US patent on flight planning

[IO540]

This story has appeared in various places.

Avweb (http://www.avweb.com/avwebflash/news/Flight_Planning_Patent_Being_Enforced_203765-1.html)

Example of somebody getting hit (http://blog.runwayfinder.com/)

The Patent (http://www.zen74158.zen.co.uk/odds/USPatent-7640098.pdf) also here (http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7640098.PN.&OS=PN/7640098&RS=PN/7640098)

It's an appalling example of abuse of the patent process, but this is unfortunately common these days, since (a) most patents are not novel but are contrived variations of old ideas and (b) not every patent examiner has a proper brain.

[FREDAcheck]

Well, the bad news is that it can cost $50k to defend a frivolous patent assertion, much more if your opponent has deep pockets. As a result, small companies may simply pay up.

That said...

This particular patent looks to have weaknesses:

The patent was filed on 28 Sep 2005. I'd rather doubt it was wholly novel at that date. I suspect that there were other systems doing enough of what's described in the patent to undermine it enough to limit how broadly the claims can be interpreted. Anything in the public domain (not necessarily a previous patent) counts as "prior art".
The patent language talks repeatedly of "frames". It's not clear if that has to be interpreted as a web page frame, but it might be possible to argue so, and thus that non-frames web pages wouldn't infringe.
The claim language includes "...each selected composite travel navigation chart including a travel chart merged with travel navigation waypoints, the travel navigation waypoints including radio navigation aids...". If you have a system where the navigational charts do not include way points and radio nav aids, but these are drawn separately, then that system may well not infringe.
The claim language includes: "...downloading the Web page with the selected composite travel navigation chart from the server computer to the client computer as a two-dimensional array of map tiles that include up-to-date navigation data ...". If the array of map tiles did not include up-to-date navigation data, but that were downloaded separately as an overlay, that might not infringe.

Patent examiners make mistakes, but don't usually grant patents without some novelty. In other words, it's likely that the overall combination of things that the patent describes is novel. But it's quite likely that only the exact combination claimed is novel. Any system that doesn't include every step of the claim doesn't infringe. As this patent is relatively recent, it's likely that there were other systems around at the time of the patent doing closely related things. This will prevent any broad interpretation of the claims, and probably make it relatively easy to work around the patent.

However, small companies will probably just pay up.

[Justiciar]

The whole issue of granting patents for software is one that has rumbled on for years. It is difficult to see how an infringement action would succeed if the process has been in existence before the application for the patent. Merely having a patent does not guarantee that it is enforceable and a court could declare it not valid in an enforcement action.

[onetrack]

A patent that is blatently unenforceable, and which should never have been issued. Anyone affected should form a group with others, to reject the claim/s, and employ a good attorney who can explain in a court of law, in clear, unambiguous terms, the precise meaning of "prior art". :ugh:

[FREDAcheck]

Presumably it passed the "Machine-or-transformation" test in the minds of the USPTO for them to grant it.

However, the independent claims are quite long and involving a number of complex steps. I would have thought it possible to find a work-around that doesn't infringe. There must be plenty of prior-art systems that will limit the interpretation the claims.

A patent that is blatently unenforceable, and which should never have been issued.
Prove it. I think you may be right, but a granted patent is presumed valid. The onus is on the opponents to show it isn't (though curiously Microsoft are currently trying to change that balance to make it easier to overturn patents).
Anyone affected should form a group with others, to reject the claim/s, and employ a good attorney who can explain in a court of law, in clear, unambiguous terms, the precise meaning of "prior art".
First find your prior art. Find products, publications, even personal software systems if they can be deemed in the public domain that show that the patent claims were not novel at the time of filing.

Or, as I said earlier, don't bother to invalidate it. Simply modify your software (if necessary) so that it doesn't match all the tightly-defined steps in the patent. That might well be possible, given the complexity of the patent claims.

[mm_flynn]

I don't understand the detail of how this works, but believe you will find this is a divisional of a patent filed in 2001 (so the art must be prior to 2001). For reference, Google acquired the technology for Google maps in 2005. As such, there may be very little prior art in serving composite raster maps with data overlay at 2001.

[Lone_Ranger]

Thankfully most of the rest world recognises US patents for the bull**** they are and ignores them

[FREDAcheck]

Thankfully most of the rest world recognises US patents for the bull**** they are and ignores them
US patents have jurisdiction only in the US, so the rest of the world doesn't need to recognise them. However, in these days of global markets, a product that can't be sold in the US can be at a disadvantage.

mm_flynn is right to point out what I overlooked, that this is a continuation patent, which means it has a priority date in 2001 in this case. In other words, it needs to be novel at that point. However, the patent claim looks to be fairly narrow and precise, and at first glance I would have thought it might be possible for other systems to avoid infringing it without losing functionality.

