General Question

Robby

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Dec 14, 2008, 8:43:01 PM12/14/08

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Hello,

I am programming micro controllers in C language. It is obvious that the
code must be programmed so to handle hardware inputs and outputs in a real
time
fashion. And therefore I am finding myself coding a kernel which retrieves
hardware and software signals from lower level program and sending them off
to a message queue for further processing. This is quite similar to the
Windows ideology of processes its signals. I then use a message loop to
retrieve these messages and send them to the appropriate winproc function.
All this is done in a very similar way as we do win32 programming. Obviously
I am not doing everything exactly as Windows does, but you get the idea.

Therefore I have messages such as WM_PAINT, WM_CREATE and so forth. Except I
call them KM_PAINT and KM_CREATE and so forth. Also I have created similar
functions such as ShowWindow() and InvalidateRect() and so forth. Again,
although I do use the same mesage and function names, their contents are not
the same as the ones we use in Windows. Basically, instead of just doing a
big program in C which would be totally unfamiliar to a new programmer, I
have decide to use a Kernal which would look familiar to a C programmer and
trying to use objects as much as possible.

I don't know if this is the right community to ask my question, although I
would like to know your opinion. My question is....given the fact that I am
using similar names and programming mechanics as Windows is, is there any
probabilities that I may run into any infringement issues?

For example, a function like ShowWindow() will show a Window just as Windows
does, but the contents of this function will be nowhere the same as the
typical ShowWindow() function used in win32. Although it may have the same
parameters?

In your opinion am I headed for trouble if I continue this way?

Your sincere feedback is appreciated!

--
Best regards
Roberto

Alex Blekhman

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Dec 15, 2008, 3:32:48 AM12/15/08

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"Robby" wrote:
> ...given the fact that I am using similar names and programming
> mechanics as Windows is, is there any probabilities that I may
> run into any infringement issues?
>
> For example, a function like ShowWindow() will show a Window
> just as Windows does, but the contents of this function will be
> nowhere the same as the typical ShowWindow() function used in
> win32. Although it may have the same parameters?

I am not a lawyer, but copyright infringement seems highly
unlikely. After all, you use design patterns, not blocks of code.
BTW, Windows 3.1 API is an international standard:

Standard ECMA-234
Application Programming Interface for Windows (APIW)
http://www.ecma-international.org/publications/standards/Ecma-234.htm

So, you can take it as a reference for your API, too.

Alex

Pavel A.

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Dec 15, 2008, 4:08:12 AM12/15/08

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Hmm. Maybe you can pretend that you emulate Reactos or Wine :)

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Dec 16, 2008, 10:47:59 AM12/16/08

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hi Roberto,

I think also that processing messages is a very old tool,
you see, in the past when there was not even C++,
I think that processing messages was the most used tool
for these kind of porpouses.

I can´t confirm this, of course all my comments are only
my thinking.

best regards, Carlos.

"xcal" <d22> escribió en el mensaje
news:u%23rCxL5X...@TK2MSFTNGP06.phx.gbl...

Robby

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Dec 16, 2008, 10:52:01 AM12/16/08

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Hello Carlos,

Okay!

Which is not my case since my windows are nothing like the traditional
window presentatons. But administered.... umh I don't know. I will be
administrating my windows or controls with basic arrays and structures which
probably won't be the same as the source Window's code. I mean I will
probably, create objects for every control including a window and will be
shown with functions like ShowWindow, CreateWindow, UpdateWindow and so
forth... *but* their contents will not be the same. Their are many ways to
administer this. Anyways, thanks for your feedback!

Barry Schwarz

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Dec 15, 2008, 2:32:15 AM12/15/08

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You are asking for legal advice from a bunch of anonymous strangers.
Odds are the advice will be worth even less than you pay for it. Even
if a lawyer were to respond, you don't know his qualifications to
address intellectual property issues and he doesn't know which legal
system has jurisdiction over where you will perform this act of
possible infringement.

Are you doing this for your company as part of your job? If so, don't
they have a legal department?

