Software patents part 2

Picking up where we left off yesterday. Only two more patents to go.




US 6,339,780. Granted patent published 15 January 2002. Filed 6 May 1997.

Claim 37 (Claims 1-36 presumably deleted during examination)

1. A hypermedia browser embodied on a computer-readable medium for execution on an information processing device having a limited display area, wherein the hypermedia browser has a content viewing area for viewing content and is configured to display a temporary graphic element over the content viewing area during times when the browser is loading content, wherein the temporary graphic element is positioned over the content viewing area to obstruct only part of the content in the content viewing area, wherein the temporary graphic element is not content and wherein content comprises data for presentation which is from a source external to the browser.

Another potted summary of the patent, although in this case the actual patent is fairly short. Web browsers at that time often included a little animated icon to indicate that a web page was being downloaded. On a small screen, this is a waste of screen space. Solution, draw animated icon over the main viewing area of the browser while the page is loading, then get rid of it once the page has loaded.

My thoughts on this are remarkably similar to my thoughts on US 5,778,372 aka the 'prioritise important stuff' first patent.

US 6,891,551. Granted patent published 25 July 2002. Earliest filing date 10 November 2000

Claim 1.

1. A method for selecting portions of electronic data on a display device, comprising the steps of:

generating a selection area identifying a first portion of said electronic data, wherein said selection area includes one or more selection handles;

receiving an input from a user associated with said one or more selection handles; and

resizing said selection area responsive to said user input.

OK, this is quite an interesting one and looks rather similar to the method used for selecting text in recent versions of iOS. Indeed the rationale behind this invention was very similar. Clicking and dragging to select text on a computer screen isn't particularly accurate, so lets add resizing handles so that the user can tweak an existing selection box, rather than starting over from scratch if the wrong text has been selected.

Without knowing much about the state of the art back in 2000, I'm not really sure how novel this is. Certainly, the only similar example of a similar system, I can think of is in the far more recent iOS. With regard to inventiveness, my first thought was 'well if you want to resize a selection box, how else would you do it.' Then after a couple more minutes thought, it was clear that there were a number of other ways. For example you could use keyboard cursor keys to manipulate selection box instead of using the resizing handles, or use alternative mouse controls, e.g shift-clicking, to move the boundaries of the selection box.

As I commented in my previous post on the Apple slide-to-unlock patent, the presence of alternatives doesn't necessarily mean that your chosen option isn't obvious but it does make it harder to argue that it is obvious without some kind of steer from the prior art. Also, like the slide-to-unlock patent, I find it difficult to get too worked up about this one. The patent describes a useful invention (arguably more so than slide-to-unlock), which is narrowly claimed and fairly straightforward for competitors to invent around.


So where does that leave us. One patent that I don't honestly feel I can offer an opinion on and two which are - not exactly poster children for software patents as a driver of innovation. One more which I'd quibble about but which I'm prepared to concede does disclose a useful invention. Finally one which looks like it should be lumped in with the 'poster children' at first glance but which doesn't look too bad when considered in a bit more detail.


All in all, not a particularly inspiring bunch but one which collectively doesnt quite deserve the scorn heaped upon it by assorted internet commentators.

Software patents - don't dismiss them.

This post was written as a follow up to a comment I made on the Ars Technica forums. One contributor made some (fairly predictable) comments about the validity of a set of Microsoft patents on the basis of the patent abstracts. I pointed out that abstracts weren't the best way of doing this and that to properly judge a patent you need to read the claims. I then commented that it is quite common for overly broad and silly claims to get whittled down into something sensible during examination.

Naturally I got curious at this point. Certainly, these particular patents didn't look especially earth shaking from their abstracts but did the claimed inventions bear any resemblance to those abstracts. Unfortunately for me, they did in this case, although with a bit more thought, my initial knee-jerk dismissal of them was a little unfair.

This post also turned out to be rather lengthy, so I'll split it into two and post the second half tomorrow. With that said - lets have a look at those patents.

