Moglen: FAT royalty threat a 'nuisance'

The Free Software Foundation general counsel and co-founder of the Public Patent Foundation believes Microsoft's FAT patent will be invalidated by the U.S. Patent and Trademark Office.

Enterprises using or developing free software likely won't be paying royalties any time soon for their use of Microsoft's patented File Allocation Table (FAT) technology.

This is Microsoft's first experiment in patent commoditization, and it's invalid.
Eben Moglen
General counsel

Free Software Foundation general counsel Eben Moglen labeled the threat a "nuisance" Tuesday in an interview with SearchEnterpriseLinux.com, and said he expects the U.S. Patent and Trademark Office's impending review of the oldest of six FAT patents will invalidate it.

"This is Microsoft's first experiment in patent commoditization, and it's invalid," Moglen said.

Moglen, a Columbia University law professor, is the co-founder of the Public Patent Foundation (PubPat), which recently asked the patent office to review Microsoft's claim to FAT. FAT is used by operating systems, including Linux, FreeBSD, OpenBSD, Windows and others, to exchange media between removable storage devices like floppy disks and flash memory cards in digital cameras and computers.

Microsoft, however, will not license FAT for use in free software, Moglen said, and the fear is that Microsoft may soon begin charging royalties.

"It could be said down the line that any general purpose operating system that wanted to interoperate with the data on these [storage] devices would have to pay royalties," Moglen said.

The ruling from the patent office to review the patent acknowledged PubPat's concerns, but said they are not grounds to reexamine a patent.

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"[PubPat] raises issues of 'significant public harm' and the patent stands as a potential impediment to the development and use of free software because free software developers are denied the ability to interchange media with machines or devices running Microsoft-owned or licensed software," the patent office said in its ruling to re-examine.

Instead, Moglen made his case to the patent office on two grounds. To be enforceable, a patent's claims must be novel and unobvious. FAT fails on both counts, Moglen said.

FAT was first available in Digital Research's CP/M, an operating system for 8-bit computers. Microsoft acquired the rights to CP/M in the '80s and renamed it MS-DOS, Moglen said.

"It was sold in CP/M 2.2 before Microsoft even existed," Moglen said. "Therefore it is not patentable. Under the law, no invention may be patentable if it was on sale pre-submission of the patent application. We said to the patent office that this was invalid at the time when it was issued. We raised significant questions as to its validity."

Microsoft.com, however, has a different version of this story: "The FAT file system was one of the first technologies developed by Microsoft. In 1976, Bill Gates created the initial version of FAT during a short hotel stay in Albuquerque, N.M. Intel incorporated FAT technology in an operating system it developed for the Intel 8086 chip. Microsoft purchased the rights to this system and then recoded the FAT file system as part of the first version of the Microsoft MS-DOS operating system."

According to Moglen, who has been vocal against the SCO Group's multibillion dollar lawsuits against IBM Corp., Red Hat Inc. and commercial Linux users, PubPat's squabble against the FAT patent boils down to a difference of philosophy.

"[Free software advocates] believe software is representative of science. Microsoft believes software is a closed product," Moglen said. "We have no interest in closed science."

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