Apple makes a mistake with a very imporant patent.

[MacBytes]

http://www.macbytes.com/images/bytessig.gif (http://www.macbytes.com)

Category: Apple Software
Link: Apple makes a mistake with a very imporant patent. (http://www.macbytes.com/link.php?sid=20050812132827)

Posted on MacBytes.com (http://www.macbytes.com)
Approved by Mudbug

[swingerofbirch]

So....didn't Portal Player also have something to do with the development of the iPod? Or did that not include the GUI?

[Lacero]

Apple top management, especially Steve, must be bloody livid.

[ham_man]

Someone is going to be in very deep **** at Apple...

[.Andy]

This was discussed in this thread (http://forums.macrumors.com/showthread.php?t=143460) a little earlier. Follow the link provided by iMeowbot to the Register article and you'll see things are quite at the chicken licken stage as it would appear :).

[Gimzotoy]

Yea, this was covered here in MacBytes itself 2 days ago:
http://forums.macrumors.com/showthread.php?s=&threadid=143082

[rvernout]

Almost all of the facts presented in this article are incorrect. The Microsoft application is not for an iPod like device (so Apple doesn't probably need a license) but is merely cited as prior art for proving lack of novelty of Apples current (broad) patent claim, Microsoft did not yet get a patent on their (probably also broad) patent application, the rejection by the USPTO of Apple's patent application is not yet final (Apple has sufficient opportunity to amend/narrow their claims to get a patent), Apple may prove that they made the invention before Microsoft etc. etc. etc.

This is really a lot to do about nothing.

[winmacguy]

Almost all of the facts presented in this article are incorrect. The Microsoft application is not for an iPod like device (so Apple doesn't probably need a license) but is merely cited as prior art for proving lack of novelty of Apples current (broad) patent claim, Microsoft did not yet get a patent on their (probably also broad) patent application, the rejection by the USPTO of Apple's patent application is not yet final (Apple has sufficient opportunity to amend/narrow their claims to get a patent), Apple may prove that they made the invention before Microsoft etc. etc. etc.

This is really a lot to do about nothing.
I read something similar to that on Macworld UK a few days ago.

[otter-boy]

I thought only the original inventor could claim a patent, especially when a product had already been produced with the patented product/technique. Otherwise, wouldn't the iPod be prior art and Apple not choosing to patent the technique just leave it open to rampant copying with no legal recourse on Apple's part (for failing to patent the idea)? Maybe that just applies to people trying to patent previously patented products?

Otherwise, couldn't someone just patent prducts that existed prior to the patent system and start charging royalties as the first patent holder?

At least it's easy to prove that the Microsoftie didn't come up with the idea, seeing as there was already a product on the market that did what he was just then claiming to have discovered or created.

[jkaz]

was the 'microsoft patent' filed by an employee on behalf of microsoft, or by a microsoft employee on behalf of himself

[SPUY767]

"We have a long-standing practice of licensing things to Apple and licensing Apple's patents to use in our products," Kaefer said. "Our approach is to recognize that, frankly, we're both mutually dependent on the good ideas of one another."

WTF?

I have been at a loss to understand this either. This would be like me roughly attempting to get a patent on a mode of transportation utilizing an internal combustion engine, connected via a reduction gear to two or, utilizing a torsen differential, four wheels.

[hob]

I don't quite understand this Patent game. How is it that devices like LCD monitors or Speakers or.... The common keyboard weren't all patented by an individual company years ago? How can you patent as ambiguous as "rotating an input devices that allows you to scroll through menus"? What does it mean if said patent is given? That there can never be another circular input device unless manufactured by the patent-holder? :confused:

[iMeowbot]

was the 'microsoft patent' filed by an employee on behalf of microsoft, or by a microsoft employee on behalf of himself
Employment contracts generally cover that. If you invent something while on their payroll (even on your own time) it belongs to them.

[Bob Knob]

Employment contracts generally cover that. If you invent something while on their payroll (even on your own time) it belongs to them.

The "on your own time" part gets knocked down all the time. I have been on the "I made it on my time" end of the argument three times, I won every battle. The key is that none of my work (or even any notes) were ever done on a company computer.

[Sun Baked]

Yet more evidence of the trouble with the current patent process, when they use the date of patent application to negate the date it was "invented." :rolleyes:

Certainly something on the market was invented before something "invented" and filed for afterwards. :(

[the_mole1314]

I don't quite understand this Patent game. How is it that devices like LCD monitors or Speakers or.... The common keyboard weren't all patented by an individual company years ago? How can you patent as ambiguous as "rotating an input devices that allows you to scroll through menus"? What does it mean if said patent is given? That there can never be another circular input device unless manufactured by the patent-holder? :confused:

Because back then it was all for the common good, software was free, everyone taught eachother. Now it's all for profit, people backstab, people sue, and people make sure they get money over the wellfare of the majority.

