Patent Apology?

, May 15, 2007

In a comment, Frank Wilhoit complained about my “you should be ashamed if your name is on a software patent” statement, referring to U.S. patent # 5969316 as one example of what should qualify for being patented (at least that’s my reading of his words).

Here’s the introductory text from the patent:

This invention involves the use of smart cards configured with data indicating a specific meal plan for use in the food vending industry. Examples of typical applications are student meal plans purchased in college or other school systems where the user purchases a plan allowing the user to eat specific meals or at specific times. Usually the meal plan is purchased at the beginning of the school term and terminates at the end of the school term. The invention uses a memory based smart card that is preconfigured on a specific date. The smart card contains data such as the meal plan type, the expiration date of the plan, the last transaction date, the user’s weekly quota of meals, the number of meals a user can eat in a day, the user’s daily quota and the operator identification. The smart card is configured by a computer at the start of the meal plan. Smart card readers are used to update data on the smart card and decrement existing data as the user purchases meals.

So, what do you think? Do I need to apologize?

On May 15, 2007 8:18 PM, Pete Lacey said:

While I agree whole-heartedly with your opinion on software patents, I don’t think that you can fault the people who’s names appear on the patent in all cases. My understanding is that often the patent is sought by their employer and the engineer’s name used whether that person thinks that patent worthy or not.

On May 15, 2007 9:11 PM, Frank Wilhoit said:


I did not ask you to apologize for your original statement. I asked you to clarify that the real problem is patents whose ostensible subject matter is not a physical implementation but an abstract concept. I think this is the nub of the matter in most cases when software patents are complained of.

Without special pleading, I think it is quite clear from your citation that our patent is just chock full of implementation details that eliminate any danger of it being abused to hold entire fields of endeavor to ransom.

…but now you have sandbagged me in broad daylight and I WILL ask you to apologize for THAT.

Thanks, FW .

On May 15, 2007 9:27 PM, Steve Loughran said:

I do have software patents to my name, and if you look at this one, you will see that Vista probably breaks it:

Is the idea of a context-sensitive laptop that changes power and networking policies based on perceived location and use context profound? It was in 1999. By now? I’m not so sure. Seems to me that if we have software patents, then their lifespan should be way, way shorter than say, patents on drugs. If you have an idea in software, you can build it in weeks, ship in months. If your organisation’s product release process is years or never, then tough.

On May 15, 2007 9:58 PM, Stefan Tilkov said:


I’m not sure I understand your point, which may because I don’t all of the connotations of the “being sandbagged” idiom. It was not my intent to treat you unfairly, and I don’t think I did — what exactly do you object to?

To address your point: I don’t object to software patents on the grounds of their being used “to hold entire fields of endeavor to ransom”. I simply don’t believe ideas — even those that are good, which I concede your smart card idea is — should and can be patented. They’re just ideas, something one can’t avoid coming up with quite naturally. A system built on this idea should be competitive based on its implementation, documentation, marketing, etc., not based on the idea behind it.

On May 15, 2007 10:00 PM, Stefan Tilkov said:

Pete: Somebody left a similar comment a while ago, and I understand the point. I still can’t help, though, that I find it hard to believe developers get pressed into patenting stuff against their will; at best, it might be a career-limiting move. So what? Many people I know make those all the time.

On May 15, 2007 10:04 PM, Stefan Tilkov said:

Steve: good point, maybe limiting the validity would be a good first step. But given your employer is one of the big ones, I don’t really see the point of having a patent like this for another reason — it would never be enforced against another big player (since they have their own patent portfolio), so what’s the point behind it? What is the benefit anyone gains?

On May 15, 2007 10:11 PM, Wolfgang Schmidetzki said:

My opinion: @frank, @steve: if this is worth a patent that prevents others having the same idea to create a solution out of it, then every creative software designer in the world may submit a patent every week - and breaks two other patents in the same time. This leads to millions of patents a month … and finally to death for the software industry (and other industries as well) .

On May 15, 2007 11:12 PM, Steve Loughran said:

well, whenever negotiations over how much to pay for cross licensing comes up, the #of enfringements matters. Then there’s the business IBM is in, selling patent rights for a fee.

