[Linux-aus] Fwd: SWPAT INFO: FAT Patent Review May Threaten Linux Foundation (eWeek)

[Arjen Lentz <arjen@mysql.com>]

(article appears a bit scattered, but contains some useful info)

FAT Patent Review May Threaten Linux Foundation
By Peter Galli
June 20, 2004 	

http://www.eweek.com/article2/0,1759,1614855,00.asp

Worries over intellectual property can make for strange bedfellows. In the
case of Microsoft Corp.'s nearly ubiquitous FAT (file allocation table) file
system, it's Microsoft and the Linux community.

The open-source community has an enormous interest in the outcome of last
week's decision by the United States Patent and Trademark Office to
re-examine the patent Microsoft holds on the FAT file system, a format used
for the interchange of media between computers and digital devices.

The FAT file system, first developed by Microsoft in 1976, has become the
ubiquitous format used for interchange of media between computers and, since
the advent of flash memory, also between digital devices.

The FAT file system is also used by the open-source Samba software that lets
Linux and Unix computers exchange data with Windows computers, and by Linux
itself to read and write files on Windows hard drives.

Some in the open-source community, like Eben Moglen, who is a Columbia
University law professor, the general counsel for the Free Software
Foundation and a board member of the Public Patent Foundation (PubPat), are
worried that Microsoft could in the future decide to allege that Linux
infringes on those patents and seek a royalty.

That could threaten the very core of Linux, which is licensed under the GNU
General Public License (GPL) and may not be distributed if it contains
patented technology that requires royalty payments.

In its decision to re-examine the FAT patent (here in PDF form) the Patent
and Trademark Office last week said that "a substantial new issue of
patentability, which has not been previously addressed, has been raised ..
In particular, storing a checksum of the short filename in the directory
entry."

PubPat, a not-for-profit public service organization that describes its
mission as "protecting the public from the harms caused by wrongly issued
patents and unsound patent policy," in April requested the re-examination of
the patent.

In that request the organization said that "unfortunately, Microsoft is
using its control over the interchange of digital media to aid its ongoing
effort to deter competition from Free and Open Source Software.
Specifically, Microsoft does not offer licenses to the patent, [No.
5,579,517], for use in Free Software . and those users are denied the
ability to interchange media with machines or devices running Microsoft
owned or licensed software," it said.

However, the Patent Office last week revealed that it will not address the
issues of "significant public harm" and the allegations that the patent
"stands as a potential impediment to the development and use of Free
Software" in the current re-examination. The office said these issues are
outside its scope.

"If Microsoft successfully commercializes its six FAT patents-we attacked
the oldest and narrowest one of them-as it is trying to do with hardware
manufacturers like those of flash cards and digital cameras that format such
file systems manufacturers, then it could be possible for Microsoft to argue
that anybody using a free software system that reads and writes to the MS
DOS FAT file system also has to pay a royalty. Everyone has grown accustomed
to using those file systems on low-density removable media," Moglen said.

PubPat had challenged the patent validity to ensure that such an attack on
the ability of the Linux kernel and other free software kernels to do such a
familiar thing would not be brought into question at a later time, Moglen
said. 

But not all patent attorneys see it that way. Glenn Peterson, intellectual
property attorney and shareholder with the Sacramento, Calif.-based law firm
McDonough Holland & Allen PC, said that PubPat's primary argument for
re-examination, one of "protecting the public from the predatory
monopolist," is alone not sufficient grounds to grant re-examination.

So the additional argument for re-examination (and consequent invalidation)
of Microsoft's 517 patent is that the subject matter of the patent is
obvious in light of prior art that was on record before the patent was
applied for. There are three patents that predate the FAT patent and, read
together, make the FAT patent "obvious" and therefore not patentable for
failure to satisfy the "novelty" requirement of patentability, Petersen
said.

But those prior patents were also disclosed in Microsoft's application, so
there "are no allegations of 'hide the ball' or anything like that,"
Petersen added. "What PubPat is arguing, essentially, is that the Patent
Office should take another look at the prior art because Microsoft is
harming the public by refusing licenses. This is a highly unusual argument."

That criticism does not faze Moglen, who said that even if the Patent Office
lets the current FAT patent under dispute stand as is, the nature of what it
finds during its examination will be written on what is known in Patent
Office jargon as the "file wrapper"-the docket sheet of activity which
accompanies each patent.

"Just the fact that the file wrapper has all of that is evidence of the
activity that the office has involved itself with in re-examination of the
case is automatically evidence in any proceeding to enforce the patent
against the supposed infringer. At a minimum, the process of making an
enforcement of that patent will be made more difficult by the markings on
the file resulting from the re-examination," Moglen said.

For its part, David Kaefer, the director of Microsoft's Intellectual
Property and Licensing Group, is unfazed by the move, telling eWEEK that
Microsoft has already licensed its FAT specification and patents to help
improve interoperability. The Patent Office often granted re-examination
requests and "they provide an important mechanism to assure high levels of
patent quality," he said.

But Microsoft now has "the opportunity to demonstrate why this file system
innovation deserves patent protection. Microsoft stands firm in its
commitment to work with the USPTO, and we are confident in the validity of
our patents," he said. 

[end of article]


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Arjen Lentz, Technical Writer, Trainer
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MySQL AB, www.mysql.com

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