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Stupid Patent of the Month: Microsoft’s Design Patent on a Slider (eff.org)
320 points by sinak on Dec 29, 2015 | hide | past | web | favorite | 212 comments



I don't think nitpicking, saying "this is just a slider, you can't patent it" or "ms copied all concepts from xerox and apple lisa" is rational in this situation. Because this patent is not about these subjects. Just look at the bigger picture: Corel copied Office suite apps almost pixel by pixel. I would be pretty angry after seeing this to screenshots:

This is Office Excel: http://weborb.gcflearnfree.org/weborbassets/uploads/ID_82/wo...

This is Corel Calc: https://images-na.ssl-images-amazon.com/images/G/01/software...

Even the shade of blue is the same.


DR-DOS was a clean-room reimplementation of MS-DOS. Linux is a reimplementation of unix. Fender guitars work remarkably like Gibson guitars. The steering mechanisms on Masdas are the same as Mercedes. Nothing wrong with it. If you don't allow people to copy interfaces - where does that end? Does that mean that APIs should be protected from being copied?


> If you don't allow people to copy interfaces - where does that end? Does that mean that APIs should be protected from being copied?

That is what I don't understand about people who argue that APIs should be copyrightable. It's like they don't see where the end is.

The reason competitors want to copy an API is because it's inherently necessary for compatibility. That need has nothing to do with how good the API is. It exists even if the API is terrible.

And APIs all chain together.

General Electric makes steam turbines. Your power company uses them to generate electricity. If GE (by analogy) controls the API then all power plants on the same grid have to use GE turbines. Your house connects to that grid, so you have to use a GE breaker panel in your house. It has its own API, so you also have to use all GE appliances.

If you want to charge your Macbook or iPhone at home then you had better hope that GE has a deal with Apple, and that they don't cancel it when GE enters the computing market. When they do you'll need a GE phone which will need a GE wireless carrier that will only serve GE websites. Now you can't buy anything from Amazon because you can't get there from here, you have to buy it from GE, and they only sell GE products. And so it goes.

Who are the people signing up for that world?


> The reason competitors want to copy an API is because it's inherently necessary for compatibility. That need has nothing to do with how good the API is. It exists even if the API is terrible.

The other way to look at it is that people want to copy an API to extract value from a market or ecosystem someone else did the hard work of creating, without investing the resources into creating their own.


> The other way to look at it is that people want to copy an API to extract value from a market or ecosystem someone else did the hard work of creating, without investing the resources into creating their own.

And why is that supposed to be a problem? You would prefer the world where Apple needs GE's permission to sell an iPhone that can charge from a GE power outlet?

Ecosystems don't need owners.


That depends a lot on our respective definitions of "ecosystem". You can expropriate a whole lot of value from all sorts of people by reframing part or all of their products as an "ecosystem" to which you're entitled access.


Can you provide some definition of "ecosystem" that would be problematic? I'm not proposing a law that says "you have a right to somebody else's ecosystem," I'm proposing that APIs not be copyrightable. You still have to provide your own implementation.

I feel like I'm arguing against the position that you should have to service your car at the dealership because otherwise the independent mechanic who does the work is somehow illicitly expropriating value from the OEM. How is it that that has come to be a right of the OEM?


I think it's more like creating a car by reverse engineering Ford's in order to tap into Ford's ecosystem of parts and mechanics. Though I don't know where the line is. I think with API's: you can copyright the header, but not the ABI. I.e. nothing prevents you from making an LLVM module that exposes the same interface as what the header compiles down to.


> I think it's more like creating a car by reverse engineering Ford's in order to tap into Ford's ecosystem of parts and mechanics.

So Ford makes the Mustang, I make after-market brake pads for the Mustang and therefore I have to use the same mounting interface as the Ford pads. I also make callipers and axles and so on; all the parts you need to repair your Mustang.

In theory if I really make all the parts then I can put them together and get a whole car with no OEM parts. But notice that nobody really does this. Because if you're capable of making the whole car yourself, you no longer care if the parts are compatible with Ford parts, you just become Toyota.

What you might see is people selling "whole cars" which are 75% Ford OEM parts and 25% something new and different, like the Shelby Mustang. But it's not clear how that should be something bad.

> I think with API's: you can copyright the header, but not the ABI. I.e. nothing prevents you from making an LLVM module that exposes the same interface as what the header compiles down to.

That's kind of weird. The header and the ABI aren't separable. You can decompile the ABI back into the header. Does it really make sense to be able to copyright something which is just a deterministic transformation of something you can't copyright?


Well, headers can have comments and (in languages without RTTI) type names, which are irrelevant for interoperability.


Sure, there can be comments in a header, but they aren't actually part of the API. They're just documentation that the compiler happens to allow you to put in the same file.

I'm not sure I'm with you on type names though. If the application being linked against the API was compiled using a header with different type names then the application would have to be rewritten to use the other type names. It would break source code interoperability. (And you can infer the type names from the ABI given the source and binary of an application compiled using the original header, without actually having the header.)


The steering mechanisms on Masdas are the same as Mercedes.

That's an interesting point in more than one way. Forgive me if I'm stating the obvious but Mercedes is a high-end car manufacturer while Mazda chiefly serves cars to the middle-class and in the case of the Mazda 2 - this generation's People's Car. By aggressively protecting designs then only the rich (well, Mercedes isn't super high-end but it's an aspirational brand) can adopt new technologies, which means the markets for new technologies are tied to the speed at which wealth increases (that includes the rate at which adoption at the high-end subsidises the cost at the low-end). It stunts the speed at which we advance collectively.


It's a good illustration of the general point - progress is driven by how many independent eyeballs we can have looking at the problem. Any form of limiting access to knowledge or technology limits progress in that domain.


This is a very important point, because the original intent of copyrights and patents was not for corporations or people to get rich, but, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The entire purpose of copyright and patent is to promote progress. It has transformed into a capitalistic weapon that corporations use to muscle competition and slow progress.


The flaw in this line of thought is that patents don't limit access to knowledge or technology. Quite the opposite, in fact. What they do limit is commercializing of knowledge or technology without license.


Since this MS/Corel case touches aspects of patents, copyright, I was commenting on a broader issue of intellectual property rights. Though patents do limit access to technology in many aspects; for instance, if the patent-holder decides not to sell their product in particular part of the world but ruthlessly pursues legal actions against people doing something similar there, then a population may not get to experience (and observe, and study) the technology. Patents themselves, as implemented within a system, actually limit access to knowledge - a patent text was supposed to be able to explain the invention to people in the field; currently a typical description both is too vague to be educating and broad enough to scare people off touching a particular subfield, not to mention that just reading the patent itself may literally triple your liability in case when you're found infringing (justly or not).

> commercializing of knowledge or technology without license.

This pretty much fits the definition of "limiting access to knowledge/technology" directly. Free access and commercialization of knowledge / technology (with some exceptions, like nuclear weapons) are good for progress, good for consumers, good for humanity... but bad for the commercializers, hence they try to limit it.


> The flaw in this line of thought is that patents don't limit access to knowledge or technology. Quite the opposite, in fact. What they do limit is commercializing of knowledge or technology without license.

So they don't limit access to knowledge or technology, they just limit commercializing of knowledge or technology. Because technology that can't be commercialized (and therefore obtained or used) is what people want?

If someone has a patent on X then there is no competition for the production of X, so the patentee can charge higher prices, so fewer people will be able to afford X.

If someone has a patent on X then there is a greatly reduced incentive for anyone else to improve X, because the original patentee can prohibit you from selling your improvement unless you give them an arbitrarily large share of your profits.


>So they don't limit access to knowledge or technology, they just limit commercializing of knowledge or technology

"Without license."

> If someone has a patent on X then there is no competition for the production of X, so the patentee can charge higher prices, so fewer people will be able to afford X.

Right, because the hundreds of thousands of patents on various aspects of smartphones are consistently making them more and more expensive as time goes on.

> If someone has a patent on X then there is a greatly reduced incentive for anyone else to improve X, because the original patentee can prohibit you from selling your improvement unless you give them an arbitrarily large share of your profits.

Sure, they can ask for arbitrarily large shares of profits, but that's when you move to a lawsuit, where there are more concrete limits on what can be demanded as royalties. However, lawsuits are highly expensive and risky to both parties (even patent trolls risk having their patents invalidated), so there is a strong incentive to find a middle ground.


> "Without license."

"Without license" is implied by "limit" -- that's the limitation.

> Right, because the hundreds of thousands of patents on various aspects of smartphones are consistently making them more and more expensive as time goes on.

Nobody said anything about "more and more expensive as time goes on." As soon as there is one necessary patent the seller can charge the monopoly price. Adding more patents doesn't change the monopoly price (though it does add transaction overhead that comes out of everyone's margins).

You can't claim that the monopoly price is not higher than the competitive price would be in the absence of patents.

> Sure, they can ask for arbitrarily large shares of profits, but that's when you move to a lawsuit, where there are more concrete limits on what can be demanded as royalties. However, lawsuits are highly expensive and risky to both parties (even patent trolls risk having their patents invalidated), so there is a strong incentive to find a middle ground.

The damages a court would award isn't a lower bound because the patentee can request an injunction that prevents you from selling the product until you pay them whatever they demand.

What are you even trying to argue anyway? That lawsuits and license fees don't cost money? That having to pay money isn't a disincentive to do something? That limiting competition doesn't increase prices?


> "Without license" is implied by "limit" -- that's the limitation.

Again, what is limited by the license is the commercialization, not access to the knowledge or the technology. These are completely different things. You can find out all about a patented technology, and even implement it for non-commercial (e.g. research) purposes. You simply can't attempt to make money off it without a license.

> As soon as there is one necessary patent the seller can charge the monopoly price. Adding more patents doesn't change the monopoly price (though it does add transaction overhead that comes out of everyone's margins).

The major flaw in this argument is that these thousands of patents are owned by many hundreds of entities. There is no monopoly". As a counter-point, all you need to look at is the sub-$50, contract-free smartphones available in the US.

> The damages a court would award isn't a lower bound because the patentee can request an injunction that prevents you from selling the product until you pay them whatever they demand.

1. Injunctions are not always available, are not automatic and you have to convince the ITC, a separate court, to give you one.

2. Injunctions have been very hard to get in the US since the eBay decision.

> What are you even trying to argue anyway? That lawsuits and license fees don't cost money? That having to pay money isn't a disincentive to do something? That limiting competition doesn't increase prices?

I'm arguing that all those concerns, while making sense in theory, are not necessarily supported by empirical evidence, especially given the vibrant smartphone industry despite being rife with patents and lawsuits. As such it is not clear if those are greater or less than the benefits provided by patents.


An electric guitar is a slab of wood, some pickups, some controls, some outputs, some strings, a neck, some frets, a head, some tuning pegs, and a couple of pegs for the strap.

But even with this small number of elements there are many differences between Gibson guitars and Fender guitars.

The obvious difference is the shape of the head. Gibsons tend to have a spade shaped head with three pegs each side. Fenders tend to have a scroll shaped head with all six pegs in a line.