[shamino]

Employment contracts generally cover that. If you invent something while on their payroll (even on your own time) it belongs to them.
Which is why you should read those contracts and don't be afraid to speak up if you don't like it. Most of the time, employers won't refuse to hire you if you refuse to sign. Or they will offer you a modified contract.

FWIW, every company I've worked for has written their "brain clause" in such a way as to only apply to code that is similar to the company's normal business. If I write a routing stack on my own time, they have the right to take posession (I work for a router manufacturer). If I write a shoot-em-up video game on my own time (and on my own computer, of course), they have absolutely no right to it.

My father's experience matches mine. His company had one of those "everything you develop belongs to us" clauses. He refused to sign. They hired him anyway. HR pestered him about it for a few years, but he continued to refuse. Eventually they stopped. He worked there for 30 years, through to retirement, and never signed that piece of paper.

[simX]

I thought only the original inventor could claim a patent, especially when a product had already been produced with the patented product/technique. Otherwise, wouldn't the iPod be prior art and Apple not choosing to patent the technique just leave it open to rampant copying with no legal recourse on Apple's part (for failing to patent the idea)? Maybe that just applies to people trying to patent previously patented products?

Otherwise, couldn't someone just patent prducts that existed prior to the patent system and start charging royalties as the first patent holder?

At least it's easy to prove that the Microsoftie didn't come up with the idea, seeing as there was already a product on the market that did what he was just then claiming to have discovered or created.

Exactly. That was my exact first thought. Despite the fact that Apple could have protected its invention if it had filed the patent at the right time, this really is much ado about nothing. Apple can point to the iPod as prior art for Microsoft's patent, get it invalidated, and would therefore not have to pay royalties for Microsoft over the iPod.

So basically -- big whoop. Sure, Apple could have patented the idea at the right time but whatever. Personally, I feel that if other manufacturers can benefit from Apple's intuitive interface design for MP3 players, then they should go for it! It will only make the marketplace better, and force Apple to keep improving the iPod as well.

[mad jew]

So the Longhorn screen-shots have all been misleading and Vista will actually incorporate the iPod GUI.

Cool, we can use a giant click wheel to crash Windows now. :)

[jc27]

So the Longhorn screen-shots have all been misleading and Vista will actually incorporate the iPod GUI.

Cool, we can use a giant click wheel to crash Windows now. :)

Sorry, the click wheel is patented by apple. We'll have to make do with that scroll strip from Creative Technologies. :D

[mkrishnan]

Exactly. That was my exact first thought. Despite the fact that Apple could have protected its invention if it had filed the patent at the right time, this really is much ado about nothing. Apple can point to the iPod as prior art for Microsoft's patent, get it invalidated, and would therefore not have to pay royalties for Microsoft over the iPod.

Well... it depends. Microsoft filed after the iPod came out. If their documents prove they thought of it before Apple did (since Apple and MS probably both thought of the ideas involved before the iPod started selling), then by virtue of the patent, they may still have control... because the patent has a filing date, but my understanding is that once it is approved, the backwards reach of the ingenuity goes not just to the filing date but to the creation date, if substantiation is available.

Anyone in law confirm/reject? :o

[iMeowbot]

First, this isn't a very important patent. in this application, Apple were trying to patent the idea of menu trees, of all things :rolleyes:

The rejection from USPTO isn't even saying that the idea was original in the Platt patent (which isn't even really about menus anyway). Rather, they used it as an example of the lack of original ideas in the Apple application.

[shamino]

First, this isn't a very important patent. in this application, Apple were trying to patent the idea of menu trees, of all things :rolleyes:
Hierarchical menus go all the way back to the first release of Mac OS, and possibly all the way back to Xerox PARC's research work. They're old enough that any possible patent should have long since expired by now.

Displaying them on an iPod vs. a computer screen is not in any way new or innovative and doesn't deserve patent protection.

[Abstract]

Exactly. Nobody should be able to patent a hierarchial organizing system.

Programmers even use nested statements......sue them all.

Late 1990's mobile phone menus......lets sue them too! Or maybe they should sue MS and Apple for copying their idea, because I had a mobile phone with a similar menu system to my iPod.

Then we can start talking about computers that go way back.

