Update: Response to BlueJ Patent Issues


* Update: fixed wrong hyperlink 


On Friday, an alert reader emailed me about a new article by Michael Kölling, the creator of BlueJ, about a patent issued by Microsoft for features in Object Test Bench that are comparable to BlueJ’s Object Bench. I’ll post the full “anatomy of a firedrill” some time later, but for now we can officially say that the patent application was a mistake and one that should not have happened. To fix this, Microsoft will be removing the patent application in question. Our sincere apologies to Michael Kölling and the BlueJ community.


In addition, our Product Unit Manager is investigating how this happened to begin…Again my apologies to Michael, but I’m glad in the end we did the right thing.


 


 


 

Comments (59)

  1. Dean Harding says:

    Er, the real URL should be: http://www.bluej.org/mrt/?p=21

    And as to the patent, OBVIOUSLY Microsoft withdraw the application, there was no other possible response! You can’t patent something that has already been developed elsewhere (whether the feature was "copied" from BlueJ is another matter, of course, and totally irrelevant.)

  2. Brian Wisti says:

    I’m glad that the patent application is being withdrawn. Large businesses don’t always do what seems right or obvious, so it’s especially pleasing when they do.

  3. Luke says:

    How do a "mistake" like that happen in the first place?

    Michael Kölling’s original article shows a side by side comparison of the two and the Object Test Bench seems to be a direct, feature-by-feature copy of the BlueJ design. Not that there is anything wrong with doing that of course.

    But how do this kind of stuff get patented? Doesn’t anyone review these patent claims? And if they do, don’t they talk to the development team to make sure there are no prior art issues. Or perhaps Microsoft doesn’t care about patenting existing technologies?

    Obviously, a better quality control is needed here.

  4. I’m really glad that this has been resolved quickly and cleanly.

  5. David Newton says:

    Thank you for doing the right thing.

  6. Rob Cowell says:

    If you give due diligence to the search for "prior art", it saves a whole lot of problems.  There seems to be a lot of patents in the technology arena (and not just from Microsoft, there’s a lot of culprits) where prior art exists and is only a couple of web searches away.  If the Slashdot (et al) crowd can find them quickly, patent submitters shouldn’t struggle to uncover them.

  7. meelash says:

    ya, what if this hadn’t got a ton of publicity…. Would Microsoft have still done the "right thing"? Haha

  8. Bössu Ausdemwalde says:

    Good to hear that.

    However, what happened, happened. Even that Microsoft did the right thing now, this small issue will be used to proof that software patents are dangerous on other places on the earth.

    It’s clear that Microsoft gets good ideas from other products. Open source products do the same. At the end it’s a good thing for both and that’s what open source people proclaim: the open source conclusion is that software patents are dangerous because knowledge is free.

    It’s a sad fact that Microsoft proof that software patents can be dangeous for the small ones.

    I hope Microsoft does a "lessions learned" out of this. Some actions could be to have a look at the own internal patenting-process: proof the own product history before patenting it. The patent index is not a good place to start…

  9. Kudos for doing the right thing.

  10. coyoteworks @ RMV ME gmail.com says:

    Please post the results of your investigation, in order to assure the rest of the world that you have followed through.  Whether justified or not, many people don’t trust Microsoft.  And this news has already made Slashdot.  We don’t ask that you name individuals; we ask only that you assure us that corrective actions have been made to assure that this sort of mistake happens less frequently in the future.

    Thanks.

  11. Isaac says:

    Good job!  And the community is thankful Microsoft did the right thing.

  12. BlueJ is a tool for teaching OO programming in Java that is very well regarded in the CS education community. Microsoft added a similar feature to Visual Studio, didn’t give credit to the BlueJ inventors, and filed a patent application. Not the way to

  13. MichaelDotNet says:

    I applaud you for admitting where you are wrong and doing steps to correct it.  But Microsoft sure seems patent happy lately…lest we forget the RSS flare up.  Are you guys being pushed to submit applications?

  14. Must_B_Me says:

    Just a little "mistake" …. Just like that invasion of Iraq.  

    The powerful never lie, they only "misspeak".  Microsoft is not unethical, they just make "mistakes"… OOOPs!….

