NCSoft sued for avatar patent infringement

(Via Colin Miller) NCSoft, the producers of virtual worlds such as Lineage, City of Heroes and Guild Wars has been sued by virtual platform developer Worlds.com, which holds several patents on 3D environments. Back in December, Terra Nova had reported that Worlds.com had announced that it would be enforcing its patents, and as everyone in the comments section agreed, this was a completely spurious claim. As far as I can tell, Worlds.com is not involved in the MMO market, as it makes bespoke virtual enviroments for corporations and the enterainment industry, yet it has warned that it will enforce its MMO-related patents.

The patent in question is U.S. 7,181,690, which protects a system and method for enabling users to interact in a virtual space. The abstract reads:

"The present invention provides a highly scalable architecture for a three-dimensional graphical, multi-user, interactive virtual world system. In a preferred embodiment a plurality of users interact in the three-dimensional, computer-generated graphical space where each user executes a client process to view a virtual world from the perspective of that user. The virtual world shows avatars representing the other users who are neighbors of the user viewing the virtual word. In order that the view can be updated to reflect the motion of the remote user's avatars, motion, information is transmitted to a central server process which provides positions updates to client processes for neighbors of the user at that client process. The client process also uses an environment database to determine which background objects to render as well as to limit the movement of the user's avatar."

In this line of work I have become used to ludicrous patents, but this one should be awarded a price. Given that the filing date is August 2000, I am sure that any examiner should have come up with examples of graphical avatar interaction in a 3D environment. Meridian 59 and The Realm Online were released in 1996, Ultima Online in 1997, Lineage in 1998, and Everquest in 1999. All of them embody exactly the patent claim, so how could it have been awarded with such extensive prior art?

This is why so many people are opposed to software patents. All you need in order to make money out of litigation is to make a vague claim for which there is a mature market, get it issued because the examiners do not know anything about the subject, and then start suing market leaders in order to extort licence fees from those who are actually innovating and making popular products.

By the way, the drawing with the penguins is part of the patent claim. I kid you not.

Patenting patent trolling

(via Patently-O) Halliburton (yes, THAT Halliburton) has made a patent application for patent trolling. Enjoy USPTO application 20080270152, which protects a method for "Patent Acquisition and Assertion by a (Non-Inventor) First Party Against a Second Party".

The abstract reads:

"Methods for a first party to acquire and assert a patent property against a second party are disclosed. The methods include obtaining an equity interest in the patent property. The methods further include writing a claim within the scope of the patent property. The claim is written to cover a product of the second party where the product includes a secret aspect. The methods further include filing the claim with a patent office. The methods sometimes include offering a license of the patent property to the second party after the patent property issues as a patent with the claim. The methods sometimes include asserting infringement of the claim by the second party after the patent property issues as a patent with the claim. The methods sometimes include negotiating a cross-license with the second party based on the assertion of infringement of the claim, where under the cross-license the first party obtains a license to an intellectual property right from the second party. The methods sometime include attempting to obtain a monetary settlement from the second party based on the assertion of infringement of the claim."

Even more delightful is the flowchart describing the claims:

Looks like someone is tired of paying out to patent trolls, Halliburton was famously involved in the software patent case of Halliburton v Smith.

I don't know, I would like an examiner with a good sense of humour to get this one and grant the claim. It would be delightfully ironic to have patent trolls sued for patent infringement :)

Bilski: an end to stupid patents?

I finally got around to reading In Re Bilski (via Groklaw), the latest landmark case in the United States with regards to patentability issues. While abstract ideas are not patentable, ever since the case State Street, the U.S. has allowed mere abstractions as patentable subject matter if they produce a "useful, concrete and tangible result". This means that one did not need to have anything tangible, technical or even plausible, in order to get a patent, but that the result would be tangible; which confirms my firm belief that patent law is 90% sophistry and 10% mumbo-jumbo. It is no coincidence that software patents and business method patent applications exploded after State Street was decided. The impact of allowing abstract "inventions" can be seen when one compares the patent landscape in Europe and the United States, as mere abstractions or business methods are not patentable subject matter in Europe. The result of such practice is a more reasonable and rational patent policy, with better quality patents and less worry for innovators.

First some background. In 2002 Mr Bernard Bilski filed and application (08/833,892) to protect a "Capped Bill System". The abstract reads:

"A method of providing one of a good or a service to at least one entity at one of a payment, rate, or price that is capped at a pre-determined amount. The method includes producing an offer for the entity, wherein the offer represents at least one of a capped maximum payment, a capped maximum rate, a capped maximum usage, a capped maximum consumption, or a capped maximum price amount. The method also includes providing the good or service to the entity at one of a payment, rate, or price that may fluctuate, wherein the payment, rate, or price cannot exceed the capped maximum payment, capped maximum rate, capped maximum usage, capped maximum consumption, or capped maximum price amount."

