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Computer programs, software and patent law
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All modern industry depends upon programmed computers.[1] As a consequence, a large number of patent applications filed, and patents granted, relate to programmed computers to some extent. There is intense debate as to which of these different patents should be granted due to concerns over inventive step and patentable subject matter and whether such patents should be granted as a matter of policy. There is also debate over which of these patents should be classified as software patents.[2]

One technique for identifying software patents within the patent database of the United States Patent and Trademark Office was proposed by Bessen and Hunt in a 2004 working paper.[3] This technique is used by the Public Patent Foundation to track software patents granted by the USPTO and shows that the number of software patents being granted is generally increasing year on year.[4]

The technique proposed by Bessen and Hunt involves conducting a keyword search within the USPTO patent database as follows:

(("software" in specification) OR ("computer" AND "program" in specification))
AND (utility patent excluding reissues)
ANDNOT ("chip" OR "semiconductor" OR "bus" OR "circuit" OR "circuitry" in title)
ANDNOT ("antigen" OR "antigenic" OR "chromatography" in specification)

An actual query that may be submitted to the USPTO database to retrieve patents granted in 2005 is as follows:[5]

ISD/(1/1/2005->1/1/2006)
AND SPEC/(software OR (computer AND program))
AND APT/1
ANDNOT TTL/(chip OR semiconductor OR bus OR circuit OR circuitry)
ANDNOT SPEC/(antigen or antigenic OR chromatography)

This article lists patents that are caught under this particular definition of "software patent" and are notable due to their acknowledgment by the press or the open source community or by virtue of high-profile litigation. The patents are also categorised to give an indication of the wide range of subject matter that is covered by software patents identified using the Bessen/Hunt technique.

Graph of the number of software patents (per Bessen/Hunt 2004) relative to the total number of patents granted by the USPTO since 1971

Business methods

  • US 5960411  (Main article: 1-Click)
Amazon.com sued Barnes and Noble for violating its "One click buy" but the case was ultimately settled [6].
The patent at the centre of the State Street Bank decision from 1998 which confirmed that business methods implemented on a computer are patentable in the US since they produced a useful, concrete and tangible result. Patents for business methods without computer implementation only become available in 2005 following Ex Parte Lundgren but there are doubts as to whether this practice will be maintained.
Although not a software patent, the case law developed in refusing Macrossan's patent application forms the basis for the current practice of the UK Patent Office when deciding whether to grant a patent.

Data compression

Data compression in general

Stac Electronics sued Microsoft for patent infringement when Microsoft introduced the DoubleSpace data compression scheme into MS-DOS. [7] Stac was awarded $120 million by a jury in 1994 and Microsoft was ordered to recall versions of MS-DOS with the infringing technology.[8]

Audio compression

One of several patents covering the MP3. This patent was only enforced [citation needed] once the format became popular resulting in several GNU/Linux systems dropping support for MP3, and in re-development of new audio formats—notably Ogg Vorbis.

Image compression

Unisys's patent on LZW compression, a fundamental part of the widely used GIF graphics format.
Forgent Networks claimed this patent, granted in 1987, covered the JPEG image compression format. The broadest claims were found to be invalid in 2005 following re-examination by the US Patent and Trademark Office. [9]
This patent, owned by Lizardtech, Inc., was the subject of infringement proceedings against companies including Earth Resource Mapping, Inc. However, Lizardtech lost the trial on the grounds that an important part of their invention was the step of "maintaining updated sums of discrete wavelet transform coefficients from the discrete tile image to form a seamless discrete wavelet transform of the image". Claim 21 of the patent lacked this feature and was therefore obvious. The remaining claims contained this feature, but were not infringed by ERM. [10] Internet buzz suggested the patent covered the JPEG 2000 image compression format but the additional feature of the valid claims appears not to be a JPEG 2000 requirement. [11]

Video compression

A Microsoft patent covering a method of encapsulating multiple streams of data into a data stream that is implemented in the Advanced Systems Format. The author of the open source video capture tool, VirtualDub, which is licensed under GPL was requested by Microsoft to remove support for ASF in his program. The author has said that he does not have the money to pay for a license under the patent and that he would not take a free license that placed restrictions on future uses of his code in violation of GPL.[12]

Data encryption

A software patent describing the ground-breaking RSA algorithm for public-key cryptography, still used for secure communications today.[13]

File allocation tables

  • The following three patents relate to FAT technology available for license from Microsoft.[14]

Gaming systems

A patent for a gaming system that has particular importance regarding Internet usage. A server running the game was located outisde the UK but could be used within the UK. The Court of Appeal of England and Wales judged that the patent was being infringed by virtue of the sale of CDs in the UK containing software intended to put the invention into effect in the UK.

Image processing

Robert Silver's patent on his photographic mosaicing technique. The UK part of the European patent is currently undergoing revocation proceedings, the results of which may be important in comparing the practice of the UK Patent Office with that of the European Patent Office.[15]
A patent covering the technique commonly known as Carmack's Reverse

Internet tools

Eolas successfully sued Microsoft for $521 million for the "browser plugin patent". [16]
British Telecom believed that this patent might cover web hyperlinks and tried enforcing it against Prodigy as a test case. After costly litigation, a court found for Prodigy, ruling that British Telecom's patent did not actually cover web hyperlinks. [17]

Search engines

A patent relating to pay-per-click Internet search engine advertising. Originally filed by Goto.com, Inc. (renamed Overture Services, Inc.), Google and FindWhat were both sued for infringement prior to Overture's acquisition by Yahoo!