  15. Roy Jasper (roy.jasper@ntlworld.com) says:

    I have always argued that MSDos, the foundation of Microsoft, was plagiarised from CP/M. I have in my hand "The Amstrad CP/M Plus" from 1986.

    ‘Bluebeard Gates will pirate anything and rape anybody.

    Anything ‘Blue’ would naturally attract his aquisitive interest.

    In such comparison, Big Blue IBM is an icon of probity.

  16. AlfredTh says:

    These days most large companies view patents as a defensive measure. There are "Patent trolls" out there  – companies that exist only to buy up patents with the goal of finding a large company with deep pockets to pay them off. Large companies tend to trade or cross-license patents with other companies – large and small – in a sort of mutual defense treaty. IBM of course has more patents than anyone probably at least in part because there are such a large target.

  17. Jared says:

    I think that it’s the policy of most large businesses to simply batch patent just about everything they do because if they don’t and someone beats them to the punch you end up in situations like the NTP vs RIM (not exactly the same, granted but as a loose example…) Basically if the company doesn’t patent their things in the USA they are at risk of a patent squatter suing them for mucho dineros for something they never developed further than the patent documentation.

    Not that this is a good excuse for Microsoft to patent something so blatantly "borrowed" but I can see how they might have accidentally put it into the process of patenting, do I think they would have stopped if it had not become so public? Probably not, but I am willing to give the benefit of the doubt and say that they wouldn’t have because they mostly because they didn’t realise their mistake until it became public.

    I know the haters out there will never be satisfied with any response Microsoft has to these types of mess ups but I will congratulate them on acting maturely about the situation, they could have just as easily gone ahead with the patent application, tied up the BlueJ creators in court for the next 15 years and still gotten what they wanted in the end.

  18. ashok pai says:

    this is great news. i personally think that software patents are ridiculous, and too much of this nonsense has been going around. the software patents should be trashed. nscrouplous companies have been getting away with thier lies. they should be punished, and so also the companies sponsoring companies like SCO.

  19. Troy L says:

    I know that there was a blog mentioning that the BlueJ technology was borrowed from Professor Kollig for visual studio, but is there any public acknowledgement beyond that blog that technology used in Visual Studio originally came from him?  

    It seems very shady that a company that is founded on invention and innovation is not giving credit where credit is due, especially when the idea did not belong to anyone even connected with your company.

    In its most broadest sense, it might actually be doing the company a favor by publicly recognizing those who actually created the ideas.

  20. HC says:

    I am among the "anything-but-MicroSoft" crowd. But kudos on doing the right thing. I am sure you will be getting some well-deserved +ve press on /. and the like too.

  21. Dennis Forbes says:

    "These days most large companies view patents as a defensive measure. "

    Yes – defending revenue streams if traditional dominance starts to wane. Large companies offer incentives to submit tonnes of bogus or trivial patents because a large patent chest assures shareholders that they always have something to fall back on.

    Today’s "defensive patents" become tomorrow’s aggressive, sue-happy patent trolls, so don’t imagine Microsoft to be the innocent in this case.

  22. rolleyes says:

    "the patent application was a mistake"

    I’m sure they way Microsoft sees it, the only mistake was getting caught.

  23. Alaric Fox says:

    Um, it’s easy for Microsoft to get a patent if it issues the patent — I think danielfe meant to say that [the PTO] issued the patent TO Microsoft.

  24. drew says:

    its times like this I think that maybe Microsoft are not lucifer’s minions after all

  25. Jan says:

    In my country signing a patent application as an inventor is equivalent to signing a sworn statement. Three individuals signing what looks like a false sworn statement would probably be a conspiracy to commit a crime.

    So how can this be labeled as a "mistake"? Further, how can it still be labeled as a mistake if there is probably at least a second, similar bogus patent application for the visualizer system, as reported here: http://www.bluej.org/mrt/?p=21#comment-3359

  26. Steve Atty says:

    I find it extremely worrying that Microsoft can apparently go through all the hoops and jumps of writing up and submitting a patent "by accident".

    How many other Microsoft patents that are out there are actually "accidents" which shouldn’t have been submitted at all?

