Microsoft Copies Idea, Admits It, Then Patents It

Story: Microsoft Hires Programmer to edit Wikipedia Entry For OOXMLTotal Replies: 35
Author Content
henke54

Jan 27, 2007
1:26 PM EST
Quoting:"BlueJ is a popular academic IDE which lets students have a visual programming interface. Microsoft copied the design in their 'Object Test Bench' feature in Visual Studio 2005 and even admitted it. Now, a patent application has come to light which patents the very same feature, blatantly ignoring prior art."
http://yro.slashdot.org/article.pl?sid=07/01/27/147243
dinotrac

Jan 28, 2007
3:25 AM EST
Oh come on now.

This is Microsoft.

Admit it, you'd be shocked if they didn't do something like this.
jsusanka

Jan 28, 2007
6:47 AM EST
"Aside from questions about the impact of this war of words on a reference website, it raises questions about Microsoft's need to pay for editing in a volunteer-dominated website. It also demonstrates Microsoft's commitment to fight OpenDocument, rather than collaborate to make it an even better standard than it already is."

they are so afraid of odf.

I hope IT managers across the country see this and realize what they are doing to their companies when they choose to go strictly microsoft on the desktop.

Sander_Marechal

Jan 28, 2007
7:14 AM EST
What's the punishment for willfully filing an invalid patent?
uknewbie

Jan 28, 2007
7:51 AM EST
I think that counts as perjury, IANAL and all that. there was some discussion on Groklaw on the issue:- [url=http://www.groklaw.net/comment.php?mode=display&sid=20070126175332481&title=Could a case of perjury in a patent application be more clear-cut than that?&type=article&order=&hideanonymous=0&pid=532012#c532090]http://www.groklaw.net/comment.php?mode=display&sid=20070126...[/url] It was better explained in some postings weeks back, about a different patent, but I don't remember how long ago that was. Google may dig up more discussions, in which some actual lawyers chimed in or somthing.
dinotrac

Jan 28, 2007
9:10 AM EST
>What's the punishment for willfully filing an invalid patent?

There is a hefty cost for willfully enforcing a patent you know to be invalid -- but I don't know that there is any penalty for filing one (emphasis on I don't know). Generally, the patent examiners are supposed to kick them out if they're not valid.
Sander_Marechal

Jan 28, 2007
12:09 PM EST
> Google may dig up more discussions, in which some actual lawyers chimed in or somthing.

Probably not. Google doesn't index Groklaw discussions. Only PJ's articles.
jsusanka

Jan 28, 2007
1:50 PM EST
"What's the punishment for willfully filing an invalid patent?"

I thought it was alway purgery - because you are actually filing something with the courts.

and I always thought they just never enforced it.
jdixon

Jan 28, 2007
2:33 PM EST
>> What's the punishment for willfully filing an invalid patent?

> a patent you know to be invalid -- but I don't know that there is any penalty for filing one ..

Well, since it involves making a known false claim, it would almost definitely be perjury, but that doesn't address the penalty. And since IANAL, I have no idea.
dinotrac

Jan 28, 2007
3:54 PM EST
>it would almost definitely be perjury

Perjury is a very specific legal offense. It would not be perjury.
tuxchick

Jan 28, 2007
4:03 PM EST
> Generally, the patent examiners are supposed to kick them out if they're not valid.

LOL, that's a good one. Tell us another fairy tale, Uncle Dino!
jdixon

Jan 28, 2007
4:15 PM EST
> It would not be perjury.

Isn't lying to a court under oath always perjury, Dino? If so, why wouldn't it be perjury?
dinotrac

Jan 28, 2007
5:54 PM EST
> If so, why wouldn't it be perjury?

Did I miss the requirement where we have to go into court and go under oath to file a patent claim?
jdixon

Jan 29, 2007
1:22 AM EST
> Did I miss the requirement where we have to go into court and go under oath to file a patent claim?

It was my understanding that the patent claim is considered to be given under oath, and that the patent office is the official government body for that purpose, making it legally equivilant to a court of law. It would be the same as making a false statement to Congress under oath, which I believe is still perjury.

I could be wrong of course.
dinotrac

Jan 29, 2007
6:15 AM EST
>I could be wrong of course.

You are.
dcparris

Jan 29, 2007
7:32 AM EST
>> Generally, the patent examiners are supposed to kick them out if they're not valid.

> LOL, that's a good one. Tell us another fairy tale, Uncle Dino!

Actually, that's the way it really happens in Camelot, where it also only rains at night.

Signed, Sir Spamalot
DarrenR114

Jan 29, 2007
7:36 AM EST
Having filed for a patent (patent pending,) I can say that you most definitely do not have to make a sworn statement to the court to file for a patent.