--
Remove del for email
** Posted from http://www.teranews.com **

Robby

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Dec 16, 2008, 11:59:03 AM12/16/08

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Hello Barry,

There is nothing wrong in getting some insight from a bunch of anonymous
strangers.

I own a Corp!

--
Best regards
Roberto

Tommy

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Dec 16, 2008, 1:58:44 PM12/16/08

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Despite other people's response, there are those who deal with IP
technology and with lawyers to know the basic issues you need to
confront to protect your own products and also make sure you are
infringing on others.

At the end of day, there would be four possible claims:

- Copyright Infringement
- Patent Infringement
- Trade secret Infringement
- Trademarks Infringement

So where could you possible fall?

Copyright, unless you using Microsoft source code, you don't have to
worry about that.

Trademarks, Microsoft don't have a copyright and trademark on function
and variable names - not at this level. It would very weak case for
Microsoft to claim ownership of the term "ShowWindow()" However,
there could be patents based on new Business Methods. More on that later.

Trade Secret, these are ideas that are not documented, a secret, and
its quite possible Microsoft may have trade secrets. However, the
changes in the reverse engineering laws most likely nullified this -
and this I mean Microsoft secrets in Windows.

So I doubt you will infringing on anyone code as long as you didn't
use someone else software and claim it your own - i.e. COPY IT!

It is perfectly find to EMULATE a behavior, but this is where patents
law changes could play a role.

Patents, are there patents for signals to message queues? Possibly,
but that was 30-40 years ago and I'm sure the patents have expired.
Why? because millions of systems, such as process control systems are
based on such technology. Embedded system designers and programmers
would be in trouble otherwise. So the idea of hardware signal to
software message queue is not something Microsoft can stop anyone from
doing.

Since 1996, and again in 98 and 2000, the patent laws were relaxed to
remove the "Hardware" or mechanical aspect of it - meaning, software
patents or business methods because the common place. Gosh, even
BATCH files were frivolously patent since the changes in the laws.

In the old days, a patent was harder to get because it required a
unique element to it. The methodology followed by examiners was
called Marcus (Markus?) Analysis which simplistically means:

Given prior art ideas, A, B and C, you could not claim a patent P

P = A + B + C <-- NO PATENT

The law required that you have a UNIQUE, NEW and NON-OBVIOUS idea D
because you can claim a patent.

P = A + B + C + D <-- PATENT

This is very important. Lets use you for example:

Idea A: Signals
Idea B: Message
Idea C: Queue

No Patent = Signal + message + queue

These are all prior art ideas. Putting them together was probably not
enough. Why? Because those these are you can buy in a store
figuratively speaking. What is missing is the unique idea - software
algorithm or method:

Idea A: Signals
Idea B: Message
Idea C: Queue
Idea D: Software Method or Algorithm

Patent = Signal + message + queue + method

The patent would cover D - the "Optimized Signal to Message Method."

Also, in the past, and even today, the better patent tries to
encapsulate a wide range of applications, so you throw in an
application to help stop a competitor:

Idea E: GUI Display

Patent = Signal + message + queue + method + GUI

So its very possible to have patents, but I think they are expired at
this point. If anything, you have a the better Mouse Trap, which is
the goal of patents to allow inventors to build the better idea for
society, not just protect the original inventor:

Prior Art Ideas: A, B, C, E
New Idea: D1

Patent = A + B + C + D1 + E

where D1 is a

"Better Faster, Optimized Method for GUI Display Systems Using
Carbon Based Query Dissemination Techniques"

However, today, the laws were relaxed so that you can take just take
prior arts ideas, put them together to claim a patent - these are
called business methods. This is whats creating all the patent
problem today because you don't even need actual software, just the
ideas and they can be old. Markus Analysis is not being applied and
the burden is on others to claim a patent is frivolous or no good.
The inventor doesn't even have research all the prior art like he had
to in the past.

The sad part is people have gone back in time and claim business
method patents on old prior art methods which at the time were not
patentable themselves. But today they are.

