Has Anyone Patented "Ruthless Overreach" Yet?

If this article is right, Microsoft has just been awarded what amounts to a patent on the concept of video-on-demand, which is… uh… not entirely novel, to say the least.

Comments

[Joe Dokes]

Proof again that patent law is completely out of control. If the patent for swinging sideways wasn't enough.

Regards

Joe

[fredH]

Right on, Joe. This doesn't surprise me, nor will it surprise anyone else who has had dealings with the Patent & Trademark Office. Most patent examiners are incompetent. They will approve an application for an idea that has been obvious in some industry for ages and then turn around and cite grotesquely irrelevant "prior art" against some other, truly novel application. Most of them are patent attorneys manque, fifth-rate graduates of some engineering school who are marking time at the patent office while they attend law school at night.

[Anonymous]

Several times I have avoided patenting because my work was not 'specific enough'. Figure 1 shows TVs hooked up to a database of program listings and another of their content. Incredible.

I shall now go patent the part of a personal flying car that consists of wings and seats, and that "node" that lies in between.

[Croesus]

Currenly a company holds the patent on "frames" if you can believe that. They've been nailing other companies for licenses via demand letter for some time now - $20k a pop as a I recall. In all reality its cheaper to pay them off than it is to challenge the patent under sec. 101, etc.

Luckily patents only last twenty years, unlike copyrights.

[Croesus]

Just to research a patent challenge it costs $20k on average I am told.

[greg]

Well, as patent attorney, i swung over to the USPTO.gov web site and took a look. The only thing this patent covers is the abilty of a pay-perview/video on demand menu screens to scroll through the entries at a rate, where the rate can be adjusted by the viewer. Thats it.

When reading a patent review, the key thing to look at are the claims. The claims define the outer boudaries of the invention. If a opposing device lacks any one of the elements in the independent claims then it does not infringe.

The article you site to says right in it "judging by the summary description included in the patent filing." This of course has no bearing on the enforcability of the patent.

When reading a patent, the description is like the description of a whole neightborhood. The CLAIMS are the actual title to yor property/house in that neightborhood. This is quite typical of patents, to include a massive amount of description for a relatively narrow set of claims. This is done so as not to inadvertently limit the claims (this gets complicated so i wont go further).

In order to avoid infringing this patent, all you have to do is eliminate one elements of the claim. For example, if the entries/choices on the menu of the video on demand screen do not scroll at a rate (automatically presumably can be read into this somehow) then it will not infringe this patent. In fact, even if it does scroll automatically, if the user/viwer can not adjust this rate, then it also would not infringe this patent. At least claim 1, they usually get narrower still after that, but essentially thats all this patent covers.

Greg
NYC

[Raymund]

Greg beat me to it. This is NOT "Microsoft Patents 1s, 0s." Please save your anger at Redmond for actions that truly deserve it.

[Croesus]

Greg,

There's a great case concerning waterguns that deals with this issue (infringement that is). 🙂

[James Merritt]

"Most patent examiners are incompetent. ... Most of them are patent attorneys manque, fifth-rate graduates of some engineering school who are marking time at the patent office while they attend law school at night." -fredH

This whole incident makes one long for the good old days when patent offices had people of the caliber of Einstein working for them, marking time until he could publish the theory of Relativity.

The Microsoft patent seems so silly. The whole point of patents was to advance the general state of knowledge and practice in science and the useful arts. What actual advance does Microsoft's development represent?

[SM]

Well - i dont know if this is neccessarily cause for alarm other than that the party involved is Microsoft. Several products i have worked on have been patented, a process that often takes years. One example - a data-warehousing software for which we gained a patent. Though the product was unique, the technologies involved were pretty generic as is almost always the case. What i mean is that though were some neat departures from existing products - there were several products similar to ours on the market - most what it did could probably have been achieved one way or the other, better or worse, using a competitors technology. One of the our leads had even been recruited from our main competitor with the usual consequences on the shape of the product.
All i see about this patent is a pretty generic video on demand delivery system & not being a lawyer i have no idea what that means for similar products.

[Julian]

Greg-
So... they haven't patented video-on-demand, they've patented an equally obvious menu design for video on demand. Still doesn't seem like the sort of thing one ought to be able to get exclusive rights to...

[SM]

"So... they haven't patented video-on-demand, they've patented an equally obvious menu design for video on demand."

I dont think thats right - and Greg can correct me if i'm wrong. Lets assume that the software is written in C#. So if i rewite if in Java thats often enough to make it a completely different product "legally". Likewise the way screens interact etc, etc.
Of course MS could pull one of its famous nuisance lawsuits.

[Croesus]

Well, at one time, and this is very recent, software wasn't considered patentable - you copyrighted software. Now you can get a patent and a copyright on software, which makes no bloody sense to me because is supposed to be no overlap between the two.

[Jon H]

SM writes "Lets assume that the software is written in C#. So if i rewite if in Java thats often enough to make it a completely different product "legally"."

That's not true. If an algorithm (way of doing something) is patented, it doesn't matter how the patent holder implemented it and how you implement it.

An encryption algorithm would be patented whether implemented in C, Perl, or Visual Basic.

It'd be a real hassle if a company patented something, then redid it in another environment, and had to re-patent it. You don't see patents for the same thing implemented in different languages.

Many software patents don't even really get down to the code implementation level.

[SM]

Agreed. But the patent in question is most certainly not an algorithm.

[SM]

"Lets assume that the software is written in C#. So if i rewite if in Java thats often enough to make it a completely different product "legally"."

What i mean here is that all the patent would be expressed differently. This is definitely what happens in the real world - else you would have only one product per domain.

[Alex]

Actually, SBC gave MS the idea when the former tried to get a patent on the TABS at the top of web pages.

See if you can tabulate that!

[Klaus Von Herbenschierstadt II]

Hey, you see that [X] in the upper right-hand corner of your screen?

I invented that idea.

I was so shtoopid not to patent it, though.

[greg]

i agree after reading the claim again that this looks like a pretty obvious combination of previous inventions. I guess the examiner didn't find any references or products that teach all three elements of the claims. 1) video on demand, 2) with an auto scrolling menu, 3) with the rate of auto scrolling adjustable by the viewer.

Also you have to remeber that this application was filed in 1998 so, that is the last date references can be found that can be used as prior art.

In fact because it took so long to get this application allowed, there is probably a lot of file history which could further limit the enforcablility of the patent.

I would think that if enough effort was put together a person could try to invalidate the claims by finding some other published, non-patent references that the examiner did not cite, but it probably isn't worth the effort.

All this invention prevents is direct tv menus from scrolling at an automatic rate that is adjustable by the user. If any one of those three things is not there, there is no infringement. Literally if the menu auto scrolls but the user cant adjust the rate then it wouldnt infringe this patent (just from my quick reading, not leagl advise. I am sure microsoft would not admit as much)

As for software - it is generally not patented, but copyrighted. Patents are only for ideas. So if you have an idea and patent it, then any software that implements that idea will infringe. There is lot more too it but that is the basics. Microsofts's core code is not patented, it is not even registered as a copyright (both of which would make it public record. It is probably just kept as a trade secret like the colonel's secret recipe.

The only time i can think of the actual language being an element of the claim is when it is specifically written in like in the case e-bay just lost where the claim sited against them included that the interface needed to be implemented in HTML. So if ebay ran in another non-equivelent language it might not infringe.

Greg
NYC

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