Small company makes big claims on XML patents

A small software developer plans to seek royalties from companies that use XML, the latest example of patent claims embroiling the tech industry.

Charlotte, N.C.-based Scientigo owns two patents (No. 5,842,213 and No. 6,393,426) covering the transfer of "data in neutral forms." These patents, one of which was applied for in 1997, are infringed upon by the data-formatting standard XML, Scientigo executives assert.

Scientigo intends to "monetize" this intellectual property, Scientigo CEO Doyal Bryant said this week.

Rather than seek royalties itself, Scientigo has forged a tentative agreement with an intellectual-property licensing firm that will handle contracts with third parties, Bryant said. A final agreement could be announced early next week, he said.

"We're not interested in having us against the world. We're just looking for ways to leverage an asset; we have pretty concrete proof that makes us feel comfortable saying it is an asset," Bryant said.

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Scientigo's claims are the latest to crop up in an industry that is sharply divided over the role of patents.

Advocates argue that the patent system protects intellectual property as intended. Detractors, including those who call for the elimination of software patents, say that patents make it simpler for businesses--sometimes pejoratively dubbed "patent trolls"--to legally prey on unsuspecting software users.

Bryant said that Scientigo over the past several months has had discussions with 47 companies regarding the patents, including large software providers Microsoft and Oracle.

Based on these talks, Bryant said he is confident that the company's patents will command royalties from software companies and other large organizations, such as Amazon.com, which use XML.

Vast ramifications
The ramifications of such a licensing request could be vast. XML has become a widely used method for storing and sharing information in many forms, from purchase orders to information in Web pages.

Most software companies use XML in some way, as do individual developers and corporate customers. The standard itself is developed at the World Wide Web Consortium, which published an initial draft of XML in late 1996 and proposed XML version 1.0 in December 1997.

Patent lawyer Bruce Sunstein, a co-founder of Boston-based Bromberg & Sunstein, viewed Scientigo's patents and concluded that the company will have difficulty in enforcing claims over XML.

Sunstein noted that XML is derived from SGML, which dates back to the 1980s. SGML, in turn, is based on computing concepts from the 1960s. If Scientigo's claims were ever litigated, the company would have to address all the prior work on data formats.

"You can wish them good luck if you want, but there is a lot of history this patent will have to deal with, and the fat lady has not finished singing on this one yet," Sunstein said.

Companies respond
A representative from IBM said that its intellectual property lawyers had not yet heard of Scientigo's claim.

Microsoft declined to say whether it has spoken to anyone from Scientigo. In general, though, the company minimized the effect of patent claims on something as legally well-protected as XML.

"XML has been around a long time, and people shouldn?t assume any one patent has broad implications. Often, patents are quite narrow and mostly irrelevant to the industry at large," David Kaefer, a Microsoft director of business development in charge of IP licensing.

Meanwhile, the World Wide Web Consortium has not been

Here We Go Again

Another cr*p company who never made anything insisting that a
standard infringes on their patents. Incredible.

I hope these folks are tarred and feathered. Have they never heard
of EDI, which is a data in a neutral form and dates back to the
1960's?

Clowns.

[Musmanno]

Earl, you really have to look at

the patent claims to make an intelligent assertion about this. Just because other data neutral forms exists doesn't mean this company can't have a patent on a different data neutral form. You just have to look at the claims of their patents. If the claims are anticipated or made obvious by EDI, then the patent can be invalidated. If not, then the question is whether XML falls under the claim language. If it does, these guys have case.

[Captain_Spock]

How About...

... if someone wanted to patent the "I" as was written of in the "HOLY BIBLE" and then someone else the "ALPHA" and the "OMEGA" a little later on. Just what are some folks trying to do? As I understand it XML is short for Extensible Markup Language. Perhaps we may soon have to pay for the "AIR" that we breathe because someone has "non-obvious" patent claim on it!

Here We Go Again

Another cr*p company who never made anything insisting that a
standard infringes on their patents. Incredible.

I hope these folks are tarred and feathered. Have they never heard
of EDI, which is a data in a neutral form and dates back to the
1960's?

Clowns.

[Musmanno]

Earl, you really have to look at

the patent claims to make an intelligent assertion about this. Just because other data neutral forms exists doesn't mean this company can't have a patent on a different data neutral form. You just have to look at the claims of their patents. If the claims are anticipated or made obvious by EDI, then the patent can be invalidated. If not, then the question is whether XML falls under the claim language. If it does, these guys have case.

[Captain_Spock]

How About...