US 6,957,233. 

Granted patent published 18 October 2005, filed 7 December 1999.

Claim 1.

A computer-implemented method for annotating a system having a display for displaying a page having user selectable objects being intermixed with markup tags, said user selectable objects and said markup tags being stored in a non-modifiable portion of a file, said mark-up tags bounding said user selectable objects in said file, comprising the steps of:

receiving user input for a selection of an object of said user selectable objects on the displayed page;

receiving user input for providing an annotation associated with said selected object; said annotation being modifiable;

determining a position of the selected object in the non-modifiable portion of the file regardless of said markup tags bounding said selected object;

storing the position and the annotation separately from the non-modifiable portion of the file; and

providing a portion of said display configured for navigating to the previously selected object based on said position, when said annotation is subsequently selected.

OK this is a little bit opaque, so a bit of context from the patent description would probably help. This patent was all to do with electronic documents and making them more akin to actual paper documents by providing a way of annotating them. I admit to being slightly bemused by this because the last thing I do with a nice shiny book is scribble notes in it but each to their own. Anyway, it turns out that the current method of doing this at the time was to edit the document file to include said annotations. Apparently this presented a problem in that some copyright holders weren't too happy about electronic editing of copies of their work. Hence there was a need for a way of annotating electronic documents without editing the actual document file.

In a nutshell that's what this patent claim is all about. Find out where the user wants to place an annotation, analyse the document file to find the location of that annotation and then store the annotation and its associated position in a separate file.

Back of the envelope commentary

The key part of the claim is that location finding step. Even with a cautionary mental note that most things are obvious in hindsight, if you want to annotate a file without editing it to include the annotation, then it seems to me that the obvious solution is to store that annotation in a separate file. However, I can well imagine that there could be an invention in finding a suitable way of mapping the annotation file onto the document file. Without knowing anything about the prior art, I'll give this claim the benefit of the doubt as regards novelty and inventive step.

However, the description only discloses a limited number of ways of achieving the mapping step and appears to be primarily limited to text files. Under US patent law, a patent description must be enabling and should be commensurate in scope with the claims. In other words, as per the Federal Circuit “the specification must teach those skilled in the art how to make and use the full scope of the claimed invention without 'undue experimentation'.” On that basis, I would argue that this claim is too broad.

US 5,778,372. 

Granted patent published 07 July 1998. Filed 18 April 1996.

Claim 1.

1. A method of remotely browsing an electronic document residing at a remote site on a computer network and specifying a background image which is to be displayed with the electronic document superimposed thereon comprising in response to a user's request to browse to the electronic document:

requesting the electronic document from the remote site on the computer network;

receiving the electronic document from the remote site;

requesting the background image specified in the electronic document from the remote site on the computer network;

receiving the background image from the remote site;

drawing an initial display of the electronic document without the background image prior to receiving the background image from the remote site; and

redrawing the electronic document superimposed over the background image after receiving the background image from the remote site;

whereby the initial display of the electronic document is not delayed until the background image is received from the remote site.

A very condensed summary of the patent description. Web pages with images can be slow to load. Slowly loading webpages

Seriously? I appreciate that this was all pretty new stuff back in 1996 and so there most likely wasn't much prior art around but honestly. Prioritising bits of a webpage to download, so that quick to load, important stuff is downloaded before long to load, not so important stuff seems like a very obvious solution to the described problem.

I really feel for the examiner who got this one. This is an application that cries out to be rejected 'just because' but as I've mentioned previously that doesn't tend to work very well.

US 5,889,522. 

Granted patent published 30 March 1999. Filed 13 December 1994.

