April 21, 2019

Bruce Perens: Microsoft Patent Suit 'A Big Duh Factor' - page 2

An Attack on Linux?

  • March 9, 2009
  • By Bruce Perens

"SD" Stands For "Shooting Downwards"

Not satisfied with shooting itself in the foot by getting its users sued just once, the SD Card Association has selected a later version of FAT, not compatible with today's systems, as the default filesystem on the upcoming larger SD cards. This despite the fact that those cards are going to have to run predominantly on embedded devices like TomTom and Amazon's Kindle, which have Linux as their operating system.

Wake up, SD Card folks! There are many Open Source filesystem implementations that are superior to the various generations of FAT. Many of them are under licensing that allows proprietary software to incorporate them, and are patent-free, or grant the appropriate patent rights without charge or discrimination.

SD Card Consortium shouldn't get away with incorporating a patented Microsoft technology, to the disadvantage of many prospective SD card users, when patent-free and technologically superior solutions are available off-the-shelf. We need an Open Standard, royalty free and without discriminatory licensing, for the next generation of removable media. Whoever develops that standard can save a lot of work by choosing an existing and appropriately licensed Open Source filesystem, and starting from there.

Here Come 'da Judge

Memo to Judge Colleen Kollar-Kotelly: I'm told you're looking at Microsoft's conduct regarding the settlement in United States v. Microsoft. Please look at how Microsoft is still using its entrenched monopoly status to drive royalties on the technically un-meritorious FAT patents.

Also, Your Honor, and anyone else who can do something about this: please consider how the SD Card Association and its ilk continue to drive royalty-bearing software patents of their members into de facto standard products like removable storage media, when there's no good technical reason to do so.

A High Duh! Factor

Patent 6,175,789 and 6,202,008 might be the ones with the highest Duh! factor in this lawsuit. Filed in 1999, they claim monopoly rights on the "innovation" of a general-purpose computer, in a car, that has an internet connection. That's all. Read the text, I'm not kidding.

I really wonder about the patent examiner(s) who thought these were an "invention," and what the patent office was asking of examiners that would lead to the approval of such trivial and obvious patents.

Should there be anyone who doubts that such a thing existed previously, consider that radio hams have had it since the '80's. The APRS system included a vehicle computer with a moving map, displaying the location of other, similarly equipped vehicles, starting in 1982 using Navy directional signals before GPS was available to individuals. It was extensively used in the early 1990's, as GPS reached the consumer, and continues to be popular today. Its interstate wireless digital network was going strong by 1984, long before there was an Internet that regular folks could access, and was gatewayed to the Internet as soon as that was possible.

This, folks, is what we call prior art in patent terms, and it obviously invalidates patent 6,175,789 and 6,202,008.

I'll let you read the other four patents. I think you'll agree that they do not represent significant innovation for the date they are filed. In each case, there was much existing prior art in the field at the time the application was made.

Absence of Validity

Do other legal issues potentially invalidate the software patents in question? Very likely.

The recent court decisions in the Bilski case and KSR v. Teleflex have substantially weakened software patents and overturned the case that made business method patents possible. The Public Patent Foundation (PubPat) had previously convinced the U.S. Patent Office to invalidate one of the FAT patents on prior art grounds, which means they convinced the Patent Office that the same thing had been made previous to Microsoft's patent application and wasn't an invention at all. Microsoft appealed and had the patent reinstated, in a patent-office proceeding where PubPat wasn't given a chance to speak. In the aftermath of that poor process, the judge in Microsoft v. TomTom will have the power to invalidate that patent permanently, based on the same prior-art evidence that PubPat presented. So this case, if allowed to proceed, could be of great advantage to Linux and Open Source by putting the FAT patents to bed permanently.

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