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

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.)

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

Will History Repeat Itself With Google Playing The Part Of Lotus?

from the could-be-a-stretch dept

History often repeats itself in the tech world and Joel Spolsky is seeing history repeating itself in the web application space. Using the example of Lotus in the office software space, he argues that the company lost relevance to Microsoft because it (wrongly) focused on optimizing performance and features for a platform (DOS) that was quickly becoming obsolete. In the meantime, Microsoft and Apple built really cool features for their office software and waited for platform capabilities to catch up (inevitably) due to Moore's Law. He then equates Google to the latter-day Lotus, painting a scenario where Google smugly laughs off a bloated but feature-rich (imaginary) NewSDK from a bratty startup, only to then get disrupted by this SDK when browser capabilities improve. Of course, part of the analogy breaks down because Microsoft was hardly a bratty startup when it succeeded where Lotus failed.

The prediction was serious enough to elicit a response from a Googler who disagrees with this association. The analogy is very interesting, and in many ways, we are indeed seeing a similar evolutionary path in web applications. Joel identified three platform characteristics, namely, a portable programming language, high interactivity and UI standards as important phases in the desktop world, that will eventually happen in the web world. And, he suggests, whoever can gain traction doing all three will have as much impact as Microsoft Windows back in the desktop era. This might be the case, but the more interesting question is whether it is even possible to achieve dominance from scratch just by doing all three?

On the web today, we are not seeing a lack of effort towards language portability (open-source Javascript libraries like Prototype, JQuery or Dojo) high interactivity (Scriptaculous, Yahoo/Google Developers API, Google Web Toolkit) and UI standards (all the CSS frameworks and Yahoo UI Best Practices). There are even efforts that are heading towards a "cut-and-paste" functionality on the web, with efforts like Microformats, the Semantic Web, GData API and even XML standard markups in different domains. There are also companies (Backbase, Nexaweb, Bindows, Tibco General Interface, Bindows) aspiring to be Joel's NewSDK by providing comprehensive tools for AJAX development. In some regards, you can argue that through Flash, Adobe has achieved all three in some important domains like video streaming, video conferencing and animations on the web, and with Flex and AIR, they are extending their ambitions to more general domains. The reigning giants are also not without ambitions in this area, with efforts like Microsoft's Silverlight, and Google hiring Mozilla developers and developing client-side technologies like Google Gears. As you can see, many players, ranging from big companies to small startups to open-source projects, are already pretty active in moving web applications along its maturation path, but still no one is as dominant on the web as Microsoft was on the desktop.

Perhaps one needs to remember that Microsoft became dominant on the desktop through shrewd business tactics, not by being the OS that developers love best. BeOS, Next, Apple and Linux have all tried to challenge Microsoft directly on the desktop by providing more compelling features but Microsoft remains undefeated. Perhaps having massive distribution (whatever way you get it) is an important factor? There are a handful of companies who have varying degrees of massive distribution on the web; Google (through search), Adobe (through Flash), Yahoo (through the portal), Firefox/Mozilla (through the browser), Apple (through iTunes/iPod/digital entertainment), Facebook/MySpace (through social networking) and not the least, Microsoft (through Windows/IE, and not to forget, the inventor of Asynchronous Javascript, the AJ in AJAX). Would these companies be in a better position to be Joel's NewSDK?

Yes, Joel is right in that history is indeed repeating itself in many ways, but it seems unlikely that anyone (especially Google) will be blindsided by a bratty upstart. If so, that startup will be making history, not repeating it.

Filed Under: history repeating itself, joel spolsky
Companies: google, lotus