Microsoft Patents Changing User Privileges Temporarily On The Fly
from the sudo? dept
Someone who prefers to remain anonymous points out that the USPTO, in its infinite wisdom, has granted Microsoft a patent (7,617,530) on a method for “elevating” a user’s rights temporarily. Basically, it’s for a non-admin user who wants to do something (e.g., install a program) that requires admin access, without having to logout and re-login as the admin. As the submitter notes, this sounds like “sudo” or any number of other tools that have been around for ages. Can we submit the following xkcd comic as prior art/evidence of obviousness?
Filed Under: admin privileges, patent, prior art, sudo
Companies: microsoft
Comments on “Microsoft Patents Changing User Privileges Temporarily On The Fly”
Someone who prefers to remain anonymous…
You mean the guy over at AM who hasn’t a clue what he is talking about?
but… but you can’t do sudo in windows. what are they patenting? something that isn’t even available in their OS? WTF? plus there is only about 40+ years of prior art.
And their “run as admin” option is about as reliable as the whole OS itself.
This has to be a joke.
Re: Re:
my god! they even reference sudo in the damn patent application! wtf is wrong with this world?
Re: Re: Re:
More than that. They provide six Sudo references as prior art.
Re: Re:
Actually in Windows 7(Vista too?) you can sort of do this by running something as an administrator by typing in the username and password
Re: Re: Re:
can do that in XP
Here’s a link to a more in depth write up: http://www.groklaw.net/article.php?story=20091111094923390
Tools
Inventors: Ruzyski; David M (Kirkland, WA), Hong; James H. (Seattle, WA), McNeil; Brian (Seattle, WA), Doerr; Anastasia C (Kirkland, WA), Guzak; Chris J. (Kirkland, WA), Reasor; Sterling M. (Bellevue, WA), Stabb; Charles W. (Seattle, WA), Wentz; Brian D. (Seattle, WA)
Critical reading skills
somebody should have read more than just the overview, the patent is on popping up a dialogue box that doesn’t require the user to type in a name and password to elevate their rights. “sudo” does require the user to type in an administrative user name and password.
Re: Critical reading skills
Oh gee, a dialog box, how non-obvious!
Re: Critical reading skills
except maybe this part:
wherein: the authenticator comprises a password, and the authenticator region comprises a data-entry field configured to receive the password.
Re: Re: Critical reading skills
Ok, I read a little further. This is not new. My distro’s been doing this for ages. when I’m running a GUI application and need to elevate for a task, I get a box that asks me for my password, with my username there already. Been like that the whole time. Seriously, these are tech people and they don’t know this stuff?
Re: Re: Re: Critical reading skills
Yup. But if Counsel is new to the industry, they may find something interesting and cool and file a patent for something that seems new to them, even if it’s quite old.
All the examiners at the USPTO need to be fired.
Re: Critical reading skills
Um.. no it doesn’t. By default, sudo requires only the user to type their own password. It can be configured to not require a password at all.
Re: Critical read^H^H^H^Hcritiquing skills
…and somebody else should have RTFM on sudo since it can ALSO grant privileges without any password or with the users current credentials (like Ubuntu has been configured for ages)
Re: Critical reading skills
sudo has long been configurable to not require a password, and of course it would be non-obvious for a distro to enable that configuration on install; or *maybe* there is an obvious reason they don’t…
Re: Critical reading skills
Oh wow, sudo for dummies!
Yes, the ‘invention’ is put a GUI up rather than relying on some archaic command line method of entry. And now no one else can wrap a sudo in a GUI without paying to play.
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Not to mention the fact that if you try to perform a task in linux that requires admin right, it does pop up dialog asking for a password.
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Ditto for all Apple Mac computers using any version Mac OS X. That’s virtually every new Mac made in this decade.
PLENTY of prior art there!
Re: Re:
And now no one else can wrap a sudo in a GUI without paying to play.
Surely these patents can’t be enforced retroactively on existing things that pre-date them? I would think a winning challenge to the validity would be trivial.
Re: Re:
“Yes, the ‘invention’ is put a GUI up rather than relying on some archaic command line method of entry. And now no one else can wrap a sudo in a GUI without paying to play.”
I’m sure Apple (and, I assume, other *nix flavors) will be quite surprised by this.
Seriously, who approves these things? They need public shaming.
Re: "And now no one else can wrap a sudo in a GUI without paying to play."
Open-source did it first. And besides, KDE Desktop for Linux and Unix has done it for years. KDE’s dialog only asks for the root password. That’s it. Easy shmeasy. 😉
Re: Re: "And now no one else can wrap a sudo in a GUI without paying to play."
kdesu normally asks for the user’s own password, just like sudo.
As far as I know, the gnome equivalent does the same.
Re: Re:
There’ s nothing “archaic” about the command line. The inferior people who can’t use command lines are simply not good enough to be permitted to do system/network administration.
"Microsoft Patents Changing User Privileges Temporarily On The Fly"
Open-source did it first. And besides, KDE Desktop for Linux and Unix has done it for years. KDE’s dialog only asks for the root password. That’s it. Easy shmeasy. 😉
Honestly, M$ and the u$pto need to lay off the paint fumes.
It’s giving the rest of the world a headache… ;p
Re: "Microsoft Patents Changing User Privileges Temporarily On The Fly"
And non-open before that — AT&T had a patent on the Unix SUID bit (a file attribute stored in a directory) which allows a program to run with the owner’s privileges rather than as the user. The owner did not have to be root.
Re: "Microsoft Patents Changing User Privileges Temporarily On The Fly"
Honestly, M$ and the u$pto need to lay off the paint fumes.
It’s giving the rest of the world a headache… ;p
+1 Funny
This post is representative of something that bothers me about a lot of Techdirt posts. Namely, that it takes a fairly complex issue and then characterizes it using fearmongering, hyperbole, and dumbing-down in order to maximize moral outrage.