What that means, you don't know what ideas are patent. You need to do
the research or get a lawyer to do it for you. I don't think you have
to worry for old ideas like ShowWindow(), but if you come up with a
better "ShowWindow()" method even you can claim a patent, and this is
what Microsoft guards against - frivolous patents trying to troll on
old ideas when they fill many patents themselves.

I think based on what you said, if you not copying software, you don't
have to worry about copyrights, trademarks and trade secrets. The
names use for variables, constants and functions I doubt would be an
issue.

But you probably need to concern yourself with business/software
patents. They might be frivolous and dubious, and probably in your
case, nothing to worry about, but a patent protection comes from the
fact that it COST money to fight it. And its easy for a big company
to scare the little guy.

With that said, don't just listen to me. I am just expressing
experience in IP area. I know a lot about it, and even participated
as Software Expert witness in several cases. But I don't carry the
badge and if you are concern, find yourself a good IP lawyer, befriend
him because if you are serious, you will need one that you can speak
with a lot and that could be costly.

Finally, of course, if you are thinking of patenting this "cloning"
you are doing - that isn't going to help your cause. Might even piss
off Microsoft. :-) But unless you reach some level of market, like
1-2%, I doubt they will bother you. But then again, they might to set
precedence. Again, I doubt there is anything here. But you never know
what frivolous patents are out there.

---

Robby

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Dec 16, 2008, 3:00:05 PM12/16/08

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Hello Tommy,

I thankyou for sharing your insights with me.

Yes, I have some experience with patents and I do have an IP lawyer which is
costing me alot of money (they really don't come cheap) Nonetheless, I still
do some do diligence by asking some questions here and there which permits
the me to stay on top of things when I carry out discussions with my IP
lawyer.

In my opinion I do possess A+B+C+Unique aspect in my patent however, the
unique aspect is hardware. But I think you have pretty much come across for
the sofware part. Yeah I did not create any complex innovative algorithm
instead its pretty much what C programmers do everyday.

Infringement is one of my biggest worries, but my code will not be the same
as any other code thats out there, but say I do come up with a better
showWindow() and is specific to my device only, could there be a harm in
that? The improved showWindow would not work for a desktop, it would only do
something specific along with showing a window for my device.

So what's the deal, they would compare MS showindow() code to mine? If its
different, then what?

Just wondering, if a Mega Corp posesses trade secrets...... if they are
secrets, then they atre not patented are they? So if someone by sheer luck
patents a software or business method that is similar to those trade secrets,
he will own the rights to those secrets, since there was no way to check on
prior art in the first place!

Nice chatting with you Tommy!

--
Best regards
Roberto

Tommy

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Dec 16, 2008, 4:24:34 PM12/16/08

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Robby,

IMO, I doubt MS will go after you, but these days with so many
frivolous patents, you just never know how close you may be to
infringing on a related patent, theirs or someone else's.

Do a USPTO search here:

http://patft.uspto.gov/netahtml/PTO/search-adv.htm

Type in something like this in the search box:

Signal AND "Message Queue" and "GUI"

and click and you get 263 hits.

Refine by adding

Signal AND "Message Queue" and "GUI" and ShowWindow

and you get one patent. But look at the date, filed on 1995, issued
in 1997. This thing has expired.

Change the search to something that is closed to home:

Signal AND "Message Queue" and "GUI" and Embedded

and you get around 117 hits.

I didn't read any of them, but that is what a patent lawyer or you
will do. :-)

--

Robby

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Dec 16, 2008, 5:53:01 PM12/16/08

to

Sounds good Tommy!

I've been on the USPTO website, its quite interesting what you can find on
there.

You have yourself a good night.

--
Best regards
Roberto

Barry Schwarz

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Dec 16, 2008, 7:45:54 PM12/16/08

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snip

>Since 1996, and again in 98 and 2000, the patent laws were relaxed to
>remove the "Hardware" or mechanical aspect of it - meaning, software
>patents or business methods because the common place. Gosh, even
>BATCH files were frivolously patent since the changes in the laws.
>

You have some reason to believe the OP is subject to US law?

