ITC ruling against HTC may spell trouble for other Android makers - Page 4

This patent was granted 17 years ago.

Most patents's life is around 20 years.

Therefore, this will only be applicable for 3 more years.

I use awk regularly at work, as well as piping grep results as parameters and so on, but that doesn't seem very similar to claim 15 to me, since I have to define context myself there - context being application or data type, not a regular expression pattern. This clearly applies to GUIs and presenting interactive action options, which isn't awk at all.

I believe 3M also had a patent on the manufacturing process (i.e. how to get the glue on every sheet). Not 100% sure (sure was a long time ago!).

Ridiculous is probably the wrong word, but there are lots of problems with software patents.

I would start by admitting that there are a few very good software patents in areas like cryptography and compression that describe extremely specific algorithms. In those instances, reading the patent is enough to implement the system, the amount of code required is tiny - and the idea is likely non-obvious, especially as most of the obvious algorithms were invented back in the 60s.

So what are the problems?

Specificity:
One problem is that far too many software patents do something analogous to patenting the idea of compression itself rather than of a particular algorithm for achieving it. There's no way to innovate around these patents, if you want to solve the same problem - you are caught within their claim.

Duration:
Software patents run for around 20 years, but 20 years is an eternity in software. If Visicalc had been granted a patent we would only have had a few years of free competition in spreadsheets - perhaps not even that if they'd managed to delay the filing date or use a continuation patent.

Numbers:
A big part of the problem is just scale. There are 32,000 chemical engineers working in the US according to the department of labour, there are around 700,000 software engineers. There simply too much creation going on for patents to be a viable way of doling it out. They evolved in an era when invention was rare, but now anybody with a computer has the means for it.

Crazy problem domain:
Maybe people from other disciplines would disagree, but I think software engineers would claim that they have the largest problem domain of any discipline, and not only is it huge but it is continuously shifting and growing both as hardware provides us more power and as the world around us changes. The sheer size of the problem domain means that it's rather backwards - rather than exploring a large solution space of a small number of problems we're busy trying to apply the smallest possible set of solutions to the largest possible set of problems.

Just because something wasn't done for years doesn't mean that the solution wasn't obvious, in software it may simply have meant that the problem hadn't yet occurred or hardware hadn't yet permitted it to be implemented.

That 3-M patent is a great example of how a chemist stumbled upon a solution to a problem and then went looking for a problem to apply it to. In software we are for more likely to have stumbled onto a good problem, and then gone looking for a solution.

Because much of the time they are granted for trivial developments, things that would have been created by numerous people or companies due to an obvious need or recognized market, but awarded to a single entity instead only because they got there first. That can impede creativity and development, and thus be detrimental to consumers, in a couple of different ways.

As perhaps a poor but still illustrative example, let's assume that rather than license their software patents on basic services to Apple, Nokia had taken a hard line (if permitted*) and refused to license. Instead they advised the ITC they wanted all of Apple's offending products removed from the market. Nokia decided they wanted the smartphone market to themselves since, after-all, they'd made a big investment in development. So would Apple need to create other standards for use with the iPhone or just discontinue a smartphone product? Would an investment of months/years and who knows how much money make sense as a business decision? And if so, how does that benefit the market having multiple standards in use that require additional infrastructure, support and investment, and introduce probable incompatibility with other systems and inconvenience to buyers?

And then consider that even if they take the time and spend the money to recreate the wheel, there's still no guarantee that someone else doesn't already have a software patent vague enough to be used against their new invention to claim another round of infringement?

I am giving examples showing the non-obviousness.

It is your turn to show actual, not potential or possible, but actual incidences of prior art or obviousness. Could have, should have, would have, might have, don't count. Only "did" counts. If it was possible in AWK, but no one did it, it doesn't count either. Ball in your court, awaiting your next volley.


And with the post-it example if you'll notice it was the glue company that I said might have argued prior art (or scotch tape), since they both already made sticky stuff. And follow on companies, could emulate the solution, but they had to find their own sticky stuff, even though at that point sticky stuff was obvious. You want make sticky stuff that only sticks when you want it to, find a new material. It is not a perfect example, but it does have salient points.

just curious, where do you work and what do you still use awk for?

You know nothing about the telecom industry, absolutely nothing.

Those posters here who are patent lawyers please raise your hands. Otherwise you are pontificating about something you know nothing about and your statements about things like patent law, prior art, licensing, lawsuits, et al, are nothing more than missives of the clueless. This is all part of the legal system now and we just have to sit back and watch what happens. Our personal biases can assign motives to Apple or its competitors but that's meaningless too, sort of like arguing about whether Casey Anthony is guilty or not.