[Johnm]

The US patent system is purpose designed as a restraint of trade system. "If we didn't invent it we'll pretend we did and then you lot can't operate in our territory."

Elsewhere you can't patent software because by definition a computer program isn't an invention, however you can copyright software under certain circumstances and that's not unreasonable.

[A A Gruntpuddock]

"As such, there may be very little prior art in serving composite raster maps with data overlay at 2001".

I remember going to a lecture back in the early '90s about how mapping of underground services was being improved by overlaying gas, electricity, water, etc. details over maps so conflicts could be seen. Was so advanced at that time that the power company was able to identify 'at risk' properties such as those occupied by people with dialysis, heart machines and so on.

Not the same theme but still using the same basic premise. Not that this will affect the patent lawyers of course. How they can justify some of the patents issued is way beyond me.

[IO540]

I have long lost count of the patents I have seen (in the UK) which were utter bollox, on prior art.

However it is impossible for patent examiners to know everything.

[Jan Olieslagers]

Ils sont fou, les Américains.
Rare jongens, die Amerikaanders.

[david viewing]

I was genuinely shocked to see that Runway Finder was the subject of this hostile action. I've flown many 000's of miles under the beneign guidance of this superb site and look forward with dismay to going back to clunky old fashioned alternatives like the AOPA (US) offering.

Runway Finder was a genuine contribution to flight safety, allowing simple, intuitive visualisation of a route and alternates. Last minute modifications to accomodate actual weather, TFR's and other variables could be made with confidence and actual conditions and airport data were always available in an instant.

Runway Finder encapsulated everything that we should strive for in UK flight planning in our vastly more complex and hostile skies. At least the US action won't be directly effective here. A Runway Finder in UK would reduce infringement and all types of weather related accidents, saving lives and waste of public money.

A person can dream, I suppose.

PS the site's still there as I write. If you havn't seen it, do look before it's too late. It takes seconds to learn. RunwayFinder - Aeronautical Charts - Flight Planning (http://www.runwayfinder.com/).

PPS. Edited to say that the site now says that preliminary agreement has been made and that it will remain online. I surely hope so!

[EDMJ]

@I0540

If you are not acquainted with the very complex matter that patents and patent law is, as for example this statement amply demonstrates:

(a) most patents are not novel but are contrived variations of old ideas

then you are not qualified to make such sweeping and insulting statements:

(b) not every patent examiner has a proper brain

I've been a patent examiner for more than 20 years (and a pilot for almost just as long) and am quite happy with my brain, thank you very much.

[FREDAcheck]

I think it is also a mistake to use this to take a swipe at the Americans.

Patent law is broadly similar around the world. Companies (and not just US companies) are more agressive in pursuing patent assertions in the US, but that is partly because the potential royalties or damages are higher in the US, as it's the world's richest single market (Europe is still somewhat fragmented for patent assertion).

It is true that US patent law has some absurdities such as "continuing patent applications", which can allow someone to add things to a patent that they (or even someone else) invented after the original patent was filed (as in this case). The US Patent Office tried to change the rules to limit this process, but it was GlaxoSmithKline - a British Company - that took the USPTO to court, and got an injunction stopping them preventing GSK and others extending their patents almost indefinitely.

[Jan Olieslagers]

On a different way of thinking:
I had - very reluctantly - come to accept that most pilots, round here at least, seem to prefer paying for services that ought to be available for free, IMHO. Now if commercial companies, offering good service at prices acceptable to many, are pestered out of economically viable operation, won't this only strengthen the demand for fully free and open services?

[mm_flynn]

... Now if commercial companies, offering good service at prices acceptable to many, are pestered out of economically viable operation, won't this only strengthen the demand for fully free and open services?

It requires a very generous person to provide a service for free if they must licence the underlying technology!

[IO540]

EDMJ - clearly I must file my next patent in Germany :) Perhaps you can write a more heavyweight contribution to knowledge, since you are a specialist in this field.

My specialisation is electronics and the vast majority of patents I have seen in that field are indeed contrived variations of existing stuff, and some have been clear prior art which the examiner evidently didn't spot.

There is even a big website listing loads of bogus patents like that - most duff due to prior art which the examiner failed to spot. I recall NASA filing one well known such patent.

As stated above, the solution is to "Simply modify your software (if necessary) so that it doesn't match all the tightly-defined steps in the patent".

The catch there is that you could be some way in marketing your product before the other person's patent application is discovered, and then they've got you over a bit of a barrel. The fact that you can get around the issue by a small change is only a partial help.

