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Patents

Patent On Software Downloads Upheld 180

Posted by timothy
from the orrible-orrible-patents dept.
PacketMaster writes: "A U.S. Federal Circuit Court today ordered a lower court to reconsider its ruling on this this patent -- detailing downloading software over a network or the Internet. The full story at news.com details this on-going battle. This latest ruling indicates that the courts consider the patent, filed by a company called E-Data in 1985, a valid patent. E-Data's plan is to charge a license fee for all data downloaded over the Internet. The main companies standing against this patent are Intuit and AOL/Time-Warner's Compuserve division." Yes, E-Data would like to collect on every software download.
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Patent On Software Downloads Upheld

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  • by Anonymous Coward
    This is yet another example of Slashdot manipulating their readership just to provoke a reaction. Lets see what the article actually says, the first bolded part of the news.com article reads:

    A federal appeals court has for the second time breathed life into a patent that could force software vendors to pay licensing fees to sell their products directly over the Internet.

    This is a helluva lot more accurate than what slashdot does with its:

    Yes, E-Data would like to collect on every software download

    There's a HUGE distinction between collecting on selling products over the internet and using FTP. As it stands now, all companies have the right to patent business processes. That's what gives companies competitive edges. If you had invented something don't you believe you have the right to protect that invention? Yes, you have this right, and that right extends even to the invention was a new way of doing business. I'm not sure that News.com wasn't trying to tap into the same vein as Slashdot users or perhaps wanted to use Slashdot to get more hits and knew this type of story would jump right to the front page of slashdot. With so many people use this service to get the "skinny" on what's happening on the net, doesn't the person that writes the caption at least owe an editor's debt to keep the stories honest??
  • by Anonymous Coward
    It dosent hurt Claim 27 or any "below" it.
  • Aren't patents valid for only about 20 years or so? If so it will expire in 2005, it just needs to be kept tied up in court for another 4 years to become a moot point anyway...
  • Well, this is certainly the type of patent that I'd like to see revoked, and is an excellent case to cite when trying to show weakness in the patent system.

    But you have to wonder if the shoe was on the other foot, and AOL had this patent, how hard would they be fighting to keep it?


  • by Masem (1171) on Tuesday July 17, 2001 @04:03AM (#80276)
    FYI, it's now 20 years but starting when the patent was applied for as opposed to previously when it was 17 years from when the patent was granted.

    And I don't think this is retroactive. Patents before some date in 1999 (IIRC) are still 17 years from awarding; anything after is 20 years from filing.

    Many companies, notably drug makers, used the prior rules, and the fact that they could accidently 'forgot' to fill in paperwork that would keep the patent approval process going, the USPTO charging them a minimal fee ( I think $500.00 ) for this 'late filing' charge. However, during this time, while the patent wasn't granted, the company filing did have some basic protection on the patent, and the patent documents were not public, so an enterprising company could easily get about 22 years of protection for a small incidental fee. Note that the typical time between submission and awarding of a patent is around 2 to 3 years in the first place (assuming that everyone plays by the rules).

    The new system says that once you've submitted a patent, the 20 year timeline starts ticking. In addition, as soon as it's reasonably possible, the patent document is placed in the public domain (eg USPTO's website), though the company does have protection on it's invention. This still gives companies sufficient protection on their inventions, but does prevent abuses of the system.

    Going from 17 to 20 years really doesn't drastically extend the protection a patent gives it's owners with the given rules, it simply helps avoid abuses in the system.

  • Some times it's great to be an old codger!
    I remember distinctly reading about PPV proposals being proposed and tested as early as 1968. There was one partisan who was particularly vilified for broaching the notion at the time ( can't remember the name ).
    IIRC, the entire controversy was covered quite extensively in (wait for it..)
    TV GUIDE! How's that for prior art, eh?

  • the word contemplates stands as a legally binding term. What a load of crap.

  • I dunno. This part from the parent quote (can't get to the patent site) "and the predetermined information is reproduced in a material object at the point of sale location" seems to hurt it.

    It sounds like what Sam Goody's used to have - where you could pick 6 songs and have a custom made tape in 5 minutes. Put a card in, pick a file, and it spits out a floopy/cd-rom.

    Howdver, where is the point-of-sale location? I would imagine that it would be at the location of the web server, as that is where the transaction is validated, logged, etc...
  • You forget, we're spoofing software patents. The guy doesn't own a patent on walking, he holds a patent on movement (such is, more or less, how these things run).
    ----------
  • Most web browsers cache any on-line content you retrieve to your local hard drive. Technically, you *are* storing it. Man. we're screwed.

  • Well, there is the latches doctrine, but it mostly hinges on how the plantiffs acted between the filing of the claim and the filing of a lawsuit, and how they interacted with the defendants. (and other alleged infringers)

    (essentially, it's an abuse of patent to encourage others to infringe on your patent with the hope of later suing them for all the money they made when they were doing it)
  • A case could be made, yes. Although it's nowhere near as onerous as the requirements for trademarks, patent (and to an even lesser extent, at least in practice) copyright holders have a responsibility to not abuse what they've been granted by the public.

    However, it would probably be kind of tricky, and it would require someone being sued by Unisys to pursue this.... it's probably not going to happen. Maybe here it will.
  • That it's possible to have GIFs that aren't LZW compressed? That the patent isn't enforced against freeware/shareware authors? (among others) That the patent expires in a few years?

    Got me. You might as well go ahead and tell.
  • Does this mean that every time some web site sends you some lame-assed java crapplette, we'll owe these guys a nickel? Could impact .net as well!

    Hey, if this kill java on the web dead, I'm all for this!
    --

  • > 'material object' then 'non-material information' doesn't get covered

    "information in material objects" does. They say
    "By way of another example, a floppy disk is a material object in which information in the form of programs can be fixed". Now if you can fix information in non-material form, you're fine.

