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Lawyer insists Microsoft infringed antipiracy patent

Texas attorney with patent on antipiracy system appeals ruling that said company's product activation program didn't infringe.

WASHINGTON--A Texas lawyer named Kenneth Nash owns a patent on a method for detecting pirated software by assigning each program a unique ID and verifying it over the Internet.

Nash sued Microsoft over its product activation program and lost when a judge in Houston ruled against him. On Thursday, he took his patent claim before a federal court here in hopes of a victory on appeal.

The dispute involves patent 6,449,645. It describes how to collect the unique ID--such as a serial number or activation key--assigned to each computer in an Internet database, preferably without the user's knowledge, and checking for multiple copies of the same program running. That could let it flag two friends who were illegally running, say, a video game with the same activation key.

If the software patent is found to be valid and to apply to Microsoft's software, other companies could be at risk. Adobe Systems says it uses software activation technology that "uniquely" identifies the computer and sends the information "to Adobe's Web server." Symantec also uses product activation. And the patent is broader than just software; it also covers "digital music, digital movies, multimedia or the like."

Thursday's arguments before the U.S. Court of Appeals for the Federal Circuit centered on the definition of "automatic" used in Nash's invention and the Microsoft program.

David Anderson, an attorney for Nash, told the three-judge panel that the lower court had misread that definition. Nash never said his entire invention worked in an automatic fashion, but that only certain "subprocesses," such as detecting whether a user is connected to the Internet, occurred automatically, Anderson argued. He claimed that Microsoft's own documentation acknowledges its activation system does just that.

Walter Brookhart, an attorney for Microsoft, countered that the product activation program and Nash's invention are "fundamentally different." Nash's invention, as described in its patent filing, "preferably" runs in the background--a "spyware type of system," in Brookhart's words. But Microsoft's program is an "upfront, in-your-face system," he said, which will not let users proceed past an initial screen unless they activate the software in question via e-mail or telephone or postpone it until the grace period runs out.

Software patents have irked the free software community and many programmers, and have been rejected in Europe. So-called "patent trolls"--people who never use a patent except in litigation--have drawn fire from Congress and companies like Hewlett-Packard and Intel. Last week's narrowly averted shutdown of Research In Motion's BlackBerry service has also spurred calls for patent reform.

Nash practices intellectual-property law out of a Houston office. According to an online directory maintained by a local professional association, he also has a bachelor's degree in electrical engineering.

In 2003, he filed suit alleging infringement by Microsoft's product activation program. Also designed to verify a piece of software's legitimacy, that program forces users to activate all new software either through the Internet or by phone within a certain "grace period," or the software will be disabled. Among other things, the activation program assigns identifiers to the user's computer and software and "automatically" interacts with the Internet, creating grounds for infringement, Nash argued.

Those arguments didn't satisfy a federal judge in Houston, who determined last March (click here for PDF of opinion) that Microsoft hadn't infringed on any of the claims presented for the patent in question.

Judge Randall Rader indicated on Thursday that he may be sympathetic to Microsoft's argument, lobbing a number of pointed questions at Nash's attorney. "You have a user prompt interrupting the automaticity here," he said, referring to the screen Brookhart described. "How is that automatically determining whether the user is connected to the Internet?"

A decision in the case is expected later this year.