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Microsoft Patent in Review

Update: The United States Patent and Trademark Office (USPTO) granted a request by the Public Patent Foundation (PUBPAT) to review one of Microsoft's many patents, the organization said today.

Last week, PUBPAT asked the USPTO to review Microsoft's patent on the FAT file system, a storage format used for exchanging media between computers and digital devices. Microsoft describes FAT as "the ubiquitous format used for interchange of media between computers, and, since the advent of inexpensive, removable flash memory, also between digital devices."

PUBPAT is a non-profit that fights what it considers wrongly issued patents. In requesting the re-examination, the organization presented four examples of prior art -- other patents or publications that show that someone else thought of or created something similar. PUBPAT's four examples of prior art include U.S. patents dating back to 1992.

In its request to the USPTO, PUBPAT said upholding the patent would cause significant public harm, and "the 517 patent stands as a potential impediment to the development and use of free software because free software users are denied the ability to interchange media with machines or devices running Microsoft owned or licensed software."

The Patent Office noted that it wouldn't consider those issues, because they're not grounds on which to grant a reexamination.

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

Nevertheless, the Patent Office found that PUBPAT's request raised "a substantial new question of patentability" regarding every claim of the patent.

Microsoft has until August 4 to respond to the USPTO. Then, PUBPAT will have the opportunity to respond in turn. After opening statements, if any, the Patent Office will determine whether the patent is indeed invalid in light of the evidence presented. According to PUBPAT, such third-party requests for reexamination are successful in having the subject patent either narrowed or completely revoked roughly 70 percent of the time.

However, that's only the beginning of the process. If the patent were revoked, Microsoft could appeal in the U.S. Courts, and take the case to the Supreme Court.

The company is interested in licensing its intellectual property, and, in December, it announced that it would expand the amount of intellectual property offered for license. The first license offerings were for its ClearType technology and the FAT file system "under fair and reasonable terms."

In an e-mail to internetnews.com, David Kaefer, director of Microsoft's Intellectual Property and Licensing Group, pointed out that Microsoft already is licensing its FAT specification and patents for others to use. "At this point, we have the opportunity to demonstrate why this file system innovation deserves patent protection. The USPTO often grants reexamination requests, and they provide an important mechanism to assure high levels of patent quality," he said.

The recent publication of another Microsoft patent led to fears that Redmond had gotten a lock on double-clicking. Patent No. 6,727,830 covers "a method and system... for extending the functionality of application buttons on a limited resource computing device."

Most experts agreed that the patent was limited to button controls on Microsoft's handheld PocketPCs.