Barry Schwarz

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Dec 16, 2008, 7:45:54 PM12/16/08

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On Tue, 16 Dec 2008 08:59:03 -0800, Robby
<Ro...@discussions.microsoft.com> wrote:

>Hello Barry,
>
>There is nothing wrong in getting some insight from a bunch of anonymous
>strangers.

When the topic is a determination of legal liability, there is not
much right with it either.

>
>I own a Corp!

Then you should have legal counsel available.

Tommy

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Dec 17, 2008, 2:44:51 AM12/17/08

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Barry Schwarz wrote:
>
> You have some reason to believe the OP is subject to US law?
>

Good point. He does "smell, walk and talk like a duck," so he
probably is one. :-)

Alex Blekhman

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Dec 17, 2008, 2:56:14 AM12/17/08

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"Tommy" wrote:
> In the old days, a patent was harder to get because it required
> a unique element to it.

Tommy, thanks for this elaborate overview. It was very interesting
to read. You said that modern patent requirements are relaxed
comparing to the old ones and this allows people to patent almost
anything. I agree with you. Currently the whole patent system
seems to be in such pathetic state that nobody takes it seriously
anymore (except lawyers, of course). It is long forgotten history
when trials about patent infringement were about restoring
justice. Now it is just another field of competition war.

What do you think was the motive of such patent requirements
relaxation? The people who legislated new rules for patents,
didn't they understand what a waterfall of superficial patents
(and lawsuits) it would cause?

Alex

Tommy

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Dec 17, 2008, 5:53:48 AM12/17/08

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IMO, Alex, what happen was this:

1) Advent of Computers

Before computers and software, most patents were mechanical in nature.
Harder to get, lots of R&D had to be done, demos, very expensive.
With the intro of computers and software, the patents was mostly
industry related.

With computers going to the masses, software was the key
differentiator. The issues of copyright protection was no longer
suitable for protecting a software idea.

2) IP Portfolios

For Major corporations new areas of innovations are primarily in the
software areas. Every major corporation has an IP portfolio that they
depend on for licensing technology and residual income. For a major
corporation, it can be in the 100s of millions per year. So the
portfolio has changed from one that included many "mechanical" type of
patents to one that were more abstract in nature - software patents.
The laws needed to be change to give these patents more strength.

3) Patent laws relaxed:

So the major corps got the laws changed, but that opened Pandora's box
because now it allowed even more people, smaller inventors that can do
just SOFTWARE to claim patents. No mechanical device was necessary,
just an series of steps and procedure was enough - CODE!

4) Prior Art Less Important

The due diligence and research for prior art was no longer as required
up front. Now you can amend your patent as prior art is discovered.
Before, this was a BIG reason for losing a patent. If you knew prior
art existed, the court judge could even fine you for intentional
neglect. Today, you are allowed to amend patents to add the information.

Part of the problem here is that good lawyers and engineers were not
going to the USPTO for work. And the ones they did have were
inexperienced, i.e. interns. So to lessen the work load, the burden
was put on the patentee and any concerns claimer.

5) Provisional Patents

The USPTO began to allow for Provisional Patents. This is a cheap
filing, its like a 1 page "letter of Intent" less than $200 or so
that gives you 1 year to file the full patent. I believe this is
enough for you to say "Patent Pending" (double check that) but it
enough to scare people aware or for patent trolls (a new market) to
test the market to see if worth the effort to produce the full patent.

Patent Trolls, thats all they do, collect a portfolio and sue others
or sell it to others. A big problem when you consider all the other
points I listed.

6) 1 Year Existing Market Product Rule

The STRONG idea for patents that if the idea already was in the market
for one year, it is not patentable, was relaxed. In other words, if
there was an old idea but no one bothered to patent it because maybe
you couldn't, today, someone else can lay a claim on it. Or if you
already had a product in the market for a number of year, the 1 year
rule does not apply because you can now get around it.

This last one bothers me the most because I have a 25+ year product
line with tons of ideas in it, many 3-6 years ahead of its time, yet
were not patentable at the time. However, there are many patents
files over the last few years on parts of it or even as a whole.

But I never really worried too much, nor did my lawyer think we need
to worry about it, because they they can't come after the me - the
judge would be on my side given the fact we been in the market for
decades using ideas and prior art and no way they would impose
infringement on my part, nor restrict me to advance it.

