Microsoft FAT patents 'could be re-opened'

By Andrew Orlowski in San Francisco
The Register

December 9, 2003

If Microsoft decides to mine its patent portfolio for cash, it's likely to face a few unexpected consequences. A new patent body that's vowing to defend the free software community against Microsoft's new patents-for-cash revenue strategy says it will ask the US Patent Office to go back to square one, and systematically examine the validity of the patents in question. This is an unusual tactic that promises to bring the overworked USPTO's approval of questionable patents right into the spotlight.

Forty-six per cent of patents brought to trial are dismissed as bogus. According to Dan Ravicher, who heads the recently-formed Public Patent Foundation many more aren't asserted. It's one of the tactics he says is an option.

Ever since Microsoft hired IBM's IP overlord Marshall Phelps, the Linux and free software folks have been circling the wagons, and discovery of prior art is one of the tactics they're considering.

The Public Patent Foundation's mission is to advise and counsel people who object to patents that threaten to "restrict civil liberties and free markets", Dan tells us. The PPF has other options including filing friend of the court briefs on behalf of defendants, and broader education. He's keen to encourage companies form mutually beneficial "disarmament treaties", too.

Ravicher said the PPF would selectively re-examine patents when freedom is at stake.

"We're going to undermine those we believe are posing a threat," he said. "Marshall Phelps can't bring over this business model of twenty years ago that he created at IBM. The point of the PPF is to give the communities a voice, a defender."

The FAT of the land

Regarding the FAT patents, Ravisher said "I have a hundred pieces of prior art which were not reviewed by the examiner. We have them under review." As several Register readers have pointed out, the FAT file system was not an innovation, and bears close resemblance to CP/M file systems. However, as Dan points out, you can't patent functionality.

Did the PPF approve of the tactic, employed by cryptographer Lucky Green, to file pre-emptive patents? Green has put claims on aspects of the lock-down TCPA, to prevent it being implemented.

Apparently not.

"My belief personally is that if you fight fire with fire, everything burns," says Ravicher. "It's difficult to criticize unreasonable opponents if you're using same tactics."

But Ravicher agrees with Phelps when he says that a small company holding a patent poses an asymmetric threat to a larger competitor.

"Phelps is right; Eolas, which got $520 million from Microsoft, is a one person company. eBay has lost a $50m claim to a one person company, too. Small companies are tempted to get a patent and through predatory techniques use them as a lottery."

However he's keen to point out that that the sky isn't falling on the free software community just yet. Nor does he think that Microsoft is going to deploy a Shock and Awe barrage against the industry.

"Microsoft has 3,000 patents, but I'd bet that they're not going to litigate 2,950 of them. Very few of them are going to justify being aggressive."

Ravicher, who worked has worked with the FSF and Eben Moglen for three years.

"I'm a patent attorney, and I'm often the one least concerned about a patent threat. It's like jay walking is illegal in NYC, but everyone does it because the fine is not significant enough," he says. "Likewise with patent infringement, if you are held to infringe a patent, there's no windfall. It's rare for a patent holder to get an injunction, especially against a smaller competitor, just because of anti competitive terms."

The free software and open source communities should remember, he says, that a patent isn't the end of the world; that workarounds can be implemented quickly and often painlessly.

If the PFF's tactic catches on, it could have a dramatic effect on the overworked USPTO.

Copyright 2003