    --
  • > three root claims in this particular patent. To wit, claims 1, 29, and 37
    All of which mention "point of sale".

    > if you get one of the really narrow claims, you get all of its predecessors too
    Conversely, if FTP isn't prior art for the broadest claims, it can't be prior art for any of the narrower ones.

    --
  • by armb (5151) on Tuesday July 17, 2001 @02:57AM (#80288) Homepage
    It's not really "every software download". It's downloads "uniquely identified by a catalog code" to a "point of sale". I suppose a file path might be "a catalog code", though it sounds dubious, but FTP doesn't involve a "point of sale".

    Sure, it's still a dumb patent that should never have been granted, but it isn't _that_ dumb.


    --
  • There's no possible way to prove that's all software downloads though. All bandwidth usage is probably 99% porn anyway... If I start getting charged per meg, then screw that... I'll go back to BBS's or start up my own internet or something.

    Or heck, maybe even something more drastic, like going outside.

    ---

  • by HEbGb (6544) on Tuesday July 17, 2001 @03:01AM (#80290)
    The article, as written, is wrong (as usual).

    The higher court merely sent the case back to the lower court for reconsideration. It did NOT issue a ruling on whether the patent was valid, only that the lower court should reconsider its original ruling.

    The words were also twisted in the submission to give it more controversy - for example, the company never claimed that they had any intention of exacting royalties for "every internet download". This was a statement made by the defendants to win favor with the court!!

    Any patent defense has two strategies - first, you can get the patent declared invalid, and second, you claim that you aren't infringing. This case applies only to the first. There's plenty of battle left ahead on the second point.

    I doubt they'll ever extort royalties from this. It's very clear after reading the patent that it is, indeed, extremely limited, regardless of the court's interpretations.
  • Why thank you
  • Link to patent [164.195.100.11]

    Cut and paste link
    http://164.195.100.11/netacgi/nph-Parser?Sect1=P TO 1&Sect2=HITOFF&d=PALL&p=1&u=/netahtml/srchnum.htm& r=1&f=G&l=50&s1='4,528,643'.WKU.&OS=PN/4,528,643&R S=PN/4,528,643


  • The title, abstract and disclosure part of a patent don't really affect what it covers. What's important is the CLAIMS. The patent may describe a very narrow implementation but the claims may try to claim a much wider area of "innovation" which includes this particular implementation.

    I'm downloading [tothink.com] the patent now to take a closer look at the claims.

    -
  • "material objects at a point of sale location"
    since when are downloads "Material objects"!?!
    And it doesn't apply to all downloads, since a point
    of sale location really needs something to sell!?

    But hey what do I know :)

    You must be like water, it fits into any
    container, but it can damage a rock.

  • If you're after prior technology, then comp.sources.* probably predates even the internet.
  • United States Patent 4,528,643
    Freeny, Jr.
    July 9, 1985

    System for reproducing information in material objects at a point of sale location

    Comeon, guys, the patent itself says that it only applies to something that is SOLD.

    So, it does not apply to the FREE stuff everybody is so fond of downloading...

    --
    Knowledge is, in every country, the surest basis of public happiness.

  • Even if this person has a valid patent, this is one of those times where, for the good of the world, you have a moral responsibility to just let it go.

    Well, more like: it shows the patent system (particularly as applied to software and the internet) is invalid, and it's time to just let it go.

    When I first stated this position I found that, really, a good portion of the readers here didn't agree (usually relying on the "lone inventor" or "drugs are expensive" arguments). But now, hey, after a whole string of these really stupid claims, I think opinion is starting to come around.

    The next step is to take action.
    --

  • an owner authorization code is provided to the point of sale location in reponse to receiving a request code from the point of sale location requesting to reproducing predetermined information in a material object, and the predetermined information is reproduced in a material object at the point of sale location in response to receiving the owner authorization code.

    OK, so let's sum this up:

    1. A user submits a request to download something.
    2. The remote server sends a request for an authorization code.
    3. The user provides the authorization code.
    4. Pending authorization, the remote server sends the requested information.

    How about changing the process a little bit?

    1. The user downloads the requested information WITHOUT a prior request for authorization.
    2. The user THEN submits a request to purchase - perhaps days after the initial download.
    3. User receives a serial number that activates the product.

    This scheme is used in some software - download a limited version, and upon purchase, you receive a code to unlock all of the features.

  • If you really really stretch things, you can file a patent and wait an eternity before it becomse public domain. The USPTO has no trouble collecting that late fee over and over and over again. I don't remember the details, but there is a patent involving machine vision that was filed in the 50's, but only was granted in the last 10-20 years. The original inventor is dead, but the foundation he created to handle his patents is trying to claim that his patents can cover bar-code scanners.

    If somebody remembers the guy's name, it would be nice to put it up. The guy has a huge collection of patents, and has taken huge advantage of that particular hole in the patent system. That and that they allow unlimited modification of the wording of your patent so long as it is true to the original spirit of the filing (read: remotely close).

  • I think Watson and Crick did Acid and later envisioned the DNA double helix....for whatever that is worth...
  • by Chelloveck (14643) on Tuesday July 17, 2001 @03:05AM (#80301) Homepage

    You thought wrong. It had been 17 years, and has been changed to 20 years. So that puts it at 2002 or 2005, depending on when the law was actually changed. But since E-Data has had this in court for years now, they can still try to collect fees retroactively. (Not to say they'll succeed, but they can try.)

    As the lower court originally decided, this patent appears to apply primarily to kiosk systems. In that context it might be valid. However, the higher court ordered the lower court to "reconsider the scope" of the patent, stating that it should apply to all downloads. This may be a smart move on the court's part, since there was lots of prior art in 1985 regarding information downloads. I was downloading from BITNET then, and the FIDOnet and UUCP networks were alive and well. If the scope is determined to apply to all such downloads the patent can probably be overthrown completely.

    Or then, the higher court may just be smoking something...