However, the sad part of this today, although the judge will
"grandfather" me, the judge might allow the patent filer to hold it
against anyone else new who did the same thing. I think it would be a
weak patent but this is the sort of thing that is going on. It might
be drown out, but the big problem is the LAWSUIT cost money. They
burden would be on you to PROVE they were wrong. Trolls rely on that
so unfortunately many companies pay the blackmailers.

In fact, Microsoft is the same position especially after the EOLAS
case which someone got a patent on the idea of OLE - object linking
and embedded, like showing an image or object in a browser <OBJECT>
tag. Because of this case and others like it, Microsoft and other big
companies want the same ability to file a claim on an old ideas that
has not being claimed yet. Microsoft says to help protect against the
trolls, and to help customers by keeping cost low.

Its crazy.

Yes, I think you are right. Its just a matter of money. When it comes
to legal issues, he who has the most, wins. :-)

---

Tommy

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Dec 17, 2008, 8:22:23 AM12/17/08

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Tommy wrote:

>> What do you think was the motive of such patent requirements
>> relaxation? The people who legislated new rules for patents, didn't
>> they understand what a waterfall of superficial patents (and lawsuits)
>> it would cause?
>>
>> Alex
>
> IMO, Alex, what happen was this:

> 5) Provisional Patents

>
> The USPTO began to allow for Provisional Patents. This is a cheap
> filing, its like a 1 page "letter of Intent" less than $200 or so that
> gives you 1 year to file the full patent. I believe this is enough for
> you to say "Patent Pending" (double check that) but it enough to scare

> people away or for patent trolls (a new market) to test the market to

> see if worth the effort to produce the full patent.

Just a follow up. Yes, for the low cost 1 year Provisional Patent:

"It also allows the term "Patent Pending" to be applied
in connection with the description of the invention."

see http://www.uspto.gov/web/offices/pac/provapp.htm

To me, this is what has cause a big part of the problem. Its good for
small honest inventors, but in the end, its a cheap way to Patent
Trolls to make a claim without doing any real work, just a
description, and then go out and see if there a market of people using
the idea, then file the full patent and with a few years before you
sue them.

--

Alex Blekhman

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Dec 17, 2008, 8:26:35 AM12/17/08

to

"Tommy" wrote:
> It might be drown out, but the big problem is the LAWSUIT cost
> money. They burden would be on you to PROVE they were wrong.
> Trolls rely on that so unfortunately many companies pay the
> blackmailers.

That's the problem. I think that along with the patent
registration relaxation there should be symmetric patent lawsuit
restraining, as well. Otherwise everybody can lodge new patents
without introducing anything new, while suing others as if they
were old "hard" patents. The suing threshold must be much higher
than it is today.

Alex

Tommy

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Dec 17, 2008, 8:43:47 AM12/17/08

to

Alex Blekhman wrote:
> "Tommy" wrote:

>> It might be thrown out, but the big problem is the LAWSUIT cost
>> money. The burden would be on you to PROVE they were wrong.

>> Trolls rely on that so unfortunately many companies pay the
>> blackmailers.
>
> That's the problem. I think that along with the patent
> registration relaxation there should be symmetric patent lawsuit
> restraining, as well. Otherwise everybody can lodge new patents
> without introducing anything new, while suing others as if they
> were old "hard" patents. The suing threshold must be much higher
> than it is today.

I agree.

I did read of changes or proposals in this area. I don't recall off
hand if its effective yet. It may be or some form of it is. It was
part of the proposed changes that would allow old ideas to be patented.

When a troll attempts to sue you or threatens you, you can file a
complaint with the USPTO to contest the patent.

The problem was in recent years was that unless it was a big contest
by many people, helped if big companies complained too, they would not
do anything and left it up to you to fight it out with the troll.

So I believe now you can file a patent contest which now forces the
USPTO to do the work they suppose to do in the first place - the
preliminary researching of the prior art to see how legitimate is the
patent or it should be nullify.

