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Bad Reporting in Progress - Or How MS Didn't Invent the iPod

Follow me dear reader and watch how bad reporting happens.

Five days ago, Appleinsider.com reported that Apple was not granted a patent on part of the iPod user interface because they did not apply for the patent until 5 months after they shipped the iPod and in the meantime, some dork at Microsoft ran to the Patent office and tried to patent the technology Apple was already shipping.

Now there are a few things to remember before we begin... Not the least of which is that Appleinsider is a rumor site. While I'm sure these guys do their best to get their facts right, it is a rumor site... Everything is, by definition, subject to change without notice. The next nugget that will be helpful later is that Apple can still appeal. (You might read the original article, it will help)

So what happens when a rumor site puts up a rumor like that? Bad Reporting.

Did Microsoft Invent The iPod?
8/12/2005
If you think Apple Computer's Steve Jobs invented the technology behind the Apple iPod, don't bet your 60GB, 15,000-song model on it.

According to the U.S. Patent and Trademark Office, patent applications that cover much of the technology associated with the iPod were submitted by Microsoft, which has been on a patents tear recently filing thousands of patents.

If the patents hold up on appeal, Apple could be accountable for royalties on the spectacularly successful iPod. Jobs and others associated with Apple filed for patents covering the technology in October, 2002, but that application was rejected by the patent office last month. AppleInsider.com reported the rejection this week.

So we went from a rumor that a patent was rejected to Microsoft inventing the iPod and Apple having to pay royalties on it. My how the story grew huh? But that's just techweb, certainly nobody in the MSM would make that leap right? - um wrong.

Katherine Griffiths writing for The Independent:

Apple blunder gives Gates iPod royalty

Apple Computer may be forced to pay royalties to Microsoft for every iPod it sells after it emerged that Bill Gates's software giant beat Steve Jobs' firm in the race to file a crucial patent on technology used in the popular portable music players. The total bill could run into hundreds of millions of dollars.

Although Apple introduced the iPod in November 2001, it did not file a provisional patent application until July 2002, and a full application was filed only in October that year.

In the meantime, Microsoft submitted an application in May 2002 to patent some key elements of music players, including song menu software.

So now the rumor on Appleinsider has been reported as fact and upgraded to a "blunder" worth "hundreds of millions of dollars." That was fast. She acknowledges that she too got the story from Appleinsider which had none of those details. Clearly she invented the number.

But there's even more problems in her story....

Closer inspection says the Microsoft patent was rejected. It was modified in December of 2003 but Techweb INCORRECTLY says the patent was approved. It is still an application. [uspto.gov]

In reality it will not be approved because of this little thing called Prior Art. As you might have guessed, you can't patent something someone else is already shipping. Further in the US we use a "First to Invent" method rather than a "First to File." Clearly since the Apple product was ~you know~ shipping, they invented it before Microsoft and clearly the MS application was not novel.

So why did Apple wait so long for the patent application? Probably because it just was not important. (and you aspiring inventors should know this) Once you ship (or publish info about) an invention you lose the right to patent it. Apple will lose on appeal and frankly, I'm not even sure why they bothered, probably only because Microsoft filed. [Update: I've been reminded there can be 1 year grace periods extended on patents.]

But I'm digressing into patent law and this is about bad reporting.

So watch in the next few days how this story grows... The whole thing is poor analysis of a rumor that even if true is meaningless... But that won't stop the media from getting the whole story wrong.

Footnote: I've said both Apple and Microsoft will eventually have thier applications rejected AND if the USPTO has any credibility left that will be the case. (for the reasons stated above) Having said that, judging the PTO is worse than guessing the outcome of the Supreme Court... I gave up making predictions after they granted a patent for a stick!

Update: You can continue to watch the bad reporting get worse here.


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Comments (18)

It shoudl be noted that the... (Below threshold)
JimK:

It shoudl be noted that the hook Apple was hanging this patent on is really uncontested in teh real world. They were teh first, as far as I have EVER been able to see, to create a menu system that organized music based on including or excluding certain factors. Basically we're talking about the smart playlist feature. I'm pretty sure almost everything else was in one player or somftware package or another, but that was a truly unique piece of work Apple did and it changed *everything* IMHO. Yes, they bought SoundJam and made in into iTunes, but once it came in house...they really turned it into something unique because of smart playlists.

And aren't we supposed to grant patents to unique creations?

I think they should appeal and they should be granted the patent they're looking fro in this case.

Wow, I should really spellc... (Below threshold)
JimK:

Wow, I should really spellcheck my comments.

(assuming it was novel et a... (Below threshold)
Paul:

(assuming it was novel et al..)

Jim it WAS patentable- before they released details about it.

Read this, (it's short) especially part 1 C.

Somebody is in denial... (Below threshold)

Somebody is in denial

I believe, the disclosure a... (Below threshold)
John:

I believe, the disclosure aspect only applies to the person who may have had valid patent claim and then revealed it themselves.

Even so, there appears to be a 12 month window in which applications were made.

This is NOT a comment, just... (Below threshold)
Magritte:

This is NOT a comment, just has THAT was not a pipe.

Even if MS was awarded a pa... (Below threshold)

Even if MS was awarded a patent, Apple could show that it was awarded in error and have the MS patent revoked, although that's a high hill to climb.