Precisely. Really good philosophy finds really good questions, not really good answers (I can unpack that further if anyone want to hear an explanation of exactly what I mean). Once the problem is correctly framed, the answers become obvious, so almost all the argument is about how to frame the problem.

I think it's rather analogous when a software designer frames a problem the right way: "How do we automatically mark-up data in unstructured personal communication and documents so that the user doesn't have to fiddle with it themselves?" The answer is simple, of course; all that's novel is framing this as a problem. Up to that point, the framing was usually "how do we implement mark-up structure while composing documents and personal communications?" and thus putting the burden on the data source to implement some targeted standard. I think people just assumed that non-structured, non-normalized data would be too hairy to be useful (I probably would have, back in my early data-wrangling days) until they saw though example that there are a number of kinds of data that are both easily identifiable and useful.

And suddenly, it was obvious.

Granted, I think there's a good argument to be made that the patent is too broad and it needs to be limited, or something along those lines. In fact, that sort of thing does happen fairly frequently, and I expect something like that will happen here. Will it be narrowed to the point where the Android implementation will no longer infringe? I suspect not, though only with about 60/40 confidence.

One might also say that such stumblings shouldn't be protected by the patent system, as they don't really reward R&D effort so much as luck. I think there's a case to be made there, as well, but I admit that I've never been a UI designer (I hardly use the UI for my own product because I find the simplicity of scripts and consoles controls a lot of variables and so reduces the time to localize problem sources), so I don't really know what "R&D" really means for UI features. The closest I can think of is WebOS' technique for forcing garbage collection based on interface events so that the interface isn't likely to stutter. That took a fair amount of examination of use patterns and some clever timing techniques: it was a non-trivial effort, despite all it involved was forcing an intrinsic java operation at convenient times. I can only imagine what the patent on it looks like, and how broadly phrased it must be. And it's not that obvious, because Android hadn't implemented it last time I looked (in 2.2) despite also being java-based. iOS probably achieves something very similar, but they don't implement automatic garbage collection in objective C for iOS, and so don't face the same problem. If HP wanted to sue Android (that is, some Android-related entity) for copying their approach, it would seem to me that they have a case even though the specifics of implementation are either so general as to be meaningless (i.e. all java allows for forcing garbage collection) or too specific to infringe unambiguously (because the events on which garbage collection gets forced would be different in Android vs WebOS.)

Anyway, I don't think your position is crazy or biased, but I tentatively disagree.

False, false, false. Linux is a reimplementation of some of Unix ideas, but definitely not a copy. In any case, a copy would be a copyright violation, not a patent violation. Much of Unix was never patented -- the idea of a software patent had not been determined in 1970, when Unix was developed. The US Supreme Court did not rule that software was patentable until 1981 in Diamond v Diehr.

I really don't want to see Android hobbled by patents but at the same time patents must be honored. Google and the handset makers must share their profits rather the steal technology at others expense (i.e. Apple, Microsoft, and Oracle).

I'd rather not identify my employer, but I can say I'm the test lead for a system composed of linux software controlling custom hardware and post-processing the data stream it produces.

One obvious use for awk is to pull ICD commands out of log files and feed them to command consoles. Ditto pulling file names out of find or ls results to feed to utilities. Sometimes I just use it to normalize data for diff, though if I can get away with using just cut/sort I prefer to avoid awk's peccadillos. Basically, the normal stuff for which awk tends to get used (in my experience, anyway).

If your issue is that AWK doesn't contain a UI with user actions then I would suggest emacs folding mode, which came into existence around 1991

Folding mode detects places in code where it can be 'folded' and then by user interaction you can fold or enter the code at that point. The way to determine the fold location is stored as a string map within the .el file and is configurable so that it can be set to a string that is convenient for the language. Some patterns come supplied.

Folding mode could be run at the same time as font-lock mode which would highlight, so I think that essentially covers all the aspects of the patent.

Emacs as it existed back in the early 90s constitutes a system that infringes this patent.

Ha ha I just had to register because I think this quote is fantastic!

I think that's very true of academia, but I don't think it's a good use for the patent system. If an academic poses a problem in a very clear way that is definitely original research and worthy of citation - but it doesn't give them a head-lock on further research.

Patents didn't begin as ways to protect problems, they began as a way to protect solutions. Now there is a case that there should be a way to protect 'framing the problem', perhaps for a much shorter period of time, say 3-5 years. Apple certainly 'reframed the problem' of what a phone was for, or what a tablet was for.

