How To Thwart Broad Microsoft Patent App Using Microsoft's Own Prior Art In Just 15 Minutes

from the oh,-microsoft...-can't-you-try-to-be-a-little-BIGGER-than-everyone-else? dept

Thu, Jul 25th 2013 3:29pm — Tim Cushing

If you work in the software industry, patents are obviously a huge issue. Nowhere is the abuse of patents more common than in this field, where broadly written claims covering obvious "methods" are the rule, rather than the exception.

Fortunately, some new tools have been crafted to allow developers to head off future trolling efforts. One of these, Ask Patents, was set up by StackExchange and Google in conjunction with the USPTO. Joel Spolsky, cofounder and CEO, recently had a reason to test drive Ask Patents, resulting in the rejection of a terrible software patent application.

There are a lot of people complaining about lousy software patents these days. I say, stop complaining, and start killing them. It took me about fifteen minutes to stop a crappy Microsoft patent from being approved. Got fifteen minutes? You can do it too.

First, Spolsky gives the uninitiated a little background on software patents.

Software developers don’t actually invent very much. The number of actually novel, non-obvious inventions in the software industry that maybe, in some universe, deserve a government-granted monopoly is, perhaps, two.

The other 40,000-odd software patents issued every year are mostly garbage that any working programmer could “invent” three times before breakfast. Most issued software patents aren’t “inventions” as most people understand that word. They’re just things that any first-year student learning Java should be able to do as a homework assignment in two hours.

Taking a look at the history of patent trolls bears this out. Eolas, a notorious troll, which recently had its patents invalidated, has been extracting settlements from dozens of companies with its "Web interactivity" patents for nearly a decade. Others have followed in its wake, using patents such as "System for disseminating media content representing episodes in a serialized sequence" (to attack podcasters) and "online shopping carts" (to attack pretty much everyone) to generate revenue via lawsuits and settlements, all without having to actually create a competing product.

So, how do these patents make it past examiners without being discarded as obvious or running into tons of prior art?

The first technique is to try to make the language of the patent as confusing and obfuscated as possible. That actually makes it harder for a patent examiner to identify prior art or evaluate if the invention is obvious...

The second technique to getting bad software patents issued is to use a thesaurus. Often, software patent applicants make up new terms to describe things with perfectly good, existing names... Since patent examiners rely so much on keyword searches, when you submit your application, if you can change some of the keywords in your patent to be different than the words used everywhere else, you might get your patent through even when there’s blatant prior art, because by using weird, made-up words for things, you’ve made that prior art harder to find.

Spolsky details even more methods deployed by trolls to push through broad patents. He also notes that these examiner-thwarting efforts serve two purposes: sliding the application through and clouding the patent's coverage in order to increase the possibility that it will be infringed. Trolls don't want other creators not to infringe on their patents -- they want as much infringement as possible in order to generate settlements, hence the vague, ill-defined terminology.

Armed with this knowledge, Spolsky went in search of a patent app to invalidate.

At first I honestly thought it was going to be hard. Would we even be able to find vulnerable applications? The funny thing is that when I looked at a bunch of software patent applications at random I came to realize that they were all bad, which makes our job much easier.

Take patent application US 20130063492 A1, submitted by Microsoft. An Ask Patent user submitted this call for prior art on March 26th.

From the patent's summary:

[T]echniques for generating and displaying a presentation of elements in view of the pixel density of the display component, using a scale factor set of scale factors that specify a pixel density range and a scale factor value (e.g., 120%) to be applied to the elements of the presentation.

Spolsky looked at this patent and noticed one phrase being used repeatedly: pixel density. Or as anyone not applying for a dubious patent would call it: resolution.

Without reading too deeply, I realized that this patent is basically trying to say “Sometimes you have a picture that you want to scale to different resolutions. When this happens, you might want to have multiple versions of the image available at different resolutions, so you can pick the one that’s closest and scale that.”

So, Spolsky searched for prior art aimed at the actual purpose of the patent: providing images at multiple resolutions. And he found it -- right inside something else created by none other than Microsoft itself.

So I spent about a minute with Google and eventually (bing!) found this interesting document entitled Writing DPI-Aware Win32 Applications [PDF] written by Ryan Haveson and Ken Sykes at, what a coincidence, Microsoft.

And it was written in 2008, while Microsoft’s new patent application was trying to claim that this “invention” was “invented” in 2011. Boom. Prior art found, and deployed.

Total time elapsed, maybe 10 minutes.

A couple of months down the road, Spolsky (or rather, his patent expert) was informed that the application (including all 20 claims) had been rejected. It's a non-final rejection and Microsoft is appealing, but Spolsky's experience still demonstrates the potential power tools like these have to thwart bad patents, or at the very least, force the applicants to refine their definitions and descriptions.

[Hat tip to a whole bunch of people who sent this in, with the first few being ChurchHatesTucker, Nate Hoffelder from The Digital Reader and Marcel Popescu.)