The screen shots supplied in this thread are much harder to tell apart.


>An electric guitar is a slab of wood, some pickups, some controls, some outputs, some strings, a neck, some frets, a head, some tuning pegs, and a couple of pegs for the strap.

I think that's his point. The things you listed are the interface, and the differences lie in Gibson's and Fender's implementations of that specific interface.


But there's nothing else to a guitar.

There's a bunch of stuff to a spreadsheet, and the interface is how most users will access those features. When the interface is nearly identical it's a problem.

It's a bit more complicated here because Corel are apparently following MS instructions about how the interface should look.


You are totally right and i'm against patenting such obvious design choices like Apple's patent for "slide to unlock" and "glass with rounded corners". I'm not defending MS, just trying to explain the rationale behind this situation because the article is pretty shallow.


I didn't find them with a few quick searches, but it's highly likely that the early electric guitars had design patents attached to them (there's lots of guitars since that have had design patents issued).


The case could be made that Corel did this to make it easier for users who used one product to find things in the other. I use both macs and pcs and I still get confused because the command button is on the inner while ctrl on pcs is on the outer. You need cmd-w to close while you use ctrl-w on pcs to close. I really wish one would copy the other and make the exact same keyboard.

The layout in Excel is not special or better than other layouts. The point of patents is to protect ideas that are unique and improve. By enforcing patents on layouts which are not specifically improvements, you're really just trying to create an artificial moat that makes it harder for consumers to switch products or use more than one. That is bad for consumers and it hurts innovation.


The layout of Excel is a product of probably more spending on researching how people actually use a spreadsheet than everyone else has spent on the question combined. It's incredibly special.


And if we removed government-backed monopolies on these designs it would hurt the development of these things or what? Just pointing out that serious work could go into a design and still not be a good public-interest decision to let it be patented. Probably the restrictiveness hurts innovation more than it helps.


Indeed. The actual complaint that the EFF links to isn't because they copied their slider, it's that the entire interface as a whole has been copied and that they go as far as to call it the "Microsoft Word mode" in their documentation.

I would agree a patent for a slider is a little ridiculous, but this is quite a bit more than that.


It's blue, uses tabbed toolbars, and gel effects. None of those things are new (though Microsoft really, really wants to pretend it invented tabbed toolbars).

Yes, they look the same, and Corel is certainly making the same UI choices Microsoft did so their users coming from Microsoft platforms feel more familiar. Do we want to stop companies from doing that?


In its own ribbon guidelines, Microsoft encourages UI designers to use the same tab names, icons and icon locations that are already familiar to people. Their examples of "correct" designs are taken straight from MS Office.

https://msdn.microsoft.com/en-us/library/windows/desktop/dn7...


Yes. We likely do want to stop companies from attempting to steal users by literally aping the interface from a more successful competitor that spent millions of dollars in UI/UX/HUI research to develop it (opinions on the Office Ribbon notwithstanding).

If you cut the title bar off the two screenshots in the previous post, I think most people would be at a loss to tell you which was actually Excel.


The point of UI/UX/HUI guidelines is to ensure consistency of applications' look&feel. Under detailed guidelines, two applications doing exactly the same thing should look exactly the same. If both Microsoft and Corel are aiming for an optimum spreadsheet, the UI of their applications should converge.


> The point of UI/UX/HUI guidelines is to ensure consistency of applications' look&feel.

That's not the focus of UX, at all. Consistency is not an end in itself, it's just a way to achieve predictability and, in consequence, ease-of-use. It's important but not that much (not everyone is an engineer or homo logicus - people do tolerate inconsistency, as incredible as it might seem). Maybe you're thinking this or focusing on UI implementation guidelines. UI/UX (I don't know what you mean by HUI) guidelines should be heuristics/rules of the thumb aimed at ensuring your digital product serves your users in their usage contexts. e.g. saying the button should be blue isn't that much relevant; however, saying "you need an explicit button to confirm a given kind of action" is.

> Under detailed guidelines, two applications doing exactly the same thing should look exactly the same.

I just quoted this to illustrate how wrongly you are conceiving UX: you're focusing only on the "thing" being done. But UX - even the most square definitions of usability such as ISO 9241 - cares about "who" does it and in which context. So, two applications doing the same thing may look radically different, if used by different people and/or in different contexts. I also think you focus too much on the "look" aspect.


Exactly. People seem to be suggesting that making it a shade of green instead of blue would make the problem disappear (although, isn't that based on the OS theme?) Or should Corel use a completely different icon for 'copy', for example?


> If both Microsoft and Corel are aiming for an optimum spreadsheet, the UI of their applications should converge.

This implies that UI design is constrained by a fixed, incontrovertible set of physical laws, leaving little room for creativity, which is obviously not true. Sure, there are a large number of guidelines and rules of thumb about what make for a "good" design, but even within those constraints the space of possibilities is infinite.


True, but notice that one of the most important rule in all UX design everywhere is consistency. This rule by itself is a strong attractor, dragging UI designs together. And while not directly constrained by explicit physical laws, UI space is constrained by mathematical rules of information theory, by our biology (in particular the limbs we have and the brain architecture we all have in common), by interaction media, by our culture, etc. The space of useful designs (as opposed to just pretty) is quite small. There is room for creativity, yes, but changing the shape of a scrollbar arrow button to avoid a lawsuit is not creativity, it's making things different for the sake of them being different. At best it doesn't make usability worse.


I don't see why we would want to do that, from the point of view of maximum consumer good. Companies will try to make good interfaces even knowing they will be copied.


I actually agree that Corel are being scummy here, but you can enforce look and feel without patenting sliders for zoom and tabbed toolbars.

An observation: Corel copied the awful bits (gloss and low contrast blue) as well as the good (organising the toolbars using tabs). If they had only copied the good stuff, they would have come up with the look of Microsoft Office 2010 and perhaps had a better commercial opportunity.


People seem to be missing the point that the patent isn't for 'sliders' but, as the article points out, that very specific design of slider. Not the functionality. TBH, I think it looks pretty horrible, so no great loss here.


When you are a monopoly platform as well as an app provider, you have to give your sharecroppers a little leeway. No one is "stealing users" here.


Isn't the ribbon part of the widget-library included in the Windows APIs? If you use widgets from the same library it will obviously look the same.

Although this case is a bit extreme, the order of the buttons and everything is a carbon copy, if the title bar was removed i would have a hard time telling which one is Corel and which one is Excel, and I'm a daily Excel user.


MS Office is used as an example of the "right" way of doing UX on Windows. It includes button order, names, etc. Under these constraints all decently made spreadsheet programs should basically look the same. "Carbon-copy same" is improbable in practice, but "mostly same" is what's expected.


You too can build an app that copies excel with any of the major win forms tool suites. DevExpress, infragistics, telerik all even offer app control templates called "Office <year>". These basically are the office UI with some of the event handlers stubbed out. My point is that I don't think that MS cares if you rip off their UI and I bet they even encourage it. I think MS wants Windows / Office apps to look like Windows or office.


So I looked at the Corel Calc image thinking that was Excel that I was looking at. I think this is the point, they look so similar that to the untrained eye, someone can't tell it's not Office. This is crucial when promoting such a product making people think they are getting Office for $30.

I can never quite get my head around what constitutes a patent and what constitutes copyright infringement. To me this would fall under copyright infringement.

However, I do understand the patentable idea of workflow that makes the process of using a spreadsheet more efficient. This is generally as a result of research and development and as such, may be subject to what has been patented as a whole. The positioning of the elements are designed for optimal workflow which makes Office unique. Someone simply copying it without their own investment of research and development does give them an unfair competitive advantage (until they get sued and lose).


> I can never quite get my head around what constitutes a patent and what constitutes copyright infringement. To me this would fall under copyright infringement.

I think both those are the wrong thing if your concern is buyers getting confused. Trademarks are the way to address that: MS should have a distinctive, trademarked logo for Office, feature it in their advertising or the like, and aggressively pursue anyone else who uses the same logo in their products.


Yes, you're right. Trademark is definitely designed for that. Having said that though, I know you can trademark names and designs. But with designs, I guess it's confusing what constitutes a trademark infringement or just plain old copyright infringement.


There's no rule that a particular act can't be both (though I don't think purely functional design is copyrightable).


This might look like a pixel-for-pixel copy for someone who isn't very familiar with Windows 7, but Jesus, I don’t see anything wrong here.

1. The general look and feel is the same. So? That’s just fitting into the platform, having a native look & feel.

2. The general spreadsheet UI wasn’t invested by Microsoft...

3. The icons here are not, in fact, pixel-for-pixel copies...

4. The "ribbon" or tabbed/dynamic interface at the top is also not pixel-for-pixel...

5. The whole UI paradigm is, as you mention, from Xerox/Apple; tabs, icons, buttons, scrollbars, cursors: it's all just another remix...

6. And lastly but most significantly, I think we can excuse an underdog for trying to make software that would be easily usable to people who are most used to the competing suite from an established monopoly vendor!


And so what?

They get away with enforcing completely obvious patent because they have reason to be mad?


But on the other hand, if you're Microsoft, you've done the same thing so often that it's logical outsiders think you're extremely hypocritical when pulling stunts like this.


Is it possible the shade of blue matching is because of user choices in Windows color scheme?


I wonder how Corel overcame the restrictions on the use of Microsoft's Ribbon component.


Licensing restrictions?


I had though the suit was stupid but I had a look at the Corel Office pics on Amazon and they do look kind of like a near identical copy:

Corel Calculate for instance Corel Calculate https://images-na.ssl-images-amazon.com/images/G/01/software...

( from http://www.amazon.com/Corel-Office-5-3-Installs/dp/B006N1Q0W... )

vs Excel https://upload.wikimedia.org/wikipedia/en/9/91/Microsoft_Off...


When I still was using Windows few years ago (and was not very active developer), I though MS finally made app developers to use Windows native UI/UX design.

I mean that, I thought tabular design of complex apps was pushed to third party app developers from MS. IMHO tabular GUI is rather good, so I was happy user, where many big apps were rather similar and easy to use. Before MS Office 2007, every app had very cluttered UI and after many apps had similar design.

I cannot remember many, but I know AutoCAD [1] started using design as in MS Word, also MathCAD [2].

TIL it wasn't new Microsofts design language and many apps were/are living on the knifes edge and can be sued if they will get too close to MS's GUI design.

[1] http://www.softpedia.com/screenshots/AutoCAD_1.png [2] https://en.wikipedia.org/wiki/Mathcad#/media/File:Top_right_...


The UI/UX could also be licensed, so you were allowed to use it. I can't remember what they called it, but I do remember a few years ago my job at the time we had a big .NET application that was using the same design, and we had a license to use it all.


I think the relevant portion is a non-compete with MS Office products. further info about license: http://weblogs.asp.net/fbouma/the-evil-of-the-office-ui-ribb...

original license and requirements (now dead): https://msdn.microsoft.com/en-us/office/aa973809.aspx

archive: https://web.archive.org/web/20120317065353/http://msdn.micro...

apparently the non-compete is removed now: https://www.devexpress.com/Support/Center/Question/Details/Q...