  27. BlueJ is an educational IDE for teaching object-oriented programming and Java to beginners. The full article details how Microsoft knowingly copied core functionality from BlueJ and planned to patent it as their own "invention". After blatantly co

  28. Have Patented says:

    If the names of the individuals claiming inventorship are public record, which they will be, then those names should be repeated in connection with this incident. Corporations do not claim inventions for patent; individuals do. Individuals under employ might then only transfer rights and ownership to a corporation. As I understand it, under penalty of law those claiming inventorship must disclose in advance all knowledge related to prior art and patentability.

    It might be worth speculating that Microsoft, in supporting such patent applications without adequate internal vetting or review, and given its market position and previous judgements, makes itself vulnerable to an award of punative damages in the event of a successful suit.

  29. shaper says:

    Well done.

    Plus ten points for retracting the application.

    Minus several million for applying for it in the first place.  Either this was deliberate, or the new-feature-deciding people don’t talk to the new-feature-patenting people.  In either case MS shouldn’t look very far to find out why people hate it so much – either you’re blatantly ripping off other people’s ideas and claiming them as your own, or you’re simply patenting everything in sight without bothering to ensure you actually invented it – either a deliberate thief or just so intellectually corrupt and careless it’s almost as bad.

    So, again: well done for knowing when to fold, but really… *really*… sort this out, eh?

  30. Java Bob says:

    Oh, you’re sorry.  Sorry you got caught.  Microsoft has over the years copied (read stolen) prior art from thousands of true inventors and innovators.  These soon become Microsoft innovations and then by god Microsoft inventions.  This is no different you just got caught this time.  I wouldn’t be surprised if a very similar patent is filed in a few month when the ire has died down.

  31. plh says:

    "How many other Microsoft patents that are out there are actually "accidents" which shouldn’t have been submitted at all?"

    The notorious "IsNot" application, the RSS feed syndication applications, the Enlightenment pager patent(s)…

    Spend any time looking at some of the hundreds of thousands of software patents in the PO databases and you soon begin to feel sick and angry. I wouldn’t want to single out Microsoft though.This sort of thing is normal for software patents and always has been.

  32. The bald avenger says:

    Please make sure somebody is fired over this.

  33. Joe Blanco says:

    If I stick a needle in your eye I have "doing the wrong thing."  If I pull the needle out viola, I have "done the right thing."  It’s so easy to be good when your inherently evil.

  34. Matt C says:

    "How do a "mistake" like that happen in the first place?"

    That line made my day. And I thought the "Borat" movie was funny.

    That, um, mistake very likely happens all the time at MS.

    Go here

    http://appft1.uspto.gov/netahtml/PTO/search-adv.html

    type "an/Microsoft" in the box, and if you have enough time to read through a bunch of stuff, you can see that "mistake" repeated  approximately once a day.

  35. Jan says:

    @ Have Patented  

    The individuals, claiming to be the "inventors" are known. They are indeed named in the patent application, so this information is on public record:

    http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220060101406%22.PGNR.&OS=DN/20060101406&RS=DN/20060101406

    While we are at it, the patent application of what some people claim looks  much like jGRASP’s viewer is here:

    http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220050246690%22.PGNR.&OS=DN/20050246690&RS=DN/20050246690

  36. Kyle says:

    Everyone here assumes that Microsoft has some internal coordination.  Vista might say otherwise.  How reasonable is it that a person not on the development team said, "Hey, that’s cool.  Can we patent that?"  

  37. Anonymoose says:

    Quoting Kyle: ‘Everyone here assumes that Microsoft has some internal coordination.  Vista might say otherwise.  How reasonable is it that a person not on the development team said, "Hey, that’s cool.  Can we patent that?"  ‘

    —–

    As others have pointed out, the names of the INVENTORS have to be on the patent application.  Think about it.

    Either the "inventors" (i.e. the Visual Studio developers in question)  knew about this patent application or they didn’t.  If they knew about it, then they are liars, for they surely knew that the BlueJ-like functionality was not original.  If they didn’t know about, then the person(s) who wrote the application are negligent, for signing the names of others on a patent application without consulting them.

    A third alternative is that the "inventors" named in the patent application are not even the same people who coded the functionality.  In that case, someone is STILL lying.