    Chelloveck
  • ahem, did you actually read?
    this case refuses!! to die for 16 years now!
  • or make a little Java applet that makes it into a one 'drag' (as in drag-and-drop) or a one 'slice' shop. Or maybe just a 'wave' by moving the mouse over box.

    Heck, soon you'll have bought something just by blinking at it.
  • Though this is an interesting patent (if not undeserving of being one), I see a hole that protects open source already. This is a "System for reproducing information in material objects at a point of sale location". Keyword here (or words) would be "point of sale". So, I'm not selling anything, therefore I can't be a point of sale, and you can download from me all you want, for free. On the otherhand, all those software companies that are selling software for download might run into a bit of trouble.

    Also, the patent was filed in 1973, with a 17 year rule, it's expired (2000), with a 20 year rule, it'll expire in 2 years. Just keep it in court for 2 years!

    Also, I mirroed the patent description. None of the title pictures or anything, just the acutal text. (links will not work from that page).

    Located Here [khawproductions.com]. Warning: File size is ~130KB.

    Standard Caveat of: I am not a lawyer!.
  • No...83+17 = 100.

    If you read the linked patent you'll see that I typoed the date. Someone already posted that the date is 1983, not 73. A slip of one key.

  • Wouldn't browsing slashdot be considered downloading content.

    This patent is screwy. You can say there is definatly prior "art"

  • Wow! Does this patent bring back memories!

    I used to have a Corvus hard disk. It weighed 30 pounds, was roughly 3 feet deep, 20 inches wide, and 8 inches high, and had a capacity of 10 MB. It had it's own card that went into a slot on the original IBM PC (prior to the XT), and you started the boot from a floppy disk.
  • It pertains to software activated by a code supplied by a remote entity. Think "shareware". (also windows XP, mathematica, etc.)
  • by Shotgun (30919) on Tuesday July 17, 2001 @07:04AM (#80309)
    I don't think it covers all file retrieval. It appears to be more targetted to the download of software requiring an unlock code. This unlock code is transferred upon their receipt of an authentic request. From what I've read, this transfer seems to be done electronically.

    Nor does it appear that this patent applies to software protected using electronic licenses (i.e. copy protection or feature limiting licenses).


    And, to me at least, there lies the whole problem. It appears. It seems. What kind of judicial system allows laws and documentation that require advanced degrees to even understand? If ignorance of the law is no excuse, shouldn't law have to be written in understandable language. And don't give me any bullshit about $10 words being required in order to make the law more specific, 'cause that is complete bunk. I've seen enought technical documentation to know that it is possible to be clear, conscise and understandable all at the same time. All the bullshit rhetoric in patent applications and on the lawbooks are there simply to confuse the masses and make them hire lawyers.

    Why can't we elect some judges that will let people off because the law isn't in English (or other native language as it may apply) instead of some twisted, latinesque, lawyerese? For instance, this judge should simply rule that noone can infringe on this patent, because an average person would need weeks to understand what the fuck it means.

    Sorry for the rant, but the previous post was clear, concise and contained not noticeable misspelling. In short, Ronin Developer is literate in English, yet he can't decipher a document that purports to limit his activity. What kind of justice is that!?!

  • Welcome to the wonderful world of business model patents in America. See, if I take a general purpose computer and put a CD-RW device into it then add some software my PC becomes a POS device. Or a recording device or an encryption device or a ... Well the list goes on and on.

    How I see the patent from a similiar brain numbing fugue is it covers all downloads which involve some payment mechanism built into the transaction. I love how it says "material objects" which would cover anything from a HD to a zip disk but that just seems to be how patents are written.

    I'm very surprised that a lot more companies aren't fighting this patent. Taken to an extreme any file you download and pay for, say music, a downloaded newspaper or e-book, any information really that would ultimately reside on a storage device could be pinched for a royalty payment. RIAA, newspapers, and publishers might have a reason for concern.

    But that's my completely lay person's scope on the thing. Take it with a tub of salt.

  • by Flower (31351) on Tuesday July 17, 2001 @03:17AM (#80311) Homepage
    But I didn't know I would have to keep paying to use it!
  • This stuff is beginning to tire me out.

    *sigh*
  • Most of the recent laws around patents and IP protection have been intended to help the content distributers. Now, we have a small company that is using those same laws to go after potentially huge amounts of money.

    I wonder, if the patent is upheld, if this will be the real spark that forces changes in patent laws. After all, the large corporations this patent will hurt, who spent huge amounts of money getting software under the umbrella of patent protection and, more recently, the DMCA, might realize the genie they let out of the bottle.
  • So it includes storing programs on network servers. It probably also includes home networks. Does it include Javascript in web pages? Talk about reaching to the core.
  • NO, that's TRADEMARKS.

    For the 6 millionth time, TRADEMARKS require enforcement to stay valid. PATENTS do not.

  • Throwing out a moronic patent is bad for patent law? Why?

    Bad for companies like Microsoft, maybe - but not bad for patent law as a whole.

  • Specifically they mention "reproducing in a material object the information identified by the catalog code".

    No matter how I try to warp my thinking, I don't see how this applies to a software download. It seems to have been intended to address things like CD or DVD purchase kiosks that would download and burn the content (thereby avoiding the need to have a stock of physical titles.)

    Even if it were to apply, there is prior art -- how many people were using a BBS back then? I know I was! What's the conceptual difference between a "catalog" code and directory listings for locating the desired files, particularly when file links allow multiple "catalog entries" to refer to the same file? Wasn't your login id your "authorization code"?

  • But it's really only relevant to people and companies who are selling downloads. So if you require payment before someone can download some information, this patent might (or might not) be relevant.

    If I'm reading this correctly, pay-per-view cable television (which would be taped by the viewer) would violate this patent and/or be prior art (does anyone remember taping PPV movies before 1985?).