... if someone wanted to patent the "I" as was written of in the "HOLY BIBLE" and then someone else the "ALPHA" and the "OMEGA" a little later on. Just what are some folks trying to do? As I understand it XML is short for Extensible Markup Language. Perhaps we may soon have to pay for the "AIR" that we breathe because someone has "non-obvious" patent claim on it!

[ProfessorDino]

"Sue EVERYBODY!" - J. Boys

Hey, isn't XHTML technically a subset of XML? Does this mean that these nimrods intend to bilk forward-thinking webmasters for "infringing" upon their ******** patent? I'm sick of patent abuse, quite frankly...and I'm sure you all are, too.

[Musmanno]

The patent granting process needs to be reformed

what you get are patents that should never have issued, and it takes very expensive litigation to ever invalidate them.

I haven't seen these patents, so I don't know if they are valid or not, but in general, and in the realm of software, the PTO needs to take a closer look at patent applications.

[ProfessorDino]

"Sue EVERYBODY!" - J. Boys

Hey, isn't XHTML technically a subset of XML? Does this mean that these nimrods intend to bilk forward-thinking webmasters for "infringing" upon their ******** patent? I'm sick of patent abuse, quite frankly...and I'm sure you all are, too.

[Musmanno]

The patent granting process needs to be reformed

what you get are patents that should never have issued, and it takes very expensive litigation to ever invalidate them.

I haven't seen these patents, so I don't know if they are valid or not, but in general, and in the realm of software, the PTO needs to take a closer look at patent applications.

XML 1.0 came before their patent application

XML 1.0 recommendation was published on February 10th, 1998. This means that people we talking about XML's concepts before this date.

The Odom dates for the patents in question are May 21, 2002 and November 24, 1998.

[fireball74]

Actually.....

According to http://en.wikipedia.org/wiki/XML, the first working group came up with the major design in XML between July and November of 1996. Well before the 1998 and 2002 dates on the patents.

XML 1.0 came before their patent application

XML 1.0 recommendation was published on February 10th, 1998. This means that people we talking about XML's concepts before this date.

The Odom dates for the patents in question are May 21, 2002 and November 24, 1998.

[fireball74]

Actually.....

According to http://en.wikipedia.org/wiki/XML, the first working group came up with the major design in XML between July and November of 1996. Well before the 1998 and 2002 dates on the patents.

[him__]

I want to patent English language

Dear Patent Officer

I would like to patent English language and all the other languages in the world. Evidently, I'm a human being and happen to have evolved from apes(unless you believe in Intelligent Design). So the development of various languages was done by my forefathers. I would like to get a patent for all the spoken, written communication in the world. Please do the needful.

Thanks,
Descendant of Inventor of Languages

[him__]

I want to patent English language

Dear Patent Officer

I would like to patent English language and all the other languages in the world. Evidently, I'm a human being and happen to have evolved from apes(unless you believe in Intelligent Design). So the development of various languages was done by my forefathers. I would like to get a patent for all the spoken, written communication in the world. Please do the needful.

Thanks,
Descendant of Inventor of Languages

[Musmanno]

Remember...

that the patent holders could still have a valid 1998 patent if they can show that they invented the subject matter of their claims prior to XML coming out. U.S. is a first-to-invent country, not a first-to-file country.

Of course, it could just as easily be that the claims are completely invalid and the patent is no good.

[Musmanno]

Remember...

that the patent holders could still have a valid 1998 patent if they can show that they invented the subject matter of their claims prior to XML coming out. U.S. is a first-to-invent country, not a first-to-file country.

Of course, it could just as easily be that the claims are completely invalid and the patent is no good.

[ewoychowsky]

Patent idea

I'd like to patent the concept of patents. That would allow me to sue anybody with a patent, including myself.

[ewoychowsky]

Patent idea

I'd like to patent the concept of patents. That would allow me to sue anybody with a patent, including myself.

[Musmanno]

Here is Claim 1 of the earliest patent at issue:

to invalidate the claim, it would have to be shown that EDI (or some other system) included each and every element listed in this claim. Conversely, in order to enforce this claim, the patent owner would have to show that someone else is performing each and every element of the claim:

1. A method of organizing and storing a set of information in neutral form in a computer based environment comprising the steps of:

a) organizing the set of information into instance data sets;

b) defining a time basis for the collection of instance data sets;

c) organizing each instance data set into an instance cluster comprised of data instance nodes;

d) assigning to each data instance node in an instance cluster a distinguishing structural tag comprising the following three components:

a data reference;

a data type;

a data organization;

e) defining the components of the structural tag for each data value in each instance cluster;

f) assigning properties of the data value to each structural tag;

g) storing the names of all of the structural tag elements together with their respective definitions and properties in a suitable format;

h) combining each data value and its respective structural tag to form a neutral form expression of the data; and

i) storing the resultant neutral form expression of the data value.

