MS can drag out these appeals and make motions like this for quite a while. This case may be dragged out for years to come from the looks of it.
As was mentioned in the earlier thread, this has implications for more than just MS Office. From what Ive read elsewhere this could impact other formats as well...like OpenOffice.
This could be the first shot fired for patent reform.
Not to mention that the judge that upheld that bogus patent doesn't know squat about the technology, it's like having a chimpanzee quality check Saturn V rockets before the next moon launch.
The mere concept of software patents is bogus in itself, despite that even in Europe we barely escaped the last attempt by the patent lobbyists to get a similar system as the US has in place in Europe.
But regardless of the merits of the system, the rules were clear up front to Microsoft.
As to Microsoft not stalling the proceedings: that's what the injunction is for isn't it ? Removing the injunction would allow them indefinite stalling as they've no reason anymore to not stall. It seems logical from that that the injunction should be held. There won't be "irreparable" damage as Microsoft has a de-facto monopoly anyway.
None of the online stories I found about this are clear on the subject, but are there consequences to filing such a motion ?
|The mere concept of software patents is bogus in itself |
However, copyright is another issue ;)
Also of note are the sheer numbers of intellectual property lawsuits filed in that district of Texas. It is one of the most plaintiff friendly venues in the U.S.
If you are going to file and IP suit, you go there if at all possible.
|There won't be "irreparable" damage as Microsoft has a de-facto monopoly anyway. |
a monopoly is no use if you can't trade.
So everyone who has ever created an XML template of some sort is breaking copyrights? We're all guilty then.
|The mere concept of software patents is bogus in itself |
No, the concept is fine, the problem is that the bar has been set far too low, for example...
If I devise a new software technology to protect other software from illegal use (i.e. a digital rights system) and it's so good that lots of companies want to use it, then it's entirely right and proper that I benefit from patent royalties.
Or suppose I develop an original content management system that is substantially faster, smaller and more secure than anything currently in use. Should other companies be allowed to copy the methods and sell their version, possibly killing mine completely?
People often say copyright is fine but software patents are wrong, but take my second example and imagine it's a book not a content management system. If someone were to copy the characters, plot and settings of my story and release their own version that would be considered a breach of copyright - but no equivalence exists for software!
The problem is that software patents have been granted on small, vague, and obvious ideas that aren't always original. The best example I can think of right now is that BT holds a patent (probably expired) on hypertext links - crazy.
I wouldn't be too quick to jump on the MS bandwagon, I don't think it's a simple patent troll suit. [news.techworld.com...]
Unless I've missed something (or the author, Gregg Keizer has missed something) there's nothing in those emails that is bad for Microsoft - developing a technology that renders a patent "obsolete" is absolutely fine (provided it does not infringe the patent).
I imagine patents in the world of microelectronics are routinely rendered obsolete every few years, or in some cases, after months. In fact, I've heard of instances when patents are obsolete even before they are granted!
>developing a technology that renders a patent "obsolete" is absolutely fine (provided it does not infringe the patent)
There was nothing at all in the e-mails about rendering the PATENT obsolete.
The e-mails were about rendering the PRODUCT obsolute (by duplicating the technology described in the patent).
So all the rest of your comments are irrelevant (possibly true, since current technology, like ODF, is non-infringing according to the patent owner.)
Now, the patent owner may be giving the ODF standard a free ride because it is pretty much insane to assert a software patent against the free software community. Unlike Microsoft, they can code around anything a lawyer can write, in a matter of days. Unlike Microsoft, they have no money for ransom but billions of volunteers for the defense militia. Unlike any patent lawyer on earth, they have SOMEONE who knows about ANY prior art (and in software there is ALWAYS prior art.)
So, basically, with patents and free software, it's pretty much guaranteed "use it and lose it".
Which is the technical reason why software patents are always bogus.
The LEGAL reason that software patents are always bogus, is that software is a kind of mathematical formula, and legally, mathematics cannot be patented.
|The LEGAL reason that software patents are always bogus, is that software is a kind of mathematical formula, and legally, mathematics cannot be patented. |
To be blunt that's tosh. It is your OPINION that software patents are bogus. To claim that there is a legal reason why they are bogus when they are recognised in law (rightly on wrongly) is nonsensical.
The article said
|The trial evidence revealed that Microsoft's intention to move competitors' XML products to obsolescence was quite bold |
It said nothing about breaking the patent - as I said before, rendering a patent (or product) obsolete is absolutely fine. Now, if there's an email out there says that MS planned to break the patent and steamroller over i4i (which is probably close to the truth) then that would be bad for Microsoft.
|The e-mails were about rendering the PRODUCT obsolute (by duplicating the technology described in the patent). |
Maybe MS did duplicate the technology, and maybe there are emails that confirm this, but they were not quoted (in the article). It's also worth noting that simply solving the same problem does not constitute patent infringement - if you solve a problem in a better way that's just fine (provided it doesn't build on someone else's patent).
