Company Claims Patent Over XML

Aviran Mordo writes "News.com reports that a small software developer plans to seek royalties from companies that use XML, the latest example of patent claims embroiling the tech industry. Charlotte, N.C-based Scientigo owns two patents (No. 5,842,213 and No. 6,393,426) covering the transfer of 'data in neutral forms.' These patents, one of which was applied for in 1997, are infringed upon by the data-formatting standard XML, Scientigo executives assert."

XML predates this patent filing

[jesup]

From http://www.xml.com/pub/a/w3j/s3.paoli.html [xml.com]:

"Microsoft cofounded the XML working group at the W3C in July 96 and actively participated in the definition of the standard."

This was used in IE4.00 for their Channel Definition File (used to schedule "Pull" of channels, an idea that's largely died). I was implementing CDF files at Scala in '96/97. The patent was filed in '97.

patent improvement

[alzoron]

What I would really like to know with all these generic patent infringment cases is what happened to being able to make an improvement to an existing patent and being able to create a new seperate patent without infringing on the original?

Example:

There is a patent for a widget to generate a generic document for an electronic medium. I come along and come up with a widget based on the same ideas but generates documents specially suited for view on, let's say, a handheld computer.

I would be using the same basic idea as the creator of the original widget, but with my improvements it has a much more specialized area, and performs in this area much better than the original could have.

Re:I don't get it...

[just_another_sean]

Exactly! There was a recent ruling to that effect regarding a guy named Lemelson. Although the guy in question waited between 18 - 39 years before he started going after the industry. The original article I read on this is at Groklaw [groklaw.net] with a follow up concerning a ruling against Lemelson there [groklaw.net] as well. The basic gist is that a party may base a reasonable defense against patent infringement on the fact that the plaintiff waited too long to bring a case against them. I would hope that applies here as well!

Maybe, I'm just a cock-eyed optimist but...

[badbrownie]

... I like to imagine that the person claiming these patent rights is doing so to shake some sense into the whole system. They must Know that there's no chance they can win, but the attempt to do so will force some lines to be drawn that will help a million more ambiguous cases. Am I the only one to think that this patent claim is the best thing to ever happen to software patents.

Bring it on so we can get clearer rules on when software patents have crossed over the line into the Land of Silly

Re:I don't get it...

[Anonymous Coward]

At common law there is an equitable defense of laches. It's not clear that that should apply to patents.

More on point, the defense of inequitable conduct for enforcing patent rights was held to be invalid.

Patents are what they are. If it's valid, the patent owner may use the right to prevent another from making, using and/or selling an infringing product. You can't cherry pick the patents you do and do not like.

Of course, that's why litigation always follows the: I didn't do it, even if I did the patent isn't enforceable, or even if it is enforceable it's not valid defense strategy.

Re:USPTO - Again

[charon69]

Quote: I'm going to be generous and assume that these examiners are given a quota that they have to have resolved each week...

You're exactly correct. My ex worked at the USPTO on biomedical patents. Your evaluation was based on how many patents you had processed during the previous week. She estimated that, with proper investigation of all claims, you would have to work almost 60 hours a week on average to finish your quota. At first hire, you're not expected to meet this quota, i.e. they give you time to get "up to speed". But, after they think that enough time has passed, the quota is driven pretty hard. She spoke of coworkers literally being yelled at for not finishing the proper amount of cases. They don't really care if you pass or deny them, just as long as a "processed" stamp is placed on the case.

What's worse, even with these draconian measures, they were still roughly two years behind on processing patent applications.

Re:SGML?

[LWATCDR]

And the difference between a document and data is?

Age of XML

[BlightShadow]

these patents, one of which was applied for in 1997

from whois for xml.com

Record created on 30-Sep-1996.

Re:SGML?

[drakaan]

I dunno..."Standard Generalized Markup Language" vs. "eXtensible Markup Language". There are hints in the names as to what they're for.

In point of fact, XML is not just intended for rendering non-document structured data (XHTML being one example of this, just as HTML is an example of this relating to SGML).

XML and SGML both had the intent of allowing open definitions of document content within a specific framework (delimiters, keywords, general syntax rules), and XML is a restricted subset of SGML. The fact that the most common use of XML to date has been for data and data transformation does not make it a data-container-only language any more than the same fact makes SGML a data-container-only language. The difference comes in the specific restrictions used in XML that make it more practical to implement.

All that aside, if we go back to heredity, if SGML is not covered by the patent, and XML is substantially a subset of SGML, then does it make sense that XML should be covered by the patent? In Dec, 1997 [w3.org] you find an example of a way to create an XML declaration in SGML. The RFC [faqs.org] says in section 4:

XML, as a subset of SGML, has the same security considerations as specified in [RFC-1874].

XML [html2xml.com] is defined here as 'An initiative from the W3C defining an "extremely simple" dialect of SGML suitable for use on the World-Wide Web.', which says to me that the patent holder and the USPTO ought to examine the relationship between SGML and XML more closely, as well as examining the SGML-based applications that still exist.

