|FROM ||Ruben Safir Secretary NYLXS
|SUBJECT ||Subject: [hangout] A blow for sanity
Lawyers: Microsoft's FAT Patent Defeat 'Significant'
By Steven J. Vaughan-Nichols
October 1, 2004
How significant is the U.S. Patent and Trademark Office's initial
rejection of Microsoft's FAT (file allocation table) file system patent
Is it, as a Microsoft representative describes it, "one step in a long
process"? Or has the patent office "simply confirmed what we already
knew for some time now: Microsoft's FAT patent is bogus," as Dan
Ravicher, executive director at PUBPAT (Public Patent Foundation)
describes the decision?
Would revoking Microsoft's FAT patent stir innovation? Peter Coffee
The IP (intellectual property) attorneys eWEEK.com spoke with are
siding with PUBPAT: This was a significant defeat for Microsoft.
"PUBPAT's victory is a shot across the bow for companies that are using
illegitimate patents to obtain undeserved licensing fees and a warning
to companies that agree to such licenses by assuming that all issued
patents are enforceable," said Allonn Levy, an attorney with Hopkins &
Carley in San Jose, Calif.
Glenn Peterson, an IP attorney and shareholder with Sacramento,
Calif.-based law firm McDonough Holland & Allen, agreed. "No matter how
you slice it, the patent office's rejection of the '517 [FAT patent]
claims is a huge victory for PUBPAT and potential pandemonium for
Microsoft. It is truly a David versus Goliath victory for PUBPAT," he
"At best, it is a significant embarrassment to Microsoft. At worst,
Microsoft may have a battery of angry licensees to deal with," said
"Licensees will, of course, want their money back, since they
apparently paid Microsoft for rights it did not possess. If Microsoft
is uncooperative with disgruntled licensees, litigation will surely
follow," he predicted.
Levy agreed that Microsoft might face angry licensees. "It will be
interesting to see how Microsoft's licensees will react to this action
by the PTO."
"Clearly, after the debacle earlier this year with the lawsuit against
Lindows, in which Microsoft paid $20 million to settle to avoid the
risk of having its valuable Windows trademark invalidated, Microsoft's
IP department is having a bad season," Peterson said.
This patent defeat was also an unusual one. "While it is true that the
re-examination process can be cause for the [PTO] to declare a patent
invalid ? the re-examination process is infrequently used," said Robert
Krebs, IP attorney and partner in the San Jose office of Thelen Reid &
"In 2003, for example, about 190,000 patents were issued, but only
about 400 requests for re-examination were filed," said Krebs. But, "of
those, about 380 requests were granted."
Ravicher agrees. "This is unusual only because re-examination of
patents is a rare proceeding." That said, "it is not, however, unusual
for a software patent to be proven invalid. We can expect to see more
re-examinations and more invalidation of software patents in the
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