[R. U. Sirius]

You just described EDI and SGML

As I stated upthread, both standards predate XML by about 25 years or so. I would say that this patent is unenforceable.

[Musmanno]

Here is Claim 1 of the earliest patent at issue:

to invalidate the claim, it would have to be shown that EDI (or some other system) included each and every element listed in this claim. Conversely, in order to enforce this claim, the patent owner would have to show that someone else is performing each and every element of the claim:

1. A method of organizing and storing a set of information in neutral form in a computer based environment comprising the steps of:

a) organizing the set of information into instance data sets;

b) defining a time basis for the collection of instance data sets;

c) organizing each instance data set into an instance cluster comprised of data instance nodes;

d) assigning to each data instance node in an instance cluster a distinguishing structural tag comprising the following three components:

a data reference;

a data type;

a data organization;

e) defining the components of the structural tag for each data value in each instance cluster;

f) assigning properties of the data value to each structural tag;

g) storing the names of all of the structural tag elements together with their respective definitions and properties in a suitable format;

h) combining each data value and its respective structural tag to form a neutral form expression of the data; and

i) storing the resultant neutral form expression of the data value.

[R. U. Sirius]

You just described EDI and SGML

As I stated upthread, both standards predate XML by about 25 years or so. I would say that this patent is unenforceable.

[Methuss]

Rediculous

This is getting stupid. We don't necessarily have to thow software patents out the window, but what we need is a Statute of Limitations (SoL) to bring a claim.

Trolls sit on their patents like this company has for a decade and wait for it to become a standard before stepping forward with their hands out saying "pay up."

Make the SoL two years to bring a claim on a software patent. If they don't step forward early enough, they get nothing. NO more of this raping the industry years later.

[Musmanno]

Yeah, that's not a bad idea

there is something similar in Trademark law called acquiescence. Basically, you can't wait a few years while someone infringing your mark sinks a lot of money and resources into and builds their business up, only to them come after them.

Would make sense in a patent situation as well. And if I'm not mistaken, I think there are types of acquiescence and estoppel that operate similarly in patent law, but I don't know the details offhand.

[mattMak]

Search engine company???

These guys cannot be a serarch engine company - they point to FIND.COM but THAT uses a slightly modified Yahoo result list! Since when is froint ending for another leader make you a leader in search???

[Methuss]

Rediculous

This is getting stupid. We don't necessarily have to thow software patents out the window, but what we need is a Statute of Limitations (SoL) to bring a claim.

Trolls sit on their patents like this company has for a decade and wait for it to become a standard before stepping forward with their hands out saying "pay up."

Make the SoL two years to bring a claim on a software patent. If they don't step forward early enough, they get nothing. NO more of this raping the industry years later.

[Musmanno]

Yeah, that's not a bad idea

there is something similar in Trademark law called acquiescence. Basically, you can't wait a few years while someone infringing your mark sinks a lot of money and resources into and builds their business up, only to them come after them.

Would make sense in a patent situation as well. And if I'm not mistaken, I think there are types of acquiescence and estoppel that operate similarly in patent law, but I don't know the details offhand.

[mattMak]

Search engine company???

These guys cannot be a serarch engine company - they point to FIND.COM but THAT uses a slightly modified Yahoo result list! Since when is froint ending for another leader make you a leader in search???

[webdev511]

Good Luck with that...

Why are they even trying to claim XML infringes?

We've gotten reform on frivilous consumer lawsuits, how about some reform for these companies that are fishing for IP revenue on technologies that they are really reaching on.

This one is almost as bad as the patent on hyperlinks.

Good luck in court. You'll need it.

[webdev511]

Good Luck with that...

Why are they even trying to claim XML infringes?

We've gotten reform on frivilous consumer lawsuits, how about some reform for these companies that are fishing for IP revenue on technologies that they are really reaching on.

This one is almost as bad as the patent on hyperlinks.

Good luck in court. You'll need it.

[ChipVenters]

Software patents very difficult obtain

As the CEO of a small company that has successfully patented several software technologies, I can tell you that the patent office does not grant these easily. It took over 5 years to get one of our patents that was applied for in 1998. The process is intensive and very expensive. The examiners have tremendous research resources available to them and use them exhaustively looking for prior art. Sometimes they get it wrong, but their track record speaks for itself where nearly 95% of all the patents stand up in court.

I think that people who are opposed to patents should imagine themselves in the shoes of inventors from small companies who are getting infringed upon by the big guys, who on one hand are inforcing their own patents with an iron hand, and the next minute accusing the small companies being "trolls". The patent is the last line of defense for the small inventor.