    I press the button on my cable box remote, the box and the cable co. validate my purchase (and bill me accordingly), and they deliver the information over their network to my VCR, where I make a "material object" out of the data. Even if the PPV is ordered via the phone I think it's pretty much the same mechanism described in the patent.

  • Please, please, PLEASE try to look at the articles objectively before posting. Don't read the article and turn every little vauge remark into some sort of OSS Slander..

    Real Headline: "Microsoft employee accidently drops large box on foot of stranger on the street".

    Slashdot Headline: "Microsoft now physically harming others to get their way"

    Slashdot User: "Well, that stranger could have been a leet linux coder.. Microsoft is stifleing innovation by causing that coder to go to the hospital! He could have been producing CODE at that time! (like a good communist!)"

    My point.. this article was more or less void before it was even an issue. Plus, it doesnt directly pertain to all downloads. Read the patent. If you can get all the way through it without feeling drowsy, that is. legaleese.. blech!
    Slashdot something useful. [thehungersite.com]
    Management is not a tunable parameter.
  • Does this mean unisys was abusing its patent?
  • can they?

    Don't they have to inform patent infringers formally before they start charging for it?

    As an infringer I have to have a choice whether to pay up or to change technology, no?
  • Under the "The Hague"-treaty, I could hypothetically be sued by E-data for downloading either:

    While being on US territory

    From a US-based server

    of which the verdict could be enforced by the Belgian courts (in my personal case).

    Same goes for providing downloads to US-based netizens.
    When I'm downloading something from a European/Australian/Asian/... server, E-data can't do anything at all.

    I acknowledge that the treaty can be abused in various ways, but I'm afraid that's the result of the originating country's poor jurisprudence(?).

    I always have to smile when I hear US citizens speak of "frivolous" lawsuits, when most people here in Europe (and probably in a lot of other places too) consider the USA the place where people can and will sue for about anything, not seldomly demanding absurd sums of money in damages. (no disrespect to those who do).

    The hague is only a small part of a much bigger problem.


    Okay... I'll do the stupid things first, then you shy people follow.

  • by morzel (62033) on Tuesday July 17, 2001 @02:58AM (#80323)
    ... just the US-based ones. USPTO doesn't mean diddly squat over here in Europe ;-)

    Seriously - I don't consider my PC a "point of sale location", so the usual transactions over the internet are indeed as the lower court stated waaaay out of the scope of this patent.

    But it seems to me that a CD-shack downloading tracks to burn them for their customers would have to cough up the money. Same goes for "on-line digital cinema", where HDTV is streamed from the moviestudios to the local cinemas. Those two example applications fit much better in the scope of "reproducing information at a point-of-sale location", they would have a problem countering this (if it weren't for the infinite amount of lawyers and the infinite amount of time of the MPAA ;-)...

    You can't blame 'm for trying, after seeing the other patents that USPTO granted (and that were enforced in US courts).


    Okay... I'll do the stupid things first, then you shy people follow.

  • Unfortunately, the clock may be ticking for the expiration of the patent. But, if the patent is upheld, they can collect retroactively to the day the patent was granted.

    As the previous posted mentioned, I suspect that this will be thrown out due to prior art when it reaches the lower courts. Let's hope that it is.

    RD
  • In short, Ronin Developer is literate in English, yet he can't decipher a document that purports to limit his activity. What kind of justice is that!?!


    Exactly. How can an IT professional ensure they are in compliance with the law when we can't make heads or tails of it. Even more so, the people who CAN read the legalize (i.e lawyers and judges) can't understand the technical aspects of what they are writing about.

    No wonder this case has been bantered around for so long. Laws written in a manner incomprehensible to the lay person should have no merit. Legal documents should be written concisely in the native language that is understood by all with normal intelligience and the ability to read for the society for which it governs.

    Naturally, those in the legal profession may feel differenty. They will make the claim that the language is needed to precisely and unambiguosly define what the document is meant to say. Again, it is clear that in this case, they failed miseraby.

    T professionals (ala programmers) also speak in a language the defines their problem domain in a precise and unambiguous manner. In our case, however, a miswritten statement is construed as a software defect and often considered unacceptable to the people that use it. We're forced to fix the problem or face consequences such as a lawsuit or losing business.

    Why are those in the legal profession not held to the same standard? Perhaps, it's because the people that enforce those standards are the same ones who setthem in the first place.

  • Yes..but it all depends.

    Let's say you were using the XYZ algorithm in a product before the patent expired. Everyone in the industry knows that the algorithm is patented.

    You didn't license the algorithm but decided to take your chances and sold your product anyway. The company holding XYZ finds out about your actions and can immediately take action to protect their patent. In doing so, they may file suite to begin reclaimation for damages and/or seek an injunction to stop distribution of the product. They have the full support of the law on their side.

    My guess is that they would then attempt to settle out of court. But, let's say you told them F*** off. You could reengineer your product to use something else if you can afford the luxury of reengineering and/or the PR implications. They know they have the legal right to come after you and will do so if a settlement isn't reached in order to avoid voiding their patent. End result, you still get sued and have to bare the cost of redevelopment, remarketing and, of course, the legal battle.

    But, if you were shipping your product before they applied for the patent (and can prove it), then their patent can be overturned due to prior art.

    If the patent was pending, the company needs to inform others using their disputed idea that idea is patent pending. This allows those using it to decide what course of action you want to take.

    Once the patent is granted, you're on your own to make sure you aren't infringing and take the proper measure to license the use of the patent from its holder. If you were forewarned...your dead meat on a stick.

    Now, I'm no lawyer...but I've come up against patents in the past. The real solution is to eliminate the legalese, get people in the PTO who understand what they are granting patents on, and make it easy to research existing patents and those pending.

    The PTO does provide a web accessible search engine...Others provide similar services as well. But, its a cumbersome process to do yourself and you still face liability if you didn't do your homework.
  • by Ronin Developer (67677) on Tuesday July 17, 2001 @03:40AM (#80327)
    I don't think it covers all file retrieval. It appears to be more targetted to the download of software requiring an unlock code. This unlock code is transferred upon their receipt of an authentic request. From what I've read, this transfer seems to be done electronically.