Telecommunications

Washington Research Foundation asserted this patent in December 2006 against Matsushita (owners of the Panasonic brand), Nokia and Samsung. Granted in October 2006 (originating from a 1996 filing) it relates to dynamically varying the passband bandwidth of a tuner. If the claims are upheld CSR plc (previously known as Cambridge Silicon Radio), who supply the defendants with Bluetooth chips, could lose market share to Broadcom who already have a license under the patent.[18]
One of three patents granted in respect of Karmarkar's algorithm, which relates to linear programming problems.[19] Claim 1 of this patent suggests the algorithm should be applied to the allocation of telecommunication transmission facilities among subscribers.

Infamous due to proprietor hyperbole

Owned at various times by Encyclopaedia Brittanica, Inc. and Compton's NewMedia, Inc. this patent was granted in August 1993. Just a few months later, in November 1993, Compton's announced that "Everything that is now multimedia and computer-based utilizes this invention" and tried to use the patent to ensure that everyone licensed their software.[20] Although a cursory review of the granted claims showed this statement to be mere hyperbole, there was nonetheless an outcry from the industry and the patent was revoked following re-examination. [21]
Patents owned by Scientigo and claimed by them to cover the markup language XML, a notion rejected by patent attorneys and other commentators including Microsoft.[22]

Uncategorized

Xerox claimed this patent was infringed by Palm's handwriting recognition technique called Graffiti. In 2001, Palm was forced to change the software its users had grown accustomed to. In 2004, a judge threw out the Xerox patent based on prior art.[citation needed]

User interfaces

Immersion Corporation sued Sony under these US patents in 2002. They relate to force-feedback technology such as that used in Playstation 2 controllers. Sony lost the case and Immersion were awarded $90.7 million, an injunction (stayed pending appeal), and a compulsory license.[23] The related European patent application has claims that are narrower than those of the US granted patents (requiring the device to be attached to a body part) and therefore probably does not cover the PS2 controllers. Broadening these claims to cover the controller may only be done if the amendments comply with Article 123(2) EPC. The application remains pending before the European Patent Office although the claims currently face rejection as lacking an inventive step.[24]
The patent relates to a progress bar. Filed in 1989, it was highlighted in 2005 by Richard Stallman in New Scientist[25] and The Guardian[26] as an example of a software patent granted by the European Patent Office, that would impede software development[25] and would be dangerous.[26] The claims as granted describe a process of breaking down a task to be performed by a computer into a number of equal task units and updating a display each time a unit is completed.

References

  1. ^ Comment by the Honourable Mr Justice Pumfrey in his United Kingdom High Court judgment in the matter of RIM v Inpro
  2. ^ Software Patent Watch, Defining a Software Patent - Public Patent Foundation
  3. ^ An Empirical Look at Software Patents Working Paper No. 03-17/R by James Bessen and Robert M. Hunt
  4. ^ The Public Patent Foundation website provides regular updates on the number of patents being granted using a technique similar to the Bessen/Hunt technique but which does not exclude re-examinations and design patents
  5. ^ USPTO Tips on Fielded Searching
  6. ^ CNet: Amazon, Barnes & Noble settle patent suit
  7. ^ Complaint for patent infringement and Demand for jury trial by Stac Electronics v Microsoft Corporation
  8. ^ Microsoft Loses Patent Suit, Associated Press, February 23, 1994
  9. ^ Review of the Forgent JPEG case by the Public Patent Foundation
  10. ^ Summary Judgment in LizardTech v Earth Resource Mapping
  11. ^ LizardTech press release, 1 November 2004 and ERM press release, 2 November 2004
  12. ^ http://www.advogato.org/article/101.html
  13. ^ SIAM News, Volume 36, Number 5, June 2003, "Still Guarding Secrets after Years of Attacks, RSA Earns Accolades for its Founders", by Sara Robinson
  14. ^ Microsoft Intellectual Property Licensing - FAT File System
  15. ^ Using the UK Patents Status Enquiry for EP0852363 provides full details on the current status of the patent.
  16. ^ Press release from Eolas
  17. ^ Summary Judgement ruling that no jury could find that Prodigy infringes the Sargent patent, whether directly or contributorily, either as part of the Internet or on its Web server viewed separate and apart from the Internet.
  18. ^ IPKat Blog - Bluetooth battle looms, IPKat 04 January 2007
  19. ^ Introduction to Software Patents published by the Japan Patent Office - see page 47 for discussion of Karmarkar's algorithm
  20. ^ Key Patent To Shake Multimedia Industry, San Francisco Chronicle, November 15, 1993
  21. ^ Patent Office Reject Compton's NewMedia Patent, March 24, 1994
  22. ^ Small company makes big claims on XML patents, Martin LaMonica, CNET News.com, October 21, 2005
  23. ^ Immersion Corporation Reports First Quarter 2006 Financial Results
  24. ^ Following the link on EP application 0864145  to "View document in European Register" provides a full case history for the European patent application including an examination report from August 2006.
  25. ^ a b Richard Stallman, Patents by stealth, New Scientist, February 5, 2005, issue 2485, page 28.
  26. ^ a b Richard Stallman, Patent absurdity, The Guardian, June 20, 2005

See also

Patent law
Overviews
Procedural concepts
Patentability requirements and related concepts
Other legal requirements
By region / country
By specific subject matter
See also

External links

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