>It is your OPINION that software patents are bogus.
Nobody disputes that mathematics is one of the areas excluded from patent protection.
It might be "my opinion" that software is simply a way of expressing mathematical formulas, but you'll find it shared by anyone with a clue about mathematical logic and theoretical computer science.
|It might be "my opinion" that software is simply a way of expressing mathematical formulas, but you'll find it shared by anyone with a clue about mathematical logic and theoretical computer science. |
Well, I have a subsidiary degree in Maths (and a main degree in Cybernetics and Control Engineering) plus over twenty years of programming experience and I disagree wholeheartedly.
The last time I checked, maths is not interactive, but, insofar as all software exists to serve humans in someway, as a whole, software most definitely is interactive (like a car or a sewing machine, etc). Certainly, there are elements of every program that are not interactive, but that's true of mechanical devices too. Neither a petrol tank nor a windscreen could be described as interactive but they are essential parts of a mechanism that is. In part, software is about the creation of components but it is also about the use of those components to create something that is bigger - sounds just like engineering to me!
I don't know where the idea "software is maths" came from, but it is utterly absurd. You might as well say that art is exercise because, in order to create a work of art, you have to use muscles - completely and utterly bonkers.
Yes, software makes use of maths, but so does physics, chemistry, geology, engineering, etc. If use of maths invalidates a patent then that probably renders all significant patents ever registered invalid.
If you disagree, then I'll be happy to read a reasoned and logical riposte.
>maths is not interactive
The physical sciences use math. Engineers use math. And absolutely, sculptors use muscles and sculpture is a kind of exercise. And software developers use math.
But the end product of a sculptor is a piece of granite, the muscles are just a side effect. The end product of a civil engineer is a bridge, the mathematics was just a design tool, discarded when the bridge is done. The end product of an electrical engineer is a computer; the math that described the workings of semiconductors, heat sinks, etc., are a design tool, not relevant to the customer.
And some mathematics -- algorithmic proofs of correctness, performance calculations -- are used in the process of building software, but are not relevant to the customer.
But the software itself is not any kind of physical entity, like the bridge or the computer or the lawn dwarf. It is a mental construct -- and a program is simply a logical (mathematical) representation of that mental construct, just like a blueprint is a logical representation of a bridge.
The process of designing software is simply logic -- not granite-chipping, not beam-rivetting, not semiconductor-etching, but simply thinking.
But if software is a mental construct, what KIND of mental construct is it?
It's a recipe--a list of instructions (well, so is a blueprint.) But what kind of instructions? It doesn't matter whether you call the instructions "arithmetic" or "logical" -- because both arithmetic and logic are kinds of mathematics.
It doesn't matter whether the instructions involve pauses at stated steps for human interaction. I know this is a bit off the beaten path for engineering-math students, but so did Cardano's algorithms for finding the roots of a quartic equation (published back in 1545). And, going back further, the geometrical processes described by the ancient Greeks have always been considered a part of mathematics.
Considering that mathematics has ALWAYS been sequential, and considering that the concept of "variables" (that is, "input" which may take on any of a range of values) has ALWAYS been a fundamental concept in mathematics ...
This is really really simple and basic. Does the software in a, say, 10-key calculator different in any way from the software generated by a Fortran compiler, which takes the same input punched into a card? Of course not. Both programs are equally mathematical constructs. Like other intangible sets of instructions (the code for a Jacquard loom), the nature of software doesn't depend on the medium in which it's stored (punch cards, bar codes, sound waves, clusters of electrons) or the identity of the entity that follows its instruction: a human can follow those instructions just as a machine can.
You don't need a computer to do software. That's because software is, from the beginning, a mental exercise--one of those mental exercises that uses exclusively mathematical concepts.
A bridge is not that. A bridge requires steel--or wood, or concrete, or SOMETHING. A sculpture is not that. A sculpture requires granite, or ice, or SOMETHING. And, for that matter, a physical theory is not that.
You might think of a physical theory as mathematics, though: Newton didn't invent gravity, he just found a mathematical formula that described how it worked. The mathematical formula is no substitute for the real thing, it's a mental construct.
Software is like a physical theory, because ... there is nothing for which it is a substitute. It is itself: it mathematically describes CHANGES in some aspect of reality.
It is, in itself, a mathematical description of a sequential process. Like other mathematical descriptions, that description may mention points at which, you might as well call them "interactions" with "external devices" (which don't have to be human) result in the insertion of new numeric/logical values into the state.
Nobody suggests that using mathematics invalidates a patent. What the law absolutely demands is that the mathematics itself cannot be patented.