    Nor does it appear that this patent applies to software protected using electronic licenses (i.e. copy protection or feature limiting licenses).

    Now, I'm too lazy to read the whole patent, but if I encrypt my file for download and then send the unlock code later (via snail mail, for example), do I violate this patent?

    RD

  • Throwing out a bad patent is fine, it's just a question of why. I haven't read the actual law text (thank god I'm not a lawyer :-) but I assume they lists some reasons a patent could be invalidated. I'm pretty sure "moronic" is not one of the reasons listed, so they'll have to find something else, and that's where things get interesting..
  • I did read - and you actually prove my point. The 'system' has refused to let it go anywhere for a long, long time, simply because the outcome is either "go stick your patent where the sun doesn't shine", which is bad for patent law, or "go collect mucho bucks from everybody". Actually, just letting it die slowly in courts may be the best solution...
  • by DreamerFi (78710) <<moc.ruetnis> <ta> <nhoj>> on Tuesday July 17, 2001 @03:16AM (#80333) Homepage
    As one lawyer said in the article: "If the patent owner prevails in its view, they stand to be wealthier than Microsoft"

    Really? Really really? If it's really about that large amounts of money, companies are going to fold or relocate outside the USA, rather than pay up. Does anybody here really think that's going to happen? In the unlikely event that a judge allows this company to win, the USA will have to reconsider its patent system or risk hurting the economy real bad.

    My prediction is that this case will sizzle and die, never to be heard of again. The stakes are simply to high.

  • E-Data changed their name last year. They are now called seisint [seisint.com]

    H.

  • by Sc00ter (99550) on Tuesday July 17, 2001 @02:48AM (#80341) Homepage
    So will all computers on the internet need a coin slot?

    A dialog box will pop up "Please deposit 35 cents for the next 5megs please"


    --

  • I could be wrong, but it seems like a monetary transaction has to take place. These dude's at E-Data think they have patented a procedure by which one purchases information (software) remotely.

    from the actual patent doc:

    16. The method of claim 1 wherein each information is uniquely identified by a predetermined catalog code and a dollar charge code, the dollar charge code indicating the amount of money to be charged in connection with the reproduction of said information ...blah blah blah

    and

    The present invention relates generally to a system for reproducing information in a material object at a point of sale location.

    So basically things like FTP, HTTP, and Kermit don't really apply. They're not really saying they invented the concept of downloading.

    The district court previously ruled that the patent was too narrowly focused, applying for for download, sale, and "physical reproduction" (tape, VHS, CD?) at a specific kiosk or physical store front and not a ubiquitous browser or other software client. I'm curious what portions of the patent were broad enough that the U.S. Court of Appeals for the Federal Circuit would throw the decision out the window.

    Anyway, it looks like Intuit and Time Warner have the following options:

    battle this out in court

    wait for the patent to "expire" (4 more years)

    sidestep the patent by temporarily finding another way to facilitate online software purchases.

  • depending upon where you draw the line on "material object" (can it already belong to the purchaser, or must it be included in the sale?)

    The quoted portion of the patent is, "reproduction in a material object at the point of sale." This means that the reproduction must be occuring at the point-of-sale (or, as an alternate reading, in a material object that is at the point-of-sale). The two readings are subtly different, but both invalidate the claim that this covers copying to a disk which is then distributed or the implication that this might not implicate pay-for-download sites.

  • January 10, 1983, actually. The patent wasn't granted until July 9, 1985. Remember, though, that it's not merely point-of-sale systems. It has to meet the specified claims, including the method of authentication. This is not to say that such systems did not exist prior to the filing. I'm reasonably sure that they did.

    Anyway, there's good reason to fight the patent as being so broad that it'll apply to all downloads and to treat it as such: the language of the patent doesn't unambigously dismiss this possibility. Therefore, regardless of the stated or actual intent of the patent holder(s), the possibility for enforcement exists. That is what should be dealt with; not the probability of enforcement.

  • Using anything other than averages and estimates would require detailed logging of a user's every online "move," in order to distinguish between downloading and other behavior. You can imagine how well *that* would fly.
    Yeah, and just imagine the money that would made from all the downloading of the estimated 600 (in the first day alone) Slashdot articles in 'Your Rights Online' if this ever came to fruition :)

    My Good Goddess, it's a conspiracy! Never mind what the patent says - it's all a secret plot by CmdrTaco to drive up banner revenue!
  • by Grinch (112916) on Tuesday July 17, 2001 @02:56AM (#80352) Homepage
    So will all computers on the internet need a coin slot?

    Not quite - but close. If this patent stands, it will be the end of flat-rate access plans. Someone will do a study that shows that X% of a home user's traffic is downloads - and that number will be used to figure a royalty payment based on your bandwidth use.

    Think about it - how else could enforcing this patent work? Using anything other than averages and estimates would require detailed logging of a user's every online "move," in order to distinguish between downloading and other behavior. You can imagine how well *that* would fly.

    Remember, you read it here first!
  • Courts, especially appeals courts, only deal with the arguments before them. By reading the CNET article it appears that the argument before them was that the patent only applied to the case of kiosk downloads, not internet downloads.

    The argument that there was prior art (as described elsewhere in these comments) was not brought before them so they couldn't rule on it.
  • You've got the right idea. You used to be able to perfect the technique by keeping the patent "in process" until some sucker does the work to make your invention actually be useful. At that point in time you let the patent be granted. With a good attorney, you become very, very, very wealthy. cf. Jerome Lemelson
  • by clyons (126664) on Tuesday July 17, 2001 @04:18AM (#80358)
    As the lower court originally decided, this patent appears to apply primarily to kiosk systems. In that context it might be valid. However, the higher court ordered the lower court to "reconsider the scope" of the patent, stating that it should apply to all downloads. This may be a smart move on the court's part, since there was lots of prior art in 1985 regarding information downloads. I was downloading from BITNET then, and the FIDOnet and UUCP networks were alive and well. If the scope is determined to apply to all such downloads the patent can probably be overthrown completely.