The patent is a 500 year old concept that is simply not suitable for rewarding innovation in the software world. In an ideal world Apple would be rewarded for that innovation in a way that didn't entail them having to claim ownership of such a basic concept as a parser coupled to a UI.


Well first off it's not like they're detecting unstructured data, they're finding very structured strings in an unstructured stream and that was never terribly hard, even in the 80s - it's the entire purpose of a regexp after all, Also I think we need to keep bearing in mind what the patent actually says rather than what we might like it to say. It doesn't limit itself to just non mark-up'ed data, it would apply just as well to detection of a keyword in an IDE text-window with a right-click to bring up a man page.

The use-case where the patent is applied to phone numbers and whatnot is just the embodiment, you can't get caught up in that. The claims are the issue.

Not disagreeing with you but just on your last point, surely professional software developers only fear and loathe them when they are someone else's while they love them when they have them on something they developed.

That will cheer Google up I'm sure

As you say, it's a method for using structured data in an unstructured stream to provide interactive choices. Not at all what awk offers, and even your emacs folding example is a very specific application that really only offers one interactive choice: fold, or don't.

Nevertheless, I have to grant that the patent system treating this kind of thing in the same way as it would specific algorithms and whatnot seems poorly matched. I would rather that there be, to use something like your suggestion, a sort of derived implementation patent that lasts much less than 20 years*. That would have protected Apple's embodiment for a few years but let the rest of the field implement it within a product cycle or two. Thus, companies would still have plenty of incentives to innovate in obvious-after-the-fact ways, but not so that they can lock things down forever.

In Apple's shoes, I would totally use the patent, but I have to agree that it would be insane to apply this patent to two decades of smartphone implementations starting in 2007. I feel like there has to be something that recognizes the work that Apple, Palm, and Microsoft did to approach user-interface problems in a novel way, without putting any clear best choices rigidly off-limits to competitors for what is an eternity in software.

*To elaborate a bit more, say the original 20 year patent grant still applies, but anyone wanting to use the approach to create specific embodiments only has to license for 3-5 years(and the holder can't refuse to license, though I've never understood how the court determines what a reasonable license fee is), or if the patent-holder uses it, they can only keep exclusivity for 3-5 years.

How do you figure that?

In the US, the life span of a patent is calculated using the filing date and not the issuance date. But the '647 patent was filed on Feb 1, 1996 and issued on Aug 31, 1999. Whichever date you use, the patent is good well past the next 3 years, if I am not mistaken. Perhaps we are talking about different patents?

Common refrain from someone lacking a proper counter-argument but not lacking in desire to be heard.

Although academic research is often about creating and posing new problems, posing it alone is rarely considered publishable, unless you are identifying a problem that has practical concerns. You need to formulate the problem, characterize it and solve it. Often, academic research is not about a problem at all.

The patent system is much older, isn't it? Ergo, the concept is even older?

Again, the patent only says at least one possible action, it doesn't even have a separate claim stipulating two or more. The only requirement is that the user control when and if the action linked to the detected structure takes place - folding mode would seem to cover that.


Even with that there's a problem, where would we be if LG had gotten an exclusive on the embodiement of a pure touch screen smartphone with no keypad? We'd only still be on the iPhone-1!

I think it's worth asking, what would the world look like without software patents of any kind? Would there be more or less software innovation? If there would be more, and if the combination of copyright, trademark and design patents would be sufficient for 90% of developers then it's time to consign software patents to the recycle bin.


There's an old saying that hard cases lead to bad law.. In this example the hard case is how to protect Apple, MS, RIM etc for their amazing innovations which clearly cannot be protected by copyright alone - as famously demonstrated by Apple vs Microsoft. Patents seem to be the bad law, which protects Apple et al. at the cost of inflicting Lodsys on the rest of us. I really don't care that Apple has a horribly broad patent like this one, since I know that they will never sue any but a handful of other huge firms, but if they can do it then so can anybody else.

Increasingly I'm for saying, screw the hard cases. Lets just throw out software patents for all but well defined sub-domains like encryption, and go back to copyright.

Statements about patent law are missives? Huh? Personally, I'd have thought something like the following would be closer to a missive? But, what do I know?

has anyone noticed the stock price listed on AI is a little high?

odd

sell! Sell! Sell!

Pure BS. Xerox had no idea what to do with their technology, and didn't believe it was good for anything. Apple asked if they could use the tehnology and develop it further, and Xerox gave permission. Apple greatly improved the Xerox ideas, applying them in ways Xerox never thought of.

MS did not use Xerox's technology - they used the innovations that Apple had developed. They got the code because Apple had sent tit to them so MS could develop Word for Macintosh. MS flat out stole it.

