

Microsoft's 2003 patent application for the "Is Not" operator - grellas
http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220040230959%22.PGNR.&OS=DN/20040230959&RS=DN/20040230959

======
latch
Paul Vick, whose name appears on the patent, had a great blog post about this.
Had to dig it out of archive.org: <https://gist.github.com/1846067>

FWIW, as much as I hate[d] VB.NET, Paul Vick was (is?) clearly a superstar -
both in terms of coding and writing.

~~~
sriramk
Disclaimer: ex-MSFT, have several patents pending from during my time there.

His blog post reminds me why I get so mad at Microsoft using patents against
Android OEMs. During all my years at MSFT, employees were always told that
patents were necessary for the reasons Paul Vick stated - you had people like
Eolas and zillions of other trolls trying to get you and you needed a
portfolio to play defence.

With the Android issue, that changed. MSFT suddenly started using patents
offensively as a strategic tool. While I totally get why this is smart ( and
I'm stunned at how effective it has been), I feel they violated an implicit
social contract with a lot of people who worked to get them those patents.

It's going to be interesting to see whether Google does the same swerve down
the line and not just stick to using patents in defence.

~~~
iclelland
> During all my years at MSFT, employees were always told that patents were
> necessary for the reasons Paul Vick stated - you had people like Eolas and
> zillions of other trolls trying to get you and you needed a portfolio to
> play defence.

No, that can't be right. I hope you're just misremembering that, but the whole
problem with patent trolls is that you can't use your own portfolio for
defense.

A large patent portfolio is a good weapon against other giants in your
industry: IBM, Apple, Oracle, Google, (and once upon a time) Sun. Those people
basically can't sue you for violating one of their patents if you have several
thousand of your own: they're bound to be in violation of at least one of
yours, and it's a mutually-assured-destruction scenario.

A patent troll, on the other hand, _doesn't do anything_. They can sue you
with relative impunity, since there's almost no chance that they're doing
anything that you can use against them. The size of your own patent portfolio
doesn't even enter the picture.

~~~
redthrowaway
There's two ways you can use patents for defense:

1) patent it before the other guy does, so the troll has nothing to sue you
with, and

2) patent everything and hope that one of your patents overlaps with the
troll's.

~~~
asmithmd1
There is another strategy - just publish your invention for all to see
rendering it un-patentable.

IBM of all people used to do this for ideas they did not think were worth
patenting. By publishing them they stopped anyone else from getting a patent
on those ideas. IBM published a magazine for 40 years that is a treasure trove
of prior art:
[http://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bullet...](http://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bulletin)

Now anyone can do defensive publication on this site

<http://priorartdatabase.com/>

<http://en.wikipedia.org/wiki/Defensive_publication>

I used this strategy with some GPS cell phone ideas I had in 2003 and I
"published" them myself

[http://web.archive.org/web/20031211124028/http://www.gadgete...](http://web.archive.org/web/20031211124028/http://www.gadgeteer.org/ideas.htm)

~~~
redthrowaway
Unfortunately, that (rather noble) act is untenable in a world where
everyone's suing everyone in the big boy department. If Apple and Microsoft
weren't trying to kill Android with lawsuits, I could see a gentleman's
agreement between the lot of them making this a fairly effective strategy.
With the current state of affairs, everyone needs all the linked list patents
they can get.

~~~
asmithmd1
I see it less as being noble and more of a practical strategy for a small
business. You can't afford to apply for a patent on everything you think up so
why not publish it so at least you will not be locked out of using your own
idea by someone who comes along later and does apply for a patent.

------
sgentle
A question for anyone who quit their career as a patent lawyer to work on
formal methods (or vice versa):

Since mathematics isn't patentable, can you invalidate a patent claim by
showing that it is equivalent to a mathematical formula? And if so, by the
Church-Turing thesis, wouldn't any Turing-complete program be representable in
lambda calculus, and therefore be unpatentable?

~~~
asmithmd1
True, you can not patent a mathematical formula but you can patent a machine
that uses a mathematical formula to do something and the machine can be a
computer.

