Which API: Visualforce, Apex, web services, chatter, ... ? What about it needs improvement?
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.)