Group seeks to invalidate Microsoft patent

By Ina Fried
Posted on ZDNet News: Apr 16, 2004 7:58:00 PM

The Public Patent Foundation on Thursday asked the U.S. Patent and Trademark Office to revoke one of Microsoft's patents related to the FAT (File Allocation Table) file system, the older of two main systems used by Windows to store files.

"We are concerned that there is a potential for Microsoft to use its patent portfolio to foreclose competition from free and open-source software," Public Patent Foundation founder and Executive Director Dan Ravicher said in an interview.

The FAT file system is widely used by Linux-based Samba servers, which use the FAT file system to serve files to Windows-based PCs as well as by flash memory drives and digital cameras.

While regulators have forced Microsoft to license some of its Windows communications protocols, the software maker has come under pressure to license other parts of its intellectual property. Last year, Microsoft said it would seek to license the FAT file system on reasonable terms, announcing flash memory maker Lexar Media as its first licensee. However, some in the open-source community maintain that even a small royalty to Microsoft is incompatible with distributing software under an open-source license.

"Any royalty is not reasonable for free and open-source software," Ravicher said.

A Microsoft representative said the company had not seen the specifics of the PPF's claims, but noted that the company started licensing the FAT intellectual property at the request of other technology companies.

"We're unfamiliar with this organization and unclear why they are so interested in this one patent," a Microsoft representative said. "Companies asked Microsoft to license our FAT specification and patents to help improve interoperability and we have entered into a number of such licenses."

Ravicher said his organization chose the patent because it was the oldest of the FAT-related patents.

"Typically the oldest (patent) is the narrowest, the hardest to prove invalid," Ravicher said. "If that patent is invalid, we think that sheds a similar light on the entire portfolio."

Ravicher said his organization was founded last fall and is aimed at correcting flaws within the patent system and has, among other activities, challenged a wide-ranging patent in the biotechnology area. Ravicher said he is the only full-time staffer, while a number of other attorneys and former patent examiners work part-time for the group.

"We're not against the patent system in theory," Ravicher said. "We're just against its failures."

Of note, Eben Moglen, a law professor and general counsel for the Free Software Foundation, is one of the Free Patent Foundation's two outside directors. The organization was started with seed money from the Echoing Green Foundation, Ravicher said.

In the Microsoft case, Ravicher said his organization said it submitted new examples of "prior art," or previous work that he believes should render the patent invalid.

The patent office did not have a comment on the specific case, but a representative said the agency reviews all such claims and typically decides within three months whether a complaint raises a substantial question of patentability. If so, the agency could order a re-examination of the patent.