7 ms·

Microsoft's 2003 patent application for the "Is Not" operator

92 points by grellas 15y ago

zephyrfalcon 15y ago
Reading the title, I immediately thought of Python's "is not" operator as "prior art". However, it seems to me that the patent is specifically about an operator called "IsNot" (one word) used in a BASIC compiler. So that might not be the same at all (but then again, IANAL etc). Still, it seems a pretty silly patent... :-/
- RyanMcGreal 15y ago
  > it seems a pretty silly patent In software, most of them are.
  - ConceptJunkie 15y ago
    In software, all of them are. It's like patenting a mathematical formula. It's bad enough that the USPTO will rubberstamp everything with the right fees, but that they can issue patents on concepts that are far outside the original intent what patents are for. Yes, developing software involves "invention" in every sense of the word, but if you can patent algorithms, why can't you patent mathematical formulae or proofs?
    - TomGullen 15y ago
      Do you not need to actively defend patents like you do with trademarks?
      - kahirsch 15y ago
        There is a defense against patent infringement called "laches", but it's not very broad. It only applies to specific cases where the patent holder knew of the alleged infringement and did nothing for a long time. It doesn't lead to a general invalidation of the patent.
        egil 15y ago
        You need to claim damages withing 6 years of the infringement: 35 U.S.C. § 286 Time limitation on damages Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action. In the case of claims against the United States Government for use of a patented invention, the period before bringing suit, up to six years, between the date of receipt of a written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the period referred to in the preceding paragraph.
    - brador 15y ago
      Let's say I create an innovative, software based, method of doing something faster/better (like the ALEKS method of education say). Without a software patent to protect my creation, why would I ever release it to the world? Ridiculous patents like this for "ifnot" are one thing, but patents for very useful software functionality and features are another. Don't be so quick to dismiss their usefulness in encouraging innovation.
      - y3di 15y ago
        Wait... why wouldn't you release it to the world?
        brador 15y ago
        Because there's no gain in doing so. Look, as soon as it's released, it will be copied by those who already have market penetration in that space, leaving the big USP of "cool software feature" as something useless, and no longer a USP. Instead of releasing them out, which is what I'd like to do, I just keep them to myself. Something which I would rather not do, but I see no other way of gaining value from them.
        cobrausn 15y ago
        This underscores an oft-ignored important part of the patent system, which is that it encourages people to make their discoveries known to others by patenting them in exchange for temporary monopoly. If the patent were completely unavailable as an option, many would be tempted to hide or obscure their discoveries and methodology for as long as possible to make a profit, so there is at least an argument to be made for patents serving the public interest in the long term. Unfortunately, temporary often ends up being effectively forever when it comes to software, and the system has been gamed by lawyers. Sigh.
        jonknee 15y ago
        Except the software industry is full of stories opposite of your expectations--startups with better ideas who unseat or out maneuver giants. Do you think Mint would have been better off keeping their ideas to themselves? How about Facebook? There are tons of these: Dropbox, Square, Heroku, Twilio, etc etc. Good software is rewarded (even more so in today when there's instant distribution), don't worry about your competitors.
    - nkassis 15y ago
      " It's like patenting a mathematical formula." More like an Mathematical Algorithm but even then, most devices are physical representation of a algorithm in some way. I don't see how this is a valid attack on software patent or patents in general. I don't support software patents but I have a problem with the whole "it's patenting a mathematical formula" argument.
      - bunderbunder 15y ago
