Revoking Microsofts FAT Patent Would Stir Innovation

Opinion: In its initial rejection of Microsoft's claims regarding the FAT file system, the U.S. Patent and Trademark Office seems to be rediscovering a law barring "obvious" patents.

Today must mark some sort of milestone in online news. Feeding the single word "fat" to on Thursday produced a top-ranked list of stories concerning a file system instead of an obesity epidemic.

What could say more about the broad (ahem) reach of low-level PC technologies into everyday life?

Todays "FAT" headlines concern a Sept. 16 action by the U.S. Patent and Trademark Office, here in PDF form, that rejected all four claims of patent No. 5,579,517 ("Common name space for long and short filenames"), assigned to Microsoft Corp. by its six inventors of record.

FAT denotes "file allocation table": a data structure that tells higher-level systems how to assemble scattered strings of bits in a storage device into something that pretends to be a single, conveniently named object.

Those four rejected claims assert the novelty, utility and non-obviousness of mixing DOS-format 8.3 file names with longer, usually more descriptive names in a unified system. A useful thing to do, to be sure.

The patent offices action is being ballyhooed, rather loosely, as a major blow to Microsofts pursuit of patent license revenues for ubiquitous technologies. (Microsoft has called its strategy a "commitment to license our IP more predictably and transparently," suggesting—with some justification—that its a more open position to offer licenses explicitly than to leave people wondering whether their use of a technology might put them at risk of litigation.)

/zimages/3/28571.gifRead more here about the patent offices decision.

Before anyone rips up their FAT license, they might want to note that the FAT license covers a portfolio of four issued patents, plus rights to technologies for which Microsoft seeks additional patents not yet granted. Not only is the war not over; even this single battle remains to be decided.

Its not unreasonable, though, to suggest that this marks a turning point. Microsoft refers to its prospectively-to-be-patented technologies as "FAT file system innovations," but thats the question, isnt it? What constitutes patentable innovation? As opposed to, say, an abuse of the patent system, as a tool for locking customers into a single vendors version of an obvious solution to a widespread need?

/zimages/3/28571.gifClick here to read about how the FAT patent review could affect Linux companies.

The patent offices action rejects Microsofts claims under 35 USC 103(a), which states that "a patent may not be obtained ... if the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art."

The patent offices ruling supports that finding of obviousness by reference to various works, including a 1990 PC Magazine article by the estimable Ray Duncan—published almost five years before the now-rejected patents application was filed.

Lets cheer any indication that patent examiners are rediscovering 35 USC 103(a), which might also be the weapon of choice against controversial patents such as Amazons oft-reviled No. 5,960,411: the patent on "one-click shopping." More attention to so-called "prior art" would be of great benefit to the credibility of the patent process.

It would lower the barriers to innovation: An entrepreneur with genuine innovations to offer would have much less fear of being due-processed to death by a larger, well-established competitor with a big legal budget and a box full of lawfully granted (no matter how obvious) patents.

Its not necessary to get into far more dangerous territory, such as the question of whether FATs ubiquity makes it an "essential facility" that ought to be placed in the public domain as a matter of the public good. The patent office specifically declined to consider any such questions in this case, and thats fine—for now.

At some point, though, the technology equivalent of eminent domain will have to be defined, if open-source technologies arent to be permanently disadvantaged by having no means of collecting or paying license fees. But thats another question for another time.

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