Robert Pogson

Robe Enderle recently wrote, “If you drill down to the comment section of this earlier piece, you’ll see it filled up with folks arguing for and against software patents. While I’m in agreement that the U.S. patent system is currently far from perfect, I also agree with Chief Justice of the Supreme Court Rehnquist” that software can be patented under current law. And I believe, based on the foundation for the law, that software would have intentionally been included had it existed when the law was written. That position appears to be currently backed by the U.S. Supreme Court, but only by a 5/4 majority, which is hardly a ringing endorsement. So things could change. I’m just not aware of anything near-term that’s likely to get to the Court that would force such change.”

Sure, you can get a patent on software if it is part of a machine of some kind, but that is not what FAT32 long filenames are about. They are an information storage system, an abstraction of bits, not a machine. You cannot obtain a patent on long titles for books. You get a copyright on a particular title. If M$ thought its IP was violated in 2009 by TomTom, why didn’t they think it was violated in circa 1998 when GNU/Linux first used a FAT32 driver? There is a principle in law that you cannot allow a violation of rights to continue until a convenient moment to maximize damage claims.

The patent will not stand a good counter-attack by TomTom and the allegation of violation of patent is pretty weak in view of M$’s lack of litigation.

see http://www.uspto.gov/web/offices/pac/mpep/consolidated_rules.pdf

see http://www4.law.cornell.edu/uscode/35/

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. “

That does not sound like FAT32.

“(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.”

TomTom did not sell FAT32. Why is M$ suing?

“Patentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same is patented, either by fixing thereon the word “patent” or the abbreviation “pat.”, together with the number of the patent, or when, from the character of the article, this can not be done, by fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice. In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice. Filing of an action for infringement shall constitute such notice.“

Where has M$ marked a FAT32 filesystem with its mark? Oops. FAT32 is a specification, not a machine, so it cannot be so marked. No 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.”

M$ let go a big pile of loot, I guess. No, wait. They knew there was no violation and took no action. A jury will love that…

Looks like M$ has a pretty shaky case. If they wanted to protect their rights they should have done so ten years ago. They did not because they had no rights and they knew it. This action is FUD to frighten businesses into paying homage to M$. They are a bully. Do not buy their stuff.

UPDATE: TomTom and M$ have settled. TomTom paid an undisclosed amount and plans to quit using FAT32. I hope they paid 1 cent.

SJVN has a good article analyzing this development. see “Analysis: Microsoft-TomTom settlement is end of a battle, not the war”

If everyone chucks FAT32 from GNU/Linux, GNU/Linux will no longer be able to shine with USB storage devices as it has. This is yet another means of M$ messing with the competition. I think we need to stand up to the bully and chuck the software patents. The SCOTUS should make some decision within the year.

USPTO:”However, based on Supreme Court precedent and recent Federal Circuit decisions, the Office’s guidance to examiners is that a § 101 process must (1) be tied to a particular machine or apparatus, or (2) transform a particular article to a different state or thing. This is called the “machine-or-transformation test”. If neither of these requirements is met by the body of the claim, the method is not a patent eligible process under § 101 and should be rejected as being directed to non-statutory subject matter. There are two corollaries to the machine-or-transformation test. A mere field-of-use limitation is generally insufficient to render an otherwise ineligible method claim patentable. This means the machine or transformation must impose meaningful limits on the method claim’s scope to pass this test. Also, insignificant extra-solution activity will not transform an unpatentable principle into a patentable process. This means reciting a specific machine or a particular transformation of a specific article in an insignificant step, such as data gathering or outputting, is not sufficient to pass the test.”

Reading that, one cannot be persuaded that an algorithm like long file names is patentable as it does not transform anything real and it is not tied to a particular machine like a widget-maker. There is a good discussion of the fallout of the Bilski case here. It is very clear that FAT32 is not about any physical thing and is not patentable.