~~~
redthrowaway
So I can't patent 'x=x+1', but I can patent a "system, method, and computer-
readable medium for incrementing the value of a variable by one"?

~~~
asmithmd1
A more concrete example: You discover that the formula for making a beam that
will have equal stress all along it's length is t = (.923)Xe/L^2 (made-up
formula)

You can not patent that formula, but you can get a patent on beams made using
that formula. With that patent in hand you can stop anyone from making,
selling, or using those beams.

~~~
drcube
Sounds like a distinction without a difference. If you can stop people from
using a formula with your patent, you've effectively patented that formula.

------
zephyrfalcon
Reading the title, I immediately thought of Python's "is not" operator as
"prior art". However, it seems to me that the patent is specifically about an
operator called "IsNot" (one word) used in a BASIC compiler. So that might not
be the same at all (but then again, IANAL etc).

Still, it seems a pretty silly patent... :-/

~~~
RyanMcGreal
> it seems a pretty silly patent

In software, most of them are.

~~~
ConceptJunkie
In software, all of them are. It's like patenting a mathematical formula.

It's bad enough that the USPTO will rubberstamp everything with the right
fees, but that they can issue patents on concepts that are far outside the
original intent what patents are for.

Yes, developing software involves "invention" in every sense of the word, but
if you can patent algorithms, why can't you patent mathematical formulae or
proofs?

~~~
nkassis
" It's like patenting a mathematical formula." More like an Mathematical
Algorithm but even then, most devices are physical representation of a
algorithm in some way. I don't see how this is a valid attack on software
patent or patents in general.

I don't support software patents but I have a problem with the whole "it's
patenting a mathematical formula" argument.

~~~
bunderbunder
The US courts do place weight on the "it's patenting a mathematical formula"
argument. There's some nuance and murk, but an application will probably have
to pass the "Machine or Transformation Test" to be patentable:
<http://en.wikipedia.org/wiki/Machine-or-transformation_test>

Essentially, software implementations of algorithms cannot generally be
patented either because they are simply an expression of the algorithm in a
particular language. The fact that this language can be interpreted by a
particular hardware device does not change the situation. The hardware is a
pre-existing piece of general-purpose commodity hardware that is easily
interchangeable with any number of other pre-existing pieces of general-
purpose commodity hardware, up to and including a human being equipped with a
pen and paper, and therefore cannot really be claimed as part of the patent.

A physical device which implements the algorithm can, of course, be patented.
And a hardware/software combination where the computer is an integral part of
the mechanism (e.g., it cannot in principle be replicated by a human with a
pen and paper) can also be patented, so Amazon's 'One-Click' patent is safe.
However, simply tacking on the phrase, "Written in a programming language,"
does not take an unpatentable idea and make it patentable.

------
bhousel
Better link, includes figures and proper formatting:
[http://www.google.com/patents?id=m52fAAAAEBAJ&zoom=4&...](http://www.google.com/patents?id=m52fAAAAEBAJ&zoom=4&dq=isnot&pg=PA1#v=onepage&q&f=false)

------
georgefox
What's really annoying about the IsNot operator is that it's not consistent
with TypeOf ... Is. In other words, you can't do this:

    
    
        If TypeOf obj IsNot MyClass Then
            ' ...
    

Instead you have to do:

    
    
        If Not TypeOf obj Is MyClass Then
            ' ...

------
jpkeisala
I wonder who has patentent exception. That would be pretty great money
machine.

------
AUmrysh
uhh... "20. The method of claim 15 wherein the source code is BASIC code. "

Really? They patented something for BASIC? Also, I'm pretty sure patents do
serve a useful purpose, because first nobody cares about whether something is
protected by patent or not, they'll find a way to rip it off. What patents do
is put these technologies and developments into the public record.

I think the propriety of patents is problematic, but without them we would
potentially be in the dark about how certain new inventions work. It's
important for things like medicine, but software patents are a bad idea
because they lead to patent trolling and lawsuits over things that are obvious
solutions to common problems.