Determining whether a patent is obvious or not, for the legal definition of obviousness, is a lot like determining whether a particular use of a copyrighted work is fair use. It’s partially subjective (it used to be more restrictive and more objective, but the bar was lowered and subjectivity was increased by KSR v. Teleflex), but there are several factors (for example, the Graham Factors) that must be carefully examined and weighed.
Even though the standard is somewhat subjective, it is not so subjective that you can look at the patent, go “oh, that sounds like sudo. Obvious. Case closed.” You have to do a careful analysis of each element of the claims. Nobody here – not Mike, not any of the posters, not Groklaw, has done anything resembling a careful analysis. Groklaw’s careful analysis reads as follows:
Etc. blah, blah. Dude. It’s sudo. With a gui. Sudo for Dummies. That’s what it is.
What amuses me greatly is that this is all about applying a colloquial interpretation of “obvious” in a legal setting. However, if I were to say that someone “stole” copyrighted music, I’d have a dozen posters jumping down my throat telling me that I need to use the legal definition, that the courts have made it clear that the colloquial interpretation isn’t a valid legal interpretation, and so on. But hey, let’s not let consistency get in the way of some good old-fashioned moral outrage.
But what, precisely, is the source of that outrage? If you don’t like the legal definition of obviousness, then say so. Don’t blame the USPTO (as Mike has), patent examiners in general, or the individual examiner who looked at this patent. Blame Congress, the Federal Circuit, and the Supreme Court. Everyone else is just following the rules. (Exception: if you think that the USPTO has incorrectly interpreted the court’s findings in, e.g., KSR, then you might blame the USPTO, but at least be explicit about this).
If you think the patent is obvious because you didn’t read it or didn’t understand it (as is clearly the case with many of the posters in this thread), then you’ve made an error. Microsoft did not patent sudo, it did not patent sudo with a GUI, and it did not patent sudo with a dialog box. Elements of the patented invention may resemble sudo. Some elements may be GUIs or dialog boxes, or equivalent. This alone does not make the patent obvious, by the legal standard.
I invite anyone to take a serious look at one of the claims (say, claim 1) and make a compelling argument that this patent is obvious by the legal definition.
This requires some thought and some actual research. I imagine that a well-written version of the argument would take about 2-3 pages of text (with screenshots from prior art being helpful), given the number of elements of the claim.
Nobody’s going to do this, of course, and surely someone will argue that the fact that you have to actually think and do research to determine whether a patent is obvious or not is clearly a major flaw in the system. After all, it’s just wasted time that could be spent doing something useful like innovating, or spinning the next utterly mundane situation into something worthy of getting really morally outraged about.
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Sorry, it’s obvious, the end.
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Sorry, it’s obvious, the end.
With this level of discourse, I wonder why I even bother. Here we have this tremendous forum where we could be debating real, complex issues, but it’s dominated by me-too groupthinkers like Anonymous Coward here. Mr. (or Ms., but likely Mr.) Coward is no better than a common Internet troll. He might as well be posting GNAA propaganda. Actually, GNAA propaganda would be better, because at least it’s not gussied up to try to resemble something like a valid or informed opinion on the subject at hand.
And worse, nobody will call out Mr. Coward for being the troll that he is, because his opinion falls in line with the majority opinion here. With silence comes tacit acceptance, and even tacit approval: that maybe, just maybe, Mr. Coward is saying something of value.
Welcome to the future of discourse: where, with great power, comes NO responsibility.
Re: Re: Re: Re:
to be fair, it is pretty obvious, all the the information, the numerous references to Sudo in the Patent, to anyone who works with computers, it is obvious and has a ton of prior art.
Re: Re: Re:2 Re:
to be fair, it is pretty obvious, all the the information, the numerous references to Sudo in the Patent, to anyone who works with computers, it is obvious and has a ton of prior art.
If it is obvious, for the legal definition of obvious, then please provide your reasoning. Again, you can’t do this in a couple of lines, you have to actually go out and do some work on this. The obviousness standard, as I noted, is partially subjective, but here’s how I’d approach the problem: You first have to look at each and every element in each of the patent claims. You then have to clearly state how you interpret each element, with justification from the specification (or the file wrapper) if possible. You then want to catalog and describe prior art for each element and carefully explain the correspondence for each. You then want to lay out or find prior art containing a motivation to combine (this last bit is the one that was primarily relaxed by KSR, so you have some leeway here).
If you disagree with the legal definition of obviousness, then go ahead and provide us a new legal litmus test for obviousness that fits with your own understanding of the term, and argue why it’s better than the current definition. Try to avoid definitions that rely on or take advantage of hindsight reasoning.
The complexity of both of these problems are why this is a complex domain, why legal trials tend to cost a lot and take a lot of time, and why lawmaking and law-changing are hard. And of course, they’re almost completely ignored by everyone here.
Re: Re: Re:3 Re:
If you disagree with the legal definition of obviousness, then go ahead and provide us a new legal litmus test for obviousness that fits with your own understanding of the term, and argue why it’s better than the current definition.
We’ve done that repeatedly. Sorry if you missed them.
*1* Actually ask those skilled in the art to weigh in on it. You don’t have to take their word for it, but get a sense if those in the industry feel that the concept is obvious. The patent system is supposed to be non-obvious to those skilled in the art, but those skilled in the art are never asked.
*2* Independent invention as a measure of obviousness. If multiple parties come up with the same invention independently, you have prima facie case of obviousness. Done.
Next?
Re: Re: Re:4 Re:
We’ve done that repeatedly. Sorry if you missed them.
These seem familiar; I apologize if I can’t memorize every comment in every article here. Hanging out here is just a hobby; I have a day job. Either way I am very happy to actually be having a reasonable discussion about these things.
*1* Actually ask those skilled in the art to weigh in on it. You don’t have to take their word for it, but get a sense if those in the industry feel that the concept is obvious. The patent system is supposed to be non-obvious to those skilled in the art, but those skilled in the art are never asked.
