Microsoft balances patents, standards

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Fair Quibble, but...

Patents are quite complex, and I'm no lawyer, but my understanding is that if you have proof that you were working on something prior to someone else patenting it, you can claim ownership even if you file second.

With software, suitable proof should be easy to come by since any code written by MS should be in a versioning system that would have suitable evidence of the formulation and development of the idea.

It is quite possible that a party can file second in a patent dispute and be awarded the patent - provided they have the abovementioned proof. The patent itself is only proof that you have been awarded a patent, it is not inviolate and can be challenged.

Since MS doesn't seem to have been able to prove to the court that they developed their plugin technology prior to Eolas, I'm guessing that they don't have any. Remember, MS have to pre-date when Eolas (or whoever they bought the patent from) started working on the idea, not when the patent was actually issued.

There are some really interesting tips on patents here:

http://www.rctech.com/tips.htm

Under Records Can Win or Lose Patents:

Disputes sometimes arise over who first made an invention. This issue is usually decided on the basis of records kept by the parties to the dispute. But for the lack of witnessed notebooks describing his device, the inventor of the telephone would have been Daniel Drawbaugh. Although Drawbaugh was able to testify that he had talked over a crude telephone long before Alexander Graham Bell filed a patent application in 1875, Drawbaugh had not a scrap of paper dating and describing the invention. The Supreme Court rejected Drawbaugh's claim of prior inventorship in 1888 by a narrow margin of four votes to three.
Similar disputes have raged over invention of the automobile, the electric light and the laser. In each case, records or the lack thereof played a deciding role.

When two or more parties claim the same invention, witnessed records are consulted to determine the date the idea occurred, called conception, and the date it was put into practical form, called reduction to practice. The U.S. Patent and Trademark Office conducts interference proceedings in which contending parties attempt to prove their first inventorship with records of conception and reduction to practice, corroborated by witnesses other than the inventors. Depending on the facts, a contending inventor may also be required to show that work was diligently undertaken on the invention between conception and reduction to practice. These efforts should be documented on a daily basis and witnessed by a knowledgeable but disinterested third party.

Posted by: Fred Fredrickson   Posted on: 02/03/04 You are currently: a Guest | Members login | Terms of Use

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