Actually, my proposal (if you can call something so nebulous a 'proposal') would imply that Apple would at worst be stuck licensing the approach from LG for 3-5 years.

As for what the world would look like without any patents, I'm not sure what to say about that. If there's no protections at all, then there would be just enough software to sell hardware, and companies would have a lot of incentive to keep everything really balkanized so that software is difficult to adapt. In all, I think we'd be in a much more primitive place.

Software copyright, however, offers another path. I'm just not sure that's an improvement, since copyright on creative works is actually much longer and has stiffer penalties. Applied somewhat narrowly, it wouldn't be very restrictive at all, but the lack of an alternative might persuade courts to apply it more broadly. It might be better than what we have, and it might be worse. It's hard to judge a counterfactual that suffers from so many contingencies.

Another item that might be stretched to help a bit is trade dress. Currently it's barred from any functional role, but perhaps they would expand it if the functions were patentable as they are now.

If it's so obvious, why didn't Windows, Symbian, Blackberry or Palm include that feature before Apple did? This is not about selecting phone numbers, or translating hyperlinks, as others have said. It's about the OS automatically recognizing phone numbers and other strings in plain text, and automatically turning them into contacts, links, etc. Apparently Apple figured out how to do it, and Android stole Apple's method.

A really good question is still valuable though. Something like Hilbert's problems or the Goldbach conjecture. The P versus NP problem. Arguably the EPR paradox is really a question. A lot of theoretical physics consists of formulating questions that the experimentalists can investigate, Bell's inequality could be argued to fall into that category. Anyway it's really a discussion that calls out for booze


Wiki reckons that the modern patent system began in 1474 in Venice, but yes the concept was older.

<badjoke>Because they knew Apple had patented it! </badjoke>

We effectively lived in that world until the early 90s, it really wasn't so bad. If you haven't already I strongly recommend you read this article by the inventor of the spreadsheet. http://www.bricklin.com/patenting.htm


Again, that wasn't the result. This isn't as counterfactual as you think - it's history.


Hmm, the problem with trade dress is it never expires at all.

Hey - I invented that kind of humour tagging back in 1993! Cease and desist!

There is new, fresh multitouch patent. Don't worry.

Looks like Apple's doing well in the wake of this news...

Speaking of BS, it is not true Xerox had no idea what to do with their technology or didn't believe it was good for anything. They simply aimed for a different model of commercialization which did not pan out. Xerox first developed the Alto, which featured not only the GUI we have come to know and love, but also Ethernet connectivity. They never sold this system, but used it internally and also shared some units with academia. The actual commercial product was the Xerox Star. But they were thinking high end all the way, possibly because it fit with their sales model for photocopiers. Instead of marketing each Star as a standalone workstation, you had to buy a network of them along with a server and a laser printer.

As a kid, I worked at a Xerox research lab during one summer, and played with one of the original Altos. It was the highlight of my summer, and inspired me to buy my first of the many Macs.

All to say, Xerox had a strong, comprehensive vision for a rather impressive trove of technology (GUI-driven workstation, laser printer, Ethernet, etc.), but perhaps tried to sell too much to a market that didn't get it; either that or their timing or execution was off.

Also, in return for exposure to this technology, Xerox received options for a good chunk of pre-IPO Apple stock, which would be worth a hell of a lot today.

Did you catch 'Everything is a remix part 3'? http://www.vimeo.com/25380454?

A whole section on the Alto and Mac - nice little indie documentary.

Good link. Thank you!

The problem is that up until the early 90s was also the period when software tended not to be interoperable and software companies were tiny compared to hardware companies. I was just a tadpole hacking around on a C64 in the mid-80s, but I do remember having to check software for specific hardware for which it was built, loading a bunch of buggy, stolen TRS-80 games from a cassette tape, and other adventures with early GUI-based computers. I won't go so far as to say that software back then sucked because of a lack of patent protection, but I definitely think software was taken much, much less seriously then. It's also worth noting how much Dan Bricklin's objections in 1995 revolved around changing the rules late in the game: "With the law interpreted one way for so long, and an entire industry structuring itself around that interpretation, allowing the patenting and enforcement of patents of pure software this late in the life of the art is an unusual hardship for a thriving industry that is crucial to the world's economy. While it may theoretically have been appropriate to have pure software patents, the opportunity has passed."

As for trade dress, I was just thinking that if one made the look and feel distinctive to another covered under trade dress, then you'd be fine. Basically, one could implement the same features, as long as they were implemented distinctively. Or something like that. Jurisprudence invariably establishes much of the meaning of IP law and IANAL.

Shouldn't .sig files count as prior art?