[EGT]

I don't quite understand this Patent game. How is it that devices like LCD monitors or Speakers or.... The common keyboard weren't all patented by an individual company years ago? How can you patent as ambiguous as "rotating an input devices that allows you to scroll through menus"? What does it mean if said patent is given? That there can never be another circular input device unless manufactured by the patent-holder? :confused:

I know, I'm confused by it also. Everyone is out to get bragging rights for such vague things.

[Arnaud]

I know, I'm confused by it also. Everyone is out to get bragging rights for such vague things.

Patents are supposed to be given to products/concepts/methods which clearly present an advantage over what already exists. Hence, you've cracked your brain for a great idea, and you deserve temporary protection for it.

Sometimes, bad patents make their way out. You see the difference with what already exists, but you don't see the point ("ok, 5 teeth on my fork instead of 4, and ?").

And sometimes, it seems that too many bad patents are issued. Is it just a flawed perception, a statistical issue, or a real fact ? Some good patents are also delivered every day.

Btw, if you've got a grand idea, and you want to share it freely with the rest of the world, make it public : Publish it, broadcast it, print it out ! This way, nobody can claim a patent on it ever.

[mkrishnan]

Patents are supposed to be given to products/concepts/methods which clearly present an advantage over what already exists. Hence, you've cracked your brain for a great idea, and you deserve temporary protection for it.

Really, patents are "supposed" to be given out in the way that maximizes economic productivity. So as many patents as you can give without discouraging competition, and as few as you can give without discouraging investment in R&D of a field... patent law is based inevitably on economics... it's not what's right or wrong, but what keeps the system flowing most smoothly. ;) I think that's why IP law is such a maze. No matter what people claim, the real intention has never been to align itself with a broad philosophical or moral policy.

[Arnaud]

Really, patents are "supposed" to be given out in the way that maximizes economic productivity. So as many patents as you can give without discouraging competition, and as few as you can give without discouraging investment in R&D of a field... patent law is based inevitably on economics... it's not what's right or wrong, but what keeps the system flowing most smoothly. ;) I think that's why IP law is such a maze. No matter what people claim, the real intention has never been to align itself with a broad philosophical or moral policy.

Yep. The concept for patents is to provide an incentive for (industrial) development: if you develop something interesting (the invention), and agree to share it with the rest of the world (the publication), you get a temporary legal protection (the patent). In the end, everybody should profit from your invention, even if the rest of the world has to pay licenses or wait a little to fully enjoy it freely.

This system is opposed to the concept of no-patent: whatever you invent can be copied (and will be), unless it is kept secret - which might work for methods, not for products -.

[shamino]

Really, patents are "supposed" to be given out in the way that maximizes economic productivity.
Sort of.

The idea of a patent is to grant an inventor a government-guaranteed monopoly for a limited period of time. The expectation is that he'll need that time in order to recoup his R&D expenditures and turn a profit. Without the monopoly, his competitors could quickly steal his invention and run him out of business. The patent is supposed to eliminate that problem and therefore encourage invention.

Of course, it doesn't always work out that way. If a little guy has a patent and a big guy steals the invention, the little guy may go broke and die trying to win the court case that he has every legal right to win.

One unfortunate side effect, however, is that an inventor is under no obligation to sell/market/license the product he invents. He can just as easily sit on it and do nothing. Some companies do just this, waiting for someone else to independantly come up with the same idea, and then file infringement suits. Disgusting, but unfortunately legal.

The problem we're in today, however, stems from something different. Patent examiners seem woefully uneducated uninformed when it comes to modern technology. Companies routinely file patent applications for things that are obvious (obvious inventions are not supposed to be patentable). Things that every first year computer science student "invents" as a part of his homework assignments are often protected by patents. Groups like the League for Programming Freedom (http://lpf.ai.mit.edu/) oppose the entire concept of software patents on these grounds.

IMO, there should be something in between. If someone comes up with a truly innovative software/UI concept, he should be able to patent it. But the patent office needs to be staffed with expert computer scientists, in order to reject the thousands (if not millions) of frivolous software patent applications that companies are constantly filing.

For example, Apple should probably be allowed to patent Expose'. It's a truly innovative piece of UI work and (to my knowledge) was not done by anyone else before that.

On the other hand, frivolous patents for things like sorting algorithms (many of which were actually published in Knuth's books) should be rejected in a matter minutes. And they would be if the patent examiners had computer science expertise.

[mkrishnan]

One unfortunate side effect, however, is that an inventor is under no obligation to sell/market/license the product he invents. He can just as easily sit on it and do nothing. Some companies do just this, waiting for someone else to independantly come up with the same idea, and then file infringement suits. Disgusting, but unfortunately legal.

