RealTime IT News

Microsoft Double-click Patent Sows FUD

Message boards seethed with anxiety over news that Microsoft had received a patent for launching applications by double-clicking.

After a spate of licensing demands from companies claiming they owned the intellectual property rights to everything from streaming media to JPEG to downloading, some gun-shy technology folk were all too ready to believe that Redmond had laid claim to the ubiquitous double-click.

Microsoft's recently issued Patent No. 6,727,830 covers "a method and system... for extending the functionality of application buttons on a limited resource computing device." It includes such things as determining the length of time and how often an application button has been pressed in order to determine whether an application should be launched, a document opened or saved, or voice recording started or stopped.

Most experts agreed that, despite the use of the word "double-click" in the abstract, this is not, in fact, a patent on the double-click.

"You can ascertain that just by reading the patent, which evidently a bunch of folks have not bothered to do," said Jupiter Research analyst Michael Gartenberg. "On most handheld devices, if you want to activate a second function, you have to activate a control or function key. And the Microsoft patent is using time intervals or pressing it several times to change the behavior of the key." (Jupiter Research and internetnews.com are owned by the same corporation.)

This differs from the familiar mouse operation, where the user can set the threshold for how quickly the two clicks must occur to be read as a double-click. It's also completely different from the infamous "one-click purchasing" patent, issued in 1999: The one-click purchasing patent is what's known as a business method patent, which means it covers the very idea of allowing online shoppers to be able to let the e-commerce server automatically populate the form with their stored information. Some of these patents, applied for in an IP land rush following the U.S. court's ruling allowing them, have been criticized as overly broad.

As well, the patent's specific reference to manual buttons on a "limited resource computing device" narrows it quite a bit. Although the patent doesn't define or describe such a device, it mentions Microsoft's own Palm-size PC and refers to the manuals for Palm III devices.

"This is reminiscent of but quite different from Amazon's one-click patent," said Guadalupe Garcia, a patent attorney with the law firm of Dechert LLP. "That patent called into question the validity of software patents because of the breadth that it had." Garcia said that the patent is quite narrow, and limited to initiating events only on a certain type of computing device. While Amazon's business method patent (which held up to challenges in court) covers a whole a method of doing business, Garcia said, "This one is a method of doing something on a computer. It doesn't introduce the same kinds of issues, and it doesn't necessarily call into question whether the patent system is broken.

Daniel Ravicher, executive director of the Public Patent Foundation, said that the language should be construed to mean a limited resource device circa 1999, which would probably mean something with one to four megabytes of memory. "So you'd have to ask yourself if an iPod is a limited resource device as defined in the patent." However, while he doubts the patent could be seen as covering desktops or servers, "What one of ordinary skill in the art in 1999 have defined to be meant by the term will come down to the battle of the experts."

According to a Microsoft spokesperson, "This patent relates to functionality utilized in Microsofts Pocket PC. As with most of our patents, we would consider licensing it for others to use on commercially reasonable terms if another company asked for a license."

The Public Patent Foundation fights what it considers wrongly issued patents. One of its latest actions was asking the United States Patent and Trademark Office today to revoke Microsoft's patent on the FAT file system, submitting prior art it said the patent should have never been granted. The FAT file system is a storage format used for exchanging media between computers and digital devices.

"Microsoft is using its control over the interchange of digital media to aid its ongoing effort to deter competition," the filing claimed.

Microsoft executives were not available for comment about the FAT or "double-click" patents. But in December, the company expanded access to its IP portfolio, kicking off the new regime with an offer to license ClearType technology and the FAT file system "under fair and reasonable terms."

After both the Federal Trade Commission and the National Academy of Science called for reforming the patent process, the U.S. Patent & Trade Office has come under fire. Its overworked staff of 3,000 examiners handles around 350,000 applications a year, spending an average of 17 hours on any particular application over the course of three years.

However, the Public Patent Foundation's Ravicher points out that the number of applications being filed is at record levels. "That's an indication of how happy people are with the Patent Office's services." At the same time, he's seen a groundswell of people who are displeased by the USPTO. "We're failing in all parts of the system and with all players," he said. "The courts and congress and Patent Office and patent applicants all bear responsibility."

Brigid Quinn, USPTO communications director, said the alarm about this Microsoft patent and others are that they are perceived as overly broad and fueled by two forces.

"There's a whole group of people in the software culture who don't believe software should be patented," she said, "even though the courts have said again and again that it's patentable subject matter. Then, there's another group that doesn't understand computer-related patents."

Quinn said too many critics simply look at the title and abstract of the patent to draw their conclusions, but what the patent actually covers is set out in lengthy and sometimes abstruse detail in the list of claims. "Lawyers get paid a lot of money to write patents, and they have to pas a pretty difficult exam with the patent office, so [reading patents] is not something people should do lightly," she said.

In fact, the real story here is not that this patent was granted, but that it was greeted with such knee-jerking derision. "It has more to do with a visceral response some folks have to Microsoft," said Jupiter's Gartenberg. "The hype surrounding it is more interesting than the story itself."