Claim 1

1. In a computer system having a display, an input device, and a processor running an operating system (OS) and an application program, the application program running in an application window having a client area, the client area for displaying and manipulating application data, a method comprising:

(a) outputting a control window to the display, the control window being associated with the application program;

(b) predefining, by the OS, a tab control class for providing information to the application program, wherein:

(i) the tab control class includes a plurality of tab control images, each tab control image defining a page having a tab; and

(ii) each page displays application parameters from the application program;

(c) instantiating, by the application program, the tab control class; and

(d) outputting, to the display, a first tab control image superimposed on top of other tab control images within the window, such that the first tab control image, any application parameters thereof, and the tabs of the other tab control images are viewable in the control window.

OK, to me this looks like a claim to a tabbed preference panel, familiar to any Windows (or Mac OS X for that matter) user. Single window with all the preferences for a particular program, organised in groups, each group on its own tab, click the tab to bring up a given group.

I have to confess that I have no idea about this one. The patent was filed in 1994, so this is pre Windows 95 we're talking about. Nope, I'm simply not familiar enough with the art to make a sensible comment on the likely novelty or inventiveness of this one.

Unlocking Innovation

As reported by the IPKat, Apple have been awarded US patent 8,046,721 for 'unlocking a device by performing a gesture on an unlock image'. This is a continuation of US 7,657,849 which was recently rejected by the Dutch courts for being obvious. A key piece of evidence used by the Dutch courts was the Neonode N1m phone which, as shown in this video, can be unlocked by swiping a finger from left to right across the touch screen.

I thought that this was an interesting case for a number of reasons. Firstly, it's almost a textbook example of a 'patent likely to generate ridicule by the general public.' Is this justified? Secondly, if US 7,657,849 was rejected, is US 8,046,721 likely to fare any better? Last but not least, regardless of the merit of the patent it is an extremely narrow patent for a very specific invention. With that said, does it actually matter to anybody other than Apple that this patent was granted?

By way of a quick recap, in order to be granted, a patent has to be (amongst other criteria) both novel and inventive. In other words, the invention disclosed in the patent can't have been previously made available to the public but neither should it be merely a trivial variation on a previously disclosed invention.

Novelty is reasonably straightforward to decide. Check the patent claim, pull out all the features recited in that claim and compare with the previous disclosure (referred to as prior art). If the prior art contains all the features of the claim then that claim lacks novelty. In practice, its a little more complicated than that (and you'd struggle to find a piece of case law that deals with novelty in quite that way) but I think that captures the essence of it.

Inventive step or obviousness on the other hand is rather different and can be extremely difficult to decide. If the patent claim includes features that are not described in the prior art, then the claim will be novel. The question then is whether those extra features add anything to the claim, or whether they're relatively minor things that any reasonably skilled person would come up with as a matter of course after reading or being shown the prior art. Similarly, if there is no prior art at all, then the claim is certainly novel but is not necessarily inventive – it may just be a collection of trivial features that nobody has bothered to try and patent before. However, it will probably be a lot harder to argue that an invention is obvious, if nothing even vaguely like it has been made available to the public before.

The tricky thing about inventive step, is that most things are obvious in hindsight. To properly decide whether something is obvious or not compared one or more pieces of prior art, you need to consider what would be obvious to somebody reading that prior art at the time at the time the patent was filed. This isn't easy to do because it's a necessarily artificial point of view to have to take. Equally tricky, from the point of view of invalidating a patent, can be constructing a reasonable argument that will stand up in court. Arguing that something is obvious because 'look at it - it just is' rarely works. There has to be a valid reason why.

For the Apple 'slide to unlock' patent, in my opinion (for whatever that's worth), the Dutch court got US 7,657,849 right. Claim 1 of this patent reads as follows:

1. A method of controlling an electronic device with a touch-sensitive display, comprising: detecting contact with the touch-sensitive display while the device is in a user-interface lock state; moving an unlock image along a predefined displayed path on the touch-sensitive display in accordance with the contact, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; transitioning the device to a user-interface unlock state if the detected contact corresponds to a predefined gesture; and maintaining the device in the user-interface lock state if the detected contact does not correspond to the predefined gesture.