    There is prior art up and down the Yin Yang on this. this document [columbia.edu] places the innovation of Kermit in 1981, while RFC 765 [faqs.org], describing the FTP protocol, dates back to June 1980.

    You also mentioned Unix to Unix Copy Protocol. According to this history of the internet [davesite.com], AT&T labs developed the UUCP suite in 1976.

    Or then, the higher court may just be smoking something...

    Sometimes, I think the only reason that drugs are illegal is to prevent us from understanding the system. :)

    --

  • Wouldn't the concept of FTP, being designed in an RFC [isi.edu] from 1980 be prior art?

    Granted, this may not help for the sale of items over the Internet, but that DOES mean that they couldn't claim EVERY software download.

  • Does this cover all file retrieval? What about the many different protocols out there? HTTP, FTP, TCP/IP, etc? The site with the patent description is already Slashdotted, so read a bit more over here [mit.edu]. The legal battle is far from over, and this article is rather vague on the details. Why does it mention Intuit and Compuserve in particular?
  • by iainl (136759) on Tuesday July 17, 2001 @02:54AM (#80363)
    "The present invention contemplates a system for reproducing information in material objects at a point of sale location wherein the information to be reproduced is provided at the point of sale location from a location remote with respect to the point of sale location, an owner authorization code is provided to the point of sale location in reponse to receiving a request code from the point of sale location requesting to reproducing predetermined information in a material object, and the predetermined information is reproduced in a material object at the point of sale location in response to receiving the owner authorization code."

    Maybe I'm stupid, but from the abstract above, and a quick scan of the patent its constantly referring to the reproduction of material objects. I thought that patents were specific enough that if you say 'material object' then 'non-material information' doesn't get covered. By bending the meaning a bit I can see how this might be construed to cover, say one of those machines that can download and bind a book for you in a shop, but I can't see it meaning I have to pay to ftp a copy of Counterstrike, as there is no 'point of sale' there is no transaction and the exact material object isn't reproduced. Given that data down networks is older than 85 anyway (I remember strange TV programs that broadcast simple programs when you hooked your BBC micro up to them) I can't see this as right.
  • by startled (144833) on Tuesday July 17, 2001 @09:37AM (#80366)
    The higher court merely sent the case back to the lower court for reconsideration. It did NOT issue a ruling on whether the patent was valid, only that the lower court should reconsider its original ruling.

    This, also, is misleading. The lower court didn't declare the patent invalid-- it said that it applied only to sales from kiosks and such. And when a higher court tells a lower one to "reconsider", it doesn't just say, "hmm, you should take another look at that". It gives its grounds for disagreement, and provides guidelines that the lower court should follow. In this case, it said that the lower court had interpreted the patent too narrowly.

    Any patent defense has two strategies - first, you can get the patent declared invalid, and second, you claim that you aren't infringing. This case applies only to the first. There's plenty of battle left ahead on the second point.

    Precisely the opposite, in fact. The lower court's ruling was that the patent applied to kiosks, and hence the companies involved weren't infringing. The higher court said the patent should be broader than that. If that holds, then there will be a huge argument over the validity of that patent, with a huge opportunity for prior art.
  • One might assume that it applies to shareware, though, at least from a Certain Point of View...

    The fact is that it's an incredible gouge, and a clear demonstration of why business method patents are bullshit...

    /Brian
  • by Rackemup (160230) on Tuesday July 17, 2001 @02:48AM (#80373) Homepage
    If they start charging for pr0n downloads, the entire continent will go bankrupt! =)

  • Damn, does this mean I'll have to pay for warez downloads after all?
  • by streetlawyer (169828) on Tuesday July 17, 2001 @03:08AM (#80379) Homepage
    Slashdot shits its pants in public by not reading a judgemetn properly. This was a case where the full court reiterated a decision made in an appeal last year, whereby they ruled on a lower court's interpretation of what the patent claimed. They have made no ruling on whether the patent is valid or enforceable; merely that it claims what the plaintiffs say it claims. "Upheld, my ass". The quote at the end of the original cnet story [cnet.com] says it all.
    "This case has a long way to go yet," said attorney Daniel R. Harris, a patent expert and a partner at Brobeck Phleger and Harrison. "All the (federal court) did was look at the language of the (lower court's) finding and decide it was too narrow. They still have to figure out if the patent is valid and whether or not the defendants infringed on the patent."
    This ruling is just the same court, saying the same thing as it did before, this time with all its judges present.
  • by The Gline (173269) on Tuesday July 17, 2001 @03:16AM (#80382) Homepage
    Bite me.

    Love,

    The Internet
  • I believe it stands at twenty years (used to be seventeen, then the law was updated to twenty). I could be wrong, but it is around there somewhere. In any event, the patent is only good for a few more years. One bright point is that as long as this is tied up in court, the clock is ticking. I never thought I'd actually like to see a case drag on.

  • by CaptainZapp (182233) on Tuesday July 17, 2001 @03:14AM (#80390) Homepage
    I think I'll go file my patent for "buying stuff from a store"

    And how sir, do you think you get to that store?

    I own patent 4711/12345 "A method of movement by moving one foot in front of the other to get from a place to another place, regardless of the pace with which this method is applied".

    So don't you dare to even walk(tm) to your car without transferring a lot of $$$ into my general direction.

    walk(tm), walking(tm), jogging(tm), running(tm) and feet(tm) are trademarks owned and controlled by CaptainZapp enterprises

  • by jesterzog (189797) on Tuesday July 17, 2001 @03:06AM (#80392) Homepage Journal

    I also mis-read it the first time and was thinking the same thing, but if you check it a bit closer, it says "information" in material objects. That's a lot more relevant.