I’ve always found the whole “person of ordinary skill in the art” aspect of obviousness to be a little troubling, because again it introduces a tremendous amount of ambiguity (and I like precision in my laws).
Asking people that are deemed to be of “ordinary skill in the art” is an interesting idea. How, then, do you propose to ask them in a way that controls for hindsight reasoning? If you don’t ask them directly about the solution, how do you avoid “clueing them in” to the solution in the way you ask the question?
There was a very interesting study done once where people were led into a room with two ropes hanging from the ceiling, too far away from each other to grab them both. They were challenged to come up with as many ways as they could think of, using only themselves and the objects in the room, to tie the ends of the ropes together. You could stand on a chair and reach one rope and bring it over close to the other rope, you could grab one rope with a stick they had in the room, whatever. One solution that eluded most people at first was swinging one or both of the ropes and catching them when they got close enough together.
When the experimenter deliberately walked by and brushed one of the ropes, setting it swinging, this final method popped into their heads. When asked later how they came up with the solution, all but one invented an explanation as to how they came up with the solution on their own – no acknowledgment of the subtle cue from the experimenter.
This is why it’s hard to determine obviousness. To all but one of the experimental subjects, the rope-swinging solution was perfectly obvious, and they came up with it all on their own. Yet this was demonstrably false.
Secondarily, if you ask individuals, you have the problem that you’ll get somebody on a bad day, or get somebody on a particularly good day. Or you’ll slip up and get someone of extraordinary skill in the art, whatever. If you’re going on “general feel” as you propose, how do you measure “general feel in the industry?” Doesn’t this method, then, make obviousness determination even more of a crapshoot than it is now?
*2* Independent invention as a measure of obviousness. If multiple parties come up with the same invention independently, you have prima facie case of obviousness. Done.
This is also interesting, but would it prove the above patent obvious? You’d have to demonstrate an independent invention that had all the claimed features of the patent, and you would have to demonstrate that it was not in any way influenced by the first invention (that is, that it was truly independent). This is proving a negative: prove you’ve never seen the patented invention in coming up with your own. This, then, creates an ambiguous standard of proof for independence.
The rope swinging study shows that people will claim to independently invent things, when in fact it’s a subtle cue from someone who already knows the answer that triggers the “invention.” In an Internet-connected world where discoveries are disseminated widely and rapidly, who is truly capable of independent invention?
Re: Re: Re:5 Re:
Regarding the rope swinging experiment:
How would you refute somebody like me, who agrees that the bumping of the rope may have set off the inspiration to swing them together, but STILL considers each person to have come up with the idea themself. You see, there are really NO (zero, none) ideas that anybody actually comes up with completely independently. What a farcical notion that even is! How could we invent an idea completely independently when we spend our baby years looking and learning, our toddler years mimicking, our pre-school years learning from Ernie and Bert, 13 years in school getting trained on basics, college, post-grad, mentors, etc. We copy our heroes in sport, artists dance, pro skateboarders shred. We learn. All of our knowledge and moves are extrapolated from what we have seen.
Unless a human was somehow raised by wolves (say Tarzan, perhaps), it is utterly impossible to independently invent something. And even he can’t claim to have invented swinging on ropes. He just aped the apes.
So along comes you with your swinging rope story, to point out what many of us find blindingly obvious: with the right spark, the right catalyst, many people invent simultaneously. And those invention, inspiration, and ideas come from many sources combined together. They become obvious suddenly, based on the times. It’s not some independent flash of brilliance. And if it was unique invention, the ripeness of the times would have produced other fruit in short order. Overall, this should reduce our desire to over-compensate the “first to file”, but strengthen our resolve to educate, share information, and perform publicly-funded critical research.
Further, on your request for someone to do the due diligence in order to labor the point, I answer no. Just because the legal system has muddied the waters, moved the legal definition of “obvious” from the English definition does not mean that we need to talk about it on your terms. We are talking about idealist concepts. We know bloody well that, if sued, we’ll have to talk about it in your language, but here on this site, we like to thing above the legalese and wonder what the economy could be like if the incentive structure were different.
Saying to me “This is how the rules are, so this is how you need to argue it.” is irrelevant when what I’m saying is, “What are the outcomes we want, and what would be the best way for us to design a new set of rules?”
Re: Re: Re:6 Re:
The man who invented the video game console first conceived the idea in the early 1950’s. He was unable to work on the invention further for a decade and a half, and in all that time – no independent invention. Where were the others with their inventions? Ummm…missing.
On a secondary issue, the first console video game was all transistors. Amazing. No software at all.
Re: Re: Re:7 Re:
Wow, weak story. Possible refutations:
1) Why didn’t he develop it when first conceived? Perhaps because the market wasn’t ready, the bill of materials was too high at that earlier date. There could be dozens of reasons. And of course, they would apply to anyone else with a similar idea during that period.
2) How do you know how many people of 4+ Billion humans had conceived of putting a game of some sort on a TV screen? Do the odd support that between 1950 – 1965, that idea occurred to 1 person?
I fully invented rollerblades years before the first skates ever hit the market. I had the in-line idea, and the multiple donut wheel idea, all attached to a skate boot. No BS. You see, I had to walk to school, and as a hockey player I noted how much faster I could skate then walk, and how easy it was to glide on skates. I wanted to go to school the way I went across the rink. Problem was, I was 12, not so ambitious, and the idea was just in my head. To me, that’s just one example of how ideas are a dime a dozen.
Your console guy through the 1950s was about as useful to society as my rollerblade plan. Until he actually did something, so what.
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Real compelling. Your in-depth analysis will assuredly stand up on cross-examination in court. /sarcasm.
Re: Re:
Don’t blame the USPTO (as Mike has), patent examiners in general, or the individual examiner who looked at this patent. Blame Congress, the Federal Circuit, and the Supreme Court.