    Am I missing any alternatives?  Seems to me that however you slice it, someone is lying, negligent or both.

  38. HJ says:

    Patents as defensive measure…

    I can very well understand that -given the way that the current patent system works- any corporation needs to have loads of patents as a defensive measure. I’d like to think that the only use of them is that if a corporation applies for (and is granted) a patent, this is merely to prevent a patent troll from suing a company for royalties concerning the implementation of the patented methodology.

    Unfortunately, large corporations seem (I admit, this could be a wrong observation) to use patents to have some leverage in negotiations by promising not to sue over the use of a certain patent.

    If a corporation is truly committed to use patents as a defensive measure, what would be the major objections against handing over awarded patents to an independent patent holding organization. This organization would have ‘preventing patent trolls from suing’ as a primary objective. One of the ways it could do this is by explicitly allowing anyone to use the patented methodology.

    This would mean that anyone can use the methodology (including the corporation that applied for the patent) without having to fear for being sued over it.

    IANAL, but the organization that could be fit for purpose in this matter could be ODSL (linux foundation nowadays). Yeah, yeah, I know, linux is the other side. I am just trying to make the point on defensive patents, not trying to evangelize that MS should simply make their source freely available and all that.

    Perhaps people inside MS (including legal teams) could have a look at what IBM did with (a small portion of) their patents and decide which patents are truly for defensive purposes only and could be a candidate for transfer those to a 3rd party that ensures anyone can use the methodologies.

  39. zock says:

    It; quite possible the inventors had never heard nor seen BlueJ, and genuinely thought they had a novel nonobvious, indeed fabuolus, concept.

    Heck, I myself learned OO with smalltalk-80 in the late 80s, and had never heard of BlueJ until this little flare-up.

  40. Ruy says:

    Now that M$ is caught in the act of OWNING what they DON’T OWN, can we still trust them? I thought they hate piracy or stealing? Oh well, the saying "pirates hates other pirates" has just proved itself to be true again.

    It wasn’t a mistake. It will be a mistake if it wasn’t discovered by the original inventors and if the Patent Office approved it.

    The proof of crime in progress: http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1

  41. Peter says:

    It’s patents like this that Ballmer alludes to Linux infringing. The free software community does something neat. Microsoft files a fraudulent patent on it. Microsoft then spreads FUD about the free competitors. One down, due to the publicity it received. Thousands more already filed and granted.

  42. anon says:

    I’m upset at the fact that microsoft would even have the guts to pull a move like this.. either they’re incompetent or just don’t give a crap.. but i’m sure it’s a little of both. I really hope to see the day this company becomes a distant memory.

  43. "You can’t patent something that has already been developed elsewhere"

    In practice, you can. Patent examiners don’t have time to conduct very much of a search for prior art. Often they are paid based on the amount of patents they pass, so they have a strong disincentive for dismissing a patent. Once Microsoft had the patent, it would be up to any party they sued to research the prior art and defent themselves in an expensive court case. The BlueJ folks couldn’t have afforded something like that.

    So it’s not a trivial issue. Microsoft did the right thing.

  44. mert says:

    This is good news. I hope Microsoft will continue this respectful attitude towards other patent applications that might be faulty.

  45. JAlexoid says:

    Well, it shows that community does matter.

    And OSS is having more and more impact on everything.

    Even MS heard them.

  46. kf2qd says:

    #1 – A patent is not defended by the governemt, but by the patent holder.

    This concept has been used by large corporations (ie Microsoft) to squash small corporations by financially ruining them through the high cost of litigation. This patent could have been turned on the creators of BlueJ with the intention of breaking them financially. Flood them with requests for depositions, documents etc. Patent was invalid but it could still be used to destroy the competition.

    #2 – the patent process relies on good faith by those applying for the patent.

    Perhaps there needs to be some system that looks at the past behaviour of those applying for a patent and requires a much higher bar for them if there is past evidence of good faith.

    #3 – the software patent system is broken.

    From the very first patent for the relational database and the ISAM database. The system has been gamed because it no longer employs people who are experienced in the field to be able to properly analyze the application. If it looks like the t’s are crossed and the I’s are dotted it must be good because they have no technical expertise to compare it to.