It's called "ribbon" UI: https://en.wikipedia.org/wiki/Ribbon_%28computing%29

And from the bottom of the wiki page:

"The Microsoft Ribbon Licensing Page has been retired, therefore it is no longer possible to license the ribbon control from Microsoft."


There are quite a few vendors like Telerik that would sell your ribbon controls for .NET/WPF/Native/Web applications.

http://demos.telerik.com/aspnet-ajax/ribbonbar/examples/over...

Telerik is quite huge in the .NET world but they also could've licensed it from MSFT for resell.


Going to be picky here and clarify that Microsoft - and the small niche of people who run wikipedia - want people to call it ribbon. But anyone who's used major software from Lotus or KDE knows that tabbed toolbars are tabbed toolbars and Microsoft didn't invent them in 2007.


MS also had tabbed toolbars before they built their ribbon format.


Yea, and that license had restrictions, as mentioned in the complaint.


It looks pretty much the same, but then again, it looks... standard. I see in the subthread here that apparently MS UI is licensed, which seems to me as something weird, but frankly - it's good platform design if different applications look the same. There are many ways of designing a slider, but on a given OS, only one should be used for everything.


But what is the consequence of them looking the same, even identical? As a consumer, I would rather have the competition for MS. It's not like copying made the interface easier. If anything, having a pixel-perfect copy is MORE work.


This seems like an entirely reasonable design patent to me. There are lots of ways of drawing such a slider; the patent does not cover any function, merely the ornamental design.

Now, the idea that this should entitle Microsoft to all of Corel's profits for the entire product is clearly absurd; as the article points out, that's the current legal precedent but is being appealed. Lawyers are hardly going to not take advantage of precedents which favour them; nor would it even be good if they did -- the fastest way to overturn bad law is to apply it strictly and make obvious its failings.


Microsoft should not have been allowed to patent this particular design because it is made up mostly of elements which are in the public domain. For example, the 'plus' and 'minus' symbols are universal symbols. Circles and straight lines would also fall into the public domain.

I don't think you should be able to patent designs which are just basic compositions of symbols/motifs which have existed for thousands of years.

Besides, lots of old remote controls use plus/minus symbols to indicate volume-up/volume-down in a similar fashion. This design is obviously derivative.


You are analyzing design patents as you would utility patents, which I doubt is correct. These patents are more about "look and feel". You don't break down a design into its components (else taken ad absurdum, everything would decompose to curves and straight lines and combinations thereof), but instead analyze it as a whole. I believe prior art searches for design patents look for almost exact matches of a given diagram.


Patents are (supposedly) a power granted to "promote the Progress of Science and useful Arts" and it's rather hard to see how patents over mere ornamentation can further that goal, even in principle.


I'd say UI design is an "useful Art". If somebody is forced to come up with their own designs rather than ripping somebody else's off, is that not progress? If there is no conceivable alternative way of doing a design (which I find extremely improbable) the solution is well-known: license it.


I agree good UI design offers utility, but often those "forced to come up with their own designs" are simply forced to kludge together a workaround rather than do what would come naturally. This hardship may sometimes spark innovation, true, but in other cases the effort and frustration might have been better spent pushing the envelope elsewhere.

And if the "invention" is obvious, developers (and users) really shouldn't have to pay the cost to license it.


Thing is, in the world of design patents even trivial changes are sufficient to avoid infringement.


Two things that make me feel design patents seem stupid in general.

1. What if the design is trivial itself? So trivial that there are no trivial changes to make?

2. If trivial changes is all that's require to avoid the patent, such as change a solid line to dotted line, then why have the stupid design patents in the first place?

I could maybe understand such a thing for the entire application, but just a small insignificant part of the overall design? It's stupid.


Not a big fan of design patents either, but...

1. Not sure if something trivial (e.g. an empty circle for a button) would be eligible even for a design patent.

2. The solid and dotted lines are just to indicate the claimed design vs the rest of the product respectively. Potentially the dotted lines in one patent maybe claimed as solid lines in a separate design patent.


I have seen designs I would consider trivial, such as a slider made up of two circled symbols, a solid line, and a small box for an indicator.

I wasn't referring to the lines in the claim, but in the design. I was saying; for instance, if changing a solid line in the design to a dotted line may get you past the design patent, then they are worthless to begin with.


They're actually saying that the lines indicate what's claimed in the patent. While it may be true that you just have to not match the solid lines of the patent, when you have a minimal design that's barely anything but a rounded rectangle (as posted below), the design patents become a farce.


> Thing is, in the world of design patents even trivial changes are sufficient to avoid infringement.

The Samsung case showed us that even a trivial match like rounded corners was enough to establish infringement, though.



http://www.ipwatchdog.com/2013/07/30/strong-design-patents-t...

I never said there weren't other elements, only that it took little more than rounded corners. The complaint uses a lot of words to say very little, as there sure aren't many solid lines other than those rounded corners when you look at the patent. Note that the dashed lines aren't counted. And this minimalist design is apparently worth nearly $1 billion, something I simply don't agree with at all.


It just doesn't seem fair that you should be able to patent things based on how they 'feel' - The mood of something is highly subjective and usually has cultural roots (and culture is in public domain).


> Microsoft should not have been allowed to patent this particular design because

...it is a design, not an invention. It is as simple as that. Patents should only apply to things that advance technology and/or science.


That's why it's not a utility patent, but it instead a design patent.


And such things should not be patentable at all.


If you want to go the route of people using the idea of things that have been used for thousands of years in patents, no one should be able to patent a wheel design because wheels have been around for a very long time and every wheel is a derivative of the original wheel design. Sure, wheels are a utility, but the design of a wheel is using pieces from other people's ideas.

Patents are silly anyway, imho.


> I don't think you should be able to patent designs which are just basic compositions of symbols/motifs which have existed for thousands of years.

I don't think you should be able to patent anything which is written in english, as it is a basic composition of letters which have existed for thousands of years.


You can't patent written things, that's copyrights.


It would be reasonable if someone, somewhere, could explain how we, as a society, benefit from granting government-enforced monopolies on things like this.


The original argument essentially mirrored that of copyright (indeed, design patents were originally called design copyrights): To reserve ornamental designs to their creators, since nobody would spend time on such designs if they could be legally copied.

Design patents came to exist with the advent of mass-produced goods which were both functional and ornamental. Copyright covered objects which one merely looked at (books, paintings, etc.) while design patents covered objects which were used for a purpose (flour mills, stoves, etc.); neither of these applied to a work of art engraved into the side of a cast-iron stove.


Not very conversant with the theory behind design patents, but seems to me they are used more for protecting distinctive UIs and associations with brands than for protecting the investment in actually designing them. Here's the closest thing I can find off-hand (http://republic3-0.com/design-patents-primer-david-gerk/), which also links to another article (http://ilj.law.indiana.edu/articles/7-Du-Mont-Janis-1.pdf) that I have not yet read:

> Gerk: Design patents have been part of our intellectual property framework for a long time. In fact, the first U.S. law providing for design patent protection was passed in 1842.

The impetus for protecting “designs” came about in response to the prevalence of copycats misappropriating the popular designs of the time, both here in America and elsewhere across the globe. For example, laws providing protection for “design” were developing in Britain during that time period as well.

At that time, manufacturers in a variety of industries, including iron works (think stoves, railings, and kitchen utensils) and textiles, began including ornamental designs on their products to distinguish themselves from their competition. These original designs were quite ornate, time-consuming and not surprisingly – given the time period – often done by hand. When copycats began to use these designs to sell their own products, this prompted efforts by businesses to seek separate protection for their designs, especially since they weren’t being effectively protected under either patent or copyright.

Indeed, in this particular case, the alleged UI copying was deliberately done to free-ride on the popularity of Word's Ribbon UI (yes, apparently it's popular):

> Among many examples, Help for WordPerfect X7 suggests that the user “simulate the Microsoft Word workspace until you are accustomed to work in WordPerfect”

Copying the exact design of a slider does actually seem like more work than just throwing something together by yourself...




"If Corel is found to infringe even one of Microsoft’s design patents through even the smallest part of Corel Home Office, current Federal Circuit law entitles Microsoft to all of Corel’s profits for the entire product. Not the profits that can be attributed to the design. Not the value that the design adds to a product. All of the profit from Corel Home Office."

With such a crap "design patent" on a generic slider, Microsoft tries to extinguish another Office competitor?


by itself, yes this is a stupid patent.

however this is not a stupid lawsuit by MS.

this article sucks to highlight the lawsuit. most people are not reading past this is a stupid patent and they are suing corel for such a petty reason.

from the actual complaint, microsoft patented the office 2007 UI and specific workflows over multiple patents including this simple stupid one. the others are fairly specific

"Microsoft brings this action to protect its rights and investment in its innovations embodied in utility U.S. Patent Nos. 8,255,828 (“the ’828 patent”), 7,703,036 (“the ’036 patent”), 7,047,501 (“the ’501 patent”), 5,715,415 (“the ’415 patent”), 5,510,980 (“the ’980 patent”) and design U.S. Patent Nos. D550,237 (“the D’237 patent”), D554,140 (“the D’140 patent”), D564,532 (“the D’532 patent”), and D570,865 (“the D’865 patent,” collectively “the Microsoft Asserted Patents”), copied by Corel into its infringing products."

"Corel has copied the look and feel of the Microsoft interfaces in its accused products. Among many examples, Help for WordPerfect X7 suggests that the user “simulate the Microsoft Word workspace until you are accustomed to work in WordPerfect”: "

that is just the opener in the complaint, corel is using these same UIs in a "word mode" essentially cloning the patented "look and feel", which is against micrososft's licensing and use of these elements.

https://www.eff.org/files/2015/12/28/microsoft_v_corel_-_com...

the patent doesnt seem so stupid when you put it all together with the other patents and can see what Microsoft was trying to protect overall.


How can you protect an UI, that was heavily inspired by A) Xerox Star B) Apple Lisa C) beside other lesser known third parties and is very common for 30+ years. Adobe Photoshop, Macromedia/Adobe Dreamweaver, KDE shell, Gnome Shell, Wine, Apple MacOS/OSX, BeOS, etc. Many products from other companies had very similar UI designs years earlier than Microsoft or come up at the same time. There was a famous dispute between Apple and Microsoft about the Windows UI that has been settled outside of the court (and the second case was interesting too):

https://en.wikipedia.org/wiki/Apple_Computer,_Inc._v._Micros....


when its a near identical clone, with corel outlining it as a selling point, Microsoft has fair game.

the lawsuit isnt about an "inspired" UI.

i think regardless of the patents, MS still has a lawsuit. i dont think they should be entitled to profits really, but if they win Corel should remove the word mode.


Please read the thing you're responding to. Microsoft isn't claiming patent over windows, icons, and mouse pointers.


These are the same type of patent that came up during Apple v. Samsung, leading to the infamous bit about rounded corners.


Which was also an equally inaccurate depiction of the patents in question.


What is the inaccuracy?