        The US courts do place weight on the "it's patenting a mathematical formula" argument. There's some nuance and murk, but an application will probably have to pass the "Machine or Transformation Test" to be patentable: http://en.wikipedia.org/wiki/Machine-or-transformation_test http://en.wikipedia.org/wiki/Machine-or-transformation_test Essentially, software implementations of algorithms cannot generally be patented either because they are simply an expression of the algorithm in a particular language. The fact that this language can be interpreted by a particular hardware device does not change the situation. The hardware is a pre-existing piece of general-purpose commodity hardware that is easily interchangeable with any number of other pre-existing pieces of general-purpose commodity hardware, up to and including a human being equipped with a pen and paper, and therefore cannot really be claimed as part of the patent. A physical device which implements the algorithm can, of course, be patented. And a hardware/software combination where the computer is an integral part of the mechanism (e.g., it cannot in principle be replicated by a human with a pen and paper) can also be patented, so Amazon's 'One-Click' patent is safe. However, simply tacking on the phrase, "Written in a programming language," does not take an unpatentable idea and make it patentable.
    - monochromatic 15y ago
      > It's bad enough that the USPTO will rubberstamp everything with the right fees Clearly you have never prosecuted a patent application. Yes, examiners make mistakes sometimes, and patents issue that shouldn't. But your statement is just nowhere near being true.
      - waqf 15y ago
        I agree that GP overstated the problem, but I think you understate it. The USPTO systematically and recklessly grants patents that should not be issued.
        monochromatic 15y ago
        I think most patent grants are reasonable enough... the problem is that HN only ever hears about the really egregious cases.
  - vibrunazo 15y ago
    Not only in software: http://en.m.wikipedia.org/wiki/Method_of_exercising_a_cat http://en.m.wikipedia.org/wiki/Method_of_exercising_a_cat The documentary by This American Life about patents had an IP researcher claiming that over 1/3 of all patents ignore prior art, just by comparing identical text between them: http://www.thisamericanlife.org/android-app?destination=radio-archives%2Fepisode%2F441%2Fwhen-patents-attack http://www.thisamericanlife.org/android-app?destination=radi...
    - talmand 15y ago
      I'm curious how many patents there are for devices that are impossible to actually build. You know, fun stuff like warp drives and time machines.
      - dominicmauro 15y ago
        Presumably zero. Patents are only permitted for "useful" subject matter. Useful is a term of art: you can still patent silly things like Slinkies: http://www.google.com/patents/US2415012?printsec=drawing http://www.google.com/patents/US2415012?printsec=drawing – but whatever you patent has to actually function as advertised. So while the Slinky is objectively useless, it does what the patent says it does. A warp drive would be objectively useful, but when you build it, it won't do what the patent says it does; therefore, it's not patentable.
        alok-g 15y ago
        Though not quite in practice of course. I cannot substantiate my claim with data, but have come across several (approved) patents which are actually not even correct -- the described does not function as advertized.
- estoppel 15y ago
  According to PAIR, this has been abandoned for quite some time (4.5 years). In the first action, the Examiner noted "!=" in Java and MS elected not to respond.
- Natsu 15y ago
  Is it specific to a compiler? I wonder if Perl's "unless" is prior art. It's not surprising that this was from back in the day when people at the USPTO couldn't use the internet to research patents.
latch 15y ago
Paul Vick, whose name appears on the patent, had a great blog post about this. Had to dig it out of archive.org: https://gist.github.com/1846067 https://gist.github.com/1846067 FWIW, as much as I hate[d] VB.NET, Paul Vick was (is?) clearly a superstar - both in terms of coding and writing.
- marssaxman 15y ago
  Totally agree; I went to Microsoft and joined the VB.NET team in no small part because he worked there. (Didn't work out so well: he left a couple of months later, and that job turned into a nightmare for other reasons.)
