The decision on the File Allocation Table (FAT) patents reverses
last October's preliminary rejection of the patents by the
agency.
Microsoft describes the FAT file system as "the ubiquitous
format used for interchange of media between computers, and, since
the advent of inexpensive, removable flash memory, also between
digital devices."
The software giant was granted the first FAT patent in 1996 and
in December 2003 announced that it and three related patents were
to be included in a new licensing portfolio.
But the Public Patent Foundation (PubPat), which lobbies against
the current patent system, questioned the company's motives. It
speculated that, because the portfolio did not include licenses for
use in free and open source software, Microsoft surely intended to
use its patents to fight the competitive threat posed by free
software.
Microsoft might, so the argument goes, be able to charge free
and open source software developers, including those using Linux,
for the use of the FAT technology – hitting the community hard,
because the use of any royalty-dependant software is prohibited
under the GPL – the most popular licence for open source
distributions.
In April 2004, PubPat filed a formal request with the US Patent
and Trademark Office, asking it to revoke the patent. The lobby
group submitted evidence of prior art – i.e. evidence showing that
the feature being patented was already in the public domain. It
enjoyed initial success: the USPTO issued preliminary rejections of
the patents in September 2004 and October 2005.
However, the latter rejection was not based on the prior art
claims. According to reports, the USPTO found the patents invalid
only because of a technical discrepancy over who should have been
listed as inventor.
This difficulty now appears to have been resolved, with
Microsoft announcing yesterday that the two patents had been
declared valid.
Speaking to the Associated Press, PubPat Executive Director Dan
Ravicher laid the blame for the rulings on USPTO procedures. He
explained that challengers are unable to answer points raised by
the defending party after they have made their challenge.
“I still believe that this patent is invalid,” he said.
Anti-software patent campaigner Florian Mueller also expressed
concerns.
“This is now a situation in which Microsoft could cause major
problems to Linux vendors and users. Microsoft may not want to do
that yet for other considerations, but the USPTO's decision gives
Microsoft the strategic option to do so at a time of its choosing,”
he said.
The USPTO last week announced three initiatives to improve the
quality and efficiency of the patent system. But Mueller was not
persuaded that this would aid the situation.
“The example of the FAT patents shows that all those patent
quality initiatives and patent pledges have no significant value to
open-source developers, vendors and users if Microsoft ever wants
to go for Linux's throat,” he added.