For years I’ve pointed out that the problem is with the obviousness rules.
However, this is clearly a mistake by the USPTO. At a recent event about the patent systems, a discussion with CAFC judges highlighted the fact that following the KSR decision the “legal definition of obviousness” didn’t really change — but what *DID* change was how examiners started interpreting obviousness. As they said, the examiners finally realized they could use their own common sense. And in this case, they failed.
As for the difference between the “legal definition of obviousness” and the “legal definition of ‘stealing'” that’s a totally different situation and you know it. Obviousness is the basis of the patent system. But file sharing is not stealing.
You know this. Not sure why you would pretend they’re equivalent.
Re: Re: Re:
For years I’ve pointed out that the problem is with the obviousness rules.
However, this is clearly a mistake by the USPTO.
You seem to want it both ways. You feel this patent should have been rejected for obviousness. Fine. What failed? If the rules failed, then why blame the USPTO for implementing them properly? If the USPTO failed to follow the rules, then what’s wrong with the rules? Had they followed them, the patent would have been rejected in your opinion, right?
As they said, the examiners finally realized they could use their own common sense. And in this case, they failed.
They clearly failed to use YOUR own common sense. Your implication is that the legal obviousness of this patent is SO clear here that reasonable people cannot disagree, and that the only way this could have gotten through is if a mistake was made. (Corollary: anyone who disagrees must therefore be unreasonable.)
Further, the obviousness seems to be clear without any sort of rigorous analysis. By what analysis did you come to the conclusion that this patent was obvious? If you were the examiner and declared this obvious and the patentholder wanted a justification, what would you tell them?
The TSM test set the bar for obviousness really, really high. Maybe too high. But the good thing about it was that it was also pretty clear about exactly what evidence you needed to show obviousness. Post-KSR, the bar has been lowered, but it’s much less clear where the bar is. The natural result of this is that we are going to see less consistency in what is deemed obvious and not. As such, we’re going to see more disagreement, by reasonable people, about what is obvious and not. This implies that analyses of obviousness issues need to be more, not less, detailed because they need to justify where the bar is set as well as how the patent at hand exceeded (or failed to exceed) that standard.
As for the difference between the “legal definition of obviousness” and the “legal definition of ‘stealing'” that’s a totally different situation and you know it. Obviousness is the basis of the patent system. But file sharing is not stealing.
I was not trying to draw an equivalence between those terms.
In the colloquial sense, some people’s common sense tells them that copyright infringement is stealing, or a form of stealing. Others believe the opposite. Legally, however, there’s no dispute: copyright infringement is not stealing, nor is it a form of stealing. If anyone here tries to assert that it is, whether they mean it colloquially or not, they are immediately lambasted for not using the legal definition.
With obviousness, however, everyone here seems plum-happy to just use their “common sense” to make assertions about whether, legally, the patent is obvious (and thus should be thrown out) or not. I’d be surprised if a quarter of the people asserting obviousness here had any idea what a TSM test was or what the potential ramifications of KSR were, even though you need a basic understanding of these things to even have an intelligent conversation about obviousness with respect to patents. But since people’s colloquial definition of obviousness is less stringent than the legal one (and thus follows the Techdirt anti-IP groupthink), it can be used with impunity.
I will admit that this assumes that there is more rigor in the legal definition than the colloquial one, but you imply that there may no longer be. Until KSR, the legal definition had very little, if anything, to do with common sense. My reading of the KSR decision left me with the impression that there was still enough rigor in the legal concept of obviousness that it was not driven primarily by “common sense,” whatever that means.
Your mention of the “recent event about the patent systems” is pretty shocking to me, because you seem to imply that the CAFC judges have now stated that legally, the obviousness standard IS now whatever the individual patent examiner’s “common sense” tells him or her. As I said, I don’t see how it could be this loose, even with all the post-KSR ambiguity. But I suppose it’s possible. I can’t imagine how adding ambiguity in the standard gives us a better patent system (I tend to like predictability in my laws), but I suppose someone will argue that the ambiguity makes things more flexible.
Re: Re: Re: Re:
“In the colloquial sense, some people’s common sense tells them that copyright infringement is stealing, or a form of stealing. Others believe the opposite. Legally, however, there’s no dispute: copyright infringement is not stealing, nor is it a form of stealing. If anyone here tries to assert that it is, whether they mean it colloquially or not, they are immediately lambasted for not using the legal definition.”
As they should be. Those doing the lambasting need to exert above-normal enthusiasm to counteract a well-funded, insidious, highly-organized, misinformation campaign that seeks to equate infringement and theft. The campaign is spending money to distort the common “common sense”.
It’s not that the people here are anal about definitions, it’s just that many would prefer an honest debate.
“Obviousness”, as you illustrated with your swinging rope analogy, is a much more subjective topic. And there is no reason the average person should feel like they have to study law to discuss “what is obvious”.
Yes, they would need to adhere to legal definitions if they were in court debating it, but on this blog the definition of “obvious” can be just what Merriam Webster says. The spirit of the law is probably better represented by the English definition, not the legal version that has changed over years of pro-IP influence and precedent.
Re: Dr. Strange
“spinning the next utterly mundane situation into something worthy of getting really morally outraged about”
Beyond pretentious don’t you think?
Really though it can be a lot simpler than spending countless hours studying laws that should never had existed in the first place. You simply stop believing in the artificial fantasy that is Intellectual Property.
Free you mind Dr. Strange Love! Think about how easy it would be to just say no to IP….
At any rate, rather than moral outrage that keeps me reading on this topic it is the insanity that is IP in general. It is like a Latin soap opera, next weeks episode is always crazier than the last.
Re: Re: Dr. Strange
Beyond pretentious don’t you think?
The title of this article is:
Microsoft Patents Changing User Privileges Temporarily On The Fly
This is a half-truth. It’s dumbed-down to maximize moral outrage.
