Microsoft Getting Sued Over Most Distinctive Feature Of Its New Windows Software (That was Quick)

Business Insider ^ | 10/31/2012 | Kevin Smith

[circlecity]

They’ll have a hard time getting past an obviousness defense.

[uncommonsense]

Even patenting the implementation of a concept is a slippery slope in the computing realm. Is the icon proof of an implementation or is the code behind it the salient part.

Amazon claimed ownership of the shopping cart in total if my memory is correct - both the concept and the icon representing it - even though shopping carts had been around for decades. But theirs was a computer-based aggregation of items for purchase. It was an obvious metaphor. What if another company used the same code but called it a "basket" versus a shopping cart? What's the patent based on - the specific nomenclature, the code, the process, the elegance of the process, or the intersection of all of the specific technical elements?

[Kirkwood]

It sounds like some the claims conflict with Microsoft Active Desktop, invented in 1997, I think. It provided users with moving/updating widget/gadget like tiles for real-time information.

[Wuli]

whatever “it” is (a “creation” i.e. human invention) it is not the concept

a wheel to be affixed to a platform such that the platform is supported by the wheel and the platform can be moved as the wheel turns round

is a concept

the wooden wheel was an invention to use that concept

reinforcing the wooden wheel with spokes was an invention

placing a steel band around the wooden wheel to protect the wood and give longer life to the wheel was an invention

different designs of those steel bands were inventions

the all metal wheel for supporting great weight for moving very heavy platforms was an invention to use that concept

placing rubber on wooden wheels was another invention using that concept

placing an inflatible tube inside a rubber ring on the wheel was an invention furthing the concept

making the rubber ring inflatible itself was an invention

inventions implement a concept, they are not the concept

and - wheel on platforms as a means of support and locomotion for the platform was not an invention, just a concept

many things in the modern computer industry have been patented and they should not have been, they are just concepts

most of the legal “patent” battles in the computer industry have been over such ill-gotten patents

and the success of obtaining those ill-gotten patents have turned them into lucrative sources of revenue and worth the cost of the legal efforts to get the patents enforced

many such patents are not protecting the development of technology, they are impeding it

[uncommonsense]

My initial comment was relating to computing implementations, not obvious, tangible, “see and feel” items like improvements to a wheel. We now have process and method patents, like it or not. What is needed are clear, defensible lines of delineation for the electronic and process realms for what can be patented. Saying that it is OK to patent the “implementation” of a concept does not provide a clear line.

[Wuli]

“We now have process and method patents, like it or not.”

There should not be general “process” patents, because a generalized process is synonymous with “concept” and even “the automobile” IS a concept.

A “method” patent should only be given when it too is not merely the concept behind a method, but the very specific means by which the concept was implemented as a very specific method - the computer code, specific hardware, specific integration of the two in a specific manner that implements the “method”.

Someone else could imagine the same concept behind the method and use a different toolset - computer code, specific hardware, specific integration of the two - and not infringe on the other’s patent. Stealing or totally repeating the other’s computer code & integrating it in the same fashion with the same hardware would be a patent violation.

“Process” needs to have the same logic applied to it.

The idea/concept is not the invention. The manner of the implemnetation of the idea/concept is the invention.

“The airplane” was not, as a concept, the invention. HOW one did it involved and produce a number of patents, but others could still imagine the concept/process/method of flying and implement it using their how invented too set.

The software industry has long gotten away with patenting mere “ideas”, not inventions, to keep others from competing altogether. They have gotten away with formulating legal arguments that computer “process” and “method” are not only “new” but have no analgous comparisons to older industrial technologies. They are wrong.

[CodeToad]

Often patents overlap other patents as the PTO does a lousy job of researching patents before awarding them.

[uncommonsense]

"They have gotten away with formulating legal arguments that computer “process” and “method” are not only “new” but have no analogous comparisons to older industrial technologies. They are wrong."

You're preaching to the choir. I thought that was obvious - my mistake.

I'll drop my challenge to elucidate specific software patent guidelines - versus blanket statements of what we, on the bleeding edge of the computer industry, have been literally battling for over a decade - since before 1998 (note [1])

[1] e.g. "A method and system for placing an order to purchase an item via the Internet" filed in 1988 when EDI was already well established, the Open Market "online shopping cart" from Soverain Software, One-Click from Amazon, and most recently Apple's rounded corners, etc.

[Wuli]

“What if another company used the same code but called it a “basket” versus a shopping cart?”

stealing/using the exact same computer code is patent theft, no mater what you name the reult

using a different coding method (language and or logic) and its not theft and you ought to be able to call it what you want

[uncommonsense]

"using a different coding method (language and or logic) and its not theft and you ought to be able to call it what you want"

Not quite true. There are code converters, not perfect, but they translate one language to another. Code syntax is usually protected under a copyright (it was a part of our product launch process) and the methods, logic, algorithms were patentable. Translating a unique algorithm from C++ to JAVA, that simplifies large linear math problems, will not fend off a patent infringement suit.

[Wuli]

I won't disagree with you on the specific example of an algorithm. It is nat a mere "idea" it is a formula that ahieves an objective that begins with a mere idea; it produces that which the idea seeks. It, the algorithm, is a "creation". But, having spent my own time in the IT industry I know there can be more than one algorithm that reaches the same result. One may be more combersome and brutal and one more elegant but both reach the same product. Two "inventors" with their own implementation of what an idea called for. So, yes, you ought to be able to patent your algorthm, but if I have taken a different route and reached the same result I have not copied your work and I do not owe you something just because your algorthm reached that result before mine. In the end, those using our algorthms will decide which one is the "more efficient" product to use; not the patent office.