    I think the key point to this patent without having taken legal advice, is that it's talking about point of sale. As usual all the initial modded-up comments are uninformed and ranting about how they were downloading before 1985. (The slashdot writeup doesn't help.)

    But it's really only relevant to people and companies who are selling downloads. So if you require payment before someone can download some information, this patent might (or might not) be relevant.

    I'm wondering how easy it might be to get around simply by changing the system slightly, like checking for authorisation code twice instead of once for example. I'm sure I remember an audio clip of that patent office guy stating that Barnes & Noble could quite feasibly run a 2-click ordering system to avoid infringing on Amazon's 1-click, and that would seem like the same sort of thing.


    ===
  • RFC959 [w3.org] was issued in 1985 but refers to older documents such as Telnet (RFC854 [faqs.org])...
    Note this extract from the latter:
    "It is envisioned that the protocol may also be used for terminal-terminal communication ("linking") and process-process communication (distributed computation)."
    Not quite sure lawyers would be happy with this point, though.
    --
  • But technically isn't everything a "download", I mean really what's the difference between grabbing a .html and a .zip, just beause one is displayed immediately and one is stored doesn't change the fact that they are both downloaded.
  • Stock tickers. They do pretty much exactly what this guy describes. Observe this portion of the patent:

    28. The method of claim 27 wherein the material object is defined further as being selected from a group consisting of: audio tape capable of having fixed therein information in the form of sound recordings; audio disc capable of having fixed therein information in the form of sound recordings; video tape capable of having fixed therein information in the form of pictures and or audio; video disc capable of having fixed therein information in the form of pictures and or audio; media capable of having fixed thereon information in the form of printed matter (words, symbols and or pictures); devices capable of having fixed therein inforamtion in the form of digital data; or combinations thereof.

    (emphasis mine)

    Even if this person has a valid patent, this is one of those times where, for the good of the world, you have a moral responsibility to just let it go.

    Bryguy

  • I can't imagine this being anything other than a hoax. Charging a licensing fee for every download on the Internet? Without a means of charging that fee or a plan for it, a court would have little choice but to throw the case out.

    Besides, companies have to defend patents in a timely manner to keep them. [Or at least that's the excuse some companies use for raking smaller companies over the coals] If this 80's era patent was not used against Compuserve, how can they get away with using it now?

    Because the whole thing is a hoax meant to illustrate the ridiculous state [ridiculopathy.com] of software patent law.

  • IANAL. Also, IANAPA (patent agent, or patent attorney, not all of whom are lawyers).

    Slashdotters evidently need more information about patents. I'm going to try and give what I know, using this patent as an example.

    First, each patent claim is separate from the others. Each one is effectively its own patent. You'll notice how patent 2 includes patent 1. This is because the first claim is the broadest claim that the patentholder can possibly lay claim to. Claim 2 is more specific, and then it just gets more detailed as you go on. This is normal. In most patent filings, you get a hierarchy of claims.

    If Slashdot would let me, I'd put up a table enumerating the hierarchy. But it won't. Sigh. :)

    Therefore, I will use my own webspace. Open this [publish.uwo.ca] in another window and keep it handy.

    Anyway, there appear to be three root claims in this particular patent. To wit, claims 1, 29, and 37 each have no dependencies, and set up their own trees.

    This is important. One thing to remember is that the root claim is most often just a case of wishful thinking on the part of the patent drafter. It is probably too broad, and will be struck down in court. In theory, the PTO and its equivalent agencies in other countries would get rid of these claims, but in practice, they don't.

    However, this does not mean that its dependent claims go with it. Actually, quite the opposite. Because they've been modified, they're narrower, they cover less, they're harder to attack.

    But on the other hand, if you get one of the really narrow claims, you get all of its predecessors too. For example, suppose you find prior art for Claim No. 12. That allows you to knock out Claims No. 1, 2, 5, and 7 through 11.

    That's why you get so many branches. This is a pretty good piece of drafting, this patent. 12 and 47 are the only big target claims. There's lots of others with only one or two dependencies.

    I was going to try and figure out the claims themselves today, but I won't. My head hurts. Maybe tomorrow.

  • That patent laws on the books state:
    Effective June 8th, 1995, the term of plant and utility patents is 20 years from the date of filing. Patents filed prior to June 8th 1995 last the longer of 17 years from the date of issue, or 20 years from the date of filing.
    Extensive detail regarding these changes can be found . [uspto.gov]

    --CTH

    --
  • by CygnusTM (233935) <cygnustm.gmail@com> on Tuesday July 17, 2001 @02:55AM (#80416) Homepage
    It's probably the same miraclulous software that tracks how many times an e-mail is forwarded, so nickels can be donated to charity.
  • But there is the question: does the patent imply (strongly enough for the courts) that the material object constitutes part of the sale? If so, download to your hard drive is not covered.

  • Sorry, you can't do that.

    I own patent 1011/2389 "A system for registering innovations allowing a period of exclusity to the original registree, and prohibiting all others from using said innovation without paying obnoxious license fees to the registered owner of the innovation".

    Your "patent" infringes on this patent, so you'll have to transfer all that $$$ plus some more to me :)

  • #include "std_IANAL.h"

    My understanding of the patent system is that patents are very specific. Having a patent for exercising a cat with a laser pointer does not mean you can sue someone for exercising their dog, budgie or cute furry martian in the same manner. Similarly (as you have noted) having patented "1-click shopping" does not give Amazon exclusive rights to "n-click shopping", despite apparent similarities.

    Firstly: "Material object" has specific meaning under the law, which does not include non-physical (classically: intellectual) property. Material must, necessarily, be physical. Transferring information and then placing it on a disk and giving the disk to the purchaser would be covered by this patent.