At first reading, one realises that this does not describe anything specific, it is purely the abstract description of a capped payment method. Where is the novelty? Where is the tangible result? The examiner agreed and rejected the application. The Board of Patent Appeals agreed with the examiner. Mr Bilski then appealed to the United States Court of Appeals for the Federal Circuit (CAFC), which affirmed the rejection of the Bilski application. The question at the heart of the majority decision is whether the method described in the Bilski application is patentable subject matter. One of the ways in which business method patents were allowed in the past was by the application of what is known as the machine-or-transformation test, namely, that if the abstract process described could be carried out by a machine, or allowed some physical transformation, then it would be patentable. The CAFC majority disagreed that the Bilski application met such test. They say:

"Even if it is true that Applicant's claim "can only be practiced by a series of physical acts" as they argue, see id. at 9, its clear failure to satisfy the machine-or-transformation test is fatal. Thus, while we agree with Applicants that the only limit to patent-eligibility imposed by Congress is that the invention fall within one of the four categories enumerated in § 101, we must apply the Supreme Court's test to determine whether a claim to a process is drawn to a statutory "process" within the meaning of § 101."

To me the most interesting part of the ruling is the dissenting opinion by Judge Mayer, which goes even further, and makes the point that the question is one of allowing abstract thoughts to be patented. He says clearly and astutely:

"The patent system is intended to protect and promote advances in science and technology, not ideas about how to structure commercial transactions. Claim 1 of the application of Bernard L. Bilski and Rand A. Warsaw (“Bilski”) is not eligible for patent protection because it is directed to a method of conducting business. Affording patent protection to business methods lacks constitutional and statutory support, serves to hinder rather than promote innovation and usurps that which rightfully belongs in the public domain. State Street and AT&T should be overruled."

Judge Rader seems more favourable to business and software method patents, but even he agrees that the majority decision is unnecessarily complex. He says that:

"In sum, this court today invents several circuitous and unnecessary tests. It should have merely noted that Bilski attempts to patent an abstract idea. Nothing more was needed."

It would be easy to miss the importance of Bilski amongst the patent law technicalities, but make no mistake about it, it is a massive shift in U.S. patent policy, something that draws USPTO practice closer to Europe. It seems clear that the United States patent system is finally waking up after a patent binge, and is realising that it has a very bad hangover. Business method patents are an aberration for several reasons, chiefly amongst them is the fact that they disproportionately reward applicants who have incurred in little or no investment to come up with their "innovations". They reward trolls and punish legitimate businesses, making the mere business competitive environment a more hazardous place to conduct private endeavours. One has to hope that Bilski will be the beginning of the end to the most outlandish patents out there, and may inject some rationality back to patent law.

So far, the only people I have heard complaining are patent attorneys. That says it all really.

Blackboard's patent on the way out

(via Ray Corrigan) I have been following the saga of U.S. Patent 6,988,138 protecting "Internet-based education support system and methods". After winning an injunction in a Texas court, Blackboard has seen 44 of its claims knocked out in a preliminary injunction by the USPTO. Ray has a comprehensive report, so I will not repeat it.

Blackboard's claim exemplifies everything that is wrong with software patents. Theirs is a patent that should not exist, and if there is any justice in the world, it will be repealed and <Hugo Weaving> cast back into the fiery chasm from whence it came </Hugo Weaving>.

Blackboard wins e-learning patent suit

Since 2006 I have been following with interest the patent infringement case of Blackboard v Desire2Learn. Blackboard is a provider of educational software and virtual learning environments, which owns U.S. Patent 6,988,138 protecting "Internet-based education support system and methods". In 2006 they sued VLE provider Desire2Learn for infringement of aforementioned monopoly right. No points for guessing in which jurisdiction was the complaint filed, let's just say that it is a large state that borders Mexico, and it is not California. The case made it to trial, and the jury awarded Blackboard $2.5 million USD (about 44 million WoW gold) for lost profits and $630,000 USD in royalties.

At this point I should probably offer a rant about the evils of software patents, but I think that the facts speak for themselves. A company is using its patent in order to eliminate competitors from the market. Surely, this is not what the patent system is all about, is it?

