FAT Patent: Threat to the Free and Developing Worlds?
"Marshall Phelps [Microsoft's vice president and deputy general counsel for intellectual property] picked the oldest and narrowest patent to base these claims on. The others are built on a house of sand and will fall," said Eben Moglen, professor of law at Columbia University, pro bono attorney for the Free Software Foundation, and cofounder of PubPat.
In a decision that could have far-reaching implications -- from the fate of free software to the technology used in developing countries -- the U.S. Patent and Trademark Office (USPTO) has granted the Public Patent Foundation (PubPat) a reexamination of a recently granted patent (number 5,579,517) on the use of file allocation tables (FATs), a ubiquitous technique for accessing a file system.
The FAT file system is used in many modern devices, including those that use flash memory, and many operating systems, such as Linux and Windows. Microsoft has been granted several file-related patents recently, and PubPat believes that all will fall if the USPTO invalidates or limits the FAT patent.
"Marshall Phelps [Microsoft's vice president and deputy general counsel for intellectual property] picked the oldest and narrowest patent to base these claims on. The others are built on a house of sand and will fall.... By choosing this one first, he really messed up, and I'll be glad to wrap his knuckles for that," said Eben Moglen, professor of law at Columbia University, pro bono attorney for the Free Software Foundation, and cofounder of PubPat.
"In many of the developing countries, older machines are common, and they're running free software on them," he said. If newer software has to change in ways that make it incompatible with older hardware and software, Moglen said the result could be a disaster for these countries' efforts to build their computing infrastructure.
PubPat had asked for a reexamination on the grounds that the patent was based on techniques that were not novel and obvious, and that have been in common use since the days of Digital Research's CP/M in the 1970s.
But it also claimed that to grant such a patent would cause harm to free software and would injure the public interest in using such software. The USPTO used the former argument as grounds for the reexamination, refusing to rule on the other arguments.
A Lonely Endeavor
Are companies that have an interest in Linux, or perhaps computer and device manufacturers, likely to join PubPat in taking on the FAT patent? Probably not, said Moglen.
"The companies that hold and defend patents are like a club, and they rarely challenge each other's patents. It's far easier to negotiate cross-licensing agreements each other, pay the fees, and then pass the costs on to consumers," he said. Most patent litigation, he said, involves a company that holds many patents pitted against one that holds few or none.
"The free world [free software proponents] doesn't have these same incentives. We have to worry about toll booths on the information superhighway. We really care about freedom," he said.
Still, Moglen said that he and other free-software supporters are going to press the issue -- alone, if necessary. "We're used to doing good industry work on a shoestring, which is used by people who aren't willing to join us to help, even when it is in their best interests to do so."
Microsoft Confident of Its Patents
For its part, Microsoft is issuing a single terse statement through a spokesperson to reporters who request interviews on the subject of the FAT patent.
"To help improve interoperability, Microsoft has licensed our FAT specification and patents," said David Kaefer, director of Microsoft's intellectual property and licensing group. Licenses will be granted, Microsoft has said, to companies who comply with Microsoft standards, for a quarter per device, up to a maximum of $250,000 per licensee. But PubPat's Moglen said that such licenses will not be granted to free-software authors.
Kaefer added that "Microsoft stands firm in its commitment to work with the USPTO and we are confident in the validity of our patents. At this point, we have the opportunity to demonstrate why this file system innovation deserves patent protection. The USPTO often grants reexamination requests and they provide an important mechanism to assure high levels of patent quality."
A copy of some of the patent documentation is available online.