  - danabramov 15y ago
    Just wondering if you can elaborate on what made your job a nightmare.
- sriramk 15y ago
  Disclaimer: ex-MSFT, have several patents pending from during my time there. His blog post reminds me why I get so mad at Microsoft using patents against Android OEMs. During all my years at MSFT, employees were always told that patents were necessary for the reasons Paul Vick stated - you had people like Eolas and zillions of other trolls trying to get you and you needed a portfolio to play defence. With the Android issue, that changed. MSFT suddenly started using patents offensively as a strategic tool. While I totally get why this is smart ( and I'm stunned at how effective it has been), I feel they violated an implicit social contract with a lot of people who worked to get them those patents. It's going to be interesting to see whether Google does the same swerve down the line and not just stick to using patents in defence.
  - betterth 15y ago
    "It's going to be interesting to see whether Google does the same swerve down the line and not just stick to using patents in defence." Google is already swerving. They're interested in utilizing the Moto patent portfolio to implement 2.25% of total device cost fees on FRAND patents. In fact, they're already moving forward with that against Apple, which would net them (based on Q42011 sales) over $500,000,000 a quarter, or in the $1.5-2.0B per year on the iPhone alone. It's no wonder Google is moving forward: That's likely as much or more money than they make on their own Android OS!
bhousel 15y ago
Better link, includes figures and proper formatting: http://www.google.com/patents?id=m52fAAAAEBAJ&zoom=4&dq=isnot&pg=PA1#v=onepage&q&f=false http://www.google.com/patents?id=m52fAAAAEBAJ&zoom=4&#38...
sgentle 15y ago
A question for anyone who quit their career as a patent lawyer to work on formal methods (or vice versa): Since mathematics isn't patentable, can you invalidate a patent claim by showing that it is equivalent to a mathematical formula? And if so, by the Church-Turing thesis, wouldn't any Turing-complete program be representable in lambda calculus, and therefore be unpatentable?
- asmithmd1 15y ago
  True, you can not patent a mathematical formula but you can patent a machine that uses a mathematical formula to do something and the machine can be a computer.
  - redthrowaway 15y ago
    So I can't patent 'x=x+1', but I can patent a "system, method, and computer-readable medium for incrementing the value of a variable by one"?
    - asmithmd1 15y ago
      A more concrete example: You discover that the formula for making a beam that will have equal stress all along it's length is t = (.923)Xe/L^2 (made-up formula) You can not patent that formula, but you can get a patent on beams made using that formula. With that patent in hand you can stop anyone from making, selling, or using those beams.
      - drcube 15y ago
        Sounds like a distinction without a difference. If you can stop people from using a formula with your patent, you've effectively patented that formula.
  - DanHulton 15y ago
    Okay, but we're not talking about the machine - we're talking about the formula/algorithm/program here. Thus, does the defence still work?
AUmrysh 15y ago
uhh... "20. The method of claim 15 wherein the source code is BASIC code. " Really? They patented something for BASIC? Also, I'm pretty sure patents do serve a useful purpose, because first nobody cares about whether something is protected by patent or not, they'll find a way to rip it off. What patents do is put these technologies and developments into the public record. I think the propriety of patents is problematic, but without them we would potentially be in the dark about how certain new inventions work. It's important for things like medicine, but software patents are a bad idea because they lead to patent trolling and lawsuits over things that are obvious solutions to common problems.
georgefox 15y ago
What's really annoying about the IsNot operator is that it's not consistent with TypeOf ... Is. In other words, you can't do this: If TypeOf obj IsNot MyClass Then ' ... Instead you have to do: If Not TypeOf obj Is MyClass Then ' ...
jpkeisala 15y ago
I wonder who has patentent exception. That would be pretty great money machine.