I strongly suspect that the same Dutch court would also reject US 8,046,721. Claim 1 of this patent reads as follows:

1. A method of unlocking a hand-held electronic device, the device including a touch-sensitive display, the method comprising: detecting a contact with the touch-sensitive display at a first predefined location corresponding to an unlock image; continuously moving the unlock image on the touch-sensitive display in accordance with movement of the contact while continuous contact with the touch screen is maintained, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; and unlocking the hand-held electronic device if the moving the unlock image on the touch-sensitive display results in movement of the unlock image from the first predefined location to a predefined unlock region on the touch-sensitive display.

This is a little bit more specific than the previous claim (and corresponds more directly to the actual iPhone unlock screen) , in that the user has to maintain continuous contact with the screen during the unlock gesture and has to explicitly touch the unlock image to interact with it.

However, in both cases, the only significant difference between the claim and the 'swipe to unlock' gesture used on the Neonode N1m, is the addition of a user interface widget to provide a visual clue to the user that a particular gesture will unlock the phone. Adding such a visual clue certainly makes the phone easier to use but I don't think that adding such a clue is inventive. Arguably, that is a major point of any graphical user interface – to provide visual clues that interacting with the interface in a particular way will have a desired effect on the device running that interface.

On the other hand, without the Neonode prior art it is a lot harder to see how you would set about arguing that either claim is obvious. The same argument about providing a visual clue would still apply but why have that particular gesture to unlock the phone? For that matter, why use the touchscreen at all? Why not just have a physical unlock button? If having a minimal number of physical buttons is important to your phone design, why not press the physical button once to activate the touchscreen and then again to unlock the phone? Or hold down the physical button and perform a gesture with the whole handset, e.g. a flick or a shake (assuming your phone includes an accelerometer). For that matter, if you have your heart set on using the touchscreen to unlock, why not simply designate a number of points on the screen that have to be touched simultaneously to unlock the phone? Both the slide-to-unlock patents specify a moving unlock image, so using a non-moving unlock image avoids both patents.

Having a number of alternative options isn't necessarily enough to make any one of those options non-obvious. However, by the same token, if even a non-skilled person can think up four alternative options for unlocking a phone, then I think it also becomes more difficult to argue that a different option, absent any clue from the prior art, is obvious.

For the same reason, for the hypothetical case, where there wasn't any prior art for unlocking a phone with a touchscreen gesture, I personally wouldn't have any problems with either of these slide to unlock patents. They're far from earth shaking but they do solve a problem in a distinctive and eye catching way, so I can understand why a company would want to try and protect that particular solution to the problem. Yes, they do prevent competing companies from using that solution but neither is it particularly difficult to find alternative solutions that avoid the patents altogether. Slide-to-unlock is very much a nice to have feature than one that would be a serious detriment (or indeed any kind of detriment) to competitors if they couldn't use it. In which case, I would find it hard to really get too indignant about the patents.

Opinion piece - Innovation

What is innovation?

The dictionary definition is fairly bland. Dictionary.com defines innovation as "Something new or different introduced: numerous innovations in the high-school curriculum. The act of innovating; introduction of new things or methods." I have no idea which dictionary OS X uses but it defines innovation simply as "a new method, idea, product, etc. : technological innovations designed to save energy."

The OS X dictionary is, I think, slightly more revealing and in line with what people normally understand by innovation. From the Dictionary.com definition, innovation could simply be regarded as newness for newness sake. The example given in the OS X definition – new technological innovations designed to save energy – has an implied additional context of newness with a purpose, of newness with a tangible benefit. This also implies some kind of standard to be met, a bar to be cleared if you like, before something can be thought of as innovative.

There are a lot of differing opinions about where that bar should be set. On the one hand you have the die hard technology geek. Innovation to them is something big and brand new, something that has never been achieved before. A fusion reactor, a flying car, a quantum computer – that kind of thing. Internet forums inhabited by the die hard geeks tend to be full of posts along the line of 'yeah, not bad but wake me up when it does this'. Or this ever popular sequence:

'Company A has released this incredible new technology – wow!'