    The catch arises in that downloading to your hard drive would also constitute placing data on a disk, and since the point at which the purchase was made was your computer, it would constitute a point-of-sale. Arguably the mere act of such information entering RAM is "reproduction in a material object at the point of sale"; so depending on where you draw the line on "material object" (can it already belong to the purchaser, or must it be included in the sale?) and "point-of-sale" that clause can be read in several ways.

    Secondly: As you kindly pointed out (all prior threads seem to miss this rather salilent point) this applies to a limited set of downloads, mostly commercial. Whenever an authorization is needed to initate the download or, conveivably, to interpret the downloaded information, the patent could take effect. In addition the use of "point of sale" as the description of the location strongly implies (but maybe not strongly enough for the courts) the requirement for a sale (negotiated trade or financial transaction) to occur.

    So: browsing the web under normal conditions and downloading free software is not convered. Download evaluation software where a registration and key is needed may be covered.

    Curve ball: web sites that require authentication and/or use SSL may be grey areas. Consider that under both systems the intended recipient of information must provide some form of authorization in response to a request for such authorization (in the case of SSL without client authentication, that "code" is randomly generated). The only missing part for you to stretch the patent over it (if you had good lawyers) would be the concept of sale. But how broad is sale?

    Well, the commercial (capatalist, Western, etc) world holds that no-one does anything for free. The courts have shown a bias towards that view (I'm not bothering to explain the references/logic here). So if you have registered with a site as a user, it could be argued that, in exchange for your right to use the site (the authorization code you were given), you have agreed to a trade, mostly likely the site has permission to e-mail you and share your e-mail address with its partners. That's a sale. Worried yet?

    Thirdly: the patent is specific about the method of authorization: the owner obtains a code, and supplies it in response to a prompt at the "point of sale". That's pretty broad -- sure, I believe we could make a protocol that avoided the problem (public keys and signatures, for example, in which case you prove identity rather than supply a code), but most site currently work on the prompt/authorization code principle.

    As much as I hate to admit it, I think it is possible to stretch this patent to cover a large amount of the net. But certainly it cannot cover all downloads: free http (non-SSL) websites, free software, e-mail, search engines, usenet and the like cannot (except by an lawyer) possibly be perceived to fit under the umbrella of this bastard.

  • Maybe I'm stupid, but from the abstract above, and a quick scan of the patent its constantly referring to the reproduction of material objects.

    You didn't scan the text slowly enough. It talks about reproduction of information in material objects, so copying information to a disk would be covered by that.

  • AOL had started to work on patenting this some years ago. Unfortunately, their users have yet to complete a successful download. Any time now...
  • Wouldn't the concept of FTP, being designed in an RFC from 1980 be prior art?

    Certainly, as far as free downloads are concerned. The news article doesn't exactly say, but I think the case has been about paid downloads -- so to really kill this thing, you should find a paid download using encryption for security predating 1983.

  • Disputes about prior art are usually matters of fact which require a full-scale trial before a jury if the parties can't reach an agreement. The judge apparently tried to kill the case before it got to that by ruling that, as a matter of law, internet downloads weren't even infringing. The appeals court tossed it back to him. Now he might have to bring in a jury. Juries are pretty unpredictable, but I think the odds are against the patent holders -- a judge might accept that as a matter of law a patent with 40-some obviously invalid claims (to inventing modems, remote "file duplication commands", etc.) and one possibly valid claim (paid downloads) may still be valid as to that one claim. A jury is either going to assume that if it's 98% invalid it's all invalid, or are going to do a bit of jury nullification and punish the SOB's who wrote that patent for making them read it and sit through the trial. (At least, that's what I would do...)
  • Using anything other than averages and estimates would require detailed logging of a user's every online "move," in order to distinguish between downloading and other behavior. You can imagine how well *that* would fly.

    Yeah, and just imagine the money that would made from all the downloading of the estimated 600 (in the first day alone) Slashdot articles in 'Your Rights Online' if this ever came to fruition :)

  • If the court does interpret the patent broadly at all, they're going to be nailed on prior art. Basically, if anyone can prove they were using the same method before the patent was filed, then the patent will crumble. And it was 1985 that they filed it? Are we to believe that nobody had distributed software to a point-of-sale location over a network prior to 1985? I doubt that.
  • by s20451 (410424) on Tuesday July 17, 2001 @03:36AM (#80440) Journal

    First you get the patents. Then you get the power. Then you get ... the women.

  • This is a case of the lawyers of EData trying to enforce and protect their intellectual property. It doesnt matter to them that the patent is something that should be thrown out because it is of something that is to be considered obvious by even today's non-techiee. They're a small company protecting their assets.

    Regardless of where this case goes, let's assume the court rules in favor of EData and they make billions from licensing the concept of downloads. The defendants can file an appeal and possibly even file for a patent revocation on the fact that such a concept is obvious. Experts on the topic can point out that such a concept is fndamental to operation of the Internet long before the patent was filed in 1985. The concept wasn't designed by EData, it was dreamed up by the original Internet founders in US Defense Dept and academia back in the 60s.

    EData will eventually lose this battle. It's just a matter of time until that happens.

  • If I understand this, I can speculate that for future discoveries and take the credit for them ? It makes no sense at all !? If you didn't make a prototype how could you patent the thing ? You didn't do research for it, you didn't even plugged the thing together... If this work, I can patent the idea of a Fusion Reactor. Sit on my butt and wait around for people to figure how to make one up and then claim "hey I had the Idea I take 5%, even though I did stricly nothing and I don't even know half about physics..." This is a good way to stop progress. There won't be any flying cars etc... If people started to patent the thing and take away the money from the too-deserving engineers and workers who brought em up. Then I hope must be awfully wrong in my conception of the story... But then Human beings have never been very logical says Spock or whatever... If you can Patent ideas or vague ideas, then what can we do? Might as well shut the Internet since it's a goldmine of free ideas for richer people to rip off and Patent. Maybee if you got plenty of cash the you can patent what I just said so we have to pay for loggin off the net or switching the server :)

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