A standard practice is also to file a patent and then keep amending it (I don't recall the exact terminology) so you can stick "patent pending" or "patent applied for XXXX" (with the application number) on your product for a number of years, and this keeps a lot of would-be (amateur) competitors at bay. I did this back in 1991 with a product I designed. The patent was eventually chucked out, a few years later :) Today, I wouldn't bother. But such nuisance patents continue to come out. I am sure this company will be able to do a modification which gets around it.

[Jan Olieslagers]

Quote:
Originally Posted by Jan Olieslagers http://images.ibsrv.net/ibsrv/res/src:www.pprune.org/get/images/buttons/viewpost.gif (http://www.pprune.org/private-flying/436366-us-patent-flight-planning.html#post6116721)
... Now if commercial companies, offering good service at prices acceptable to many, are pestered out of economically viable operation, won't this only strengthen the demand for fully free and open services?

It requires a very generous person to provide a service for free if they must licence the underlying technology!

Yes, sure, of course. But I always understood patents exist to protect inventor's commercial interests against competitors, so they can't be applied against non-commercial offer? A bit like Microsoft can't sue Linux, though they'd surely like to?

[LH2]

there may be very little prior art in serving composite raster maps with data overlay at 2001.

http://www.mapserver.org/

Serving raster maps with data overlay since 1994 :)

[IO540]

I am sure the combined expertise here could out-expert the "patent examiner" who allowed this particular patent to be filed......

patents exist to protect inventor's commercial interests against competitorsFunnily enough, a patent lawyer explained to me once the original (~200 year old) reason for patents:

A patent is a bargain between the inventor and the Crown [the government] whereby the inventor discloses fully how the invention works and how anybody competent can replicate it, for the benefit of society as a whole, and in return for this disclosure the inventor is given a commercial monopoly for a specific time period.

There was never an intention to create monopolies as the prime objective.

[mm_flynn]

LH2,

From a quick look, it would seems Mapserver would count as prior art of a more general nature (obviously it is not aviation specific), but it encompasses the general principle of merging vector and raster graphics and serving them over the internet. Good News!

Jan,

Patents protect intellectual property, the infringement does not need to be for commercial purposes, and the damages are the loss the patent holder experienced as a result of the infringers actions, not the profit or gain of the infringer. Same logic applies to file sharing of copyright material, just because you give away for free copies of Star Wars, doesn't mean you can't be sued.

As an aside, I would have thought Microsoft would have little to say about Linux as Windows is quite derivative in itself and Linux traces its roots to Unix, which substantially pre-dates Windows.

[IO540]

A friend of mine who has been quite deeply involved in filing some US patents advises me that the basic problem is that some patent examiners over there are essentially illiterate, not understanding what the application is about and instead picking up objections based on keyword searches which don't relate to the subject of the patent.

[Justiciar]

A patent is a bargain between the inventor and the Crown

Deriving from "Letters Patent", used byt he crown for granting all sorts of privileges, titles and status. Judges, QCs and Peers are appointed by letters patent. In the case of IP rights, it has been formalised by legislation.

[patowalker]

Letters Patent also turned pirates into privateers, making their business legit. Seems nothing much has changed. :)

[ukpilotinca]

It looks like FlightPrep wants a piece of the big guys too....

From AOPA Flight Planner does not infringe on patent (http://www.aopa.org/flightplanning/articles/2010/101214AOPA_Flight_Planner_does_not_infringe_on_patent.html)

FightPrep has notified entities that provide online flight planning, including AOPA and Jeppesen, that it would like to meet to discuss the FlightPrep patent. The FlightPrep patent is apparently on very specific methods of online flight planning, which Jeppesen has determined are not used in its flight planning products, including the one developed in partnership with AOPA. Therefore, AOPA and Jeppesen have declined to meet with FlightPrep.

[IO540]

It's a typical predatory patent.

You file a patent, sit on it, and then see who happens to implement the stuff in it, and then you "ask" them for royalties.

Probably a lot easier than starting your own business :)

[david viewing]

Sadly Runway Finder did shut down after all, the page being replaced by a blog which makes interesting reading (http://blog.runwayfinder.com/).

My first step was back to the AOPA (US) flight planner and I'm jolly glad it's still there (for the moment), clunky though it is. It just highlights how far ahead Runway Finder was, as different as colour TV from B&W.

Ultimately I suspect the patentor will feature in some US action by the relatives of an accident victim whereby the safety of flight was eroded by the lack of previously available intuitive flight planning systems.

All very sad. I wonder if the patent applies in UK?

[FREDAcheck]

All very sad. I wonder if the patent applies in UK?
US patents don't apply in the UK, or anywhere except US jurisdiction. Often inventors file an international application, which is a way of applying for the same thing in multiple countries. However, that didn't happen here. There is no corresponding patent in Europe or anywhere else that I can see.