  47. Ed Burnette says:

    For a follow-up article on this see: http://blogs.zdnet.com/Burnette/?p=246 . Dan referred me to Microsoft’s Jason Matusow, who talked to me at length about the details Monday night. I believe the patent filed was not the one that was intended, though it is a little troubling that it took so long to catch the mistake.

  48. zock-sucks says:

    zock, are you an idiot? look at them http://www.bluej.org/vs/vs-bj.html they’re identical.

  49. slowpoke4333 says:

    What worries me MUCH more is this – for this one patent application that was noticed by the community, how many more times has Microsoft taken others’ ideas and done exactly the same thing without anyone even noticing?

  50. Peter Stricker says:

    So Dan, are you going to give proper attribution to Michael Kölling in Visual Studio 2005 and any other products where you might be using this or a similar feature?

    And are you going to release the source to OTB so we can verify that it is not a copy of BlueJ’s Object Bench?

  51. javageek says:

    Thanks for doing the right thing.  I spent a couple years at IBM, whose lawyers would patent oxygen and water and copyright your DNA sequence to make you pay royalties, if they thought that they could get away with it.  

    So I don’t have to work hard to imagine how pre-scandal objections were brushed aside by people gunning for their next promotion.  I hope that the "someones" responsible are held accountable and that heads roll accordingly.

    I like BlueJ for some things, so I want to see those folks keep up their excellent work.  Thanks for backing off and letting them get back to what they do best.

  52. You know, some of you guys are just being jerks.

    Dan openly and in bold letters admitted it was a mistake, yet many of you guys (rolleyes, meelash, Must_B_Me, Roy Jasper, Steve Atty, shaper, Java Bob, plh, Joe Blanco, Anonymoose, Ruy, anon, and zock-sucks) still turn it into a negative. You so seeth of Microsoft hatred that you can’t view anything objectively and give credit where credit is due.

    Microsoft is a huge company, and as Jared said, most large companies just batch patent to keep from getting sued later. And just like trying to guard against all errors in advance vs. using exception handling, doing a full scan for prior art can be prohibitively expensive.

    Microsoft is not to blame for this; the US Patent System and the American Bar Association are to blame. Point your venom where it will do some good.  It won’t be fixed because our law makers and lawyers, and the patents system is part of the "American Attorney’s Full Employment Act" <sic>.

    As for those who are anti-microsoft yet didn’t give credit where credit was due, kudos.

    BTW, I’ve recently written some pretty scathing things about Microsoft’s developer division on my blog recently, so I’d say I’m pretty unbiased on this one…

  53. Dixon Hill says:

    I’d like to add my congratulations to those posted by others here.  

    You were caught with your hand deep in the cookie jar.  After pictures were widely published of you with your mouths stuffed full of cookies, you sheepishly handed back the jar.

    Very admirable.  Very upstanding.  How incredibly noble of you.  We should all teach our children to act just as morally as you have.

    /sarcasm

  54. Well, thanks for doing the right thing and stopping this patent application dead in its tracks.

    That being said, I once tried to ask His Billness Bill Gates this question.  That is, the patent system had been established for a purpose, namely to publish details of inventions so that when the patents’ monopoly was finished (in 17 – 20 years time) the invention could fuel more inventions and more progress, so didn’t the FSF’s GPL fulfill the requirements of publication with attribution, and thus of fueling progressive development of the idea and the development of new ideas, in a much more satisfactory way than software patents did?

    Predictably askbill@microsoft.com wasn’t connected to answerquestion@microsoft.com .  (Ie, he never answered 😉

  55. I was just doing a bit of catchup reading and noticed a post on Dan Fernandez’s blog about a recently

  56. JB says:

    What do people mean by doing the right thing by MS?

    Either MS gets the patent and the whole community realizes how the patent system is utterly flawed … Or MS does not get it and have to publicly recognize they are a bunch of copycats … and BlueJ gets the publicity it deserves …

    So, removing the application is nothing close to The Right Thing(tm)

  57. ram says:

    disgusting !! you guys never hesitate to rob even a blind beggar

  58. r0bby says:

    I don’t even know what to say, that’s…I’m speechless.