Peruvian dancer obtains IP rights over national dance

(via Oscar Monezuma) Peru and Chile have been involved in all sorts of disputes over te years, including war, territorial claims, football, and most importantly, pisco. Now a Peruvian woman has added to the often friendly animosity between the two countries by obtaining IP rights in Chile over "la marinera", a national dance from Peru. According to Terra news site, Cecilia Gurmendi is a Peruvian dancer who lives in Chile. She made a claim to the Chilean Intellectual Property Department to obtain protection for the Peruvian folkloric dance, which was granted. The article is not clear on the type of protection claimed, the title suggests that she patented the dance, but then they also claim that she has ownership over the name for a period of ten years. I will try to get more detailed legal information from my contacts in the countries involved, so stay tuned for updates.

This is an interesting twist to Chilean-Peruvian relations. Apparently Ms Gurmendi has made her claim to stop Chileans from stealing the national Peruvian dance, just like they did with pisco. According to the Terra article, anyone attempting to make a public display of La Marinera has to obtain permission from Ms Grumendi. But things do not stop there, her husband is trying to obtain intellectual property protection over religious processions involving the Cristo Nazareno, another Peruvian tradition.

I know this is not indicative of any larger trends, and it is simply a freakish legal incident, the likes of which makes the monotony of the black letter of the law easier to bear, but I think that there is something to be said about the growing impact of IP in the public's psyche. Using Intellectual Property as a tool for nationalism seems like a natural progression from abusing it for commercial purposes. Make a broad, unsubstantiated and preposterous claim, and see if it sticks.

Hey, it works for software patents, so why not for petty cross-border disputes?

Update: Thanks to one of the comments I have learned that La Marinera has been registered as a trade mark in Chile under class 41 in order to describe typical Peruvian dances.

Patent for office surveillance software

Times Online has a report on new office surveillance software being designed by Microsoft. The software will monitor worker's performance by wireless sensors that measure "heart rate, body temperature, movement, facial expression and blood pressure." Even more interesting is the fact that the technology is the subject of a patent application by Microsoft.

Scary stuff, although the I'll save the moral panic for when the technology is widely available. I could insert a gratuitous mention to 1984, but I'd rather not.

Synthetic lifeforms and patenting

Last week I was reading New Scientist (as you do), and I came across an extremely interesting article on the race to produce synthetic life. The article claims that scientists are on the verge of producing an entirely new type of life from scratch, a prospect that scares the bejeebus out of me. Don't these evil scientists know that tampering with life always results in nefarious results?

Events have been building rapidly in the synthetic front. Researchers built a small basic genome from scratch and managed to implant it into an existing cell, which everyone agrees is one of the precursors for creating an artificial lifeform. Another team has managed to build an artificial cell-like self-assembling sphere, where the genome could be implanted. If developments continue to move at the same pace, we could have fully and unequivocal artificial life in the next few years. We will have become like gods and all that.

The interest for intellectual property is quite obvious. Large amount of research money is going into this field as a result of the patenting potential of said artificial beasties. Craig Venter, one of the people involved in the research, has been in the news for filing patent applications for his synthetic genomes. The argument goes that this is just another invention, and whether it self-replicates is irrelevant for its novelty. An invention is an invention and it should be patented.

Colleague Gerard Porter has directed me to a very interesting response to these developments from Arti Rai and James Boyle. They comment that the nascent field is already filled with overly-broad patents that could stifle further research. The authors believe that some efforts like the MIT Registry of Standard Biological Parts could be used to solve potential patent clogs in the future, a view that I wholeheartedly share.

Open source patenting

The peer-to-patent project is almost ready to go live, reports the Washington Post. For those unfamiliar with this initiative, the peer-to-patent system was proposed by New York Law School Professor Beth Simone Noveck in this paper. If we agree that the American patent system is broken, and reading some of the literature out there it is hard to argue that it is not, then one has to find solutions for viable reform. Noveck's suggestion places the emphasis on the examination part of things, and not so much on substantial reforms to existing legislation, which makes it an attractive solution because it's cheap and easy to implement. Noveck suggests to use a model of peer-review of patent applications by making them available online and open for comment. Following open source and wiki principles, experts will analyse and comment on patent applications to uncover prior-art and to comment on the innovative value of an application. Paraphrasing Linus Law, with more eyeballs, superfluous claims are shallow.

Surprisingly, the idea has caught on, perhaps because it has found the favour of almost all parties involved in the American patent debate. The project has found favour with the big technology companies like IBM and Microsoft, and also with open source developers such as Red Hat. Now the Peer-to-Patent site is open, and the pilot is set to start soon (with an announcement to be made March 12).

If anything, this proves that somebody listens to legal academics from time to time.

