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Legal organizations scrutinizing the legitimacy of Microsoft Corp.s patent on automatic IP address generation have an “anti-patent” agenda, according to Microsoft.
“This isnt the first time weve seen these groups [the Public Patent Foundation and the Software Freedom Law Center] make accusations about Microsoft patents,” said David Kaefer, Microsofts director of intellectual property licensing, in an interview with eWEEK.com.
“Its been the case before that people have offered misleading claims, primarily because those people oppose software patents but use issues like this one to sow uncertainty about the patent process itself.”
The brouhaha broke Tuesday, after a lawyer for Kenyon & Kenyon brought to eWEEK.coms attention patent USP 6,101,499, filed in 1998 and issued to Microsoft in 2000.
The patent covers technology that bears “more than a passing similarity” to IPv6, one of the backbones of the Internet, according to the lawyer, Frank Bernstein.
Bernstein represents a company—whose name he declined to disclose—that offers open-source products, he said. Bernstein said he also brought the patent to the attention of legal organizations before contacting eWEEK.com.
PubPat—the Public Patent Foundation—was quick to point out that it was the company or companies who hired Kenyon & Kenyon that brought the matter to light, as opposed to organizations with a hidden agenda.
“We didnt complain about this,” said PubPat Executive Director Dan Ravicher. “Private companies complained about this first. We werent the ones to raise the yellow flag. [Microsoft is trying to put my organization and [the Software Freedom Law Center] in the middle.”
At the crux of the matter are allegations that Microsoft failed to disclose prior work done by the IETF (Internet Engineering Task Force) on the technology in question when it applied for the patent in April 1998.
PubPats investigations have uncovered several references to the technology that count as prior art to the patent, Ravicher said, including several RFCs (requests for consensus) from the IETFs IPv6 working group.
Several Microsoft engineers who were involved in the IETF working group also show up as inventors listed on the patent, Ravicher said—a circumstance that may rule out the possibility that Microsofts left hand didnt know what its right hand was doing.
“Some of the names of inventors on the patents were involved in the committee,” said Ravicher, in New York. “Its not like some group of different people were inventors of the patent. There was overlap.”
Microsofts Kaefer denied any hanky-panky on the part of engineers.
“Microsoft is not trying to patent the Internet,” said Kaefer, in Redmond, Wash. “We believe we have followed all the normal procedures to file for this patent. We work very closely with the IETF and other standards bodies on a daily basis and take our standards responsibilities very seriously.”
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Debate rages on patent
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Meanwhile, debate has been raging, in forums such as Slashdot, regarding whether the patent in question even covers IPv6 standardization efforts.
“This invention is not a protocol,” wrote one poster named hoppo.
“In fact, I dont really where see the comparison between it and IPv6 holds water. If anything, it appears to be an attempt to improve upon or simplify DHCP, and is based on IPv4—both of which were referenced as prior art in the application.”
eWEEK.com contacted a member of the IPv6 working group who also said that the patent seems to be specific to IPv4.
“The patent appears to apply to the auto-configuration work that Microsoft did in one of the early versions of Windows,” the engineer, who requested anonymity, wrote in an e-mail exchange.
“My quick read is that the patent seems to be specific to IPv4. For example, it talks about 32-bit IPv4 addresses, but not 128-bit IPv6 addresses. While there are some vague similarities, the auto-configuration mechanics in IPv6 are quite different in detail than what appears to be described in the patent. Also, most of the patent claims deal with the problems [with] auto-configuring … in short addresses (i.e., 32-bits).”
Others disagree, with one Slashdot poster arguing that self-assigning of addresses is one of the major advantages of IPv6.
“With IPv6, attaching your box to the network will be as easy as plug in the network cable,” the poster wrote. “For M$FT to try to (submarine-)patent this functionality is unethical even by todays standards.”
Its all academic debate at this point, however, Ravicher said, since neither engineers nor Slashdot posters, unless they also happen to be patent attorneys, are qualified to say what the patent does and does not cover.
“You have to be a patent attorney to interpret a patent,” he said.
Microsoft itself is unsure whether the patent covers IPv6 standards and is now looking into the matter, Kaefer told eWEEK.com.
“It is unclear whether or not the patent under discussion is even applicable to the IPv6 standardization efforts,” he said.
“We will look into that and also any standards-related disclosure obligations that may be relevant. Having said that, we frankly think that the Free Software Foundation and the Public Patent foundation have raised this issue as a red herring.”
Because Microsoft is not, apparently, asserting its patent, PubPat is not pursuing a remedy at this time, Ravicher said. That does not mean, however, that companies have not been intimidated by the patent.
“[Bernstein] hasnt told us what Microsoft did to his client to bring them to the point of alerting the press,” he said.