Ad Hoc "Community Patent Review" (and Blogs) Claims Microsoft Software Patent

Michael Kölling is credited as being one of the creators of BlueJ, an integrated development environment designed for teaching beginners how to program. It's based on an earlier language called Blue, which he, Bett Koch, and John Rosenberg came up with in 1994.

BlueJ was developed to support the learning and teaching of object-oriented programming, and its design differs from other development environments. A main screen graphically shows the class structure of an application under development (in a UML-like diagram), and objects can be interactively created and tested. One of the fundamental features of the system is an interactive way to instantiate and invoke objects called the "Object Bench".

In May 2005, Kölling noticed that Microsoft's Visual Studio had added a new feature they called "Object Test Bench" which looked very similar to what Kölling had developed earlier. This information came to Kölling's attention as a result of a blog entry by Dan Fernandez, Lead Product Manager of Visual Studio Express, which basically admitted that developers were "inspired" by BlueJ. While Kölling did not object to the use of the technology, he expressed in a separate blog entry that attribution should have been given to the creators of this software.

Lo and behold, word got out that, on October 20, 2005, Microsoft filed for a patent application titled "Object test bench" (US Publication 2006/0101406), which covered this same technology. Needless to say, the open-source community became enraged, and started mobilizing a campaign to stop the application.

One of the companies that was contacted was Sun Microsystems. BlueJ is a cross platform program, and uses Sun’s Java Programming Language. After reviewing the application, Simon Phipps, chief open source officer at Sun Microsystems, labeled the patent attempt as "disgusting" and created a blog entry of his own, disparaging the application.

Kölling's blog then began exploding - his blog entry made the front pages of digg, slashdot, reddit and del.icio.us. The article had more than 40,000 hits in just over 24 hours. It wasn't long before the word got back to Jason Matusow, Sr. Director of IP and Interoperability at Microsoft.

To Microsoft's credit, they acted quickly to diffuse the situation. Late yesterday, Microsoft announced that the patent application would officially be dropped, and that the filing of the application was the result of an error. According to Matusow, there was a miscommunication between the researchers and the lawyers, and as a result the application was submitted for Object Bench itself instead of the surrounding code that Microsoft created. As for the conspiracy theorists that claimed that the application was part of a larger "patent grab" by Microsoft, Matusow responded, saying "[t]hat doesn't make any sense . . . there's no logic to it. Why would you patent something in a space where you know there is prior art? There would be litigation, and you would know you couldn't be successful."

In the end, everyone seemed happy with the outcome, and this case provides a good example of how "community review" of patent applications can benefit patent applicants and the public-at-large. Another interesting aspect of all this is a newly-apparent appreciation by all parties of the power of blogs. According to Matusow, Microsoft has over 3000 bloggers, which helped improve the quickness of the response. In his mind, this incident only "strengthens the case for customer-facing blogs."

See Ed Burnett's excellent blog coverage of this issue here and here.