Frank

Great article! I've been mu... (Below threshold)
John:

Great article! I've been mumbling for two days about what a joke those articles were. Very refreshing to read some common sense. How about doing the same thing on the "Mac OS X cracked - runs on any PC" articles?

"So why did Apple wait so l... (Below threshold)
Doug:

"So why did Apple wait so long for the patent application? Probably because it just was not important. (and you aspiring inventors should know this) Once you ship (or publish info about) an invention you lose the right to patent it. Apple will lose on appeal and frankly, I'm not even sure why they bothered, probably only because Microsoft filed."

Actually, the U.S. is one of the rare countries in the world to give inventors a one year grace period to file for patent applications following disclosure or sale of their invention.

Actually the US is one of t... (Below threshold)
John:

Actually the US is one of the rare countries who tried to give the genuine inventor the patent and not the first person to reach the patent office. Although its incredibly hard to prove.

Another problem with the patent office is that in general they give out patents too easily now to any applicant. Then they let anything in dispute be shot out in the court room.

It is true that the US allo... (Below threshold)
Mark Johnson:

It is true that the US allows 12 months to file a patent after public disclosure. However, when were the iPod's smart playlists first disclosed? If my memory is correct, the first iPod of late 2001 did not yet have smart playlists.

Patent and copyright law is... (Below threshold)
AW:

Patent and copyright law is utterly out of control today. It no longer serves the public interest. Moreover, it impedes the natural progression of ideas that build upon the prior works of others, since nobody lives in a vacuum. Today, patents and copyrights are used mainly to stifle competition, or to live fat off one moment of brilliance or luck.

Apparently the government is unable to balance the needs of business with the needs of the people, much less temper man’s insatiable greed for money. Thus the laws need to be abolished, but for those which protect against outright counterfeiting (which is really more like fraud).

BTW, that was a good one — patent for a stick. I rest my case.

First off, this Wizbang art... (Below threshold)
bad reporting:

First off, this Wizbang article points the finger at the wrong people. AppleInsider published an article on FACTS...i.e., that Apple failed to patent to the interface. The USPTO patent application was denied in mid-July and AppleInsider was the first publication to report on it. It was not a rumor and the substance of the story was mostly correct. Some of the implications may were drawn by the author, but the story itself was about the patent rejection and the Microsoft patents.

Now the other articles are just poor reporting. The subsequent articles mentioned above, were follow-up and written by authors who cover technology, not law/patents. So they (had to) draw more conclusion, because the story was actually "broken" by AppleInsider: to make it "interesting" the story had to have a spin, and they just drew too many (far-fetched) implications.

So I'm not sure why/if AppleInsider is getting the short end of the stick here. It's mostly these other authors/publications who tried to "expand" , re-report the story with a spin.

So my question is why does Wizbang point the finger at AppleInsider.

>So my question is why does... (Below threshold)
Paul:

>So my question is why does Wizbang point the finger at AppleInsider.

Did you read the article? I did no such thing. Appleinsider was fine... It was what happened afterward that is bad reporting.

Look appleinsider is a rumor site. There is zero, nada, nothing wrong with that. But from a whisper on a rumor site to the MSM claiming hundreds of millions of dollars in liabilities is just moronic.

Did you read the whole thing or just the first 3 lines and go postal?

I made it abundantly clear the bad reporting happened AS A RESULT of appleinsider's initial story. (you know- AFTERappleinsider)

Wow, a moment of clarity. ... (Below threshold)
Leland:

Wow, a moment of clarity. I hope everyone else comes to their senses, too.

So many people are just itching for Apple to fall that they'll say anything to make it seem inevitable. What's the Apple Death Knell Counter up to these days, anyway?

Of the text:**Clos... (Below threshold)
Lawrence B. Ebert:

Of the text:

**Closer inspection says the Microsoft patent was rejected. It was modified in December of 2003 but Techweb INCORRECTLY says the patent was approved. It is still an application. [uspto.gov]

In reality it will not be approved because of this little thing called Prior Art. As you might have guessed, you can't patent something someone else is already shipping. Further in the US we use a "First to Invent" method rather than a "First to File." Clearly since the Apple product was ~you know~ shipping, they invented it before Microsoft and clearly the MS application was not novel.**

note that a notice of allowability on Platt's application 10/158674 went out on June 23, 2005 and a notice of allowance on June 27.

The application has been allowed, and barring unusual circumstances, will be issued, at which point Microsoft could, in theory, seek damages.

The rejection of Apple's application was for anticipation (102(e)). If Microsoft's earlier work anticipated Apple's, then it is likely that one can argue that Apple's "later" work infringes. HOWEVER, Apple did try to "swear behind" Microsoft's earlier application date in its response to rejection, and that effort was, for some reason, ignored by the examiner. One must wait and see what will happen.

The previous comments about a one year grace period in the US for on-sale and printed publications are largely correct.

[More on IPBiz.blogspot.com]

So how did Bell get the pat... (Below threshold)
Martin Ritchie:

So how did Bell get the patent on the phone if the Italian dude, Antonio Meucci, invented it first? Did Bell not bribe the PTO? What's to stop that happening today?

was Plat even working for M... (Below threshold)
studentrights:

was Plat even working for MS when he filed that application. i thought i read somewhere that he filed it before he went to work for MS.




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