Bonum Certa Men Certa

OOXML Software Patents and Other Serious Problems with the USPTO

“Other than Bill Gates, I don’t know of any high tech CEO that sits down to review the company’s IP portfolio.”

--Marshall Phelps



After a jolly time in Redmond, in addition to some bits of Microsoft propaganda which were absorbed there and then published in the world's press [1, 2], Brett Winterford finally delivers a more balanced article that includes a realistic perspective on the big problem that is OOXML. Among the OOXML problems that are mentioned in this article (mainly second-handed):

"Smaller players and non-IT firms--those who are not and perhaps cannot be in close business deals with Microsoft--are potentially at a disadvantage in not having either a relevant competing patent portfolio to bring to negotiations, or the legal resources to assess the level of risk," Vaile said. "This is why a truly global open standard ideally needs to be dealt with in a way that removes obvious sources of uncertainty for smaller participants as well."


Microsoft will of course continue to deceive. It will try very hard to deny that software patents are at play (Microsoft calls these patents "IP"). The company continues to rely on decision-making figures being naive enough not to understand what is being agreed on. Brian Behlendorf's words on this are fascinating and they come 'third-hand', so to speak, via Glyn Moody.

The World Economic Forum is a fairly disgusting dance of power and money, but even in this context intelligent observers can learn something useful. For example, here are Brian Behlendorf's thoughts on the problems of getting people to understand and engage with true openness:

On the downside: twice, I mentioned ODF vs. OOXML in conversations with people, and each time, there was a lack of awareness of the issue. I really don't want to embarrass them so I won't name names, but they were people who really should have known; one was a leader of a business that has been around for years and has serious document management and longevity issues, the other a government official who was charged with preserving his country's culture but sadly non-technical.



In other software patent news, consider the one-click shopping patent (already mentioned in [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13]) and witness the inventor's (or developer's) dilemma. [via Digital Majority]

A couple of months later, I got dragged into the case via subpoena. Now I was an unpaid material witness. Because I was the actual developer of one-click ordering, not just an expert poring over old documents and publications, I would have to testify at least about what I knew.

One-click ordering is as simple as the checkbox that you see on most Web sites to "keep me logged in". The server sends the browser a "persistent cookie" that the browser returns every subsequent time the user requests a page, even if the computer has been restarted in the interim. That way the server (online store) can identify the browser (customer) and re-use the payment and shipping information from the previous order.

I was asked "Why didn't you patent this yourself, if you developed it first?" My reply was "It only took me an hour to build; if I went down to the patent office after every hour of programming, I wouldn't get very much done."

Fortunately, the case was settled and I never had to appear in court. I decided that maybe next time it would be smarter to take the money and get paid for the work.


Also of interest is the following sighting of a patent troll asking for advice, or at least something which is akin to it because there are clients involved.

My law practice is in California and I work in various areas including civil litigation, business and real property law. I am currently expanding my soft IP practice (i.e. software licensing, website language, trademark, etc.), which is what I studied in law school back in the '90s. As I'm picking up software development clients, the issue of software patenting is coming up. The patent attorney I typically refer out to tends to be reluctant to recommend software patenting because his typical patent application processing time with the USPTO is about 5 years, which tends to extend beyond the expected lifespan of the typical software application. Copyright has its limitations and I have seen many references to software patenting in LInkedIn discussions. What are your experiences and pros/cons relating to software IP protection? What is your reaction/response to the USPTO's slow patent processing?


If this is the reality in countries where software patents are valid, then being a software developer is being part of a complicated nightmare. It's amazing. It's a maze.

USS Towers - sinking
USPTO a self-sinking ship

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