It works the same way for tax returns. Knowingly making a false statement on a tax return does not qualify as 'perjury', but there are most certainly other laws regarding the filing of knowingly false statements with the Federal Government. I think the confusion arises from the phrase 'Under the penalty of perjury' that is found on said tax forms.

But remember, IANAL, so take my experience for what it's worth to you.
jdixon

Jan 29, 2007
8:20 AM EST
> Knowingly making a false statement on a tax return does not qualify as 'perjury', but there are most certainly other laws regarding the filing of knowingly false statements with the Federal Government.

I believe it's usually considered a felony, but you've seen what my opinion on the matter is worth. However, you can ask Scooter Libby about the matter if you wish.
dinotrac

Jan 29, 2007
9:05 AM EST
DarrenR114 -

Bingo, you are correct.

I got my name on a couple of patents for a past employer, and can vouch that no oaths were involved.
dcparris

Jan 29, 2007
9:25 AM EST
There's a story posting soon about MS retracting this one.
tuxchick

Jan 29, 2007
9:27 AM EST
Retracting? As in "Mr. Jeliffe made a mistake and it's all his fault" or "wow, were we ever stupid to even offer him the deal in the first place"?

OK, I'll wait for the story. SIGH.
jdixon

Jan 29, 2007
10:21 AM EST
Dino, DarrenR114:

OK, I'm confused (yeah, I know that's nothing new). From the USPTO website, http://www.uspto.gov/web/offices/pac/doc/general/#functions :

Oath or Declaration, Signature

The oath or declaration of the applicant (inventor) is required by law for a non-provisional application. The inventor must make an oath or declaration that he/she believes himself/herself to be the original and first inventor of the subject matter of the application, and he/she must make various other statements required by law and various statements required by the USPTO rules. If an application data sheet is filed, the USPTO rules require fewer statements in the oath or declaration. See title 37, Code of Federal Regulations, Sections 1.63 and 1.76. The oath must be sworn to by the inventor before a notary public or other officer authorized to administer oaths. A declaration may be used in lieu of an oath. Oaths or declarations are required for applications involving designs, plants, and utility inventions and for reissue applications. A declaration does not need to be notarized. When filing a continuation or divisional application a copy of the oath or declaration filed in the earlier application may be used.

So, how is an oath not required?
jimf

Jan 29, 2007
10:30 AM EST
> So, how is an oath not required?

An oath yes, but in a court, no. As dino said, very specific.
jdixon

Jan 29, 2007
12:13 PM EST
> An oath yes, but in a court, no. As dino said, very specific.

Both Dino and Darren were also stating that no oath was involved in the filing, which is, umm, patently untrue. :)

As to whether it would be considered perjury or not, I'll accept Dino's judgment on the matter. However, you do not have to be in court to be guilty of perjury. As I noted early, false statements to Congress while under oath can also considered perjury. I believe (but see my above note) that the definition of perjury has been expanded in other ways as well. In general, it's best to assume that any false statement to a government official may be considered perjury, even if that's not the case.
Sander_Marechal

Jan 29, 2007
2:28 PM EST
> There's a story posting soon about MS retracting this one.

Shortly after that there should be a story about MS patenting something more sinister :-)
tqk

Jan 29, 2007
4:15 PM EST
http://www.regdeveloper.co.uk/2007/01/29/ms_uturn/
dinotrac

Jan 29, 2007
5:07 PM EST
>t's best to assume that any false statement to a government official may be considered perjury, even if that's not the case.

No, it's not. If you are placed under oath in an official proceeding, you can perjure yourself.
tqk

Jan 30, 2007
5:55 AM EST
>No, it's not. If you are placed under oath in an official proceeding, you can perjure >yourself.

Tell that to Martha Stewart.

Of course, she was being hounded by the FTC, which is hardly an objective, balanced system. Can you say capricious?
DarrenR114

Jan 30, 2007
9:17 AM EST
jdixon,

I specifically mentioned 'sworn statement to the court' - not just any oath or sworn statement. As I understand it, and as Dino has stated (since he has been an actual attorney of the bar, his would be the stronger opinion,) perjury is specific to statements to the court. An application for a patent is not a statement to the court, as the PTO is not part of the Judiciary.

As I understand it, Martha Stewart was found guilty of obstructing, or interfering with, justice, not 'perjury'.

Raising false allegations with police officers and prosecutors do not constitute perjury, but if you make false statements to the court to support such, then you are guilty of perjury, as well as filing false statements with the police.

