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.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 http://linux.eweek.com for the latest open-source news, reviews and analysis.
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."