[Mono-list] Re: someone, please clear out that patents issue

Mitchell Skinner mitchskin@attbi.com
14 Feb 2003 06:53:42 -0800


I disagree; Atsushi has a good point.  Asserting the existence of prior
art, as the FAQ has done, is one thing; actually showing it is another. 
It is undoubtedly true that the USPTO has laid some real stinkers
patent-wise, and it needs changing, but for the immediate future it can
be a real pain, and I think the mono community should have some idea of
how we're going to deal with it.
Documenting prior art would be a useful exercise, and no, it is not
obvious that prior art exists.  The recent patent application is not for
the idea of a VM, not for distributed computing, not for any of the
things that people have mentioned as having good examples of prior art. 
It's for the structure of the class library, and I don't know of any
prior art for that.

Many people read the first claim on the patent application and assumed
that they were claiming the world:
1. A software architecture for a distributed computing system
comprising: an application configured to handle requests submitted by
remote devices over a network; and an application program interface to
present functions used by the application to access network and
computing resources of the distributed computing system. 
Certainly, the first claim is mind-blowingly broad--that's how patent
applications work.  The first claim is huge, and the later ones narrow
it down.  Many Slashdot posters apparently read the first claim and
thought that it was the meat of the patent; this lead to comments like
"apache is prior art".  What these people failed to do was look at the
rest of the claims (I know, it's shocking that people commenting on
slashdot didn't RTFA).

Look at claims 5 and 6:
5. An application program interface embodied on one or more computer
readable media, comprising: a first group of services related to
creating Web applications; a second group of services related to
constructing client applications; a third group of services related to
data and handling XML documents; and a fourth group of services related
to base class libraries.

6. An application program interface as recited in claim 5, wherein the
first group of services comprises: first functions that enable
construction and use of Web services; second functions that enable
temporary caching of frequently used resources; third functions that
enable initial configuration; fourth functions that enable creation of
controls and Web pages; fifth functions that enable security in Web
server applications; and sixth functions that enable access to session
state values.
They're enumerating the structure of the BCL, painfully verbosely but
reasonably accurately.
claim 5: "creating Web applications" => System.Web and descendents
claim 6: "construction and use of web services" => System.Web itself
claim 6: "temporary caching of frequently used resources" =>
claim 6: "initial configuration" => System.Web.Configuration
claim 6: "creation of controls and web pages" => System.Web.UI
claim 6: "security in Web server applications" => System.Web.Security
claim 6: "access to session state values" => System.Web.SessionState

They go this way through most (all?) of the .NET class library, and if
the patent is granted any attempt to implement a compatible class
library will undoubtedly violate the patent.  IANAL, but you don't need
a lawyer to tell you that the sky is blue.

There are several potential responses to this patent application:

1.  "There is no way it will be granted." -- Hello, this is the USPTO
we're talking about.

2.  "Microsoft won't sue, because it's not in their best interest." --
Not now, because doing so would hurt .NET's adoption.  Instead, they
will wait until the .NET class library is pervasive, and huge amounts of
software has been written to that API, to kill competing
implementations.  They will kill competing implementations because
alternatives to their platform monopoly weaken their market power, and
threaten their business model.

3.  "Compatibility is not our main goal, anyway." -- This may be true
for Ximian, but if the goal of compatibility goes away so will a huge
amount of interest (and participation) in mono.

4.  Actually produce some prior art.  I think this is a good precaution
to take.  Any other objections to this patent (objections that the PTO
might listen to) are also great.

I think this needs to be discussed.  Uncertainty about it is going to
keep potential users and contributors away in droves.


On Thu, 2003-02-13 at 19:53, Jonathan Pryor wrote:
> In the interest of starting...oops, stopping...a flame war, allow me to
> clarify the US patent system.
> It's run by a bunch of people who wouldn't know "obvious" if it
> flattened them.  (I'd quote "The Hitchikers Guide to the Galaxy" but I'd
> rather not look up a suitable quote.)
> It doesn't matter how "basic" or "pre-existing" technology is.  It
> doesn't even matter how "obvious" it is.  Why?  Well...  Let's just look
> at some examples of existing patents.
> In Australia, someone patented the wheel:
> 	http://www.theage.com.au/news/state/2001/07/02/FFX0ADFPLOC.html
> In the US, a "technique to exercise a cat" (using a laser pointer) has
> been patented (obvious to anyone who has spent any time with a cat):
> 	http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=/netahtml/srchnum.htm&r=1&f=G&l=50&s1=5443036.WKU.&OS=PN/5443036&RS=PN/5443036
> Then there's the new "method of swinging on a swing":
> 	http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=/netahtml/srchnum.htm&r=1&f=G&l=50&s1=%276368227%27.WKU.&OS=PN/6368227&RS=PN/6368227
> I'm sure I did that at least 15 years ago...
> There's also yesterday's slashdot article about NCRs patents, which
> cover such "inventions" as categorization and "secure databases" (which
> probably covers passwords):
> 	http://yro.slashdot.org/yro/03/02/12/200209.shtml?tid=95&tid=155
> More "obvious" patents (using XOR for a screen cursor, etc.) can be
> found at:
> 	http://lpf.ai.mit.edu/Patents/
> The fact of the matter is that any idea, no matter how obvious, is
> likely to get a patent.  Even if it's been done before.
> Hopefully this will change, but I'm not counting on it anytime soon. 
> Now that I've depressed everyone about how hopeless the situation is in
> the U.S., perhaps I can make this less depressing.
> I am not aware of any instances in which Microsoft has sued for patent
> infringement.  It has defended itself against patents at least once
> (drive compression), but it has never used them against competitors. 
> They appear to use patents only defensively.
> Of course, my memory may be wrong.  Microsoft may change its behavior
> tomorrow.  The second coming of Christ may occur this weekend, making
> all this pointless.  The future is unknown.
> Regardless, even if this patent application is accepted (I wouldn't be
> surprised, but I'm a pessimist), I don't think the mono project needs to
> worry about it.
> Continue on your merry way.  I would suggest not worrying about patents
> until the lawsuits star.  Unless you want to work on improving the
> patent system...  Lord knows it could use the improvement.
>  - Jon
> p.s.  I apologize for this rant of an email, but I figured some context
> would be useful.  With one group running around like headless chickens
> proclaiming the end of the world because of a patent application
> (perhaps I exaggerate, but I've been reading osnews.com too), and the
> other group being sensible, but apparently not being understood by the
> first group, I thought a good "whacking" with a clue-stick would be in
> order.
> Please, no starting a flame-war over this.  Let's drop this thread
> now...  We can resume it in 3 months when the next patent alert frenzy
> appears. :-)

Mitchell Skinner <mitchskin@attbi.com>