'Meh – that's just a tweak on what company B was doing years ago – company A is just copying them.'

'Pfff – Company B got all their best ideas from Company C. Besides, real engineers know that Company D did it first and anyway product X by company E is what you really should be using.'

At the other end of the spectrum you get the popular press and marketing hype where every incremental improvement is trumpeted as 'Innovation'. Using the dictionary definition, I suppose it is but that strikes me as sticking to the letter rather than the spirit of said definition. Naturally the die hard geek dismisses this level of innovation as 'marketing' – a catch all dismissal of any product that manages to be far more popular than a competing product, even though it is technologically 'inferior'.

(Yes, this post is full of sweeping generalisations. That's why it's marked as an opinion piece.)

Personally I think it would be a much saner world if we could avoid either of those extremes. It would certainly save a great deal of time, energy, paper, marketing budgets and recycled arguments. Most innovation consists of incremental improvements on a concept, or the repurposing of old concepts, rather than brand new concepts. To quote Ambrose Bierce - “There is nothing new under the sun but there are lots of old things we don't know.”

Loudly proclaiming the 'innovation' of each and every advance or minor variation on an old theme isn't helpful and simply degrades the word to the point where the bigger advances or genuinely useful reworking of old themes get lost in the noise. On the other hand, dismissing everything that isn't absolutely brand new as not being innovative does a similar disservice to those same advances or reworkings. To my mind, taking an existing but little used product, working out why it's not used and then designing a similar product to overcome those barriers to use, most certainly qualifies as innovation. It might not be a brand new product, it might not be exciting to the purists or technological connoisseurs but it can certainly be innovative.

Another day, another troll

A number of news sites are reporting that Smartphone Technologies (a subsidiary of Acacia Research) have filed a lawsuit against Amazon, claiming infringement of four of their patents. Most of the sites seem to link back to this article at paidContent.org. Details of the actual infringed patents are somewhat sketchy, although US 6,956,562 is reported as one of them.

Acacia is widely regarded as a patent troll, i.e. a company that does not sell any products or services itself and buys patents solely to monetise them through licensing or litigation. The lawsuit was launched in the Texas Eastern District Court - so no surprise there either.

Cue the normal spate of predictable anti-patent commentary. However the paidContent article itself seems a little unclear about what is being infringed and why. From the article:

U.S. Patent No. 6,956,562, for instance, seems to describe the act of tapping an icon in order to instruct the device to perform an action:

According to the method, a graphical feature having a surface area is displayed on a touch-sensitive screen. ..To control software executing on the processor, a user-supplied writing on the surface area is received and the software is controlled responsive to the writing.

To me, this looks more like a method for controlling a smartphone, tablet, PDA etc by handwriting recognition. Not quite the same as tapping an icon.

So lets have a look at the actual patent. Published 18 October 2005 so fairly old and has a priority date of 16 May 2000, which isn't ridiculous either. This doesn't appear to be an ersatz submarine patent with umpteen continuations or continuations in part. Lets check the claims - 66 of them with only two independent claims. Again, not too ridiculous - I've seen far worse. Claim 1 reads:

A method for software control, comprising:
displaying a graphic representing a set of one or more computer functions on a portion of a touch-sensitive screen, wherein the touch-sensitive screen is coupled to at least one processor to detect and interpret contact with the screen; 
detecting an object making a first sequence of one or more contacts that form a first drawing on the portion of the screen; 
in response to detecting the object making the first sequence of one or more contacts that form the first drawing: 
matching the first sequence to a particular action in a set of actions, and performing the particular action; 
detecting an object making a second sequence of one or more contacts to form a second drawing on the portion of the screen; 
in response to detecting the object making the second sequence of one or more contacts to form the second drawing: 
matching the second sequence to a second action in a set of actions related 
to said one or more computer functions, and 
performing the second action; 
wherein the visual appearance of the graphic is the same when the first sequence of contacts is commenced and when the second sequence of contacts is commenced. 