Returning to software patent lifetimes, it seems to me that patents are a substitute for time to market…if you patent something you can take a bit longer to ship, and still have an edge over your competition. But OSS and SAAS means time to market is trivial, except for MS, who wont have a sequel to vista out before 201x…they have to use patents as they can’t use timeliness.

Returning to my patent, I actually want to implement the feature on linux. Set it free :)

On May 15, 2007 11:31 PM, Stefan Tilkov said:

Can’t your employer sue you if you do ;-) ?

On May 15, 2007 11:34 PM, Frank Wilhoit said:

We didn’t patent an idea. Doing so is wrong and ought to be impossible. The problem is that some patents have been, inappropriately, granted for ideas. We patented an implementation, which is what the process as I understand it is supposed to be for. If you click through the Patent Office link that says “Referenced By”, you will find later patents for different implementations of what appear to be essentially the same idea. Again, this is how I expect the process to work.

I am not sure we are talking about the same thing, in which case we ought to just stop, but I was disappointed by you (as it appeared) holding my work up to public ridicule. It seemed pointless and uncharacteristic.

On May 16, 2007 3:21 AM, Andre Pang said:

Like Mark Pilgrim, I also have a software patent to my name, and also like him, I’m none too happy about it. Wait until the day that your supposedly good employer forces you to put just your signature right on this particular spot. Some of the most ardent Free Software and Open Source advocates I know of (with a capital F, O, S and S)—good people who’ve actually written quite a few FOSS programs—were also forced to sign off on patents they fought against.

I accept that software patents are evil, but I don’t think you’re winning over many friends by pointing fingers at the developers (which is what you were implying in your first post), rather than at the system. I echo Pete Lacey’s comments.

On May 16, 2007 7:29 AM, DBL said:

“…but now you have sandbagged me in broad daylight and I WILL ask you to apologize for THAT.”

Nowwaitaminute. You posted your patent number in apparent defiant pride and now you’re whining like a pricked balloon because somebody actually looked it up? What, you didn’t think anybody would call you on it? We should just cower in fear of your patent number which has the power to make a point without actually reading or discussing the patent in question?

This is a pretty unconvincing appeal for victim status. Next time, just don’t post your bleepin’ patent number! Unbelievable.

On May 16, 2007 10:29 AM, Steve Jones said:

Software patents should only be allowed when they are truly novel and unique, namely using software to do something that has not been done in the physical world. Having a “fixed menu” for a person is not unique and gentleman’s clubs (means something different in the UK) have famously being doing this sort of thing for hundreds of years.

So problems such as schema and data evolution, which are pretty much unique to software, might be worth a patent. One thing I do think that we in the IT community could do better is to blog about ideas that might be worth a patent, thus creating the prior art that can then be referenced.

On May 16, 2007 2:05 PM, Frank Wilhoit said:

This has gotten very far out of hand.

We are all talking past each other. I have been trying to make a distinction that no one else seems to care about. The patent process has a long and honorable history, which recent abuses have to some extent discredited, but it still has a valid role and can be used properly without incurring fatal moral contamination.

I decline to be told that I must be ashamed of my one patent, which I cited as an example of how the process ought to be used. By all means look it up. What it actually covers (beneath all the legal argot) is a trick for condensing a set of data, which has a relatively complex domain-specific semantic, into an extremely small space. It is very narrow and very concrete and to my mind the precise opposite of an abusive patent whose goal is to exercise a protection racket over any efforts within some wide and nebulous conceptual territory.

Stefan’s second post caught me by surprise and would have struck me as inappropriate no matter who was being singled out. Perhaps I have an idiosyncratic view of the etiquette of comment hoisting. There is no point in holding my patent up to ridicule because it doesn’t illustrate anyone’s point—even Steve Jones’s, which appears to be a bit of an outlier here.

I shall not intervene any further.

Thanks, FW .

On May 16, 2007 10:20 PM, Stefan Tilkov said:

Frank, I did not intend to expose any private information — and I believe I didn’t; after all, you left the comment here and I believe I only quoted from the patent, and not out of context.

Concerning the idea, I consider it non-trivial — but that doesn’t mean it qualifies as patentable. The implementation is even less of an invention, so I think your patent serves as a perfect example: a reasonable idea that, IMO, gains nothing from being patented.