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Filed Under: ask patents, joel spolsky, patents, prior art, software patents
Companies: microsoft, stackexchange

16 Comments

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Rekrul, 25 Jul 2013 @ 4:39pm

I'm glad that patent app made sense to him because it just looked like double-speak to me.
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Anonymous Coward, 25 Jul 2013 @ 4:40pm

Spolsky is a former Microsoft employee
I've been a fan of Joel's blog and books for years. His stories about being an Excel Program Manager at Excel are fascinating. I highly recommend "Joel on Software" (a blog-to-book publication) and "Smart and gets things done".

See this entry about VBA, Lotus dates and Bill Gates...
http://www.joelonsoftware.com/items/2006/06/16.html

He's been vocal on MS issues before, so it's a nice coincidence that the patent he chose to profile was an MS patent.
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Anonymous Coward, 25 Jul 2013 @ 4:44pm

Not only do patents slow innovation by funneling R&D money to lawyers, instead of scientists, they also waste a tremendous amount of time for whoever has to sift through all the 'troll' submissions.
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Anonymous Coward, 25 Jul 2013 @ 5:49pm

PYramidal Data Structures Have Been Used In Image Processing Since At Least The 1980s.
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6, 25 Jul 2013 @ 5:52pm

So then what this article is all about is that one man found out what every new examiner does, you can usually reject the initial claims. But then what? Are the amended claims more to the author's liking? Because he doesn't say whether he approves of this software application after the amendment is made. It may well issue, and then we'll be right back in the same boat as he seemed to think that we were in in the first place, we'll have a "bad patent" issued.
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Strut, 25 Jul 2013 @ 6:07pm

Win 8 tech
This patent describes MS's "new" RT windows 8.1 store application asset management scheme THAT displays different app resources (mainly images) for phone, tablet, PC, and larger screens (80%, 100% 125%, 150%). Thas been done since the icon and multi screen resolutions were implemented. (eg: 16x16, 32x32, 64x62, 128,128 .ico resources).
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Lawrence D'Oliveiro, 25 Jul 2013 @ 10:38pm

Nice Example, But...
There is a reason we say �pixel density� instead of �resolution�; because the latter is ambiguous, and has been used to refer to either total number of pixels, or number of pixels per unit distance. Whereas �pixel density� unambiguously means pixels per unit distance (e.g. �pixels per inch� or �dots per inch�).

In other words, all the people who know something about computer graphics know what �pixel density� means.
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Woadan (profile), 26 Jul 2013 @ 12:06am

What this means is that the Congress and the PTO need to standardize the language that must be used in patent applications. No more "made up" terms to try to confuse or obfuscate.
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Richard (profile), 26 Jul 2013 @ 3:13am

Re:
True - there is a paper from 1983 here:
http://dl.acm.org/citation.cfm?id=801126

and I beleive that this is far from being the earliest.
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McCrea (profile), 26 Jul 2013 @ 3:59am

Re: Win 8 tech
but when you change from 16x16 to 32x32, you don't specify "200%". Completely different.
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RyanNerd (profile), 26 Jul 2013 @ 5:20am

Patent Approval Office run by Chimps armed with Darts
ABSTRACT
The disclosed invention relates to polyisocyanate derived adducts and to emulsifiable polyisocyanates formed from those adducts. The invention further relates to emulsions which include the emulsifiable polyisocyanates. Emulsions which employ the emulsifiable polyisocyanates have greatly increased stability.

Without clicking on this link tell me what the above patent is for? Then tell me how a patent office is supposed to approve patents for things so technical or nebulous that unless you are trained in the field in which the patent is relevant you may as well have untrained chimps in charge.
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TaCktiX (profile), 26 Jul 2013 @ 8:41am

Re: Nice Example, But...
While that may be true, in the context of screen display resolution is a universal term and the possible confusion between per unit distance and total count is irrelevant.
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Sunhawk, 26 Jul 2013 @ 9:10am

Re: Patent Approval Office run by Chimps armed with Darts
Supposedly they try to hire people in the particular fields for just that reason.

Source: Discussions with recruiters and interviewers when job-hunting.
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Robert Doyle (profile), 26 Jul 2013 @ 9:22am

Re: Patent Approval Office run by Chimps armed with Darts
I clicked on the link and I still can't tell you what it is for - draw me a picture please ;)
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Zeissmann (profile), 26 Jul 2013 @ 1:52pm

Examiners
It's all very noble of him that he took those 15 minutes to thwart that patent; and it's very nice that anyone who cares enough could do it. But it strikes me that what this guy do was actually the job of a patent examiner. So why are those people, supposedly experts in their field and in patent law, not doing exactly that? If it takes only 15 minutes to make a search, and if most of those patent applications are this way, then why don't they just do their job? Are they dumb? Incompetent? Corrupt? Explain it to me someone.
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Anonymous Coward, 29 Jul 2013 @ 5:00am

Re: Patent Approval Office run by Chimps armed with Darts
Let me get this straight...

Software patents are bad because most of them are for really simple stuff that any programmer would consider obvious.

So you support your objections by citing a patent relating to water-based coatings in a chemical field, and complain that a patent should not be issued on this because you don't understand it?

So by your logic, 'trivial' patents should not be issued because they are obvious, and 'non-trivial' patents should not be issued because people without the relevant technical qualifications cannot understand them.

It is just as well the USPTO hires examiners with appropriate technical qualifications (such as degrees in chemistry) instead of people they find hanging out in TechDirt article comments.
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