Claim 47 is a claim to a computer controlled by the method of claim 1.


OK, displaying a graphic representing one or more computer functions on a portion of a touch sensitive screen. Yep, that sounds very much like an icon. Making a sequence of one or more contacts to form a first drawing - I'm not sure that this does encompass a simple button tap. You could argue that the claim encompasses a single contact - aka a tap but can a tap be reasonably considered to be a drawing? In my opinion no. However, writing a letter on the screen could be construed as a drawing. As for the one or more contacts - consider the difference between the letters 'o' and 'i'. The first can be drawn with a single contact, the second requires two separate contacts to make the line and the dot.

Furthermore, claim 1 is quite limited (presumably to avoid prior art) in that it stipulates a chain of two commands (both input via drawings as discussed above) and that the the appearance of the icon (or other part of the GUI) remains the same between both commands.

All in all, quite an odd little patent and certainly not a simplistic 'patent for tapping an icon on a smartphone'. Actually this reminds me more of Swype - where words are entered in e.g a text message by performing a gesture across a touchscreen keyboard. Entering a word into a text message could also be regarded as an 'action' in the context of the claim....

Opinion piece - copyright duration.

I'm a couple of weeks late with this one but as reported by numerous news sources, the copyright term for performers and sound recordings has been extended by 20 years to 70 years. By way of background, in Europe, the copyright in artistic or literary works (which are fairly broadly specified in Article 2 of the Berne convention) lasts for 70 years after the death of the author. The copyright in sound recordings and broadcast performances (whether by radio or television) lasts for 50 years. Copyright durations in the UK are in line with European copyrights.

Personally, I think that the extension of copyright in sound recordings is disappointing – or rather the almost complete lack of debate on the matter is disappointing. Two government reviews of intellectual property law (Gowers and Hargreaves) both concluded that there was little or no economic case to be made for extending copyright durations. Despite this, the extension was waved through by the government without so much as a murmur of dissent. So much for evidence based policy making.

I'm not alone in this judging by the trenchant commentary on other blogs.

Speaking personally, I also believe that current copyright durations are far too long. Don't get me wrong – I think copyright in general is a very good thing and I certainly don't begrudge writers, musicians and performers of all stripes (artists for short) the ability to make money from their work – and in some cases to make an awful lot of money from their work. However, I disagree with the justifications put forward for the current excessive duration of copyrights.

All intellectual property rights, should be a balance between a benefit to the public and a benefit to the rights owner. In the case of copyright, artists are given a legal tool which allows them to make money by distributing copies of their work whilst giving them the right to prevent anyone else from copying that work. This is balanced by two things – firstly that the copyrighted works will eventually pass into the public domain and secondly that the possibility of making money encourages more people to create artistic works for the public to enjoy.

Nowhere in this can I see a reason that copyright should be a gravy train for an artist's descendants and for their descendants too. However this is precisely what the legislation specifies. Before the last round of extensions, copyrights lasted for 50 years after the death of the author, which was 'intended to provide protection for the author and the first two generations of his descendants'. It was then noted that people were living for longer and lo and behold – a justification for extending to 70 years after death was found.

On a similar note, one reason for the recent extension of copyright in sound recordings is (and I quote) “performers generally start their careers young and the current term of protection of 50 years applicable to fixations of performances often does not protect their performances for their entire lifetime. Therefore, some performers face an income gap at the end of their lifetime.”

Seriously? Most people face an income gap at the end of their lifetime. It's called retirement. A lot of people from all backgrounds and incomes also have the wisdom and foresight to save something for retirement. Why shouldn't performers?

Sarcasm aside, it's worth having a look at this in a bit more detail. The average retirement age (defined as the age at which state pensions become available) in the EU is just over 65. I'll say 66 for convenience. So a copyright duration of 50 years would last a performer from the age of 16 to an age at which most other workers would recognise as a retirement age. That doesn't sound so harsh to me. Extending the copyright to 70 years covers a performer from birth to well past that retirement age – which strikes me as being plenty for even the most precocious of young performers.

