October 1, 2004

Why Microsoft's Sender ID patent should not be granted

Author: Robin 'Roblimo' Miller

DAYTONA BEACH, FL -- ISP owner Robert Craddock liked Microsoft's recent Sender ID antispam proposal and patent application so much that he came up with a nearly identical system -- except he did it long before Microsoft made its version public. In fact, he started using the system he now calls Mail-Block back in 1998.In May of 2003, Craddock offered his system to Microsoft, which rejected it -- and the concept itself -- in writing, not long before unleashing Sender ID. Craddock isn't trying to get Microsoft to give him money. He's not interested in patenting Mail-Block, a service he licenses to companies and uses for his own ISP. His worry about Microsoft isn't so much the company is "stealing" his work but that it may use patent barriers to keep Mail-Block and similar systems from becoming widespread enough to make a real dent in the phony-sender spam problem. And, Craddock says, "I'm totally open to working with the open source community on this."

It started with network marketers

This is the amusing part: Craddock originally got interested in stopping spam back in the mid-1990s when his primary business was designing Web sites for Multi-Level Marketers (MLMs) and, as they increasingly call themselves, Network Marketers (NMs). Under either name, these companies recruit distributors who then recruit sub-distributors, who recruit sub-sub-distributors, and so on until the entire population of the world is part of what is called the "downline." You get a little bit of money every time someone in your "downline" makes a sale or recruits a new sub-sub-sub-distributor. Naturally, if you can grab an entire downline away from someone else, you can make a substantial amount of money quickly. So, nearly as soon as MLMs and NMs discovered the Internet, they started grabbing the email addresses of each other's distributors and trying to recruit them.

Craddock was supplying Webmail for his MLM and NM clients as part of discount Web hosting-cum-NM deals like Big Time Money, and the people behind this sort of thing wanted to block email from competitors to members of their downlines. Note that their interest was not in stopping their members from spamming, but in stopping "come join our new scheme" spam sent to their members.

In any case, his system worked. He and his coworkers improved it as they gained experience with it. And finally, in 2001, they gave it the (trademarked) Mail-Block name.

Microsoft's Sender ID patent application may be meaningless

Craddock's big fear is that Microsoft may get a patent on some of the core technology behind Mail-Block and prevent others from using it or only license it on terms so onerous that he and others will not be able to use it. The Apache Foundation, Debian, AOL, and others have already said they are not happy with Microsoft's Sender ID terms and do not want to work with Microsoft to develop an email authentication standard.

According to Public Patent Foundation president Daniel Ravicher, Craddock doesn't have a lot to worry about, and others may also be doing too much hand-wringing over the prospect of a patent-wielding Microsoft dominating spam-fighting technology.

First, Ravicher reminds us, Microsoft has only filed a patent application, which does not guarantee that the patent will be granted. He says, "A patent application is like asking a girl out on a date. It's a long way from having a baby."

Second, Ravicher says, "The chances of Microsoft getting an injunction (against Craddock) are virtually nil."

And, according to this press release, Ravicher's group has succeeded in blocking at least one Microsoft patent attempt, so it looks like he knows what he's talking about.

Another attorney with whom we spoke, who does not want to be quoted by name, told us that since Craddock has been using and distributing Mail-Block for a number of years without patenting it, the system is effectively in the public domain, free for all -- including Microsoft -- to use. But this means Microsoft can't patent this system, either, so both commercial entities and open source projects can go ahead and use it without fear as long as they avoid "any bells and whistles Microsoft might have tacked on, because it's possible they might get patents on those even if the rest of their application is denied."

Just don't call it Mail-Block

One thing Craddock does own is a valid trademark on the Mail-Block name. If you want to use that name or something similar to it, you need his permission. Since it's a brand he's spent a fair amount of money and time establishing, he might -- entirely legitimately -- ask you for a fee. Craddock is miffed, to the point of calling in lawyers, at Mailblocks, a company that sells a similar service but uses different technology to authenticate email senders.

Mailblocks was founded by the late Phil Goldman, creator of WebTV, after he sold WebTV to Microsoft. Ironically, one of Mailblocks' greatest claims to fame is its heavy-handed attempts to keep other companies from using technology over which it claims patent rights even though Mailblocks seems to have no problem using a name similar enough to another antispam service that Mailblocks would probably scream about Mail-Block if it hadn't been around (and trademarked) before Mailblocks.

