Microsoft wins suit over antipiracy patent

Federal appeals court rejects a Texas lawyer's claim that his patent covers Microsoft's product activation program.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
2 min read
WASHINGTON--A Texas lawyer has lost a patent lawsuit over antipiracy technology embedded in Microsoft's product activation program.

The United States Court of Appeals for the Federal Circuit has affirmed a district court's decision, which said that Microsoft did not infringe on Kenneth Nash's patent for detecting pirated software by assigning each program a unique ID and verifying it over the Internet.

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 had covered Microsoft's software, other companies could have been at risk. Adobe 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."

The decision was delivered March 16. During oral arguments on March 9 before the court, the judges spent most of the time wondering about the definition of "automatic" used in Nash's invention and the Microsoft program.

Walter Brookhart, an attorney for Microsoft, told the panel that the product activation program and Nash's invention are "fundamentally different." 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 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. The recent narrowly averted shutdown of Research In Motion's BlackBerry service has also spurred calls for patent reform.

Nash practices as an intellectual property law attorney 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 people 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 said last March (click for PDF of opinion) that Microsoft hadn't infringed on any of the claims presented for the patent in question.

CNET News.com's Anne Broache contributed to this report