In the lawsuit, they used very broad design patents of the general iPhone shape that were later invalidated due to obviousness and prior art leading to a cut in the awarded compensation.

http://www.fosspatents.com/2015/08/us-patent-office-consider...


The inaccuracy was that people believed that the patents were on the concept of "rounded corners". Just like people here seem to believe that it is a patent on a generic slider.

Regarding the invalidated patents, if you read the blog and the Office Action within ( http://www.scribd.com/doc/274897046/15-08-05-Non-final-Rejec...), this was due to the priority date being moved forward due to a technicality in claiming priority to their own previously filed patent. As a result, previously excluded prior art came into play, including Apple's own previously issued iPhone design patents, which was actually on simply different aspects of the exact same design. As such, although the patent was invalid, it is inaccurate to say the design itself was "obvious" per se (although I really don't understand how obviousness works in the world of design patents).


The patent was on the design as a whole, but when they tried to filter out which elements of the design were both protected and similar, rounded corners were held to be enough to establish infringement.

So it doesn't lose its silliness when you understand it better.


> ... rounded corners were held to be enough to establish infringement.

... amongst other elements. This is what Apple's complaint stated:

>"Closely comparing Apple's patented design with Samsung's products reinforces the conclusion of substantial similarity. Samsung copied every major element of Apple's patented design:

a flat, clear, black-colored, rectangular front surface with four evenly rounded corners;

an inset rectangular display screen centered on the front surface that leaves very narrow borders on either side of the display screen and substantial borders above and below the display screen; and

a rounded, horizontal speaker slot centered on the front surface above the display screen,

where the rectangular front surface is otherwise substantially free of ornamentation outside of an optional button area centrally located below the display."

Certainly not the most earthshaking design, but a lot more than "rounded corners".


Because it's missing a color screen with icons aligned on a grid...


Why didn't we get "Stupid Patent of the Month" HN posts when Apple patented "electronic devices with rounded corners?"


A quick search reveals two submissions here when Apple was granted that patent, three years ago. Zero comments.

https://news.ycombinator.com/item?id=4755374

https://news.ycombinator.com/item?id=4755558


Because the EFF's 'stupid patent of the month' section was started pretty much in direct response to Apple using it's rounded-corner patent in its litigation with Samsung.


IMHO, the issue is that Corel's and Samsung's products were clearly and intentionally designed to imitate other successful products in order to mislead consumers. There are different opinions on whether this should be acceptable or not (obviously, the corporation that just had their flagship product ripped off thinks it completely unacceptable). Trade dress and seemingly stupid patents are just ways for corporations to fight this in court.


I'm sure we will will have a flood of well upvoted posts if apple tries to enforce that patent.


Didn't that already happen with the samsung lawsuit?


You mean like with Samsung?


This one is pretty good too tho.


This suit is probably in retaliation for an earlier Corel suit against Microsoft this summer. http://www.fosspatents.com/2015/07/corel-software-sues-micro....

This one reason companies keep a war-chest of patents, so they can fight back when targeted with a dying company's portfolio.


" For example, Samsung explains that under the Federal Circuit’s ruling, “profits on an entire car—or even an eighteen-wheel tractor trailer—must be awarded based on an undetachable infringing cup-holder.” "

At some point companies are just going to stop doing business in the United States. I get that it's the worlds largest economy, but little by little this nonsense will fix that.


This is not really meant to be a defense of the United States since the origin of this 1990s+ era patent nonsense is clearly our fault (speaking as an American), but I think it is somewhat naive to assume other countries will be spared or will be useful as safe havens.

I mean, just look at the various trade agreements and their related IP provisions that are currently being debated or have already been passed. The ultimate driver of this lunacy isn't the US government, but rather multinational corporations (who are increasingly not even technically US companies since they keep tax inverting into other countries) and they are pushing hard for this crap everywhere and mostly winning still.


Yup. A lot of those new provisions aren't in the interest of citizens, or even governments - politicians have no incentive to push for them except various types of legal and illegal bribes they get from corporations.


Their point stands, they have been fought for pity cases before. That said, Samsung is hardly a company's quote worth exemplifying.


> At some point companies are just going to stop doing business in the United States

The companies being sued tend to be "copycat companies" who take someone else's essential design and sell a shoddy replica of it, maybe with a few superfluous features added on. I won't shed a tear if they get out of town.


Honestly as stupid as this (and many others) are, it's the fault of the patent system, not the companies. The companies are reacting rationally to the system as it's been created, i.e. patent everything possible so you have more patents covering more things than your competitors. The only reason patent troll companies exist is because some smart investors realized you didn't need to do the risky bit, make products, to hold and enforce patents.

The system needs to be fixed, and then shit like this will go away naturally.


True -the system does need reform.

But certain companies behave much more badly than others. We should call them out on it.


This is not a good article. The relevant context is missing: Corel has implemented a "Word mode" in it's product that mimics the look and feel of Microsoft Word. Mimics too well, Microsoft thinks.


Microsoft WinWord is basically feature complete since 1989/90. And it wasn't an original design at all. Xerox and various other companies had word processors several years before Microsoft. Microsoft managed to have an competitive advantage by owning the Windows 3 and DOS platforms - changing platform APIs to make competing word processors and spreadsheet programs incompatible wasn't a fine thing. Microsoft has certainly a bad track record how they act with competitors. Is this the "new Microsoft" everyone tries to tell me they see in their new CEO? It seems it's the same old company with the same old well known tactics.


Disregarding your other comments, which I think are irrelevant to the topic, I'm interested in this:

> changing platform APIs to make competing word processors and spreadsheet programs incompatible wasn't a fine thing

You claim that the only reason Word succeeded in competing with e.g. WordPerfect, was by "changing platform APIs".

Could you be more specific? What OS, application and exactly what APIs?


I get how we all intuitively want the PTO to not issue "stupid patents" but is there an objective, mechanical way to determine what is stupid? Do we care more about false positives (as in this case) or false negatives (a hypothetical alternative universe where too few, rather than too many, patents are awarded).

Now, before you start arguing against patents entirely, what I really want to know is: without patents, how are individual supposed to profit from their inventiveness when a larger entity could trivially copy the idea and profit based on their superior connections and capitalization? And yes, I'm talking about software. Are software inventors just supposed to give away their inventions as open source and feed themselves by working for someone else who a) got the ask, and b) defended their IP?


Patents don't protect small companies anyways. If you are sued by a giant, the lawsuit will probably bankrupt you alone. Plus, that giant will come at you with multiple infringing patents, because chances are you are in fact infringing multiple patents.

The only use of patents for a small company is to make the company more valuable in an acquisition, and also as a marketing tool.

The way you profit from inventiveness is keeping trade secrets, and building things that are difficult for a competitor to easily copy.


> If you are sued by a giant, the lawsuit will probably bankrupt you alone. Plus, that giant will come at you with multiple infringing patents, because chances are you are in fact infringing multiple patents.

Actually, in practice this "patent predation" is rare (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319):

> This Article also reports on the other major narratives of patent litigation. 4% of the suits were initiated by individual inventors (David v. Goliath), 18% of the suits were brought by small private companies against public or large private ones (small v. large), 16% pit one small-or medium-sized company against another (limited stakes), and in 8% of the suits, a large firm sued a small one (predation profile)

This study also finds that patent trolls are behind a minority of patent lawsuits.


As an artist, this is exactly the point that I make when I argue with people who say patents should be abolished.

Without any kind of protection, anyone who has a greater means of production/marketing than you will always steal your ideas and profit more from them than you can.

Obviously we need to fix the process so that as few bad patents are awarded as possible. Someone's just got to figure out how!


> Without any kind of protection, anyone who has a greater means of production/marketing than you will always steal your ideas and profit more from them than you can.

Since you're an artist shouldn't you only care about copyright and trademarks? What's a patent going to do for you? If someone steals your designs then you can sue them through means other than patents. If they copied your idea but executed differently then well I guess that sucks to a degree but if it's an obvious evolution then more than likely it happened independent of you anyway.

I would imagine artists would have the least issue with just abolishing patents entirely so I'm curious why you do.


I know Harry Connick Jr. holds at least one patent to do with performing his music.

Imogen Heap has also been working with some guys to develop their Mimu Gloves. Which probably have some proprietry software & engineering.

So there are at least a couple of people wanting to protect ideas.


As an artist, you should be so lucky that people want to copy your art. It is the best way to ensure your relevance.

Think of a band like U2 - probably the most copied "art" in the world. From memory, their last tour grossed over 1 Billion.


Honestly, I'd just assume 90-95% of patents are outright rejected if they're too similar to existing concepts. Make the application fees cover real research, and leave it at that. Patents no longer protect the little guy, and they've actually been shown to be more harmful to the public lately (the opposite of the intended effect).

Design and process patents are ridiculous... most software patents are absurd. I work in software, and tbh, there's almost nothing I've seen in the past 20 years that doesn't specifically tie to a physical device in software that is deserving of patent protection, and even then not for 20 years.


>I'd just assume 90-95% of patents are outright rejected if they're too similar to existing concepts

I'm not sure how to look at this statistically, but isn't the OP a counter-example?

>Make the application fees cover real research

Not really sure what you mean here. How much is time worth?

Okay, so I have an invention right now that I think is really novel, and I'd like to build a business around it. I may just want to patent and license though. Roughly speaking, it might fit roughly in the "Mathematica" space - note the example of an inventor (Wolfram) making good money on his (software) invention! Isn't that how the system is supposed to work?

Here's another question: of all the innovation in the internet space, what, if anything, do you think is patentable? Is the Facebook feed novel? If nothing is, doesn't this leave the only businesses the ones that are social, the same ones that treat users as product not customers?


How it's supposed to work is for knowledge to advance... "useful arts and sciences" as the case may be. The real question becomes, would you still have created your "invention" without the patent system? Would you have enough of a first mover advantage to recoup your investment into the invention without the patent system.

The patent system is intended to allow for inventors to recoup investment and make money. It was started in a time where it would take literally years of R&D and a decade to even break even on hard, physical costs. Software and process ideas take minutes to come up with, and hours to develop... A single license/sale generally recovers any creative investment.


> I get how we all intuitively want the PTO to not issue "stupid patents" but is there an objective, mechanical way to determine what is stupid?

There's a very simple, constant-time, objective, mechanical algorithm to determine whether to grant a patent: "return false". That would work better than the current algorithm, which closely approximates "return true".

At the very least, it should take no less effort or inventiveness to get a patent granted than to get an academic paper published in a reputable journal or conference. But it seems highly unlikely that respected academics will jump at the chance to work in patent examiner's offices the way they do to program committees.

> Do we care more about false positives (as in this case) or false negatives (a hypothetical alternative universe where too few, rather than too many, patents are awarded).

False positives. A denied patent is highly unlikely to suppress a good idea; good ideas (and a fair many bad ones with good execution) will succeed whether granted an artificial monopoly or not. But a granted patent can litigate good ideas to death.

> how are individual supposed to profit from their inventiveness when a larger entity could trivially copy the idea

Many wildly successful companies are built on technologies that could easily be copied, and yet aren't. The sole legitimate measure of the patent system is "how many useful inventions do we have that wouldn't have been invented without patents?". How many ideas (outside of the drug industry, which could potentially use some other solution) wouldn't have been created if not for patents?