There is a strong implication that Microsoft was granted an overly-broad patent on (1) the idea of changing user privileges on the fly, rather than a specific invention, and (2) all conceivable mechanisms for changing user privileges on the fly, including many that have been known for years.
The (short) text of the post does nothing to really dispel these implications, stating:
Basically, it’s for a non-admin user who wants to do something (e.g., install a program) that requires admin access, without having to logout and re-login as the admin.
And finally, flippantly, suggesting that an xkcd comic was adequate prior art to show obviousness.
Many of the follow-up posts seem to be under the misconceptions implied by the headline, and of course nobody steps up to correct them. Or they correct them incorrectly, leading to more confusion.
The truth, as it often is, is more complicated, but also a lot less exciting and outrageous.
Microsoft, did not, in fact, patent changing user privileges temporarily on the fly. They patented an invention, one of whose functions is to change user privileges temporarily on the fly. The user interface mechanisms used to present the privilege change, and the particular ways in which privileges are changed, are described in the claims and the specification, and are part of the invention. In fact, on a brief examination, the claimed invention–the scope of the patent–is pretty narrow indeed. There is, for example, no “means-plus-function” language that is commonly used to expand the scope of claims.
There are many clauses in the independent claims, and to infringe them you would have to have identical or equivalent elements in the infringing product. As such, implications that the patent is overly broad seem to be unfounded.
Why are these tabloid tactics needed? What’s wrong with a headline like:
Microsoft Patents Mechanism and Interface for Privilege Escalation
or, if you want to get to the real point of the article, which is finally revealed in Mike’s response to my commentary:
Opinion: USPTO Erred when Applying post-KSR Obviousness Standard to Microsoft Patent
Really though it can be a lot simpler than spending countless hours studying laws that should never had existed in the first place. You simply stop believing in the artificial fantasy that is Intellectual Property.
Yes, that’s certainly an option. In which case there’s either not much to blog about (“Intellectual Property – Still Around!”) or way too much to blog about (since every copyright, every patent, and every trademark is anathema).
I understand your point about studying IP law, especially because it’s not something that’s inherent to the world, like nature, but rather a human-constructed system. If you dislike me, then William Patry’s 5500-page, $1500 treatise on copyright will probably give you an aneurysm. I would very much like an explanation about why it’s that long. If someone can enlighten me (factually, not “OLOL because copyright law is OUT OF CONTROL”) I’d appreciate it.
I study it because the reasons we have the IP laws that we do are complex, and understanding them helps me to understand how we got here, and where we might go. Simple explanations for complex things, in my experience, tend to be wrong and misleading. The prevailing theory around here seems to be that our IP laws are the result of a massive decades-long conspiracy between Big Content, Big Pharma, a bribed Congress AND Supreme Court AND President, the Trilateral Commission, and the cryo-preserved head of Walt Disney.
I have a feeling, though, that the truth, again, is more complicated, but also a lot less exciting and outrageous.
Re: Re: Re: Dr. Strange
There are many clauses in the independent claims, and to infringe them you would have to have identical or equivalent elements in the infringing product. As such, implications that the patent is overly broad seem to be unfounded.
Than why patent it? This has been done many times and many ways so a slight change in how it is done would probably not pass the obviousness test. Also, if there are ways to do it without a patent, why not just do that? Who needs a patent to do this, obviously not all the prior art software.
Re: Re: Re: Dr. Strange
Dont worry… also an IP lawyer here, and reading this blog is fun because it’s like watching a train wreck day in and day out.
It’s almost as good as watching not just Jakes get pummeled at Bilski, but at least 4 justices clearly pummeled Stewart for not wanting to set the bar for bullshit patents high enough.
Re: Re: Re: Dr. Strange
“The prevailing theory around here seems to be that our IP laws are the result of a massive decades-long conspiracy between Big Content, Big Pharma, a bribed Congress AND Supreme Court AND President, the Trilateral Commission, and the cryo-preserved head of Walt Disney.”
Follow the money, I doubt you could seriously come up with another explanation. In my opinion the end result of IP law is really about oppression. Granted we are not living in a world completely controlled by corporations yet, but it is clear to at least me that IP law is a mechanism towards this.
I hate to sound “conspiracy” only because it has garnered such a negative stereotype in the last decades. Anyone who studies history understands that conspiracies have motivated the majority of what we would consider prolific events. One example of this would be the American Revolution. If it was not for the terrorist conspiracy of the Sons of Liberty the United States may have never been formed.
I am very concerned about human rights which I believe are coming into direct conflict with IP rights. It is clear that the majority of IP is tied up with the top 1% of our society. It is not a tool for the common man. It is a tool of the elitist that wishes to retain their power and wealth at the cost of perhaps humanity itself. To suddenly want to undue the way human culture has existed for thousands of years merely to make your bottom line look better is fantastically selfish IMHO.
I appreciate the fact that you have studied this area of law and your input although pretentious seems to ad to the conversation considerably. Keep up the good work, just try and not be so abrasive.
Re: Re: Dr. Strange
Really though it can be a lot simpler than spending countless hours studying laws that should never had existed in the first place.
Actually, the laws should exist for the reasons put forth by Thomas Jefferson.
You simply stop believing in the artificial fantasy that is Intellectual Property.
All property is an artificial fantasy. Just because you can touch it does not make it any more real. Property is just a piece of paper in a government office somewhere. The moment the paper does not exist, then neither does your supposed “ownership” of your property.
Re: Re:
I invite anyone to take a serious look at one of the claims (say, claim 1) and make a compelling argument that this patent is obvious by the legal definition.
I invite you to make a compelling argument that it is non-obvious. After all, that is the direction the burden of proof should lie. I hope that is how the law defines it, but sometimes it seems like if the examiner can’t conclusively prove it’s obvious then they grant the patent, so maybe it’s the other way around.
Either way I would be interested to read your non-obviousness defense.
