Tuesday, October 17, 2006

Examining the Patent Examiners

This article appeared in Light Reading a few days ago: Cisco's Triple Threat. It seems Cisco has bought a patent of Sandstream Communications that claims to cover a "System and method for providing integrated voice, video and data to customer premesis over a single network." As near as I can tell, this patent is completely bogus. It's on par with the XOR cursor patent from the 1980's, Amazon's One-Click ecommerce patent from the 1990's, and Huawei's recent "syslog over SSL" patent.

The first claim of the patent from the PTO web site says:

1. A method for providing integrated voice, video, and data content in an integrated service offering to one or more customer premises, comprising: receiving television programming from a programming source; converting the television programming to a common format for communication over a single network infrastructure using a common communication protocol; receiving data from a data network in the common format of the common communication protocol for communication over the single network infrastructure; receiving telephone communications from a telephone network; converting the telephone communications to the common format for communication over the single network infrastructure using the common communication protocol; communicating the converted television programming, data, and converted telephone communications in the common format over the single network infrastructure using the common communication protocol to one or more customer premises to provide the integrated service offering; and assigning customer premises to multicast domains to support conditional access of the customer premises to content that is selected from the group consisting of selected television programming, video-on-demand, pay-per-view video, near-video-on-demand, audio channels, audio-on-demand, and interactive gaming, wherein the conditional access is implemented using interdiction.

In simple language, this appears to cover the transmission of television, telephone, and data communications over a single network to a customer premise.

Now, before I start ranting, let me first say that I'm not beating up Cisco here. I have needled Cisco for other reasons here before, but this isn't one of those times. Cisco didn't file this patent; they bought some intellectual property of a failed company, the contents of the sale of which probably just included this patent as one item. To my knowledge, Cisco hasn't asserted its patent rights against anybody with respect to this patent and may never do so. The Light Reading article discusses the patent, but doesn't report any bad behavior by Cisco with respect to it.

Thus, let's keep the focus on the real bad guys here: the patent office. The patent examiner who granted this patent needs to be shot. Folks, this is a screaming example of a bogus patent.

For the rest of you (the patent examiners should know this already), not every invention is patentable. There are certain tests an invention must survive before the patent office grants the patent. In particular, an invention must be novel and unobvious for a person having "ordinary skill" in the area of the patent.

What does that mean in plain language? Well, novelty means that nobody has either done it before or communicated publicly about it before. In other words, it has to be new. This patent was filed in the year 2000. Was a single network carrying television, telephony, and data new in the year 2000? I think not. I seem to remember everybody working on such a network back in the early 1990s. At the time, we called it "ATM."

Now, is a network carrying television, telephony, and data exactly unobvious to a person having "ordinary skill" in the year 2000? Again, I think not. Let's see... IP data networks have been around for a long, long time. People were talking about doing video on demand in the 1990s, using IP for the transport. VoIP products were shipping in the 1990s. Seems like right there we have all the ideas "...for providing integrated voice, video, and data content in an integrated service offering."

So, I contend this is another case of the patent examiner not doing his job. This patent needs to be thrown out. At a minimum, it needs to be severely narrowed to cut out all the crap and reduce it to something truly novel and nonobvious. There are other non-trivial claims in the patent and I didn't bother going through each one word-by-word to see if there might actually be something novel and nonobvious lurking; a quick skim didn't reveal anything, however.

Given the shakey ground on which this patent rests, I wouldn't expect Cisco to try to enforce it broadly. If they were to actually try to go up against the carriers or even other manufacturers, the results would be disasterous. What does worry me in such situations is selective enforcement, where a large market leader threatens smaller players for whom the cost of a defense is prohibitive. Patents like this one are a threat to innovation because while the market leaders will have cross-license agreements with each other, they may bully startups who can't expend the energy to fight.

Ultimately, the patent office needs to be taken to task for letting patents like this through its screen. As a holder of five patents myself, I'm not completely anti-patent, but I see many abuses in the system and huge opportunities for reform. That's another discussion entirely, but let's start the reform here: throw out this bogus patent.


Anonymous Anonymous said...

Yes! The US patent system is very broken. Unfortunately most big players are forced to play along.

In Cisco's defense, historically Cisco has rarely used its patents aggressively. (unless there was a clear and threatening violation)

Cisco has such a wide patent portfolio that technically just about all routing software could probably be contested if Cisco was aggressive with their portfolio.

Thankfully, Cisco mainly uses their portfolio as a shield and for cross liscensing with other large patent holders.

ie. If some little guy tries to patent another basic networking function and then attempts to sue Cisco for infringement, Cisco can pull out its big patent hammer and shut them up.

This is another reason the patent system is broken. Patents are no longer protecting innovation, they are being used defensively to keep all the lawyers busy.

If you want to get paranoid, be worried that Microsoft has recently hired IBM's main patent guru. (IBM historically has one of the biggest patent portfolios of any large company, and applies for new patents like crazy..)

Thankfully, several large patent holding companies (IBM, CA, Novell) have pledged to use their patents in defense of open source software. In the event that open source software does eventually come under attack, the big guys have atleast "pledged" to protect it.

Tue Oct 17, 05:48:00 PM 2006  
Blogger Dave Roberts said...

Cajoel, yes, you're right. There are several companies with whom you don't want to get into a patent fight. Actually, Cisco is a lightweight in this area, as is Microsoft. The guys you really want to watch out for are IBM and (now) Alcatel, via the merger with Lucent. Remember that Lucent walked away with the old Bell Labs patent portfolio.

I used to joke that these portfolios had patents in them such as "method and apparatus for computing via binary arithmetic" and "method and apparatus for communicating information through space and time." It isn't quite that bad, and anything that fundamental has already expired, but suffice it to say that yes, you don't want to get into a patent fight with either IBM or Alcatel/Lucent.

It appears that as Microsoft's business has matured, they may be taking a similar course as IBM, using their legal team as a profit source.

Wed Oct 18, 09:39:00 AM 2006  

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