I read recently about a patent on a roof design, in which fluctuations and perforations in the material had been mathematically calculated to achieve a particular effect (differential shade based on season.) The patent is on the roof--a physical object, not the mathematical formulas involved. But with software, there is no physical object. A computer or computer circuit could be patented, but once the computer is patented, it can calculate any of a certain restricted class of mathematical functions. Which one DOES it calculate? Whichever one you want, however you want to do it--all that potential is already there, already implemented. All that remains is for you (in conjunction with the computer) to write down your mathematical formula as computer instructions. But it's still nothing but a mathematical formula, no matter how many times you write it down, or in how many languages.
Also, any set of points on a graph (increasing x or y) can be joined by a sufficiently complex polynomial. It therefore follows that any shape can be described by a set of mathematical formulae, and if that's true in two dimensions then its true in three therefore any sculpture can be described by a set of mathematical formulae and since you cannot copyright a maths formula then, according to the "software is maths" logic you cannot copyright a sculpture. And it gets worse...
Any two-dimensional image can be described mathematically as fractals, therefore, according the the "software is maths" logic, you cannot copyright photos or paintings either. And it gets worse...
Any three-dimensional object can be described mathematically in terms of its shape and it's colors, so according to the "software is maths" logic, you cannot copyright any three-dimensional design. And it gets worse...
All modern animated characters are created using mathematical formulae, therefore, according to the "software is maths" logic, not even virtual characters can be copyrighted. And it gets worse...
All music can be described by a set of mathematical formulae, so that's music copyright ruled out as well.
Bonkers, Bonkers, Bonkers!
|You don't need a computer to do software. |
That's just the craziest thing I've ever heard. Find me a human that can read mp3 data directly from a memory stick and enjoy it! - Completely bonkers...
Computer software has moved on from automated code cracking and other activities that people could do, albeit slowly - that time passed decades ago. Some modern fighter jets are inherently unstable and require software to stay in the air - are you claiming that such flight software doesn't need a computer to run.
Many modern physical devices require software to operate and that software often takes longer to design than the hardware it runs on. It's a guess, but I imagine more man-hours went into designing Windows than went into designing the space shuttle.
Software is unique in that it can simultaneously be covered by patents and software and trade secret even while being distributed.
This, and the lack of evidence that patents have any positive effects on software development are good reasons for abolishing software patents. Especially if you consider the very real harm they do (business disruption, such as this, duplication of effort to develop alternatives, legal costs, patent search costs, products that never make it to market because of patent issues, submarine patents, etc.)
If you look at the actual patents awarded, they do often cover maths, business methods or interfaces (file formats or protocols). The last is harmful because its purpose is to prevent inter-operability.
|Many modern physical devices require software to operate and that software often takes longer to design than the hardware it runs on. It's a guess, but I imagine more man-hours went into designing Windows than went into designing the space shuttle. |
Yes, but the economics of software are entirely different. I use a free OS; I cannot get a free space shuttle.
Furthermore, Windows cannot be patented, just little fragments of the work done on it. Most of these do not take many man hours to work. How long did it take Amazon to develop the method covered by the one-click patent? I would guess a single ah-ha moment in the course of work they would have done anyway.
|Software is unique in that it can simultaneously be covered by patents and software and trade secret even while being distributed. |
I don't understand this - most consumer items include patents and many include trade secrets - that's why competitors buy and dismantle each others goods to see how they work.
|This, and the lack of evidence that patents have any positive effects on software development are good reasons for abolishing software patents. Especially if you consider the very real harm they do |
There is undoubtedly some truth here. I certainly believe that the bar needs to be raised higher but I think that may be true for real-world patents too! I would not allow patents to apply to file formats - that's simply a way of arranging data. Indeed, I think in many cases, publishing file format specifications should be mandatory so that such information cannot be legally kept secret!
Let's study a familiar example - zip files...
Assuming that the file format must be published (my rules) then that establishes the precise nature of the problems that must be solved. For a patent to be valid, it cannot be "obvious". The test of whether it is obvious would be if other programmers could independently devise more or less identical code - if yes then the solution to the problem is deemed obvious and no patent would be allowed.
However, software isn't always about file formats and data-processing. I provided two good examples earlier (content management and digital rights management) that would deserve protection under intellectual property laws (and would not have any detrimental effect on such things as interoperability). In the case of the DRM example I believe no valid argument could be proposed to deny a patent (provided the solution was unique and not vague or obvious). The CMS example is more difficult since it would necessarily involve many ideas which taken in isolation would not be new therefore, as I hinted, copyright law would be more appropriate (but this should prevent clones too.) Of course, this would open another can of worms such as who owns the copyright on all GUIs - that's a tough one!
Perhaps a new test for patents (and copyright maybe) is required - something along the lines of "Is it in the public interest that patents/copyright of this nature be granted?". For a DRM system, then, since copyright is considered to be in the public interest, then this test should be passed.