There's a nice rundown of 'perjury' at Wikipedia: http://en.wikipedia.org/wiki/Perjury

Lying under oath to Congress does not necessarily constitute 'perjury' either - 'obstructing the work of Congress' at the very least, but not necessarily 'perjury'. http://en.wikipedia.org/wiki/Contempt_of_Congress

I'd prefer to quote from a more authoritative source such as "Black's Law Dictionary", but I can't find a decent online link to point you to.
tuxchick

Jan 30, 2007
9:20 AM EST
Whatever the legal fine points of defining perjury are, the bottom line is you can get away with doing all sorts of dreadful things to real people. But if you commit an act that even in the most tangential way ticks off a cop or a judge, you're toast.

Going way back to Dino's first comment, Thomas Edison was one of the biggest patent poachers of all time. It's nothing new. But anything ms does is, by definition, more loathesome. :)
jdixon

Jan 30, 2007
2:02 PM EST
> perjury is specific to statements to the court.

No. I've already mentioned Congress and the Wikipedia entry also says that it filing a false tax return may be considered perjury. Of course, as with my opinion, Wikipedia's legal opinion is worth what you pay for it.

> Lying under oath to Congress does not necessarily constitute 'perjury' either

It does not necessarily, but it can, as seems to be true with most laws anymore.

As I said, I accept Dino's opinion that it is not perjury in this case, as Congress probably did not pass that capability onto the Patent Office as their official agent, though they could have done so had they wished.

Dino and I will simply have to disagree as to my statement concerning lying to a government official. I consider my position prudent, especially consider the rapid rise in powers granted to the executive over the past several years. He obviously disagrees. I think we would agree that the best course of action when dealing with the government is to refuse to answer questions without a lawyer present. Even with a lawyer present, I would be inclined to plead the fifth and make a judge tell me I had to answer before doing so.

> As I understand it, Martha Stewart was found guilty of obstructing, or interfering with, justice, not 'perjury'.

As I understand it, Martha was found guilty of lying to the FBI during an investigation. However, I seriously doubt she cares if it was perjury she was charged with or something else. To her, and anyone else in her position, it's a difference that makes no difference.
dinotrac

Jan 30, 2007
6:40 PM EST
>Dino and I will simply have to disagree as to my statement concerning lying to a government official.

There is no agreeing or disagreeing. You are free to be wrong. There are many kinds of falsehoods, frauds, etc. Perjury is a special category with its own set of legal requirements. However, in fairness to you, there is not a single perjury. Common law perjury is specific to malicious falsehoods in a judicial proceeding.

Statutory perjury can, in some jurisdictions and some circumstances, include false statements in some categories of documents and in other proceedings.
tqk

Jan 31, 2007
7:43 AM EST
>> As I understand it, Martha Stewart was found guilty of obstructing, or interfering with, justice, not 'perjury'.

>As I understand it, Martha was found guilty of lying to the FBI during an investigation.

... Exactly, because she was afraid she was going to be charged with insider trading, despite the fact she wasn't an insider.

Martha did a stupid thing. Multi-[bm]illionaires shouldn't grouse about mere $80,000 losses. They also shouldn't be subject to the ridiculous rule set the FTC has managed to cobble together. She wasn't an insider. She was just a high-profile, sexy (to the FTC) target.

I hope she's found better lawyers since.
dinotrac

Jan 31, 2007
7:57 AM EST
tqk -

Got to hand it to Martha, though...She did a great job of turning lemons into lemonade.

Reports of her rather nasty nature had placed her on my personal "least-loved celebrities" list, but...

The whole going to jail thing worked really well for her.

The federal government was ridiculous in its pursuit of her and I wonder how much the jury really thought she was guilty (did they even understand the charge?) and how much they just wanted to stick it to a nasty rich celebrity. She had plenty of reason to grouse about her treatment.

But she didn't. She went to jail and played nice with the inmates.

She may still be mean and nasty (I have no idea -- she may now be nice and cuddly), but she's got some spunk to her, and an ability to deal with some humbling circumstances.

If there were a K-Mart near me, I'd buy her stuff.

jdixon

Jan 31, 2007
8:41 AM EST
> You are free to be wrong.

It won't be the first or last time Dino, so I don't see much point in worrying about it. :)
tqk

Jan 31, 2007
11:19 AM EST
>Reports of her rather nasty nature had placed her on my personal "least-loved celebrities" list, but...

Oh, certainly. I can't stand the woman. Her nose is so far up in the air, I'm surprised she can breath. I certainly respect her accomplishments, and marvel at how well she took all the "Insider trading" abuse, and how well she managed leverage it all to exit prison glowing to her fans (and investors).

The FTC was the bad guy in that case. She was just foolish and greedy, neither of which are against the law, except to the FTC it seems.

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