Source/context of 95% figure?

Paraphrasing Mark Lemley (Berkeley):

The average prosecution of the patenting process takes 18 hours over a 2-3 year period. In litigated cases that actually result in a final judgment on validity, issued patents are held invalid 46% of the time.

http://repositories.cdlib.org/blewp/19/

Some libertarian free market extremists are opposed to all patents and they are "balanced" by the "patent everything under the Sun" extremists (who currently have the upper hand). The rest of us are - or should be - pleased that the patent system has worked so well and continues to do so for some industries and technologies, but appalled by its uncontrolled and unjustified extensions over the last 2-3 decades. We should not put ourselves in the shoes of any one stakeholder, especially not a potentially very unrepresentative hypothetical or anecdotal one. The overall picture from an economic and social welfare point of view is what is important.

[vladperl]

be honest

I don't know about yours patents. But in this case that is definitely fraud. They made these patents only because they have believed there are possibility to make profit from that later. They did not help in any way to develop xml and related technologies. I'm sure nobody who invented XML had read theirs patents.
Conclusion: They did nothing useful for industry and anyway want make a lot of money from that nothing!
And you really believe somebody have to pay for theirs patents?
Is your company using XML? Maybe answer is yes. So to be honest you have to pay to them from your pocket because yours post support them. By the way do you know how many things in any industry could be patented? The number is unlimited! So you want make that happen? Please don?t lost common sense.

[computerjunkie]

so?!?

So you patent a series of 1's and 0's- e.g. math! Many concepts, as opposed to tangible items, only have one realistic way of being stated. This is why process patents and software patents are a travesty. It's one thing to patent a better mousetrap and wholly another to patent the only way of doing something that everyone else would do the same way only with you thinking to patent it first.

I find a hard time believing that the patent system is as difficult as you state given the absurdity of some of the patents granted. It seems that patents are sometimes just a revenue stream for people who are unable to actually produce anything as opposed to proper government protection of "useful arts."

[ChipVenters]

Software patents very difficult obtain

As the CEO of a small company that has successfully patented several software technologies, I can tell you that the patent office does not grant these easily. It took over 5 years to get one of our patents that was applied for in 1998. The process is intensive and very expensive. The examiners have tremendous research resources available to them and use them exhaustively looking for prior art. Sometimes they get it wrong, but their track record speaks for itself where nearly 95% of all the patents stand up in court.

I think that people who are opposed to patents should imagine themselves in the shoes of inventors from small companies who are getting infringed upon by the big guys, who on one hand are inforcing their own patents with an iron hand, and the next minute accusing the small companies being "trolls". The patent is the last line of defense for the small inventor.

Source/context of 95% figure?

Paraphrasing Mark Lemley (Berkeley):

The average prosecution of the patenting process takes 18 hours over a 2-3 year period. In litigated cases that actually result in a final judgment on validity, issued patents are held invalid 46% of the time.

http://repositories.cdlib.org/blewp/19/

Some libertarian free market extremists are opposed to all patents and they are "balanced" by the "patent everything under the Sun" extremists (who currently have the upper hand). The rest of us are - or should be - pleased that the patent system has worked so well and continues to do so for some industries and technologies, but appalled by its uncontrolled and unjustified extensions over the last 2-3 decades. We should not put ourselves in the shoes of any one stakeholder, especially not a potentially very unrepresentative hypothetical or anecdotal one. The overall picture from an economic and social welfare point of view is what is important.

[vladperl]

be honest

I don't know about yours patents. But in this case that is definitely fraud. They made these patents only because they have believed there are possibility to make profit from that later. They did not help in any way to develop xml and related technologies. I'm sure nobody who invented XML had read theirs patents.
Conclusion: They did nothing useful for industry and anyway want make a lot of money from that nothing!
And you really believe somebody have to pay for theirs patents?
Is your company using XML? Maybe answer is yes. So to be honest you have to pay to them from your pocket because yours post support them. By the way do you know how many things in any industry could be patented? The number is unlimited! So you want make that happen? Please don?t lost common sense.

[computerjunkie]

so?!?

So you patent a series of 1's and 0's- e.g. math! Many concepts, as opposed to tangible items, only have one realistic way of being stated. This is why process patents and software patents are a travesty. It's one thing to patent a better mousetrap and wholly another to patent the only way of doing something that everyone else would do the same way only with you thinking to patent it first.

I find a hard time believing that the patent system is as difficult as you state given the absurdity of some of the patents granted. It seems that patents are sometimes just a revenue stream for people who are unable to actually produce anything as opposed to proper government protection of "useful arts."