Seeing as how SGML is not designed specifically for web-based transactions, it is probably broad enough to cover any situation that the patent applies to, unless they have somehow designed a process that implements SGML/XML-like behavior outside of computing devices.

ASN.1 -- More Prior Art

[engywook]

Seems to me that ASN.1 [elibel.tm.fr] also would represent some fairly significant prior art.

Quotes from that web site:

• Abstract Syntax Notation One (ASN.1) is a formal language for abstractly describing messages to be exchanged among an extensive range of applications....
• ASN.1 was first standardized in 1984 by the CCITT (International Telegraph and Telephone Consultative Committee, now called ITU-T, International Telecommunication Union - Telecommunication Standardization Sector) under the name "X.409 Recommendation".

Re:USPTO - Again

[mavenguy]

Well, actually, the minimum time period reported is the bi-week, and many an SPE (i. e., supervisor) will harass you if your production is low. The bigger period, however is the quarter; if your last 4 quarters are below 95% (just below the rating of "fully successful") of your "goal" (i. e., quota) you can expect an "oral warning" and given 90 days to bring your production over 95%.

Of course, even those who come in between 95% and 100% often get harrased to do 100% as a minimum, and of course, even more.

This is actually 'good' news.

[Joh_Fredersen]

This was of course, *bound to happen... sort of like !Russia !USA gaining nuclear weapons
What's needed now in my opinion, is a patent ban treaty, between the major patent holders, ie, a means
to totally get rid of patents once and for all.

It's rather ironic that Microsoft, which is attempting to curry public favour by stating "Patent reform" whilst still
attempting to patent things like a "text editor" interacting with XML
http://blog.cfdl.auckland.ac.nz/archives/brent/0 00005.html
will in fact be the most likely target of this insane patent.

The arguments against patents have been won, Europe will not implement patents and even the beast (Microsoft) admits that the patent system is broken, hardly surprising when one considers that Microsoft looks increasingly likely to have to fork over some $500 million to Eolas, http://www.theregister.co.uk/2005/09/30/uspto_upho lds_eolas_patent/ [theregister.co.uk]

In the final analysis, I think the only debate will be *how* patents will be reformed, and when... not if.
It's enivatible I think that the largest patent holders, when stung often enough by the little guy will lead the drive to all but abolish software patents.

Indeed for Microsoft and IBM and companies of similar patent stockpiles.. patents will be useless.. IBM and Microsoft can't or won't *war* with each other over patents.. but, each is vulerable to some pipsqueak developer, who claims to have patented the latest trendiest "ungabunga" technology.

Waiting for Al Gore [1], to assert patent rights on the Internet.

[1] You remember Al Gore.. the guy who won the election in 2000 don't you?
/somewhere an O.B.I.T. logs my defiance of our benavolent^^^^^elected leaders.

Re:SGML?

[imbaczek]

How about Lisp? It's 40 years old, and essentially isomorphic with XML.

Re:One word - EDIFACT

[MadMorf]

non-hierarchical non-integrated structure

Heck, that sounds like a CSV formatted file...

I hope he doesn't think he invented THAT...!

Re:What about the Patent examiner responsible?

[wolenczak]

Well, this guy managed to patent a color, yes a color, like in "blue"

http://en.wikipedia.org/wiki/International_Klein_B lue [wikipedia.org]

Let's just blacklist them

[Anonymous Coward]

OK. I'm just getting sick of stupid patents. There's no fricking way anyone's going to convince pointy haired types that software patents are a bad idea. But there's no excuse for the morons that agree to sign their name up as an inventor for a patent.

So, in the interest of not hiring morons, why don't we just keep a database of all the people listed as software patent inventors and agree not to hire them. Put your name up against a patent and it's harder to find a job...

OK. It'll never work... But I have successfully managed to block patent applications by refusing to sign my name up as an inventor. Others I know have done the same thing. You don't make any friends, but if you just say, "I believe XYZ is prior art and thus this is not a valid patent" there's very little they can do.

You can't apply for a patent unless *you* are the inventor. *You* don't have to agree to be on the patent. No inventor, no patent. So if you think software patents are a good idea, make sure you convince all your friends. Then at least we'll only get patents written by morons (oh wait, mission accomplished...)

Its not enough to stop this silly patent..

[voss]

The company that brought this suit forward should be countersued into bankruptcy
and its officers sued under the RICO act.

Of Grains of Salt and Barratry

[Doc Ruby]

We're always hearing of lawyers who file groundless suits. How often are they prosecuted for barratry? Seems like the barratry officer would be the most popular guy around, except among the lawyers.

Re:Antother word perwill...

[Minna Kirai]

Since XML is a proper subset of prior art that existed prior to the filing of this patent,

Subsets of an existing idea are individually patentable. A 3x3x3m block of steel, after all, is a superset of thousands of different useful machines- just eliminate the excess molecule(s), and there it is! "I saw the angel in the marble and carved until I set him free."

The XML specification is a subset of /dev/random.