Patent Claims Are a Red Herring, Microsoft Says

Legal organizations scrutinizing the legitimacy of Microsoft's patent on automatic IP address generation have an anti-patent agenda, Microsoft claims. Not so, says the Public Patent Foundation, given that private, anonymous companies were the ones to brin

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.

/zimages/6/28571.gifSteven J. Vaughan-Nichols compares the current state of software patents to the Cold War policy of mutual self-destruction. Click here to read more.

"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."

Next Page: Debate rages on patent applicability.