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August 19, 2005

Microsoft Patents Apple - Don't Believe the Hype

Angry ManI love mainstream media reporters and the bloggers who foam at the mouth whenever Microsoft and Apple are named in the same sentence as the word "patent."

This past week has proven once again, that everyone has an opinion on the value and relative merits of the patent system, but that no one really ever takes the time to understand what the issues are and the legal ramifications.

As they say, opinions are like... and everyone truly does have one.

Denise Howell, over at Between Lawyers, linked to the most recent "supposed" controvery between Apple and Microsoft regarding patents and asked that someone, anyone, make some sense of the whole mess. It was a challenge - so, since I am like everyone else - here is my take. 

I thought my previous Rethink(IP) rants (Rethink(IP) podcast #1) on this subject or Matt Buchanan's post last year would have settled these issues already - but alas, it just ain't so.

The main stream press informed its readers that Miscrosoft was attempting to patent (depending on whom you read):

1. The iPod itself.
2. The iPod's clickwheel interface
3. Steve Jobs' first born child
4. The sun, moon, earth and everything in between.

Believe it or not - it isn't any of the above. Imagine that - the main stream press and the foaming blogger mouths (FBMs) got it wrong.

The facts: Microsoft filed U.S. Patent Serial No. 10/158,674 on May 30, 2002 (the '674 Application). The application is directed to a method of auto generating a playlist using multiple seed songs. The application and claims have been allowed by the US Patent Office (see the history here) and currently the patent is about to issue with 46 claims.

Now for you non-patent geeks out there -- the claims control.

The best way to think of claims are that they define the scope of your protection -- just like the metes and bounds of a deed to land or property. The claims in a patent precisely set forth the boundaries of protection similar to real property -- instead of saying you own a piece of land 150x300' as the crow flies, patent claims say that you own something that has four wheels, runs on gas etc. You can keep someone out of your property and you can keep someone from making a four wheeled vehicle that runs on gas. If they have three wheels, however, they are outside the "boundaries" and you cannot prevent them from making it.

So the claims control.

Really they do - they control everything, if the claim doesn't cover it - you don't infringe and, generally, if the prior art doesn't fall within the scope of the claims, the claims are not invalid. Any discussion of a patent should always start and end with the claims.

Given this - why are there the FBMs out there?

Well, first - they don't understand that the claims control or, if they do, they conveniently choose to ignore it in order to whip up interest for their blog posts. Second, it is really easy to read the background and disclosure of the patent application and latch onto something that the inventor may have mentioned as being included.

For example, I have one inventor who always puts into his applications "I love my kids Timmy, Johnny and Kimmy" (names changed to protect the innocent). I highly doubt that this inventor intends to "claim" his kids [interesting tactic] - he just puts it in there because he can. Likewise, inventors and patent attorneys will often put in wild, broad and clearly unpatentable statements in an attempt to provide support in case there is a possibility that broad claims are allowable.  Once again, since the claims control - it doesn't matter what the background/specification states: if the claim doesn't cover it, it doesn't infringe.

So where are we - I have no comment on what the Microsoft patent covers or whether the iPod infringes or whether the Microsoft patent is invalid in light of the iPod. What I do know, however, is that folks need to do their research and understand the issues. If the claims don't cover it - it doesn't infringe. If the claims don't cover the prior art (i.e. what others have done before) - the prior art doesn't render the claims invalid.

If you like more information I suggest the following links:

 

Photo provided via Creative Commons license by Jan Tik.

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Posted by Douglas Sorocco at 03:09 PM.
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