Re: Enter the flim flam men...
It really is pretty simple, despite all attempts by “certain types of people” to make the situation unecessarily complex. You see, the more artificial complexity you can create, the more difficult it becomes to come to a technically correct outcome. Before too long, everyone is so mired in FLIM FLAM, that they can’t see straight.
This is a problem with patents in general. They simply should not be that complicated.
It should be easy to get to the heart of the matter. These things are meant for the “disclosure of useful information” after all.
This does infact seem to be Microsoft trying to patent the Windows equivalent of sudo. If this is allowed to stand, such a simple sort of thing if recreated by a college student would trigger nonsense patent litigation and absurd damage awards.
It’s obvious because any practicioner in the field given a description of the problem can immediately start to create one. There simply isn’t a “problem” to solve. All this patent does is just set up another legal landmine for the next guy the comes along.
SOP
This is SOP for M$, claim existing tech is new and unique because it now has mud flaps and a squirrel tail. Then try to justify a patent or copyright claim based on the new accessories dangling off existing copyright tech. Its even obvious to a fool!
Re: SOP
And then have some long winded stooge go blow smoke up everyones ass
This patent reminds me of when Google filed a patent for “Flotsam Datacenters”.
You know the ones: datacenters that exist in shipping containers, far out in the ocean.
It’s kinda funny that they went as far with the idea as they did.
I like Google. Mostly for their technical ability.
Re: Re:
Ooops. Forgot the link.
http://news.cnet.com/8301-11128_3-10034753-54.html
Reading the patent, it's not sudo but
It’s still something that a few Unix-like OSES already do when prompting for sudo.
Who invited the lawyer to the party?
Yup. I’ve already gone through a number of the mental acrobatics that this “Doctor Strange” provided, perhaps not to the same level, but in my exercise, I touched on many of the same points. Maybe not as extroverted in my conclusion.
So,
I still stand by the solution provided in comment #19:
“All the examiners at the USPTO need to be fired.”
Are we in agreement here?
“William Patry’s 5500-page, $1500 treatise on copyright will probably give you an aneurysm”
And all this time, I thought your mental acrobatics would give me an aneurysm. Boy was I wrong.
Tell you what: Provide me with the name of the undead spirit that uses you at 2:00 in the morning. I will take him away from your life, and send him home so you can live in a more tranquil peace.
Actually ask those skilled in the art to weigh in on it.
1. Aren’t those called witnesses? And don’t they regularly “weigh in on” obviousness in trials? So we already have that.
2. If you mean the PTO should take a survey before issuing a patent, among other flaws, wouldn’t you think MS has enough money to rig the survey? Look at the number of inventors they named.
3. Maybe the oppositions in the patent reform bills would provide a better forum.
Oh wait, isn’t MS one of the biggest ones complaining about trolls? Actually, who’s on which side here?
Language of Software Patent Claims vs. Language of Those Skilled in the Art
Complaining to us about how we, who are skilled in the art, are unable to read software patent claims is truly ironic, and is in reality a condemnation of the current system.
A major disconnect is that the language of patent claims has little to do with how anyone skilled in the art would describe it or document it or program it. If these kinds of patents were forced to provide pseudocode and/or a working prototype, then any of us skilled folks would able to make sense out of it.
Re: Language of Software Patent Claims vs. Language of Those Skilled in the Art
Complaining to us about how we, who are skilled in the art, are unable to read software patent claims is truly ironic, and is in reality a condemnation of the current system.
I know well-educated people who struggle to understand what they read in the newspaper, or on the web – or in a book. Is that a condemnation of newspapers, the internet or books, or a comment on the willingness of people to spend the time it takes to analyze a complicated document?
A major disconnect is that the language of patent claims has little to do with how anyone skilled in the art would describe it or document it or program it.
That is because a claim describes the scope of a property. The specification is supposed to describe how to accomplish the task.
Working prototypes
The USPTO realized a long time ago that working prototypes were a bit impractical. Imagine having a refinery in the patent office…hmmm…maybe not.
Re: Re: Language of Software Patent Claims vs. Language of Those Skilled in the Art
I know well-educated people who struggle to understand what they read in the newspaper, or on the web – or in a book. Is that a condemnation of newspapers, the internet or books, or a comment on the willingness of people to spend the time it takes to analyze a complicated document?
It is a condemnation of the patent system since so many of the patent system’s defenders insist that the real benefit of the patent system is it’s ability to disclose the invention.
That is because a claim describes the scope of a property. The specification is supposed to describe how to accomplish the task.
Again missing the point. The point was how if patents were really about disclosure, then it would be easily read by those skilled in the art.
The USPTO realized a long time ago that working prototypes were a bit impractical. Imagine having a refinery in the patent office…hmmm…maybe not.
So instead they let perpetual motion machines be patented? Which is a more ridiculous scenario?
Re: Re: Re: Language of Software Patent Claims vs. Language of Those Skilled in the Art
It is a condemnation of the patent system since so many of the patent system’s defenders insist that the real benefit of the patent system is it’s ability to disclose the invention.
From your lambasting of the patent, it would appear that you read and understood the disclosure. How else could you have declared it to be obvious in light of prior art?
So instead they let perpetual motion machines be patented?
It is not possible to respond to this question without a citation.
Re: Re: Re:2 Language of Software Patent Claims vs. Language of Those Skilled in the Art
How about this one ?
http://news.nationalgeographic.com/news/2005/11/1111_051111_junk_patent.html
Re: Re: Re:3 Language of Software Patent Claims vs. Language of Those Skilled in the Art
I looked the patent up that was in the article associated with your link. While the article claimed the patent was describing perpetual motion, the actual patent calls for a nuclear generator to provide power for the invention. Now, I cannot say I am an expert on perpetual motion, but my basic understanding is that perptual motion requires initial energy, but no additional energy, ever. Given that the invention in the patent in the link requires a nuclear power source, it seems that it could not be perpetual motion.