The problem here is that they basically send it to the patentee and
have them respond to the contested claim. What happens is that the
patentee will simply amend the patent and add the prior art claim and
that might be enough to stop them from suing you, but keeps the patent
active. This is whats happening a lot.

--

Alex Blekhman

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Dec 17, 2008, 9:22:58 AM12/17/08

to

"Tommy" wrote:
> When a troll attempts to sue you or threatens you, you can file
> a complaint with the USPTO to contest the patent.

I think that incentive to sue should be diminished somehow. For
examle, if patent infringement lawsuit looses, then plaintiff
should pay not only the trial expenses but also the sum of the
claim to the defendant. That should cause a troll to weigh his
chances to win much more carefully.

Alex

Tommy

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Dec 17, 2008, 3:23:42 PM12/17/08

to

Hi Alex, defendants already have a recourse here - its call Tortious
Interference - disruption of your business. So if a plaintiff loses,
a Tortious or Wrongful Interference lawsuit will follow suing for lost
time, lost of exclusive product income, PR damages, and of course,
attorney fees. So patentees better be sure they have a case.

--

Alex Blekhman

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Dec 17, 2008, 4:27:09 PM12/17/08

to

"Tommy" wrote:
> So if a plaintiff loses, a Tortious or Wrongful Interference
> lawsuit will follow suing for lost time, lost of exclusive
> product income, PR damages, and of course, attorney fees. So
> patentees better be sure they have a case.

Apparently, it doesn't work or doesn't work effectively enough to
deter ridiculously shallow lawsuits. Probably in the future there
will be some kind of blanket licensing for intellectual property,
or something completely different that we cannot imagine today.
But the industry should find a way before it stalls in patent
clinch.

Alex

Robby

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Dec 17, 2008, 11:03:01 PM12/17/08

to

>Hi Alex, defendants already have a recourse here - its call Tortious
>Interference - disruption of your business. So if a plaintiff loses,
>a Tortious or Wrongful Interference lawsuit will follow suing for lost
>time, lost of exclusive product income, PR damages, and of course,
>attorney fees. So patentees better be sure they have a case.

Do Tortious Interference apply to patents, don't they only apply to
contracts between companies?

I always thought that the defendant must counter sue to have recourse
against the plaintiff. Now theres a good possibility I am wrong, but (patent
trolls aside and looking at it from my perspective) I did look into something
similar for myself where suppose I am the defendant and I am sued by a Mega
Corp.... from what I was told I have two choices. Either I pay an IP
litigator and go to court or get a lawyer to work on a contigent fee. And
this is where I found out that if you are the defendant, its very difficult
to sue for damges unless you counter sue. So for this reasonit turns out that
not many lawyers would work based on a contingent fee.

I am not a lawyer, I am only saying what I have experienced.

--
Best regards
Roberto

Tommy

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Dec 18, 2008, 12:12:25 AM12/18/08

to

Robby wrote:
>> Hi Alex, defendants already have a recourse here - its call Tortious
>> Interference - disruption of your business. So if a plaintiff loses,
>> a Tortious or Wrongful Interference lawsuit will follow suing for lost
>> time, lost of exclusive product income, PR damages, and of course,
>> attorney fees. So patentees better be sure they have a case.
>
> Do Tortious Interference apply to patents, don't they only apply to
> contracts between companies?

Contracts, customers, or just plain running a business. If a plaintiff
intentionally disrupts your business, such as by getting a court
injunction against you where you can't sell your product or services,
falsifying information in the media, or just can't continue with your
normal business and hence you are losing money, etc, that is all
grounds for Tortious Interference against the plaintiff if he is
proven wrong. All you have to prove is measurable harm was done
(generally in the form of money). If you haven't lost anything, then
its harder to sue. Rather, you can always sue, but generally a judge
will look for grounds of harm being done before continuing such a case.

--

Robby

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Dec 18, 2008, 2:16:44 PM12/18/08

to

Good stuff Tommy, its nice to see that your are well informed about IP. I
admire this!

And I do agree that more should be done to disable patent trolling!

Have a nice day!

--
Best regards
Roberto