However, linking copyright duration to working age isn't actually a bad idea. What if that applied to all copyrights? Forget about 70 years from death – just a single fixed term of 70 years from when any artistic work was created. In practice this would cover most artists for their whole lifetime. Even for artists that start their careers at a very early age it would last for their working lives, or at least for a duration that workers in every other field would recognise as a working life. 

In many cases 70 years from creation would mean that copyright in an artistic work would still extend beyond the lifetime of the artist but not to the ridiculous extent that it presently does. For companies that invest in artists and their works, 70 years isn't an unreasonable time to recoup that investment either. Granted it would be significant reduction from what they currently enjoy but forgive me if I believe that these companies should be investing in new talent, rather than resting on the laurels of artists long since dead and gone.

The only significant losers are the artist's descendants and their descendants too. Again, forgive my lack of sympathy but to them I say welcome to everybody else's world. Enjoy whatever is left to you in your grandparent's will and then go out and earn your own money.

Minnows and Giants

Giants and Minnows

I was flicking through the BBC news site a couple of days ago and found this article. I was curious to find out what this was all about and so decided to find US patent 7,222,078 and have a look for myself.

This is certainly not a short patent, with 39 pages of drawings and a further 50 pages of description. The abstract isn't exactly a model of clarity and brevity either. So lets turn to the claims. As I posted a while ago on this blog, the claims are the most important part of a patent because they define what the patent is preventing you from doing.

Claim 1.

A system comprising: units of a commodity that can be used by respective users in different locations, a user interface, which is part of each of the units of the commodity, configured to provide a medium for two-way local interaction between one of the users and the corresponding unit of the commodity, and further configured to elicit, from a user, information about the user's perception of the commodity, a memory within each of the units of the commodity capable of storing results of the two-way local interaction, the results including elicited information about user perception of the commodity, a communication element associated with each of the units of the commodity capable of carrying results of the two-way local interaction from each of the units of the commodity to a central location, and a component capable of managing the interactions of the users in different locations and collecting the results of the interactions at the central location.

Claims 2-53 (yes seriously) all claim various extra bits and pieces added on to the core invention claimed in claim 1. Claim 54 reads:

A system comprising: units of a facsimile equipment that can be used by respective users in different locations, a user interface which is part of each of the units and is configured to trigger a two-way interaction to occur on-line between the unit of the facsimile equipment and a vendor of the facsimile equipment, the user interface being configured to generate information about use of the unit by the user, a communication element associated with each of the units capable of carrying results of the two-way local interaction from each of the units to a central location, and a component capable of managing the interactions of the users in different locations and collecting the results of the interactions at the central location.

OK this is interesting in that it claims a specific kind of system, namely a fax machine, that uses a similar system to that claimed in claim 1.

Claims 60 claims another variation on the general theme of claims 1 and 54 and claim 69 claims a method of using a similar system to that claimed in claims 1, 54 and 60.

I'm not going to pretend to do a full analysis of all 74 claims here but I can try and dissect the first claim. My first thoughts were that this has been done before and that it sounds very much like the kind of help system of the kind that's built into Microsoft Office software – Word 2003 for example. So lets break down claim 1 into its separate parts and see how well that fits.

Units of a commodity that can be used by respective users in different locations,

A software package would fit that definition and I would argue that 'units of a commodity' is general enough to include parts of that software package too.

a user interface, which is part of each of the units of the commodity, configured to provide a medium for two-way local interaction between one of the users and the corresponding unit of the commodity. 