Apart from that, why do you believe an inventor should be able to invent once and profit for 20 years off the work of others, without continuing to invent and promote further good ideas? Keep inventing new ideas faster than they can be copied, so that the copy is always last year's technology. Make your customers so happy that they'd never want to consider a competitor. Do any number of things that add value to the world rather than subtracting it.

> Are software inventors just supposed to give away their inventions as open source

Preferably, but copyright still exists for those who want to release proprietary software. Copyright stops others from directly copying code. Patents stop others from creating new software, even if not copied from the patent holder. The former seems far more defensible than the latter.


>There's a very simple, constant-time, objective, mechanical algorithm to determine whether to grant a patent: "return false".

There are several empirical studies that indicate this is wrong. Google and ye shall find.

> That would work better than the current algorithm, which closely approximates "return true"

This is objectively false if you look at publicly available data on rejection rates and understand how the process works.

> good ideas (and a fair many bad ones with good execution) will succeed whether granted an artificial monopoly or not.

Oh yes, they will succeed, but from past experience, not always will they reward the original inventors.

> But a granted patent can litigate good ideas to death.

How often has that happened? Note that if you want to mention examples like Watt or the Wright Brothers, those apocryphal accounts have been debunked.

> Many wildly successful companies are built on technologies that could easily be copied, and yet aren't.

And many dead companies were build on technologies that were too easily copied by bigger competitors.

> Apart from that, why do you believe an inventor should be able to invent once and profit for 20 years off the work of others...

Because a good idea is something that has value forever? Should an inventor not reap some rewards off that?

>... without continuing to invent and promote further good ideas?

Non-sequitur. What makes you think an inventor will not continue to invent?

> Keep inventing new ideas faster than they can be copied, so that the copy is always last year's technology.

This severely underestimates the speed at which technology can be reverse-engineered and duplicated.

> Copyright stops others from directly copying code.

Often the value is in the idea or the solution embodied in the code, not the code itself. Copyright does nothing to prevent that, even though it could be the idea which is hardest to create.

> Patents stop others from creating new software, even if not copied from the patent holder.

In practice, they don't. New software is being created at an unprecedented rate, even as software patents have been in effect for the past two decades.

I'd agree we need a much higher bar for patents, but suggesting we do away with patents entirely is being dismissive of the unpleasant realities of the world.


> There are several empirical studies that indicate this is wrong. Google and ye shall find.

You're going to have to be more specific about what studies you have in mind. Considering the lack of a control group without major confounding factors, it'd be quite difficult to have a study on the efficacy of a patent system at increasing the number of inventions made available.

> Because a good idea is something that has value forever? Should an inventor not reap some rewards off that?

Remember that the purpose of the patent system (at least in US law) is to encourage more ideas; providing a temporary monopoly to reward patent holders is a means, not an end. At the time the patent system in the US was created, hundreds of years ago, it was believed to be a net win for the general public; at that time, it might even have been possible to read and learn from a significant fraction of the patents granted. With the current culture and wealth of inventiveness, of myriad people happy to release ideas for all to use, and the lack of any value gained by reading the firehose of patent publications, it's quite reasonable to ask if we still benefit from the tradeoff of the patent system, or whether we'd get more benefit by abolishing it. In evaluating that, not a single moment's thought should be given to rewarding patent holders as an end unto itself, only as a means to encourage more invention.

> How often has that happened?

Too often. I've seen far too many FOSS projects suppressed, features left out, or avenues unexplored, precisely because an area is a patent minefield. Cryptography, audio codecs, video codecs, compression technologies, encoding technologies, and numerous other useful code blocked because someone else staked a claim first.

What value is gained when someone pops up and sues some browser or device vendor over some ludicrous patent (in East Texas, naturally), and wins millions? Does anyone seriously believe that those browser or device vendors actually read the patent and said "that sounds like a good idea, let's use it and rip this lone genius off!"? Even if that random troll actually did happen to be the first person to submit an application to the patent office, they've provided absolutely nothing of value.

You can write code entirely from scratch, create something useful, publish it, be sued by someone you've never even heard of, and lose, all because of an artificial monopoly over ideas.

> suggesting we do away with patents entirely is being dismissive of the unpleasant realities of the world.

Patents are one of the unpleasant realities of the world, and patents are one of the main things making it necessary to acquire more patents, as a defense mechanism.


> Considering the lack of a control group without major confounding factors, it'd be quite difficult to have a study on the efficacy of a patent system at increasing the number of inventions made available.

Yes, it is hard to show the beneficial effects of a patent system, just as it is to show any ill effects thereof, which is why any blanket assertion that patents should be abolished or strengthened should be met with skepticism.

Still, many studies do attempt to support their conclusions as rigorously as possible. It is, of course, never enough because of the lack of sufficient data or contextual information. Some studies get quite creative in how they find control data. For instance, some take specific events in history, such as the introduction of patent laws (or change in the strength of patent protection for a specific field) in a certain country, and compare various metrics (e.g. derived from industrial data) before and after these events. Or alternatively they find regimes that are similar in other aspects with the prime difference being in patent laws and they compare metrics across these geopolitical boundaries. For instance, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1513814 looks at industrial exhibitions and finds that the diversity of fields in which technical activity occurred increased significantly after patent laws were introduced.

Different studies take different approaches, so I can't really describe them all. The best I can do is to point to this meta-study and read the studies referenced within: https://eml.berkeley.edu/~bhhall/papers/HallHarhoff12_NBER_w...

> I've seen far too many FOSS projects suppressed, features left out, or avenues unexplored, precisely because an area is a patent minefield.

Would you claim that those technologies that were suppressed, left our or unexplored were otherwise unavailable on the market? Or were these efforts simply re-inventing something already done before?

> You can write code entirely from scratch, create something useful, publish it, be sued by someone you've never even heard of, and lose, all because of an artificial monopoly over ideas.

And you can invent a whole new and useful product line, develop it from scratch, bring it to market and be ripped off and put out of business by bigger guys, all because of insufficient protection of ideas.

>... patents are one of the main things making it necessary to acquire more patents, as a defense mechanism.

Other than protecting their investment in R&D, various companies use patents in various ways. Tech startups, for instance, often seek patents to increase chances of VC funding and acquisition.


> Yes, it is hard to show the beneficial effects of a patent system, just as it is to show any ill effects thereof

It's quite easy to show the ill effects thereof. It's harder to evaluate the beneficial effects, as you'd have to find and model metrics about the net value of inventions that, with all else equal, nobody would have developed or released in the absence of patents. That then makes it hard to evaluate the patent system on balance, to see whether the benefits outweigh the costs.

I'm certainly not going to argue that that the patent system produces no benefits whatsoever; there almost certainly exist some inventions that nobody would have developed or productized without patents, or would not have done so on the same timeline. My argument is that those benefits no longer outweigh the costs.

I read the meta-study you linked to, and found it quite unmoving. They explicitly note via several studies that patents have little effectiveness in inducing disclosure (particularly as such disclosure has little value when engineers rarely read patents and would take a high risk in doing so). Their discussions and linked studies of efficacy at promoting invention itself seem far too focused on direct economic value as a measure of invention value, and the remainder of their study focuses almost exclusively on economic value.

Any methodology that counts a patent troll like Intellectual Ventures in the "positive" column is broken; yes, they cause money to move, but only as a valueless drag force on useful work.

> Would you claim that those technologies that were suppressed, left our or unexplored were otherwise unavailable on the market? Or were these efforts simply re-inventing something already done before?

Both, and other cases as well. I've seen patents used to threaten newly created technologies (e.g. entirely new video codecs still threatened by the MPEG-LA protection racket), from-scratch reimplementations of existing technologies in FOSS, and new applications of existing technologies (e.g. novel applications of arithmetic coding or cryptographic algorithms).

>> You can write code entirely from scratch, create something useful, publish it, be sued by someone you've never even heard of, and lose, all because of an artificial monopoly over ideas.

> And you can invent a whole new and useful product line, develop it from scratch, bring it to market and be ripped off and put out of business by bigger guys, all because of insufficient protection of ideas.

I simply can't see those cases as remotely similar. In one case, a technology or product is suppressed because of an artificial monopoly on ideas, even if people want that technology or product. In the other case, someone else builds a better product and puts the first out of business, and was not stopped from building a better product by the first company's artificial monopoly. I don't care who first threw paperwork and money at a government office; I care about the better product.

To rephrase that another way: in one case, you have two consenting parties that want to do business, but are stopped by a third that neither one wants anything to do with. In the second case, you have two parties that consider doing business, but one chooses to do business with a third party instead because they get more value by doing so.

That's leaving aside the very likely scenario that a patent intended for such a purpose cannot be used "successfully" against a bigger company. The standard scenario: "Oh, you have a couple of patents that you claim we infringe? That's adorable; we have a few thousand covering what you've done, and we won't tell you which ones. Perhaps we'll pretend you never brought this up, or perhaps we'll give you a discount on the money you're going to pay us if you let us use your patents to stomp the next one of you upstarts."

I realize that the cases that show up in the media have a severe selection bias, and that many patent cases get settled confidentially. However, I can readily bring to mind numerous instances of patents used to threaten new entrants to a market, or used for trolling by companies providing negative value. By contrast, not a single case comes to mind of a patent used as you've described, to "defend" a product by the inventor's company against a larger company.

I don't believe technological progress will grind to a halt, or even slow down, with patents (or even just software patents) abolished. I won't necessarily argue with as much confidence that it will massively accelerate, either, though it certainly will in areas I care about. But I can honestly say that I've never once seen a patent lawsuit in which I could muster the slightest sympathy for the plaintiff or the slightest belief that they deserve anything. And I've read a substantial number of patent lawsuits, both contemporary and historical.


> It's quite easy to show the ill effects thereof.

I haven't found a study that does so convincingly.

> It's harder to evaluate the beneficial effects...

Agreed, but studies have attempted to do so. For instance, the Moser paper clearly shows greater diversity in innovative activity as people started tinkering in fields that had no protection, and hence little incentive to innovate, before patents were introduced.

> My argument is that those benefits no longer outweigh the costs.

And my argument is, with all the studies out there, it is impossible to compare the benefits and the costs as they are largely orthogonal.

> I read the meta-study you linked to, and found it quite unmoving.

Yes, that's why I pointed to the meta-study. I find it fairly balanced on the whole, identifying benefits as well as costs. The point was not to convince you either way, just to highlight that the situation is pretty nuanced. For instance, while classical assumptions (like disclosure) may not hold, there are a number of alternative ways patents encourage innovation (e.g incentivizing R&D investment, signalling, facilitating VC funding and entry, etc.)

> Their discussions and linked studies of efficacy at promoting invention itself seem far too focused on direct economic value as a measure of invention value, and the remainder of their study focuses almost exclusively on economic value.

That is how most of this literature goes, unfortunately, because invention value is impossible to measure at scale. Some metrics have been devised (e.g. number of citations, etc.) but those have also been found lacking. And so the best they can do is find proxies in economic indicators.