Inventor kills lawyer over idea for portable toilet

(via Patentingart list) It is true that to many of us IP is a source of income, but is it a matter of life and death? One man in Chicago thought so. Truck driver and sometimes inventor Joe Jackson murdered patent lawyer Michael McKenna and two other people at the offices of the Chicago firm Wood, Phillips, Katz, Clark & Mortimer.

According to the Chicago Sun-Times, Jackson invented a portable toilet for truckers, and went to McKenna to have the invention patented. However, Jackson became convinced that McKenna had stolen his idea and had registered the toilet for himself after researching on the Internet. I conducted a search on the USPTO on published applications and issued patents for Michael McKenna, but did not find anything. The search terms "joe jackson" and "toilet" did not produce any results either. According to family members, McKenna told Jackson that he could not patent the invention because it was already invented.

Jackson eventually snapped, and murdered the patent lawyer.

Tragic as the event is, I found something quite interesting in one of the articles detailing the unfortunate events. The Chicago Tribune describes the other lawyer killed as "an expert in the arcane legal field of intellectual property." Arcane?

I'm off to make some incantations and read some entrails.

Patenting movies? The MPAA says no

I had reported last year about a patent application in the United States that tried to obtain protection for a movie plot. The application is by one Mr Andrew Knight, who believes the USPTO should be granting patents for unique and inventive movie ideas. His website contains a brief explanation of his reasoning:

"A Plot or Storyline Patent application seeks to patent the underlying novel and nonobvious storyline of a fictional story. Such protection is to be contrasted from the copyright protection of one of millions of possible expressions of an underlying storyline. The field of possible applications is broad, and may tentatively be split into an entertainment-advertisement dichotomy. The epitome of an entertainment application is an original, thought-provoking, often shockingly unique movie plot. Several potentially patentable features may have been found in the plots of, Memento, The Thirteenth Floor, Being John Malkovich, Butterfly Effect, The Game, Fight Club, The Matrix, Total Recall, The Truman Show, Minority Report, The Village, Groundhog Day, and Eternal Sunshine of the Spotless Mind, to name a few."

Readers who are familiar with my line of thinking about patents will probably imagine that at the moment of reading such a steaming pile of post-digestive bovine refuse my blood-pressure has reached dangerous levels and I am about to go into a rant of some sort. Rest assured, I must admit that I'm not particularly surprised by this line of reasoning, it is a logical progression from what is already happening with the patently absurd idea that you can patent anything under the sun.

Mr Knight has put together a legal argument, which he has been pushing in his own website and on several journals. You can read a critique of Mr Knight's ideas in an article in the Harvard Journal of Law & Technology. In my opinion, there are several problems with the patenting of movie plots. Firstly, copyright law is doing quite well, thank you very much. Secondly, the idea-expression dichotomy serves a purpose. You can come up with a novel idea, what really matters in the creative and entertainment industries is the expression of that idea, the uniqueness of the end-result. If somebody takes too much of your expression, then there is copyright infringement. We also have a form of societal protection of unique ideas. Why would anyone want to copy the plot of Memento or The Matrix? The result would not be the same, it would be a derivative of lesser quality, a rip-off. Copyright doesn't preclude you from producing your own variation of the story, but copy too much and you infringe. The third problem is one of resources. Can you imagine poor patent examiners comparatively looking at movie plots?

The MPAA has issued a comment to the USPTO on this very subject, where they state that they oppose patent protection for movies. They state:

"The MPAA notes with some alarm a trend toward claiming inventions related to the creative arts using claim steps that recite events that are conveyed through an artistic expression (e.g., the actions a character in a story may perform). It is neither appropriate nor practical to evaluate the novelty and non-obviousness of a claimed invention through an assessment of the “quality” or “merits” of an artistic expression. Such claims are properly addressed through the application of the substantive requirements for patent eligibility."

What would you know? I agree with the MPAA! The weather report for Hell reads: "Decidedly chilly, expect blizzards".

By the way, for those who think that this is of no importance in Europe, remember that the EPO has a bad record on keeping patentable subject matter in reign. The words "computer implemented invention" come to mind.

Patenting food?

With the rise of the celebrity chef and the increasing amount of money spent on recipe books and all things food-related, I guess that it should not come as a surprise that intellectual property protection would not be far behind.

One would believe that the possibility to protect culinary creations is rather limited. Recipes (and books of the same) are protected by copyright law, and that should be the extent of the protection. Or should it? The purpose(and commercial value) behind a book of recipes is that buyers can replicate the recipes and cook them in their own homes. But what happens when the one using the recipes is a competitor? What if another chef is stealing your livelihood? Some chefs are fighting back by using more IP protection.