Re: Re: Re: Language of Software Patent Claims vs. Language of Those Skilled in the Art
I know well-educated people who struggle to understand what they read in the newspaper, or on the web – or in a book. Is that a condemnation of newspapers, the internet or books, or a comment on the willingness of people to spend the time it takes to analyze a complicated document?
It is a condemnation of the patent system since so many of the patent system’s defenders insist that the real benefit of the patent system is it’s ability to disclose the invention.
I disagree. If you take the time to actually read the specification, the part of the patent that describes the invention, you will see that the vast majority of patents are in fact great at disclosing inventions. However, disclosing an invention is difficult to do since it must be done to a certain level of detail. How long should it take to read an explanation of how to build a car? I suspect more than a few minutes. Indeed, I suspect more than a few days. While I do not know for sure, I suspect most of the people who have posted here have not read the patent at all. Most have briefly glanced at it. Completely inadequate. It may be a condemnation of our educational system that people think they can comprehend quantum physics in 15 minutes.
That is because a claim describes the scope of a property. The specification is supposed to describe how to accomplish the task.
Again missing the point. The point was how if patents were really about disclosure, then it would be easily read by those skilled in the art.
No, you are missing the point. Many inventions are complicated to describe. Reading a detailed description is going to be a bit more difficult than reading how to turn on your television or using the “help” feature in Microsoft Word. Also, “easy to read” is a relative term. I would be willing to bet that there are patents that I find easy to read that you find complicated, and possibly vice versa. That is not an indictment of patents or education, but the reality of ability to read and familiarity with a particular technology.
Incidentally, a patent is required to show how to reproduce an invention. There is no legal requirement that the writing should be at the sixth grade level.
The USPTO realized a long time ago that working prototypes were a bit impractical. Imagine having a refinery in the patent office…hmmm…maybe not.
So instead they let perpetual motion machines be patented? Which is a more ridiculous scenario?
Really? Would you care to show me a single U.S. patent related to a perpetual motion machine? Or are you being ridiculous?
Re: Re: Re:2 Flim Flam versus real specifications
Somehow, I suspect that the original automobile patents would be more comprehensible to me as a laymen in that particular field versus contemporary patents in a field that I am well trained in.
Re: Re: Re:3 Flim Flam versus real specifications
I find old patents difficult to read compared to modern patents. The terminology seems obscure to me compared to the terminology I know, and the writing has a weird kind of stilted phraseology. While modern patents can be challenging, I find those in my fields fairly easy to read – though it can take time to comprehend completely.
Re: Re: Re:2 Language of Software Patent Claims vs. Language of Those Skilled in the Art
Incidentally, a patent is required to show how to reproduce an invention. There is no legal requirement that the writing should be at the sixth grade level.
I more hoping for the level of Cormen or Knuth. I think that’s at least seventh grade level.
Re: Re: Re:3 Language of Software Patent Claims vs. Language of Those Skilled in the Art
If you make a copy of patent and paste it into Word, you can get the statistics for a patent with respect to grade level. Most of the patents I have checked run from 10th grade to 12th grade. Seems like most of the highly educated, intelligent people that inhabit this site should be able to read at that level.
To Dr. Strange
You have provided a very thoughtful series of comments that, as was to be expected, have generated a long series of banal and childish comments.
Of course, the latter are par for the course on this site. It is one thing to disagree with an opinion, and quite another to articulate a substantive basis for why one disagrees with the opinion.
Given the general tenor of many articles presented here and the comments in response to such articles (typically, “Right on Mike! You really showed them!), perhaps the name of the site should be renamed “Lemming-dirt”. This would in my view be much more in line with what actually transpires here on a daily basis.
In all fairness to those who present articles for comment, articles directed to economic theory are often quite instructive. One may disagree and have another opinion, but at least the original articles do reflect “honest broker” attempts to present a point of view buttressed by thoughtful analysis. Unfortunately, in the majority of matters addressed to patents, trademarks, copyrights, trade secrets, unfair cometition and other closely related laws, thoughtful analysis is much too often eschewed in favor of a grab-their-attention headline is disingenuous at best, and much to ofter misleading at worst.
Thank you for taking the time share your thoughts with those of us who truly seek to understand competing points of view in order to become better informed.
Re: To Dr. Strange
On second thought, I take back every thing I posted above. Maybe I am the lemming for not being able to examine all sides of the issue? Or even being able to examine any side but my own? I must apologize to everyone for my lemmingness. Can anyone show me how to get to the nearest cliff?
Re: Re: To Dr. Strange
…and which “every thing (sic) I posted above” are your referring to?
There is much to be learned from reading Dr. Strange’s comments. I encourage you to do so.
Re: Re: Re: To Dr. Strange
Again, I am sorry for what I just posted. I must have a split personality or something??? What I meant to say is, while reading Dr. Strange’s comments are eye opening, so is reading the blog posts and comments here at Tech Dirt. There is much to be learned about the draw backs of IP maximalism here.
Re: Re: Re: To Dr. Strange
Yeah, like how to use proofs by verbosity.
Re: Re: Re:2 To Dr. Strange
Or how to avoid presenting a real argument by substituting sarcasm.
Re: To Dr. Strange
It seems that what you fail to understand is that, below the laws and precedents; below the legalese; below the needed precision that lawyers must bring to words and meanings, the issue of Intellectual Property policy is an economics issue. An economist may or may not be able to legally debate Dr. Strange, but as for this one, I wouldn’t even try.
What you and the good Dr. have forgotten is that the lawyers, in turn, are ill-trained and unqualified to argue and determine the best economic policy for IP. And that is the debate we most often have here at Techdirt. Mike dabbles in the legal, but is based in the economics.
But the economics are the foundation. They are more important. The laws should follow the economics.