Craddock isn't the only one with a time machine

A man named F. Scott Deaver lives outside of Houston, Texas. He and Robert Craddock have never met. But Deaver, too, has managed to steal Microsoft's Email "Caller ID" technology -- in his case right down to the name, he says -- and transport it back in time so he could violate Microsoft's rights to a patent it hadn't even dreamed of filing yet. And while Deaver is happy to boast on his Web site that he produces "Ideas so good that Bill Gates steals 'em (tm)," it's obvious that he isn't happy about the compliment and that he would rather not have Microsoft trying to patent ideas he claims he came up with first.

In an email to NewsForge about his "Caller ID" email product, Deaver wrote:

There is a strange ethereal quality about all of this, though...nothing about anything Microsoft has ripped off will in any way dent SPAM, or even identify a sender. That is why in my own work I ultimately changed courses and went application-based (the application did of course use my Caller ID technology to help thwart spoofing, but the numbers will tell you spoofing is just a tiny part of the problem). Had the issue just been the theft of the protocol, I might not be as angry -- but their inept thrashing around the subject as well as the outright theft of my trademark (Caller ID for E-mail) left me without any brand recognition or marketable product at all...

This is the whole problem with Microsoft...it's not so much they're essentially thugs who couldn't innovate their way out of a wet paper bag, but that they salt and sour the software innovation landscape for everyone. It's the innovation that ISN'T happening because the little guys who come up with original ideas have no chance whatsoever against that bullying billionaire, and so they don't publish their work.

Was Microsoft completely forthcoming with the USPTO?

At least one intellectual property attorney is looking into this possibility. It may or may not be coincidence, but when Craddock and Mailblocks started their tiff last year, a Salt Lake City, Utah, law firm representing Mailblocks flew Craddock out to meet them (at their expense). That same firm, Workman Nydegger, is listed on the Microsoft Sender ID patent application.

By itself, this means nothing. Workman Nydegger has a number of attorneys, each working for his or her own clients. But the coincidence -- if that's what it is -- has aroused more than a little curiosity among intellectual property lawyers who have spotted it. Not only that, one attorney with whom we spoke wondered aloud if Microsoft or Workman Nydegger had knowledge of prior art that they did not disclose to the USPTO in their filing, and he is scrutinizing the entire patent application (not just the abstract to which we linked in the first paragraph of this article) to see if this is so, especially since Robert Craddock -- and possibly others -- have had direct communications with Microsoft executives and Workman Nydegger attorneys about technology either identical or similar to some of Microsoft's Sender ID patent claims long before the application was filed.

Not telling the USPTO about prior art you know exists is a Very Bad Thing from a legal point of view. But this is still under investigation. No one has any proof at this point that either Microsoft or Workman Nydegger intentionally misled the patent office, and the people involved with this research will not go on record yet, so please treat this as pure speculation at this point. (If and when NewsForge learns more -- in either direction -- we'll be sure to let you know.)

Multiple prior art claimants

Note that Craddock and Deaver, who are the kind of small-time entrepreneurs our national meme says are responsible for most of America's inventivness and financial vitality, are not necessarily trying to get licensing fees from Microsoft, but are worried about protecting their copyrights and trademarks so they can run profitable businesses based on them. All they ask is a fair marketplace in which they can freely use their own developments -- and share those developments freely with others if that's what they choose to do.

Craddock and Deaver had not heard of each other before I started researching this article. Both found it alternately saddening and amusing that someone else also believed Microsoft's Sender ID patent application incorporated their work.

An earlier NewsForge story, Email Sender ID: The hype and the reality, mentioned other proposals similar to Sender ID. And there are no doubt yet others we do not know about.

Sender ID may not stop spam, but it may help reform the software patent process

All a DNS-based Sender ID system does is make it hard -- but probably not impossible -- for spammers to use fake return addresses. This won't stop spam. But Microsoft's attempt to patent the idea has focused new attention on the broken nature of our patent system, especially as it applies to software patents.

Even Microsoft believes in the freedom to innovate -- except that in Microsoft's world view it doesn't belong to people like Craddock or Deaver, only to Microsoft. And this is where a patent system that favors large companies with rooms full of lawyers over individuals and small companies breaks down, especially when it comes to software innovations like email sender verification, an idea Microsoft is trying to patent even though at least two entrepreneurs and several academics had the idea long before Microsoft -- a not-unusual situation when it comes to advances in computer technology.

As Craddock says, "One needs only look at the accomplishments of Microsoft to see the
innovations were developed by small firms like us first. Wouldn't you agree?"

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