Infoworld has the great story of a restaurant in Chicago where a food writer received the following note in edible cotton-candy paper:

Confidential Property of and H. Cantu. Patent Pending. No further use or disclosure is permitted without prior approval of H. Cantu.

So many things to analyse in such a small (and may I say, transient) licence. Since when did cotton-candy become the medium of choice for food-related licensing? Could we have a new wave of eat-wrap contracts? I would truly like to see the patent application, but alas, USPTO searches have failed me so far. Mr Cantu could have applied for a design patent, many examples of artistic designs are protected in that way (see Greg's Patenting-Art database for some). Could some food be protected as a business method? Sillier patents have been issued, so that would not be beyond the realm of feasibility.

However, there could be something analogous to the copyright/patent dichotomy in software protection. Recipes are the same as code, they protect the literal elements, and both are adequately protected under copyright. But food (and software) are more than code, they have a functional element where literal copyright protection could not apply. Would patenting do? At least not in Europe, although I can envisage a similar argument to the technical contribution test in software. I will not even try a guess what is the state of the art in the United States, I gave up a long time ago trying to understand it. Perhaps protecting some food as a design could be a better option.

Or maybe chefs could try an even stranger concept. Cook well, write recipes and get people into the restaurant. Silly me, that's been tried by the likes of Jamie Oliver. Must try harder.

Patenting emoticons in mobile use

I thought that I had read it all when it came to silly patents. Apparently not. The Register reports on U.S. patent application 20060015812 by mobile giants Cingular, attempting to patent the use of emoticons in wireless devices. The abstract reads:

A method and system for generating a displayable icon or emoticon form that indicates the mood or emotion of a user of the mobile station. A user of a device, such as a mobile phone, is provided with a dedicated key or shared dedicated key option that the user may select to insert an emoticon onto a display or other medium. The selection of the key or shared dedicated key may result in the insertion of the emoticon, or may also result in the display of a collection of emoticons that the user may then select from using, for example, a key mapping or navigation technique.

The patenting of a key that displays emoticons. Who would have thought of that? :-) There is no novelty here, and I would say that this application is thoroughly obvious, and therefore should not get a patent. The application goes on to explain what is understood as an emoticon:

:-) or :) Smile ;-) or ;) Wink :-D or :D Big smile :-)) or :)) Very happy :0) Big nose smiley |-) Cool! >:-) or >:) Evil grin >;-> or >;> Evil grin with a wink :-X or :X My lips are sealed }:-) or }:) Devilish :-{circumflex over ( )}) or :{circumflex over ( )}) Tongue in cheek :-P or :P Sticking out tongue :-& or :& Tongue tied :op Puppy face 0:-) or 0:) Saint :-)8 or :)8 Happy wearing a bow tie 8-) or 8) Happy with glasses #-) I partied all night %-) or %) Drunk :-###.. or :###.. Being sick %-( or %( Confused :-0 or :0 Shocked :-o or :o Surprised :-| or :| Indecision :'-( or :'( Crying :'-) or :') Crying of happiness :-( or :( Sad

:-&

NOTE: It seems like Andrew Orlowski from The Register continues to get his stories wrong. The patent claim is not to patent emoticons, it is to patent a key in a mobile phone that inserts them into the text. Big difference.

Patenting movies?

As if the patenting of software was not enough of a nightmare, the next step could be the patenting of movies. You would be wise to be sceptical of this claim, who in their right mind would think of patenting movies? Behold U.S. patent application 2005/0244804, an application for the " Process of relaying a story having a unique plot". I kid you not. The abstract says:

A process of relaying a story having a timeline and a unique plot involving characters comprises: indicating a character's desire at a first time in the timeline for at least one of the following: a) to remain asleep or unconscious until a particular event occurs; and b) to forget or be substantially unable to recall substantially all events during the time period from the first time until a particular event occurs; indicating the character's substantial inability at a time after the occurrence of the particular event to recall substantially all events during the time period from the first time to the occurrence of the particular event; and indicating that during the time period the character was an active participant in a plurality of events.

Unless I am mistaken, this is a patent application for some sort of plot involving memory loss and events occurring during said amnesia. Wow, I had never heard that before! Could I offer Memento as prior art?

Anyway, this represents something more serious, and is the fact that many patent lawyers in the United States do really believe that there's nothing wrong with trying to patent a movie plot. I can imagine a time when movie-makers are afraid that their plots may be infringing, with patent trolls accumulating movie patents to sue the largest movie blockbusters.