> Both, and other cases as well...

Can you point to some examples of a novel technology that would have been available in the market if not for patents? Note that from-scratch re-implementations are just "new", not "novel".

> In the other case, someone else builds a better product and puts the first out of business, ...

Doesn't have to be a better product. It just has to be cheaper because the second company did not incur the costs and risks of inventing a new product line. I've heard "Copycats" by Oded Shenkar is good book about this phenomenon.

> That's leaving aside the very likely scenario that a patent intended for such a purpose cannot be used "successfully" against a bigger company... However, I can readily bring to mind numerous instances of patents used to threaten new entrants to a market, or used for trolling by companies providing negative value.

Again anecdotally these scenarios may seem common, but a limited empirical study suggest they (e.g. predation profile) is uncommon: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319

> By contrast, not a single case comes to mind of a patent used as you've described, to "defend" a product by the inventor's company against a larger company.

Since this is a Microsoft thread, appropriate examples would be Stax electronics and i4i. See also the Chien paper above which may have more numbers.

> I don't believe technological progress will grind to a halt, or even slow down, with patents (or even just software patents) abolished. I won't necessarily argue with as much confidence that it will massively accelerate, either, though it certainly will in areas I care about.

Depends on what you count as "technological progress". I don't necessarily count re-implementations of existing technologies as progress.

> But I can honestly say that I've never once seen a patent lawsuit in which I could muster the slightest sympathy for the plaintiff or the slightest belief that they deserve anything. And I've read a substantial number of patent lawsuits, both contemporary and historical.

I guess if you think, say, the Wright brothers didn't really make modern flight possible or that Apple didn't really revolutionize the smartphone industry, not much I can say.


As a meta-item on this discussion, it appears that we have a disagreement of value systems. Leaving aside the nuances of measuring positive and negative aspects, it's quite possible for two people to look at the same set of positives and negatives and value them differently, or even to classify them differently, counting some of the stated positives as negatives and vice versa. It seems fairly clear that that's happening here, as I'm assigning positive value to several things you either don't care about at all or assign negative value to, and you're assigning positive value to several things I either don't care about at all or assign negative value to. I suspect we'll have a hard time agreeing on any high-level conclusion if we don't even value the same things.

>> It's quite easy to show the ill effects thereof.

> I haven't found a study that does so convincingly.

I'd recommend "Sequential Innovation, Patents, and Imitation" (http://www.researchoninnovation.org/patent.pdf), among others.

There also exist sources of information other than studies. Pointers to specific cases suffice to demonstrate that harm exists and to show the nature of that harm.

My original point was not that the sum total of either the positive or negative effects could easily be quantified, but rather that the negative effects can more directly be observed in any given case, while the positive effects cannot. Evaluating the negative effects simply requires showing an example of an invention that would have been published or product that would have been (or was) created, but was blocked by a patent; plenty of direct evidence exists for that. Evaluating the positive effects requires not only identifying an invention/product, but determining whether the invention/product would still have been published/created in the hypothetical scenario in which patents did not exist. An invention/product that made money from patents does not count in favor of patents; it only counts if it would not have been published/created at all without patents.

> > I read the meta-study you linked to, and found it quite unmoving.

> Yes, that's why I pointed to the meta-study. I find it fairly balanced on the whole, identifying benefits as well as costs. The point was not to convince you either way, just to highlight that the situation is pretty nuanced. For instance, while classical assumptions (like disclosure) may not hold, there are a number of alternative ways patents encourage innovation (e.g incentivizing R&D investment, signalling, facilitating VC funding and entry, etc.)

I meant the description "unmoving" differently than you took it. I did not mean "neutral/inconclusive", though in many ways it was that. I mean that I saw absolutely nothing in it that gave me the slightest inclination to support a patent system (and plenty not to). The meta-study covered three points: 1) efficacy at promoting innovation (one genuine purpose of the patent system), for which it failed to provide any direct evidence (things that would not have happened otherwise) and could only fall back on economic claims (rewarding things that were done; see (3)); 2) efficacy at promoting publication (another genuine purpose of the patent system), which it rather conclusively refuted; and 3) economic incentives and monetary evaluation of patents, which as a non-goal of the patent system (only a means), is irrelevant when evaluating whether a patent system should exist.

I care about code published, ideas created, ideas made practical as products, and other things that create value. I don't care at all about things that just move value around, and neither does the stated rationale for the patent system. The economic arguments made or mentioned in the meta-study only really talk about moving money around, but don't seem to provide evidence to support any claim that any value is created as a result. This seems, to me, like a circular argument, presupposing without evidence that "money flowing towards patent holders" promotes innovation.

Patent lawsuits are a zero-sum game with zero value: anyone's gain is someone else's loss, and no value is created when such money changes hands. When I see money just moving around based on patent lawsuits, no matter who the plaintiff or defendant are, small or large, practicing or not, individual or company, I just see wastefulness. Not quite as bad as destroying something entirely, but nothing of value either.

Inventions and products themselves, by contrast, can actually advance the progress of science.

>> Both, and other cases as well...

> Can you point to some examples of a novel technology that would have been available in the market if not for patents? Note that from-scratch re-implementations are just "new", not "novel".

I'm quite aware of the distinction drawn by patent law there, though I don't consider the patent system's definition of "novel" the only measure of a technology's inventiveness or usefulness. More critically, though it's possible to use the idea covered by a patent (or to be sued claiming such) while also making novel advancements beyond that idea; that includes both novel applications of an existing idea, as well as novel inventions threatened by general patents on entire classes of ideas. Thus, a program that is itself novel can be suppressed by a patent that applies (or threatens to apply) to part of it. See also the "Sequential Innovation" concept and paper I pointed to earlier in this comment.

In any case, some specific examples that qualify as "novel":

- Public-key (asymmetric) crypto was patented from 1977-1997. Multiple people during that period attempted to develop programs for novel applications of asymmetric crypto, but could not due to the patent. PGP was developed towards the end of the patent's life, in spite of the patent, and the patent holder subsequently forced PGP to limit it to "non-commercial use" (and AFAICT the general belief is that they'd have killed it entirely if not for potential bad publicity). In the absence of patents, encrypted email would have been available in the market far earlier. (Note that the patent wasn't for encrypted email; it was for asymmetric crypto in general; PGP was novel, as was asymmetric crypto before it.)

- WebRTC (and, in general, the availability of video in web standards) was blocked for years over what codecs to use, due both to patents on h.264 and threats of patents against VP8. Video on the web would have been available years earlier if not for those patents.

- Some of the software implementing MP3 (and undistributable in the US or anywhere that enforced the patents on MP3) included multiple novel algorithms to produce better MP3 files (e.g. in bitrate allocation, models, performance), and produced significantly better and smaller MP3 files (and did so faster) than the "official" implementation.

- HyperProf, a piece of Java profiling visualization software (back in the JDK 1 days), was blocked due to a patent by Xerox on displaying trees (unrelated to profiling).

- GCC would have had runtime memory bounds checking (to prevent array overruns, etc) in 1996, years before the availability of programs like valgrind and similar, if not for a patent by a company named Pure Software. The GCC implementation included several novel additions beyond the patent, and the patent was not known until after the work was done (and subsequently shelved).

> Since this is a Microsoft thread, appropriate examples would be Stax electronics and i4i. See also the Chien paper above which may have more numbers.

Both of which I'd hold up as examples for "why we shouldn't have software patents". In particular, if you see i4i as a good example, then I'd deeply question your evaluation of value.

>> I don't believe technological progress will grind to a halt, or even slow down, with patents (or even just software patents) abolished. I won't necessarily argue with as much confidence that it will massively accelerate, either, though it certainly will in areas I care about.

> Depends on what you count as "technological progress". I don't necessarily count re-implementations of existing technologies as progress.

See the above cited paper on "sequential innovation", and several of the above examples of novelty above and beyond a threatening patent.

(Apart from that: even a reimplementation of an algorithm without algorithmic improvements or other associated novelties may solve practical problems or otherwise improve on execution. But even if you don't consider that progress, see "sequential innovation" and the above examples.)

> I guess if you think, say, the Wright brothers didn't really make modern flight possible or that Apple didn't really revolutionize the smartphone industry, not much I can say.

That strawman sure was flimsy. First, I neither said nor implied either of those things. I'd quibble over the term "revolutionize" in the latter case, but hyperbole aside, Apple certainly made notable advancements. But in both cases, so what? Neither of those contradicts my statement that "I've never once seen a patent lawsuit in which I could muster the slightest sympathy for the plaintiff or the slightest belief that they deserve anything". If I see Apple suing someone over smartphone technology, or for that matter someone suing Apple over smartphone technology, in neither case would I think the plaintiff deserved anything.

You seem to presuppose a pile of additional reasoning that does not follow.


> As a meta-item on this discussion, it appears that we have a disagreement of value systems.

I agree :-)

> I'd recommend "Sequential Innovation, Patents, and Imitation" (http://www.researchoninnovation.org/patent.pdf), among others.

Personally, I would not recommend anything by Bessen without significant cross-checking. Many of the author's works have been shown to have poor methodology. As I recall (it's been a while since I read it), this particular paper presents a theoretical model with little empirical evidence to back it up. Additionally, it posits that R&D intensity does not increase with more patenting by firms, something that later empirical studies refute.

> Evaluating the positive effects requires not only identifying an invention/product, but determining whether the invention/product would still have been published/created in the hypothetical scenario in which patents did not exist.

That is one way to do so, but that is a narrow view. At the macro level, this can be shown by the amount of investment into R&D activity that is evidently incentivized by patents. More money and resources funneled towards innovative activity enables more innovation. While it may not serve as direct proof of specific innovations, it is obvious that without resources being invested into R&D, many innovations would not have occurred sooner or at all. Would Microsoft pour billions into MSR if it did not hope to profit from it at some point in the future?

> The meta-study covered three points: 1) efficacy at promoting innovation (one genuine purpose of the patent system), for which it failed to provide any direct evidence (things that would not have happened otherwise) and could only fall back on economic claims (rewarding things that were done; see (3)); 2) efficacy at promoting publication (another genuine purpose of the patent system), which it rather conclusively refuted; and 3) economic incentives and monetary evaluation of patents, which as a non-goal of the patent system (only a means), is irrelevant when evaluating whether a patent system should exist.

The goal of a patent system is "To promote the Progress of Science and useful Arts". Promoting disclosure, as is capturing rewards, encouraging financing and increasing innovation through forced work-arounds, are all post-hoc rationalizations of that clause rather than explicit goals. It is incorrect to say economic incentives are a non-goal. Insofar as it diverts more resources towards R&D, patent systems evidently do well.

> ... I don't consider the patent system's definition of "novel" the only measure of a technology's inventiveness or usefulness.

Agreed. I have a number of issues with the current implementation of patent systems, but not with the fundamentals.

> PGP, GCC, WebRTC, etc.

