Page 2

By Peter Galli  |  Posted 2004-06-20 Print this article Print

But not all patent attorneys see it that way. Glenn Peterson, intellectual property attorney and shareholder with the Sacramento, Calif.-based law firm McDonough Holland & Allen PC, said that PubPats primary argument for re-examination, one of "protecting the public from the predatory monopolist," is alone not sufficient grounds to grant re-examination. So the additional argument for re-examination (and consequent invalidation) of Microsofts 517 patent is that the subject matter of the patent is obvious in light of prior art that was on record before the patent was applied for. There are three patents that predate the FAT patent and, read together, make the FAT patent "obvious" and therefore not patentable for failure to satisfy the "novelty" requirement of patentability, Petersen said.
But those prior patents were also disclosed in Microsofts application, so there "are no allegations of hide the ball or anything like that," Petersen added. "What PubPat is arguing, essentially, is that the Patent Office should take another look at the prior art because Microsoft is harming the public by refusing licenses. This is a highly unusual argument."
That criticism does not faze Moglen, who said that even if the Patent Office lets the current FAT patent under dispute stand as is, the nature of what it finds during its examination will be written on what is known in Patent Office jargon as the "file wrapper"—the docket sheet of activity which accompanies each patent. "Just the fact that the file wrapper has all of that is evidence of the activity that the office has involved itself with in re-examination of the case is automatically evidence in any proceeding to enforce the patent against the supposed infringer. At a minimum, the process of making an enforcement of that patent will be made more difficult by the markings on the file resulting from the re-examination," Moglen said. For its part, David Kaefer, the director of Microsofts Intellectual Property and Licensing Group, is unfazed by the move, telling eWEEK that Microsoft has already licensed its FAT specification and patents to help improve interoperability. The Patent Office often granted re-examination requests and "they provide an important mechanism to assure high levels of patent quality," he said. But Microsoft now has "the opportunity to demonstrate why this file system innovation deserves patent protection. Microsoft stands firm in its commitment to work with the USPTO, and we are confident in the validity of our patents," he said. Editors Note: This story was updated to include information and comments readers. Check out eWEEK.coms Linux & Open Source Center at for the latest open-source news, reviews and analysis.

Be sure to add our Linux news feed to your RSS newsreader or My Yahoo page

Peter Galli has been a financial/technology reporter for 12 years at leading publications in South Africa, the UK and the US. He has been Investment Editor of South Africa's Business Day Newspaper, the sister publication of the Financial Times of London.

He was also Group Financial Communications Manager for First National Bank, the second largest banking group in South Africa before moving on to become Executive News Editor of Business Report, the largest daily financial newspaper in South Africa, owned by the global Independent Newspapers group.

He was responsible for a national reporting team of 20 based in four bureaus. He also edited and contributed to its weekly technology page, and launched a financial and technology radio service supplying daily news bulletins to the national broadcaster, the South African Broadcasting Corporation, which were then distributed to some 50 radio stations across the country.

He was then transferred to San Francisco as Business Report's U.S. Correspondent to cover Silicon Valley, trade and finance between the US, Europe and emerging markets like South Africa. After serving that role for more than two years, he joined eWeek as a Senior Editor, covering software platforms in August 2000.

He has comprehensively covered Microsoft and its Windows and .Net platforms, as well as the many legal challenges it has faced. He has also focused on Sun Microsystems and its Solaris operating environment, Java and Unix offerings. He covers developments in the open source community, particularly around the Linux kernel and the effects it will have on the enterprise.

He has written extensively about new products for the Linux and Unix platforms, the development of open standards and critically looked at the potential Linux has to offer an alternative operating system and platform to Windows, .Net and Unix-based solutions like Solaris.

His interviews with senior industry executives include Microsoft CEO Steve Ballmer, Linus Torvalds, the original developer of the Linux operating system, Sun CEO Scot McNealy, and Bill Zeitler, a senior vice president at IBM.

For numerous examples of his writing you can search under his name at the eWEEK Website at


Submit a Comment

Loading Comments...
Manage your Newsletters: Login   Register My Newsletters

Rocket Fuel