92 points by grellas 15y ago

Reading the title, I immediately thought of Python's "is not" operator as "prior art". However, it seems to me that the patent is specifically about an operator called "IsNot" (one word) used in a BASIC compiler. So that might not be the same at all (but then again, IANAL etc). Still, it seems a pretty silly patent... :-/

RyanMcGreal 15y ago
> it seems a pretty silly patent In software, most of them are.
- ConceptJunkie 15y ago
  In software, all of them are. It's like patenting a mathematical formula. It's bad enough that the USPTO will rubberstamp everything with the right fees, but that they can issue patents on concepts that are far outside the original intent what patents are for. Yes, developing software involves "invention" in every sense of the word, but if you can patent algorithms, why can't you patent mathematical formulae or proofs?
  - TomGullen 15y ago
    Do you not need to actively defend patents like you do with trademarks?
    - kahirsch 15y ago
      There is a defense against patent infringement called "laches", but it's not very broad. It only applies to specific cases where the patent holder knew of the alleged infringement and did nothing for a long time. It doesn't lead to a general invalidation of the patent.
      - egil 15y ago
        You need to claim damages withing 6 years of the infringement: 35 U.S.C. § 286 Time limitation on damages Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action. In the case of claims against the United States Government for use of a patented invention, the period before bringing suit, up to six years, between the date of receipt of a written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the period referred to in the preceding paragraph.
  - brador 15y ago
    Let's say I create an innovative, software based, method of doing something faster/better (like the ALEKS method of education say). Without a software patent to protect my creation, why would I ever release it to the world? Ridiculous patents like this for "ifnot" are one thing, but patents for very useful software functionality and features are another. Don't be so quick to dismiss their usefulness in encouraging innovation.
    - y3di 15y ago
      Wait... why wouldn't you release it to the world?
      - brador 15y ago
        Because there's no gain in doing so. Look, as soon as it's released, it will be copied by those who already have market penetration in that space, leaving the big USP of "cool software feature" as something useless, and no longer a USP. Instead of releasing them out, which is what I'd like to do, I just keep them to myself. Something which I would rather not do, but I see no other way of gaining value from them.
        cobrausn 15y ago
        This underscores an oft-ignored important part of the patent system, which is that it encourages people to make their discoveries known to others by patenting them in exchange for temporary monopoly. If the patent were completely unavailable as an option, many would be tempted to hide or obscure their discoveries and methodology for as long as possible to make a profit, so there is at least an argument to be made for patents serving the public interest in the long term. Unfortunately, temporary often ends up being effectively forever when it comes to software, and the system has been gamed by lawyers. Sigh.
        jonknee 15y ago
        Except the software industry is full of stories opposite of your expectations--startups with better ideas who unseat or out maneuver giants. Do you think Mint would have been better off keeping their ideas to themselves? How about Facebook? There are tons of these: Dropbox, Square, Heroku, Twilio, etc etc. Good software is rewarded (even more so in today when there's instant distribution), don't worry about your competitors.
  - nkassis 15y ago
    " It's like patenting a mathematical formula." More like an Mathematical Algorithm but even then, most devices are physical representation of a algorithm in some way. I don't see how this is a valid attack on software patent or patents in general. I don't support software patents but I have a problem with the whole "it's patenting a mathematical formula" argument.
    - bunderbunder 15y ago
      The US courts do place weight on the "it's patenting a mathematical formula" argument. There's some nuance and murk, but an application will probably have to pass the "Machine or Transformation Test" to be patentable: http://en.wikipedia.org/wiki/Machine-or-transformation_test http://en.wikipedia.org/wiki/Machine-or-transformation_test Essentially, software implementations of algorithms cannot generally be patented either because they are simply an expression of the algorithm in a particular language. The fact that this language can be interpreted by a particular hardware device does not change the situation. The hardware is a pre-existing piece of general-purpose commodity hardware that is easily interchangeable with any number of other pre-existing pieces of general-purpose commodity hardware, up to and including a human being equipped with a pen and paper, and therefore cannot really be claimed as part of the patent. A physical device which implements the algorithm can, of course, be patented. And a hardware/software combination where the computer is an integral part of the mechanism (e.g., it cannot in principle be replicated by a human with a pen and paper) can also be patented, so Amazon's 'One-Click' patent is safe. However, simply tacking on the phrase, "Written in a programming language," does not take an unpatentable idea and make it patentable.
  - monochromatic 15y ago
    > It's bad enough that the USPTO will rubberstamp everything with the right fees Clearly you have never prosecuted a patent application. Yes, examiners make mistakes sometimes, and patents issue that shouldn't. But your statement is just nowhere near being true.
    - waqf 15y ago
      I agree that GP overstated the problem, but I think you understate it. The USPTO systematically and recklessly grants patents that should not be issued.
      - monochromatic 15y ago
        I think most patent grants are reasonable enough... the problem is that HN only ever hears about the really egregious cases.
- vibrunazo 15y ago
  Not only in software: http://en.m.wikipedia.org/wiki/Method_of_exercising_a_cat http://en.m.wikipedia.org/wiki/Method_of_exercising_a_cat The documentary by This American Life about patents had an IP researcher claiming that over 1/3 of all patents ignore prior art, just by comparing identical text between them: http://www.thisamericanlife.org/android-app?destination=radio-archives%2Fepisode%2F441%2Fwhen-patents-attack http://www.thisamericanlife.org/android-app?destination=radi...
  - talmand 15y ago
    I'm curious how many patents there are for devices that are impossible to actually build. You know, fun stuff like warp drives and time machines.
    - dominicmauro 15y ago
      Presumably zero. Patents are only permitted for "useful" subject matter. Useful is a term of art: you can still patent silly things like Slinkies: http://www.google.com/patents/US2415012?printsec=drawing http://www.google.com/patents/US2415012?printsec=drawing – but whatever you patent has to actually function as advertised. So while the Slinky is objectively useless, it does what the patent says it does. A warp drive would be objectively useful, but when you build it, it won't do what the patent says it does; therefore, it's not patentable.
      - alok-g 15y ago
        Though not quite in practice of course. I cannot substantiate my claim with data, but have come across several (approved) patents which are actually not even correct -- the described does not function as advertized.
estoppel 15y ago
According to PAIR, this has been abandoned for quite some time (4.5 years). In the first action, the Examiner noted "!=" in Java and MS elected not to respond.
Natsu 15y ago
Is it specific to a compiler? I wonder if Perl's "unless" is prior art. It's not surprising that this was from back in the day when people at the USPTO couldn't use the internet to research patents.