The Word 2003 help system provides for two way interaction between a user and the software package. To be honest I'm struggling to think of a user interface that doesn't allow for this – isn't that the point of a user interface?

and further configured to elicit, from a user, information about the user's perception of the commodity, 

Well the Word help system certainly does this – a given help page usually has a 'was this useful' option at the bottom.

a memory within each of the units of the commodity capable of storing results of the two-way local interaction, the results including elicited information about user perception of the commodity, a communication element associated with each of the units of the commodity capable of carrying results of the two-way local interaction from each of the units of the commodity to a central location,

If I remember correctly, the Word 2003 help system does indeed report any response to the 'was this useful' dialog back to Microsoft aka a central location. It's debatable whether 'a memory' and a 'communication element' are limited to actual hardware or whether they would also include software equivalents. Given that the owners of this patent are trying to enforce it against a smartphone app developer, they clearly think that software equivalents are fair game, so lets go with that.

and a component capable of managing the interactions of the users in different locations and collecting the results of the interactions at the central location.

This is where my analysis gets a little more speculative, although (as we'll see later) there's a much bigger elephant in the room anyway. The Word 2003 system isn't all stored on the end user's computer – some of the help files are stored remotely and delivered over the Web. I would guess that the web based help files are also updated in response to received feedback via the 'was this useful' dialog. I would therefore argue that this web based system is a component 'capable of managing the interactions of the users in different locations'. We've already seen that the system is capable of collecting interaction results at a central location.

Therefore, at first glance, it does look like the Word 2003 help system meets all the requirements of the patent claim. This is useful for giving a picture of the kind of things covered by the patent but isn't very helpful otherwise because I'm basing the analysis on a software package released in November 2003. However, the patent we're discussing (US 7,222,078) has a priority date of August 1992. What is a priority date and why is it important?

Under certain circumstances it is possible to file a patent application that claims priority from an earlier application. That means that the new application is treated as having the same filing date as the earlier application. For example in the UK, it is possible to file a first patent application and then, within the next 12 months, to file a second application based on the first that claims priority from it. This is useful because it allows inventors to file an early patent application for an invention that may not be fully worked out, or may need substantial development funding before it will be commercially viable. They then have 12 months to carry out further development work, raise venture capital and generally decide exactly what they want to do with their invention before having to spend more money on their patent application.

However you only get one go at this. It isn't possible to chain applications together, for example by waiting another year and then filing a third application based on the second that also claims priority from the first.

The US system is somewhat more involved and as I understand it, under certain circumstances it is quite possible to chain applications together in this way. This is exactly what we see with US 7,222, 078. Although the patent itself was filed in December 2003, it claims priority from another application filed in September 1997, which in turn claims priority from another application filed in May 1994. The May '94 patent claims priority from a still earlier patent but was filed under slightly different rules (a continuation-in-part rather than a continuation). I'm not going to go into the details of the rules here but the upshot is that only part of the invention described in the May '94 patent will be entitled to that earlier priority.

In summary, US 7,222, 078 will have a priority date of at least May 1994. This is important because only publically available information from before that date can be used as prior art, ie. material that can be used to argue that the patent shouldn't have been granted. Therefore, although US 7,222, 078 was filed in December 2003, Word 2003 (which was released before that date) cannot be used as prior art because US 7,222, 078 is treated as though it were filed in May 1994 (and possibly even earlier).

So if we want to demonstrate that US 7,222, 078 shouldn't have been granted, we will ideally need to find evidence of a system that was in use before 1992 that includes all the features set out in claim 1. The good news is that since US 7,222, 078 was filed after June 1995, it only lasts for 20 years from its priority date. So at worst, it will automatically expire in 2014 and may even expire next August.

Back in 1992, the invention described in US 7,222, 078 may well have been cutting edge fax machine technology and quite deserving of a patent. It's unfortunate that the patent was drafted widely enough that 20 years on it is being enforced against inventors working in rather different areas of technology. In fact this case rather reminds me of the the BT hyperlink patent, where an old, broadly drafted patent was optimistically asserted to cover much newer technology.

The BT patent was found not to be infringed by the World Wide Web and the issue of prior art didn't need to be addressed, although some was found. It is unclear what will happen with the Lodsys patent.