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Software Writers Patently Enraged
Michelle Delio 04.11.02
Reader's advisory: Wired News has been unable to confirm some sources for a number of stories written by this author. If you have any information about sources cited in this article, please send an e-mail to sourceinfo[AT]wired.com.

Infuriated by a patent they claim is indicative of a "festering problem" in the U.S. Patent and Trademark Office, software developers are calling for an overhaul of the entire patent approval process, at least as it pertains to software.

Patent 6,185,681, which sparked the protest, covers methods of encrypting and decrypting documents.

The patent was filed in 1998 and granted in February 2001, but came to developers' attention late last month when lawyers for Maz Technologies, the patent holder, contacted software firms PC Dynamics and Envoy Data and requested licensing fees for what Maz believes is unauthorized usage of its encryption technology.

More than a dozen security software developers came forward this week, insisting the technology referred to in Maz's patent was known and widely used before the patent was filed, and said they will fight to have the patent overturned.

Some also said that if companies feel compelled to patent software, the patent proposal should be reviewed by an independent board of programmers and industry experts, instead of the Patent and Trademark Office's (PTO) examiners.

"It's too easy to put together a fancy application and confuse examiners who are not expert programmers," Peter Avritch, president of PC Dynamics, said. "How can they really know what is novel and what is not?"

But Maz president Chris Mahne said his company's patent covers unique, company-developed technology.

"I doubt that those who are upset about the patent have even read the patent's text," Mahne said. "It refers to very specific ways of encrypting and decrypting documents, which we developed in answer to our clients' requests."

Patent-protestors said they had read the full text of the patent and still don't understand how it could have been approved.

PTO spokeswoman Brigid Quinn said patent law dictates that an applicant must be granted a patent unless the PTO finds the invention is not new, is "obvious," isn't useful or isn't fully explained in the patent application's documentation.

Quinn said before patents are approved, an examiner who is skilled both in the technology being reviewed and in patent law searches for "prior art," previous references to ideas outlined in the proposed patent.

Examiners search in PTO databases containing information on the 6.4 million U.S. patents that have been issued since 1790 and about an equal number of foreign patents, mostly Japanese and European -- roughly 85-90 percent of all of the world's patents. They also have access to over 1,000 commercial databases, Quinn said.

"It's hard to imagine how (Maz's) patent got approved," Matt Blaze, a cryptography research scientist at AT&T Labs, said. "Transparent, automatic file encryption has been widely known and published, even taught to students, for at least a decade. In fact, I described many of the techniques claimed in this patent in a published paper on the CFS encrypting file system back in 1993 -- five years ahead of the Maz patent application."

Phil Zimmermann, creator of PGP encryption software, added, "This patent illustrates a festering problem at the PTO with how patents are issued."

Sources familiar with the PTO said the patent approval system does not always work as well as it should.

Reference literature
http://www.wired.com/politics/law/news/2002/04/51689
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