… because Microsoft will do it for me.
http://philip.greenspun.com/business/mobile-phone-as-home-computer
was published in September 2005, describing a dock for a mobile phone that would serve as the user’s desktop computing environment.
A friend emailed today to point out that on December 7, 2007 (Pearl Harbor Day), Microsoft filed “SMART INTERFACE SYSTEM FOR MOBILE COMMUNICATIONS DEVICES” (serial number 952152).
Can someone explain to me how these are different? Is my product proposal prior art for this Microsoft patent application?
Forgive my possible ignorance, but my recollection is that prior art should mainly be previously patented ideas that the application is building upon. I thought notebook scribblings (or web pages) must be validated as to their original date such as dated witnessed lab books used in the dead tree days; and that only matters if you file your own claim. The lack of a filing on your part and the potential unproveability of the date on the web site description doesn’t look good for your idea. There may be large areas of actual technical overlap but that has little to do with the legal issues. (Caveat emptor: I’m just an out of date 40-something engineer recalling how things worked in the old days…).
Did you actually build one? People proposed human flight long before the airplane but until it was actually built there was no patent.
demetri: Prior art does not have to be a patent, by any means. It can be a publication (like) mine, a product sold in stores, a series of public lectures, etc. I don’t think that there would be any difficulty in proving the date of my Web page given that it has been linked to from many other dated pages, is presumably present in archive.org, and was the topic of a videotaped (and dated) talk to Google’s engineering staff (who heaped scorn on the idea, saying that it was the stupidest they’d ever heard). Remember that I’m not trying to patent the idea myself (I probably wasn’t the first to conceive of this idea anyway), merely pointing out that Microsoft probably shouldn’t be able to patent something that was known to thousands of engineers back in 2005.
Tom: Did I actually build one? That doesn’t have anything to do with patentability (if it did, life would be very unprofitable for most of the patent trolls). If you believe that a team of software developers with “ordinary skill” would be able to read my article and build the dock, that’s sufficient. The guys at Google did not laugh at my idea because they thought it would be hard to build; they laughed at it because they thought that there would be no market for the completed device (“it will cost just as much as a PC,” they said. “I know,” was my response, “because like I just said, it is a white-box PC.” “But it isn’t as a good as a PC because it doesn’t do as much,” was their conclusion. “For at least 5 percent of the world’s users, which is a lot of people, it’s better than a PC because it doesn’t do as much,” was my final response, but it was not convincing.)
The EFF does patent challenges: http://w2.eff.org/patent/
I’m not sure whether they’d be interested in this case. What is Microsoft doing with this patent? If they’re just producing and marketing products of their own and not bothering anybody else, the EFF probably won’t care. However, if they’re using this patent to sue somebody, this should be something they’d look at. I wouldn’t put anything past the historical Microsoft, but it’s at least my impression that they’ve been better citizens recently?
First, to those who didn’t realize it. This is a patent application. It has not yet been granted. I believe your page contains a similar enough idea, such that it should be considered prior art. However, one could always argue that they made a subtle modification to your description such that they have a novel invention.
Second, the USPTO has historically had problems with computer science prior art. It just isn’t cataloged and followed the way prior art for other fields is. They have made efforts to address this, see their peer review prior art page http://www.uspto.gov/web/patents/peerpriorartpilot/
Finally, inventors have an absolute duty to disclose any prior art. If they don’t, the patent could be invalidated. Patent attorneys call this “inequitable conduct.” So, you could just look up one of the inventors and e-mail him/her a link to your page. They would be obligated to disclose this to the USPTO.
The last poster is generally correct. But a few more points are worth noting. Until the final scope of the claims are known, it is difficult to speculate about the validity of the application. Applications are often filed with very broad claims. Attorneys do this knowing that when the examiner conducts a search, finds prior art (such as Greenspun’s), and rejects the application based on the art, the attorney can amend the claims to distinguish the claim scope over the prior art. To do so, the attorney narrows the scope of the claims to define (an) additional element(s) that the prior art doesn’t disclose. However, the application must contain a disclosure that supports the hypothetical element(s). If the disclosure in the as-filed application contains no disclosure that could support valid (i.e. patentable) claims, then the application likely will be ultimately abandoned. I have not studied the published application. But it is possible that while the disclosure of Microsoft’s application may include the general ideas disclosed years ago in Greenspun’s teachings, there may be some teaching in the disclosure that adds an additional novel step to support patentability and the scope of the claims that (maybe) will be patented must be limited to the novel step.
“Remember that I’m not trying to patent the idea myself (I probably wasn’t the first to conceive of this idea anyway), merely pointing out that Microsoft probably shouldn’t be able to patent something that was known to thousands of engineers back in 2005.”
Hasn’t there been widespread issues with patents that have been granted, esp. patents on software, that were obvious or had some existing prior art (but no patents) but the USPTO granted patents anyway and that if you “package” your software invention properly you can get almost anything patented? (Famously Amazon’s one click for instance?)
The recourse in this case being any harmed originators could challenge this in court. So, if you’re not a big corp. or have a revenue stream that was harmed it’s hardly worth an originator’s expense to challenge a patent granted which may mean he who patents first wins.
I am a patent attorney, so let me clarify a few things. First, as someone noted already, this is only an application, not an issued patent. I also just checked the USPTO web site and it has not yet undergone examination. Anyone can do this by visiting the USPTO’s “public PAIR” web site, and inputting the application number of patent number. You may then monitor the course of examination of any published application, including an Examiner’s rejection and an applicant’s response.
In the present case, this application claims priority to an earlier Microsoft filing of July 16, 2007. Therefore, any prior art that is dated prior to July 16, 2006 may be cited against the pending claims. Microsoft will therefore have to establish that the claims identify “novel” and “non-obvious” subject matter in view of any applicable references.
Next, it may be interesting for all to realize that the USPTO’s allowance rate has dropped in recent times, to levels at or below 50%. Part of this is attributed to the recent Supreme Court “KSR” case which made it easier for an Examiner to combine references to support an argument that a particular invention was obvious. In addition, with respect to software, the Federal Circuit (which has exclusive jurisdiction on patent appeals) recently announced new rules regarding its patentability: http://www.patentlyo.com/patent/2008/10/in-re-bilski.html. A review of that decision has been requested by the Supreme Court: http://www.finnegan.com/files/upload/Finnegan_Bilski%20Petition%20for%20Cert.pdf.