latch 15y ago

Paul Vick, whose name appears on the patent, had a great blog post about this. Had to dig it out of archive.org: https://gist.github.com/1846067 https://gist.github.com/1846067 FWIW, as much as I hate[d] VB.NET, Paul Vick was (is?) clearly a superstar - both in terms of coding and writing.

marssaxman 15y ago
Totally agree; I went to Microsoft and joined the VB.NET team in no small part because he worked there. (Didn't work out so well: he left a couple of months later, and that job turned into a nightmare for other reasons.)
- danabramov 15y ago
  Just wondering if you can elaborate on what made your job a nightmare.
sriramk 15y ago
Disclaimer: ex-MSFT, have several patents pending from during my time there. His blog post reminds me why I get so mad at Microsoft using patents against Android OEMs. During all my years at MSFT, employees were always told that patents were necessary for the reasons Paul Vick stated - you had people like Eolas and zillions of other trolls trying to get you and you needed a portfolio to play defence. With the Android issue, that changed. MSFT suddenly started using patents offensively as a strategic tool. While I totally get why this is smart ( and I'm stunned at how effective it has been), I feel they violated an implicit social contract with a lot of people who worked to get them those patents. It's going to be interesting to see whether Google does the same swerve down the line and not just stick to using patents in defence.
- betterth 15y ago
  "It's going to be interesting to see whether Google does the same swerve down the line and not just stick to using patents in defence." Google is already swerving. They're interested in utilizing the Moto patent portfolio to implement 2.25% of total device cost fees on FRAND patents. In fact, they're already moving forward with that against Apple, which would net them (based on Q42011 sales) over $500,000,000 a quarter, or in the $1.5-2.0B per year on the iPhone alone. It's no wonder Google is moving forward: That's likely as much or more money than they make on their own Android OS!

bhousel 15y ago

Better link, includes figures and proper formatting: http://www.google.com/patents?id=m52fAAAAEBAJ&zoom=4&dq=isnot&pg=PA1#v=onepage&q&f=false http://www.google.com/patents?id=m52fAAAAEBAJ&zoom=4&#38...

sgentle 15y ago

A question for anyone who quit their career as a patent lawyer to work on formal methods (or vice versa): Since mathematics isn't patentable, can you invalidate a patent claim by showing that it is equivalent to a mathematical formula? And if so, by the Church-Turing thesis, wouldn't any Turing-complete program be representable in lambda calculus, and therefore be unpatentable?

asmithmd1 15y ago
True, you can not patent a mathematical formula but you can patent a machine that uses a mathematical formula to do something and the machine can be a computer.
- redthrowaway 15y ago
  So I can't patent 'x=x+1', but I can patent a "system, method, and computer-readable medium for incrementing the value of a variable by one"?
  - asmithmd1 15y ago
    A more concrete example: You discover that the formula for making a beam that will have equal stress all along it's length is t = (.923)Xe/L^2 (made-up formula) You can not patent that formula, but you can get a patent on beams made using that formula. With that patent in hand you can stop anyone from making, selling, or using those beams.
    - drcube 15y ago
      Sounds like a distinction without a difference. If you can stop people from using a formula with your patent, you've effectively patented that formula.
- DanHulton 15y ago
  Okay, but we're not talking about the machine - we're talking about the formula/algorithm/program here. Thus, does the defence still work?

AUmrysh 15y ago

uhh... "20. The method of claim 15 wherein the source code is BASIC code. " Really? They patented something for BASIC? Also, I'm pretty sure patents do serve a useful purpose, because first nobody cares about whether something is protected by patent or not, they'll find a way to rip it off. What patents do is put these technologies and developments into the public record. I think the propriety of patents is problematic, but without them we would potentially be in the dark about how certain new inventions work. It's important for things like medicine, but software patents are a bad idea because they lead to patent trolling and lawsuits over things that are obvious solutions to common problems.

georgefox 15y ago

What's really annoying about the IsNot operator is that it's not consistent with TypeOf ... Is. In other words, you can't do this: If TypeOf obj IsNot MyClass Then ' ... Instead you have to do: If Not TypeOf obj Is MyClass Then ' ...

jpkeisala 15y ago

I wonder who has patentent exception. That would be pretty great money machine.