Thanks for the examples. I'll note that often what was prevented was re-implementation of existing technologies available on the market, and nothing prevented the research and development of follow-on innovation, only its distribution to the market, which ostensibly would also have been allowed if a license was taken. Sure that would have increased costs of downstream applications, but why should products not pay their fair dues to the upstream innovations that made them possible, even if the products themselves are given away for free?

In the case of MP3s, patents were directly responsible for spurring the then-languishing development of Vorbis, which many consider a better technology.

> Both of which I'd hold up as examples for "why we shouldn't have software patents". In particular, if you see i4i as a good example, then I'd deeply question your evaluation of value.

Both of them were operating companies whose technology was ripped off by Microsoft. I don't see what's so bad about i4i - they were a practicing entity that filled a business niche that MS ignored for years and then decided to just take over once i4i proved it was valuable.

> But in both cases, so what? Neither of those contradicts my statement that "I've never once seen a patent lawsuit in which I could muster the slightest sympathy for the plaintiff or the slightest belief that they deserve anything".

So this was not a strawman after all, and I guess therein lies our disagreement. I believe these inventors took enormous risks and caused an undeniable leap forward in their respective fields, and should have reaped proportional rewards. They certainly did well enough, but not nearly as well as they should have. Different value systems, I suppose.


> The goal of a patent system is "To promote the Progress of Science and useful Arts". Promoting disclosure [...] are all post-hoc rationalizations of that clause

Writings contemporary with that exact clause explicitly state its justification as encouraging the publication of ideas that might otherwise be kept secret; the presumption is that without patents industry would keep more secrets. I think we have ample evidence today to doubt that, but hundreds of years ago that seems plausible.

> I'll note that often what was prevented was re-implementation of existing technologies available on the market, and nothing prevented the research and development of follow-on innovation, only its distribution to the market, which ostensibly would also have been allowed if a license was taken. Sure that would have increased costs of downstream applications

A per-copy license fee of a penny kills FOSS completely; there is no "increased costs". Software has little value if not distributed, and demanding any licensing cost has the same effect as a cease-and-desist, killing the project in either case.

In all cases, I specifically noted the novelty of the software developed; I left out the large stack of cases involving "just" reimplementation, as I figured you'd find them unmoving. For a more extensive (though by no means incomplete) list, see https://www.gnu.org/patent-examp/patent-examples.html .

I grew up through the libgif/libungif debacle, through MP3 being unavailable, through FFMPEG and LAME practically being contraband, through Debian having a "non-us" archive (ostensibly for crypto due to ITAR, but in practice also for patents). I see patents as a minefield, with the known mines marked by the projects hurt by them. I see patents stopping software development on a regular basis.

And in case it looks like I've only seen one side of the issue: I've also successfully filed a dozen patents (all of which have Free Software implementations released), dealt with corporate patent licensing and contract negotiation, and seen various other patent-related workings inside companies. I stand by my conclusion that patents do more harm than good.

> why should products not pay their fair dues to the upstream innovations that made them possible

All innovation is follow-on innovation. Everything builds on previous things. "pay their fair dues" presupposes that ideas should have owners and monopolies who can extract dues; I don't consider that "fair" at all.

The problem becomes even worse in the case of "out of nowhere" patents; you can hardly call them "upstream innovations" if the author of the software didn't even know about the patent, let alone read it and build on it.

The rate of innovation is far too fast for patents. One of the many short-term reforms that would help curb the damage would be a drastically reduced duration; 20 years represents many generations of technology, and a company or companies dedicated to excluding others can stretch that out indefinitely with a steady series of patents (and vague threats and FUD, which work almost as well).

> Both of them were operating companies whose technology was ripped off by Microsoft.

Microsoft wrote their own implementations of both technologies (or in the case of DoubleSpace, obtained it from a different company). DoubleSpace was not a copy of Stacker, and Word was not a copy of whatever i4i supposedly made when they weren't suing people. The term "ripped off" presupposes ownership of ideas and agreement with the patent system. I don't think it would be reasonable for one company to control the entire concept of disk compression from 1990-2010. I don't believe Microsoft did anything wrong in either case.

> So this was not a strawman after all

It was: you held up an argument I never made that had obvious incorrect statements in it to make it sound ridiculous. "The Wright Brothers and Apple did not innovate" is a ridiculous notion. "Ideas should not have owners, and inventors do not have an innate right to control ideas" is a defensible position, just one you disagree with.

> They certainly did well enough, but not nearly as well as they should have.

Apple, the biggest company in the world, didn't do nearly as well as they should have? They've been wildly successful, due in no small part to the exact innovations you're talking about. (And I doubt that success would have been appreciably smaller without patents.)


Apologies for the late response:

> Writings contemporary with that exact clause explicitly state its justification...

However, the clause wisely did not include any of that and just specified the intended ends ("progress...") and the means ("time-limited monopoly"). This has stood the test of time, as approaches that were not feasible before (e.g. the ease of reverse-engineering) meant secrecy was not an option and people sought other incentives to invest resources into innovative activity.

> A per-copy license fee of a penny kills FOSS completely; there is no "increased costs".

True, but just because it's FOSS does not mean it gets to free-ride on the fruits of somebody else's labor. If some people want to give away the fruits of your labor for free, more power to them, but that does not mean they get to demand others to do so as well.

> In all cases, I specifically noted the novelty of the software developed;

Well, leaving aside that things like WebRTC is entirely a re-implementation of pre-existing technology in a browser, I noted that much of the software was developed nonetheless. Any novelty developed could have been made available in many other non-infringing ways, such as publishing of papers or technical documents. I'd still say that counts as technical progress. Not being distributable as free software sounds more like a business problem to me.

> And in case it looks like I've only seen one side of the issue: ...

Ditto, besides working with patents, I've contributed to open source projects, open sourced a bunch of my own work and use open-source projects on a daily basis. I see waste and inefficiencies in both systems, but I also see what each has enabled and remain convinced that we need both systems.

> All innovation is follow-on innovation.

True, and this is why patent systems work by distinguishing claimed advances over the prior art before awarding a patent.

> "pay their fair dues" presupposes that ideas should have owners and monopolies who can extract dues;

Or it simply recognizes that ideas have value and people who come up with good ideas should be rewarded just as well as people who provide value in other means.

> The rate of innovation is far too fast for patents.

I have seen ideas introduced almost two decades ago get traction just now. The alternative viewpoint is that good ideas have value forever and 20 years is a fair amount of time to attempt to capture their value.

> "Ideas should not have owners, and inventors do not have an innate right to control ideas" is a defensible position, just one you disagree with.

My position is more that people should reap rewards proportional to what value they provide, and in my mind innovation is one of the biggest creators of value out there. As such Apple, the richest company in the world (and not one I particularly like) should have captured a much larger portion of the smartphone market. Unfortunately, we have no better means of capturing value other than treating things like property, and this has been extended to ideas. If there are better means shown to have worked for ideas, I'm all for them, but at this point, patents are it.


As josaka points out, this may be in retaliation to Corel's patent lawsuit:

http://www.law360.com/articles/684098/microsoft-word-copy-pa...

All the patents in this lawsuit, of which the EFF picked just the one in TFA:

8,255,828 - https://patents.google.com/patent/US8255828

7,703,036 - https://patents.google.com/patent/US7703036

7,047,501 - https://patents.google.com/patent/US7047501

5,715,415 - https://patents.google.com/patent/US5715415

5,510,980 - https://patents.google.com/patent/US5510980

D550,237 - https://patents.google.com/patent/USD550237

D554,140 - https://patents.google.com/patent/USD554140

D564,532 - https://patents.google.com/patent/USD564532

D570,865 - https://patents.google.com/patent/USD570865

The ones beginning with "D" are the design patents. The rest are utility patents.


I'm surprised the '415 patent stands. That's the one for an in-window help pane. `C-h m` (describe-mode) in emacs looks very similar to what they describe and was certainly there in 1995 and earlier. I know there's lots of caveats reading patents, but it appears that the independent claims are 1, 11 and 28 and they all look like at least XEmacs would have beat them to the punch.


I'd agree the '415 is not a good patent for other reasons too. It claims the result rather than the method in very broad terms.


The purpose of A Patent is to allow the inventor to openly share their idea without the fear of stealing. The inventors are also allowed/encouraged to financially profit from their idea so they can continue invention.

But these type of patents are hurting everybody except one person.

Shame.


a silly patent (even by design patent stds), but the complaint illustrates that this patent is a pretty small part of a [smallish] thicket of patents on the ribbon concept, as well corel pretty brazenly trying to capitalize on the Office UI (whether that is a legit claim or not is up for debate) back when MS was pushing it (and of course MS allegedly meeting with Corel to "resolve" it after finding out). personal opinion is that it may have been a compelling claim in 2007/2008, but now just gives you that slimy feeling again. another good fact (probably irrelevant) is that microsoft is now (and has been) encouraging people to use the ribbon metaphor (as far as i can tell).


Putting aside whether Microsoft’s design was actually new and not obvious in 2006 (when Microsoft filed its application)

UI sliders were certainly not novel in 2006. And I'd be surprised if Corel did anything other than use the stock slider in Microsoft's UI library. Maybe they implemented their own and it looks too much like Microsoft's?


from the actual lawsuit, it is more about corel creating a "Microsoft word mode" to mimic the UI/style of MS Word.

this slider is just part of it.

http://blogs.msdn.com/b/jensenh/archive/2006/11/21/licensing...

edit: fixed link, thank commenter below for identifying error


Interesting link. One of the core ideas behind Windows' success back in the day (when almost every program implemented its own unique GUI system and they were very inconsistent) was that it provided reusable UI components and Microsoft said that all developers should use their standard design, GUI components, and keyboard shortcuts to provide consistent interfaces for Windows programs. Seems rather hostile that Microsoft would now be suing someone for doing exactly what they always told everyone to do (especially considering that other developers using their UIs is a significant part of what made Microsoft itself so successful).

I guess the fact that they made it available to anyone not directly competing with their office suite is something. But the whole "Do what I tell you to do!" "Ok, I will." "Now you're in trouble for doing that!" routine still seems obnoxious.


Aren't they taking a page from Apple's playbook here? "You can do mostly whatever, as long as you don't duplicate functionality of our existing - or planned applications; in the latter case we'll retroactively pull you from the market."


Keeping aside the stupidity of the patent, it does seems like Coral made their Wordperfect look a lot similar to Microsoft Word.[1][2]

[1] http://www.wordperfect.com/static/img/content/products/wp_ho...

[2] http://www.wordperfect.com/us/product/corel-office-software/


The Corel tools literally have a "Microsoft <product> mode" which changes the UI to look almost identical to the equivalent Microsoft product. They aren't hiding the fact that the design is taken from Microsoft. Take a look at the screenshots from the complaint and if you hide the name title bar, you'll have a hard time picking out which one is from Microsoft and which is from Corel.

https://www.eff.org/files/2015/12/28/microsoft_v_corel_-_com...


Design patents cannot cover functional aspects, and mimicking another product for usability (not aesthetics) sounds pretty darn functional to me. Especially in the realm of word processors where there's such a lopsided market.


And the lawsuit is all about copying the aesthetics, not the functional aspects. In UIs, usability is more about the aesthetics, since it is all about the best way of presenting the underlying functionality, not the functionality itself. I cannot think of a valid reason why a product should be able to free-ride on the popularity of its competitor. Just because a "market is lopsided" does not seem like it.


What I was trying to say is that maybe Corel could argue that they can't be infringing a design patent for copying what MS calls aesthetic, when it's actually functional. In other words, they would say they were copying necessary functional aspects for user interoperability, so those aspects cannot be claimed to be aesthetic and covered by a design patent.


Because OS companies like Microsoft and Apple set standards for how applications built for their OS should look-and-feel, and tell developers to make them consistent?


That may actually make a convincing legal argument. I believe the appropriate doctrine would be "estoppel".


Your link appears to be missing a hyphen--the post is available at http://blogs.msdn.com/b/jensenh/archive/2006/11/21/licensing...


> UI sliders were certainly not novel in 2006.

The patents at issue are design patents, not utility patents (what we know of as inventions).

Sliders as functional UI devices weren't novel, but the particular design at issue was unique to Microsoft when they filed for their design patent.


Weren't there exactly such sliders in Photoshop, like 5-10 years earlier?


Yep, at least since Photoshop 3 (which runs just fine on Win7 btw). Macromedia Dreamweaver (now Adobe) had a Ribbon (toolbar with tabs) many years before Microsoft Office 2007 too, nevertheless Microsoft filed patents for it.


I've been using Photoshop since it's release. I use it daily and I have to be honest and say that I don't recall sliders looking like that, ever. Can you provide an illustration?


If you can show that those UI controls looked exactly like the designs in these patents, you may have found invalidating prior art.


>Putting aside whether Microsoft’s design was actually new and not obvious in 2006 (when Microsoft filed its application), whether Microsoft needed the patent incentive in order to come up with this design

Abrupt shift from legal argument to meta-legal argument. Seems stylistically wrong.


What is interesting to me is that industry has conditioned us to view copying as a bad thing.

Is there any invention that did not benefit from copying ideas that came before it? We all stand on the shoulders of giants.

We need more copying, not less.


Stuff like this makes me really excited about the Samsung appeal to the Supreme Court here in the U.S. regarding their ongoing suit and countersuit with Apple.

I'm an unapologetic Mac user at times, but I find myself intellectually on the side of Samsung in that case.

If Samsung gets cert and a positive outcome from SCOTUS, the patent system here will be forced to reform.

Stuff like this will simply go away. As it should.


Ehm... this design resembles the design of rheostat slider like that http://olx.ua/i2/obyavlenie/reostat-provolochnyy-maksimalnoe... and is not original.


Thumbs up for this!


This is the Microsoft we know. Welcome back!


Did you think for a second about what's the background for the patent and the lawsuite?

Sigh, haters gonna hate.


The application was filed in 2006.


Microsoft filed this lawsuit against Corel 10 days ago (December 18, 2015), claiming all profits to Corel Home Office.


Microsoft's lawyers have most likely been working on this case for a while so who knows how recently this process started.

Having said that yeah this is pretty disappointing behavior but I wouldn't be surprised if it's simply part of the company doing things others don't know about; maybe if enough attention is drawn to it it'll be dropped? Yeah that's probably unlikely but so many of their groups are full of awesome people and it sucks when a company does something stupid to tarnish its image.


Wow, that should get them a whole couple million dollars! Is Corel still big?


i have never used Corel Draw personally, but here in India, I have seen it (maybe very old versions )being used in PCB printing and laser cutting shops (probably other shops too that i haven't seen/can't recall now). Seems like a defacto standard in that niche. Don't know whether there are other popular alternatives in the industry though.


Sure, but the litigation is recent.


Do you believe the litigation to be egregious? The Corel tools go so far as to provide "Microsoft Excel Mode", "Microsoft Word Mode", etc... all which are designed to allow Corel to profit off of a user interface designed by Microsoft. In the case of the slider, it looks exactly the same and is used in the exact same place, in the exact same way, in a competing product.


It doesn't sound like they are trying to profit off of Microsoft's design. They're reacting to the reality that Microsoft has a near monopoly in the word processing market, and many users are much more familiar with that interface. It makes it easier to transition a new user if the interface feels familiar.

If they were actually trying to profit from Microsoft's design, they wouldn't be providing a "Microsoft Word Mode" they would just make that their only interface. The idea is that they would be trying to avoid innovating themselves and would just be attempting to use Microsoft's interface design research to make a quick buck.

You see how this is not about trying to cut corners in designing an interface, and more about user familiarity?

(I'm being charitable here in assuming for the sake of argument that design is a legitimate thing to patent. I don't think that's the case)


even more so, there are a percentage of people who are of the opinion that they will not learn another interface than the Microsoft one because that is the one that they will be forced to use at work anyway.

[lets not get into how wrong they are, they exist that is all]

I have no wider proof, but of non-technical people I know who use Windows they pretty much all fall into this category.


Sure, but suing Corel is ongoing now. It's an expensive, active process Microsoft is engaging in


Seriously. I thought the "Microsoft is evil" stance has become outdated and we'd rather look at Facebook and Apple, now. But it's like they've been trying to catch up, recently. The Windows 10 fiasco is textbook Microsoft bullshit, amplified to 11. Now this little pearl is another amazing example.


It's a shame, they were so close to seeming not-evil! It's funny, I think Windows 10 kind of got a free pass on some pretty big bullshit (forced updates, extremely bad privacy policies) because people were like "ah, microsoft is harmless now". Those are things that would have been HUGE ten years ago. Like, windows 10 basically defaults you into keylogging. It's not exactly keylogging, but they basically propose uploading your inputs so it's pretty similar. I'm not a hater, but this "new" and "friendly" Microsoft tends to be newer and friendlier when people hold them accountable; they shouldn't be getting a free pass on some of this nonsense they're trying to pull.


It's not key-logging, there's a couple of text input areas that have added in search functionality... Ubuntu and Apple added these features a while ago, and it's a pretty big feature in Android (at least with google's toolbar, and ok google).

That said, I disabled it in both areas as I found it incredibly annoying... As for forced updates and some of the other privacy issues, I do give them a bit of a pass on that because I'd rather not have to deal with 3+ year old browsers ever again... once IE9-11 die, I'm hoping that's it... the same goes for the devs at MS, and elsewhere.


I'm not talking about that.

Ahem, from the terms and services:

> When you acquire, install and use the Program software and services, Microsoft collects information about your use of the software and services as well as about the devices and networks on which they operate. Examples of data we may collect include your name, email address, preferences and interests; location, browsing, search and file history; phone call and SMS data; device configuration and sensor data; voice, text and writing input; and application usage. For example, when you:

> when you input text, handwrite notes, or ink comments, we may collect samples of your input to improve these input features, (e.g., to help improve the accuracy of autocomplete and spellcheck).

Are you ok with your handwritten notes and input text living on Microsoft's servers so they can improve their spellcheck?


I'm not a lawyer, but that "e.g." doesn't sound like a constraint either, so anything they can remotely claim will "improve these input features" is probably allowed.


It kind of bugs me that an OS maker is suing a software developer and utilizing a UI/UX design patent to do it.


I don't think it is that stupid. There's a whole lot of designs available for a slider. It is just a design patent so it won't hurt any other company's/product design, they can easily swap it by making little changes or designing an entirely new design for such a small thing.

As many people already linked the Corel Calc user interface design, which is exactly same as Microsoft's Excel. I don't think Microsoft is doing wrong by patenting their design elements.


Except for the part where Microsoft wants 100% of Corel's profits. Does that sound even remotely reasonable?


That sounds ridiculously stupid. The design patent seems legit but, demanding for the entire profit is totally unreasonable.


A design patent protects purely ornamental features, thus it is not fair to criticize a design patent on the basis of it not being useful. Inherently, if it were useful, it would not be eligible for protection as a patented design. It may be fair to criticize the entire legal regime that affords patent protection to ornamental designs (e.g., the famous rectangle with rounded corners that caused a jury to find for Apple vs. Samsung).


I thought that was always a possibility - the punitive damages could even MORE than eat up any profits. Sort of a "crime doesn't pay" attitude. Isn't that so for utility patents?

Otherwise people would "go ahead and execute" their idea, and sell a lot before getting sued, then simply pay a "fair and reasonable price" for a patent license. Which is it?


That's not much of a surprise considering that's from the same company that once patented the double click.

https://newscientist.com/article/dn5072-microsoft-gains-doub...


If Microsoft was to buy Corel would it be anti competitive behaviour?

Microsoft stands to gain more than just getting corel's office package out of the market, they will gain ownership to Coreldraw and paint which are one of the few Adobe competitors.


A popular article on Ars Technica is entitled: "2015: The Year Microsoft started to get the benefit of the doubt."

"Started." Indeed. But old habits die hard.


Doesn't QT's QSlider predate this patent by a few years?


Maybe, but this is a DESIGN patent.


Aren't design patents still subject to prior art?


The complaint is from 2015. Who the hell uses Corel Office?


The patents involved in the suit mostly looks like MS's patents on parts of Office 2007 UI that was filed in 2006 or so, including parts of the Ribbon.


What happens if I put the (+) and (-) in squares ([+] and [-])?


Possibly no infringement. Design patents are easy to design around. Just change the design.

The real threat is when the plaintiff can get back damages for pre-suit infringement. You can't do anything about your previous use of the design, and the exposure for infringement is much higher that utility patents: loss of profits, rather than just a reasonable royalty.

Whether you can get pre-suit damages depends, usually, on whether you gave some kind of notice, e.g., a letter to the defendant or marked your product "protected by patent XYZ."


It's indeed a stupid patent. Such thing shouldn't be patentable because it's trivial.


This is a Design patent not a Utility patent.


And why should trivial design be patentable? It shouldn't be. Patentablity of stuff like rounded corners is beyond ridiculous.


No, deliberately misunderstanding and misrepresenting design patents is ridiculous. Arguing that Pepsi should be allowed to imitate the design of a Coke bottle is ridiculous.

Rather than taking a zero-sum approach, nuance is needed.


Why is that ridiculous? If the Coke bottle has a superior shape, why not use that design?

That is quite different than trademark. Consumers should be able to clearly understand if their beverage is a genuine Coke or a Pepsi.

In this particular case, I don't think any consumers bought Corel Office thinking it was in fact Microsoft office.


To think that some body must have written this monstrosity of a patent.


Can't say I'll miss the lawyers about to be put out by AI


Arguably if lawyers are to be replaced by AI wouldn't the AI work quicker, file more lawsuits and seek faster judgements? Seems like AI making a literal interpretation of many things would make this problem far worse :)


I'm anxious to see what angle the Microsoft supporters use to justify this truly stupid patent. They proclaimed Microsoft had changed LOL - Microsoft is still the same old Microsoft. They're still using old prior art ridden patents to shake down companies and either make them sign ridiculous patent licensing terms or take them to court in a battle of attrition.


More than one person works at Microsoft.

Kinda like how more then one person comments on HN.




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