When the IP system seems to be failing the economic goals, creating the wrong incentives, creating barriers, and holding back doers, the economists should get frustrated. Meanwhile, the lawyers just chug merrily along, since the system is working – so long as one defines ‘working’ as “creating rules, and following the set of rules”.
Thats when you tell the economists “You’re not qualified to be frustrated.” not understanding the irony of the statement.
Re: Re: To Dr. Strange
When the IP system seems to be failing the economic goals, creating the wrong incentives, creating barriers, and holding back doers, the economists should get frustrated. Meanwhile, the lawyers just chug merrily along, since the system is working – so long as one defines ‘working’ as “creating rules, and following the set of rules”.
Except, invention and innovation continue to accelerate. Indeed, in most fields innovation is at an exponential rate. It is difficult to find the barriers. Further, the total number of patents litigate runs in the 1 – 2% range, meaning that the norm is that patents are doing what they were intended to do.
Though my MBA is in international business, a good chunk of that education was in economics, accounting and finance. Though I preferred accounting, I thought economics was quite interesting and relatively easy to understand.
Re: Re: To Dr. Strange
1) Why didn’t he develop it when first conceived? Perhaps because the market wasn’t ready, the bill of materials was too high at that earlier date. There could be dozens of reasons. And of course, they would apply to anyone else with a similar idea during that period.
Because he had a day job and he did not have time. The first moment he had time to work on the project he did. He did try to convince his bosses to invest but, as with many ground-breaking inventions, there was a lot of skepticism that anyone would buy it. Who is going to pay money to bounce a white dot back and forth on a screen?
2) How do you know how many people of 4+ Billion humans had conceived of putting a game of some sort on a TV screen? Do the odd support that between 1950 – 1965, that idea occurred to 1 person?
Ummm…well, the idea may have occurred to more than one person, but only one person went the next step to actually design and test the hardware to make the console. As you know, the invention became hugely successful and was licensed to many companies.
I fully invented rollerblades years before the first skates ever hit the market. I had the in-line idea, and the multiple donut wheel idea, all attached to a skate boot. No BS. You see, I had to walk to school, and as a hockey player I noted how much faster I could skate then walk, and how easy it was to glide on skates. I wanted to go to school the way I went across the rink. Problem was, I was 12, not so ambitious, and the idea was just in my head. To me, that’s just one example of how ideas are a dime a dozen.
Well, you could have invalidated the roller blade patents with your fully realized invention, right? Of course, the key to roller blades was the material on the wheels, which I am sure you knew.
Your console guy through the 1950s was about as useful to society as my rollerblade plan. Until he actually did something, so what.
You completely missed the point. The point was that the invention was conceived in the early 1950’s. Where were all the independent inventors who had similar knowledge and similar access to technology? Well, they were not inventing console video games, that’s for sure. I wonder how many more decades it would have taken for someone to invent the console game had he not done so? We might not have Wii’s and X-Box 360’s until many years from now.
Why Me?
I have no idea why I got dragged into a discussion about Microsoft and patents. But the answer to why my general treatise is as long as it is (and it is 6,000 pages btw), is because it covers the universe of copyright issues as a research and historical tool. There are 25 chapters covering issues such as an historical overview of copyright, statutory interpretation, copyrightability, noncopyrightable material, ownership, formalities, term of protection, rights granted and their substantive infringement, fair use, limitations and exception, pleading, preemption, jurisdiction, international law, choice of law etc. It is a book for lawyers,scholars, and judges; it is not a book for the general public.It is not meant to be read cover to cover, but rather consulted for research questions. Rather than criticize a book merely based on the length, why don’t you actually look at it and see if serves its purpose. And if you think not, get off your own lazy butt and do a better one.
Re: Why Me?
I’m afraid I brought you into the discussion, though the intent was not to criticize.
A number of posters here, “Reed,” an unknown number of anonymous cowards, and so on, seem to believe that any analysis related to IP longer than about a paragraph is either pretentious, bombastic, or unnecessary. Perhaps a combination of the three. “Reed,” to whom I was responding in particular, believes that any study of IP law is a complete waste of time since none of those laws should have existed in the first place. If my half-page post was useless, then your treatise (at, apologies, 6000–not 5500 pages) must be practically offensive.
I have been genuinely curious for some time as to what accounted for the extreme length. Seminal references in other fields with which I’m familiar are somewhat shorter. Knuth’s The Art of Computer Programming, which lays out the fundamentals of computing and has for a couple decades now, is one-sixth the length.
Your explanation, of couse, makes sense. That you were able to write and publish this much content–alone–in only seven years is impressive. Not being a lawyer, I’m unfamiliar with the form and use of these extensive multi-volume treatises as we have no equivalent in my field. I will have to browse yours at some point.
My point is that these fields–copyright, patents, an so on–are complex and nuanced. That there exist 6000 page treatises about them should be evidence of that. It bothers me that people think you can have an intelligent conversation about them using Twitter-length posts full of invective, and that people who know better and are in a position to influence the public debate on the subject encourage the behavior because the invective agrees with their personal proclivities.
Re: Re: Why Me?
omg
Re: Re: Why Me?
Reed,” an unknown number of anonymous cowards
Wow, you lump me with anonymous because you don’t agree with me. You are a real jackass! I guess this proves your point because I have called you a jackass. Or maybe you really are just a jackass. The world may never know 🙂
Did I hurt your feelings because I dismissed your life’s work? Honestly Doctor Strange you need to grow and get a real life outside of your imagined IP world. I am an accomplished researcher myself and I know the difference between someone advancing the conversation and whining. After this last post of yours I can definitely see you are the later.
Thanks for the clarification
Thanks Dr. Strange for your clarification, no offense taken. I have to update that sucker twice a year and am doing it right now, so I am in the doldrums from something that is fairly mindless.
“I am an accomplished researcher myself and I know the difference between someone advancing the conversation and whining.”
Having read your posts I can only wonder if either of your points are accurate?