The problem we're in today, however, stems from something different. Patent examiners seem woefully uneducated uninformed when it comes to modern technology. Companies routinely file patent applications for things that are obvious (obvious inventions are not supposed to be patentable). Things that every first year computer science student "invents" as a part of his homework assignments are often protected by patents. Groups like the League for Programming Freedom (http://lpf.ai.mit.edu/) oppose the entire concept of software patents on these grounds.

I completely agree, that these are two separate problems, that hamper both economic productivity and competition. The tech know-how one is a real shame. They need to hire people with broad technological know-how. Ah, well... I sent in my resumé, when I was still in engineering, but was never contacted. :( But I'm much happier now in psychology, so good riddance.

As for the second issue, I really think we need to think about some kind of use-it-or-lose-it compromise with patents.... I don't know what it would look like, though. :(

[Arnaud]

The problem we're in today, however, stems from something different. Patent examiners seem woefully uneducated uninformed when it comes to modern technology. Companies routinely file patent applications for things that are obvious (obvious inventions are not supposed to be patentable). Things that every first year computer science student "invents" as a part of his homework assignments are often protected by patents. Groups like the League for Programming Freedom (http://lpf.ai.mit.edu/) oppose the entire concept of software patents on these grounds.

IMO, there should be something in between. If someone comes up with a truly innovative software/UI concept, he should be able to patent it. But the patent office needs to be staffed with expert computer scientists, in order to reject the thousands (if not millions) of frivolous software patent applications that companies are constantly filing.

For example, Apple should probably be allowed to patent Expose'. It's a truly innovative piece of UI work and (to my knowledge) was not done by anyone else before that.

On the other hand, frivolous patents for things like sorting algorithms (many of which were actually published in Knuth's books) should be rejected in a matter minutes. And they would be if the patent examiners had computer science expertise.

The work of a patent examiner is limited by the obligations of the law and by the available prior art. The law says that you cannot just stand in front of an applicant and say "nah, it seems obvious to me", you have to substantiate it with the closest prior art AND an explanation about why it would be obvious to go from this one to the so-called invention, and not only could.

Regarding already known concepts (maybe your reference to the Knuth's books), they should be taken into consideration, I just hope the examiner can search through all these documents.

Regarding anything else, it needs to have been made public, of course. My advice again: if you want to help the world freely, make it public! Publish all the homeworks in the world!

You should also keep an eye on what is being granted and what are the legal consequences (ie, the first claim): you can have a claim where 95% is known and 5% is new and inventive; it might look obvious, but deserves a patent and only protects items with 100% of the features. (Well, then it can go to court for different situations...).

I'd be a little careful about evalation of the examiners' skills and education. It's a tricky job, and I don't think they are as uneducated as you might think - actually, they've gone through piles of data you might have no idea about -. But they can only use the tools they are being given (and they have no choice there).

But you're right about the real inventor going broke, or the patentee refusing to license / waiting for the big bucks...

[shamino]

The work of a patent examiner is limited by the obligations of the law and by the available prior art. The law says that you cannot just stand in front of an applicant and say "nah, it seems obvious to me", you have to substantiate it with the closest prior art AND an explanation about why it would be obvious to go from this one to the so-called invention, and not only could.
But someone with a CompSci education could open up a textbook (or a copy of Knuth), locate the identical algorithm and reject the claim.

But when you have examiners that have never written a line of code, let alone know about the standard publications, you end up with thousands of bogus patents.

Did you know that, until recently, the patent office wouldn't consider any applications with a Computer Science degree? They considered it irrelevant. Apparently, they think a mechanical engineer is better qualified to evaluate the uniqueness of software.
Regarding anything else, it needs to have been made public, of course. My advice again: if you want to help the world freely, make it public! Publish all the homeworks in the world!
But it won't work if the patent examiner isn't aware of the venues you choose to publish in.

If I come up with a novel algorithm, and make it public by including it in an open source project, posted on SourceForge, what are the odds that anyone in the USPTO will see it? You'll still need to go through an expensive lawsuit to get the bogus patent revoked.
I'd be a little careful about evalation of the examiners' skills and education. It's a tricky job, and I don't think they are as uneducated as you might think
They're very smart, educated people. But the USPTO has (at least until very recently) been refusing to hire people with the qualifications needed to properly evaluate software.

[wdlove]

Would have liked to be a fly on the wall when Steve found out. Hopefully it will all work out alright for Apple in the end. :eek: