decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Patent Infringement Lawsuits That Involve FOSS
Wednesday, August 10 2005 @ 11:55 PM EDT

I have the unhappy task of telling you that patent infringement lawsuits have been filed that impact FOSS.

The company doing it is J2 Global Communications, Inc. -- the eFax people -- against Mijanda, Inc., Easytel, Inc., and Protus IP Solutions. Here's the complaint [PDF] against Mijanda. It was filed in California by J2 and Catch Curve, Inc., on August 5, 2005.

Who is Catch Curve? I'll let them describe themselves, from the complaint: "Catch Curve is an intellectual property development and licensing firm focused on communications and messaging technologies." Another way to put it, in my language, is to say that they are a patent troll.

Each plaintiff contributes one patent to this suit against Mijanda:

-- J2's, which they got by assignment, is #6,208,638, "Method and Apparatus For Transmission And Retrieval of Facsimile and Audio Messages Over a Circuit or Packet Switched Network."

-- Catch Curve got its by assignment also, #6,785,021, "Facsimile Telecommunications System and Method."

What the plaintiffs are asking for is monetary damages for past "infringement", injunctive relief against continued "infringement" of the patents, and to get paid "reasonable" royalties going forward. I put infringement in quotation marks, because there is some question as to the validity of J2's patents, as I'll explain.

David Sugar brought this to my attention, and he told me about the FOSS connection:

Mijanda offers a fax to email gateway hosting service on Asterisk, a GPL licensed general purpose IP-PBX available under GNU/Linux. I believe one of the other companies involved is using Hylafax, which is another much older free software solution specific to faxing. The short list of free software packages that are potentially effected includes mgetty+sendfax, some of the fax stuff found in GNOME (and maybe KDE), hylafax, Bayonne, and Asterisk. In terms of prior art, whether one considers fax machines, classical fax modems, or even the very old mgetty+sendfax package used for doing fax to email and email to fax on GNU/Linux machines for maybe 20 years now, I am rather certain there is a great deal of relevant and readily demonstrable prior art in this area, besides the ridiculous nature of these patents.

The complaint says Mijanda offers its customers various services, including fax services through SmartFax and Fax Micro.

Someone really needs to do something about the US patent mess, don't you think? How bad does it have to get before someone fixes it? If allowed, proprietary companies will gladly divvy up the Internet -- and every function on it that we all need to use every day -- until it ends up entirely balkanized and proprietized after all. Patents are just the ticket to achieve such a goal. All you need is typical, everyday business goals, staying within the patent system as it currently exists, and a head and heart utterly untouched by any concern for the public good.

Patents on faxing? Faxing by email? Can someone please explain to me what happened to the nonobviousness requirement?

J2 is a proprietary company that has sued before. eFax is only one of the names J2 uses, by the way. They describe themselves like this:

j2 Global markets its services principally under the brand names eFax(R), j2(R), jConnect(R), JFAX(TM), eFax Corporate(R), UniFax(TM), Onebox(R), Electric Mail(R), jBlast(R), eFax Broadcast(TM), eVoice(R), PaperMaster(R), Consensus(TM), M4 Internet(R) and Protofax(R).

I gather they would like to be the only ones allowed to operate in that space. Alternatively, you can operate, but only if you cross their palms with silver. FOSS developers usually can't play that game. If J2 is successful in pulling this off, it could mean millions of people who prefer using only Free and Open Source software may find themselves unable to do so when it comes to faxing by computer. How could any legal system let that happen? I know for sure I'll never use eFax now, but if that becomes the only option, or only proprietary options are left standing, then what do I do? Anyway, that's their plan.

Is it an anti-FOSS plan? I don't know. It could be your garden variety business greed. Here's what I do know. Krevlin Advisors, LLC, one of the heavy backers of SCO, is also an investor in J2. If you are curious, here's a Forbes bio on Glenn J. Krevlin. And this article might give some insight. Coincidences do happen in life every day, of course.

A prior victim of J2's litigation strategy, Venali, Inc., has already challenged two of J2's patents (J2 says they have 23 worldwide), and they are going to the trouble, bless their hearts, of looking to challenge other patents in the J2 portfolio, even those not involved in that lawsuit, which was filed in 2004. One patent Venali challenged in May is #6597688, which the US Patent Office has agreed to reexamine on the grounds of invalidity:

“All claims of the patent will be reexamined” according to the order by the U.S. Patent Office granting the reexamination. “It is agreed that the consideration of all these references [cited by Venali in its request for reexamination] raises a substantial new question of patentability as to Claims 1-27 of [j2’s ‘688 patent].” . . .

“We are very pleased that the U.S. Patent office agreed to our first request to reexamine a patent held by J2 Global” said Amin El-Gazzar, CEO of Venali. “While this was the first reexamination request Venali filed, we recently filed a request to reexamine a second J2 Global patent based upon new evidence which we found that shows the invalidity of the patent. Based on the newly uncovered evidence, we are extremely confident that the U.S. Patent Office will grant that request as well.”

The reexamination requests are the result of evidence uncovered during an on-going extensive investigation into the validity of the entirety of the J2 Global patent portfolio which had first been initiated by Venali in response to a suit filed by J2 Global in 2004. While Venali maintains that its processes and technologies do not infringe upon J2 Global’s patents; Venali is aiming to strengthen competition on merit in the rapidly growing Internet Fax market place by working actively on invalidating questionable J2 Global’s patents, even if they are not part of Venali’s litigation with J2.

Venali's request for reexamination of all claims of US Patent No. 6,350,066, "Scalable architecture for transmission of messages over a network", in June was also granted. Venali's press release references seven individual grounds for reexamination, and the United States Patent Office ordered a reexamination of all claims in J2 patent 6,350,066:

Less than one month after granting Venali’s first request to reexamine a patent held by J2 Global Communications, Inc. (NASDAQ symbol JCOM), the United States Patent Office has granted Venali’s request for reexamination of a second patent held by J2.

According to the US Patent Office, Venali’s request for reexamination raised a substantial new question of patentability of all claims of US Patent No. 6,350,066. In fact, Venali provided seven individual grounds for reexamination and the United States Patent Office ordered a reexamination of all claims in J2 patent 6,350,066. . . .

“This order to reexamine a second patent held by J2 Global confirms Venali’s position that the patents asserted against it are simply not valid”, said Amin El-Gazzar, CEO of Venali. “We expect to file a request for reexamination of a third J2 Patent in the next couple of weeks and we are confident that request will be granted as well.”

So, two being reexamined, and probably more, but J2 has more, including 8 more waiting for approval in the US alone.

J2's press release has to say about the lawsuit:

LOS ANGELES, Aug. 5 /PRNewswire-FirstCall/ -- j2 Global Communications, Inc. (Nasdaq: JCOM), the provider of outsourced, value-added messaging and communications services, today announced that it has filed patent-infringement lawsuits against Easytel, Inc., Mijanda, Inc. (Canton, Mich.) and Protus IP Solutions (Ottawa, Canada).

j2 Global is seeking remedies in the form of monetary damages for past infringement, as well as injunctive relief prohibiting the companies named above from continuing to infringe the patent or patents in suit.

j2 Global owns more than 23 issued U.S. and foreign patents, and has numerous pending patent applications. These patents and patent applications relate to various innovations in the fields of unified communications, multimedia messaging, Internet fax and voice messaging, and document management.

"j2 Global relies on its proprietary, patented technologies to provide customers with value-added communications services, such as our eFax(R) outsourced fax-to-email solution," said Hemi Zucker, co-president of j2 Global. "These lawsuits emphasize our continued commitment to protect this valuable intellectual property from illegal use."

You can read more of their issued US patents:

6,717,938 System controlling use of a communication channel
6,625,642 System and process for transmitting electronic mail using a conventional facsimile device
6,597,688 Scalable architecture for transmission of messages over a network

Let's take a look at some of their published patents pending:

  • 20050131944 - Method and apparatus for automatically performing an online content distribution campaign
  • 20050097000 - Systems and methods to facilitate selling of products and services
  • 20050091123 - Systems and methods to facilitate selling of products and services
  • 20050044008 - Systems and methods to facilitate selling of products and services
  • 20040165603 - Enhancing messaging services using translation gateways
  • 20040153368 - Systems and methods to facilitate selling of products and services
  • 20040010419 - Method and apparatus for facilitating acquistion of prospective payoff information on an existing loan account
  • 20030154120 - Systems and methods to facilitate selling of products and services
The first one on the list is bone-chilling. It's a method to collect info about your customers from cookies and IP addresses and such, so as to know what they are interested in buying. Some on the list appear to be business methods patents. At least a few, if not all, of their patents will probably make your Top Ten Gruesome Patents list.

As it happens, Ben Klemens contacted me regarding the Patent Reform Act of 2005. He thought it would be a good idea to bring it to your attention. I asked him to please write out what he thought needed to be explained, from his point of view. Here's what he wrote:

The Patent Reform Act of 2005 is now going through the process in the U.S. House of Representatives. I'll save you the trouble of reading through the act looking for the part about reforming software patents -- it's not there.

There has been much debate on general patent reform from many sources, including the likes of IBM (arguably the single largest user of the U.S. patent system), and a recent book by Jaffe and Lerner.

These parties are good representatives of the common line on software patents. IBM, on one side of the spectrum, collects them while calling for reform, while Jaffe and Lerner brush them off -- they devote one and a half pages of their 256 page book to software, which is just long enough for them to declare that they can't distinguish between software and any other machine.

Congress is, in my opinion, the only chance to fix the software patent mess. As explained by Jaffe and Lerner (and many others), the Court of Appeals for the Federal Circuit (CAFC) is supremely pro-patent, as partly evidenced by its single-handed invention of the concepts of software and business method patents.

This pro-patent court is effectively the highest court in the land on patent issues, because the members of the Supreme Court yawn at the thought of having to sit through a case on patents. The last relevant case it heard, Diamond v. Diehr, was twenty-four years ago, and approved a patent for a piece of industrial equipment which is nothing like a PC. The pro-patent CAFC has thus had free license to intrepret software and business method patents into law.

Why does the CAFC have such free sway? Because the law delineating patentable subject matter is one sentence long.

35 U.S.C Section 101. - Inventions patentable
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
This sentence was penned by Thomas Jefferson (he used the word art instead of process), and it is this sentence that the CAFC interpreted to mean that Jefferson meant for software to be patentable.

There's something to be said for a law which is light on verbiage, but with a court that has so little interest in balancing patent benefits against patent harms, it makes sense to add clarification to the code itself. Gosh, the patent code includes rules on inventions made in outer space, yet it does not waste words to clarify whether a program on a general-purpose computer is patentable subject matter.

The CAFC will continue to declare that Congress intended software to be patentable until Congress says otherwise. The Patent Reform Act of 2005 could be a means by which that would happen. Unfortunately, it was penned by lawyers instead of programmers, and therefore misses the opportunity.

Groklaw is nonpolitical, but it seemed worthwhile to inform you that the act is currently being debated, so you can follow it, if you've a mind to.

So, to sum up, we have patent infringement lawsuits to worry about. Some of you will be able to find prior art on the patents being used against Mijanda in your sleep, I'd guess. But isn't it a crying shame that someone has to?


  


Patent Infringement Lawsuits That Involve FOSS | 306 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections, if any
Authored by: Anonymous on Thursday, August 11 2005 @ 12:06 AM EDT
go here

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

OT
Authored by: Anonymous on Thursday, August 11 2005 @ 12:12 AM EDT
Please use the hints under "Allowed HTML Tags:" on the "Post a Comment" page to make links clickable.

---
--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

Patent Infringement Lawsuits That Involve FOSS
Authored by: rm6990 on Thursday, August 11 2005 @ 12:18 AM EDT
Patent trolls generally attack other companies. They don't attack volunteers.
Although it is still good to be ready.

[ Reply to This | # ]

Submarine patent, if ever there was one: #6,785,021
Authored by: AllParadox on Thursday, August 11 2005 @ 12:19 AM EDT
This stinker was initially filed in 1988.

Issued in 2004.

Sixteen years in process, and for all that, the patent doesn't tell us anything
new.

I favor patents, but this is an obscenity.

---
PJ deletes insult posts, not differences of opinion.

AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.

[ Reply to This | # ]

Claim 1 for #6,208,638 patents the internet
Authored by: AllParadox on Thursday, August 11 2005 @ 12:28 AM EDT
Warning: I never practiced patent law, so these are not even educated guesses.

If I read the first claim correctly, there is nothing about claim 1 for
#6,208,638 that excludes the internet.

The USPTO has given these people a patent on the whole internet.

I will be unavailable for a while. I have a really nasty letter that I have to
send to my Congressman and the Senators from my state.

---
PJ deletes insult posts, not differences of opinion.

AllParadox; retired lawyer and chief Groklaw iconoclast. No legal opinions,
just my opinion.

[ Reply to This | # ]

There's going to have to be a critical mass
Authored by: manys on Thursday, August 11 2005 @ 12:34 AM EDT
Expensive though it may be for those pioneers who rise to the challenge, the
only way to get these kinds of parasites to think twice about what they're doing
is to create some precedent that they may lose patents if they assert them. This
is a half-step in a world of not being able to patent dumb things, but until
there is patent reform some defendants are going to have to go the extra mile
and help with some petard hoisting.

[ Reply to This | # ]

Hose of representatives looking at Patent Reform?
Authored by: digger53 on Thursday, August 11 2005 @ 12:44 AM EDT
No hope there.
It could probably be shown by facts and figures that there is no distinctly native American criminal class except Congress.--Mark Twain


Sadly nothing much has changed, if anything they are worse> More Mark Twain insight into Congress here. Sigh.

---
When all else fails, follow directions.

[ Reply to This | # ]

Patent Infringement Lawsuits That Involve FOSS
Authored by: k12linux on Thursday, August 11 2005 @ 02:00 AM EDT
Perhaps the best defence against patent suits against FOSS is organized
community efforts at invalidating any patent that is used in this way. If
companies/laywers find that thousands of people will be working for the other
side when challenging FOSS, maybe it will make them think twice before doing it.

---
- SCO is trying to save a sinking ship by drilling holes in it. -- k12linux

[ Reply to This | # ]

Patent Infringement Lawsuits That Involve FOSS
Authored by: Anonymous on Thursday, August 11 2005 @ 02:21 AM EDT
They are certainly not doing this to protect there product base.
The FAX. The (to my knowledge ) only digital device that can send and recieve
official and legal documents without them becomming unofficial.
I figure that this is the last thing that keeps the fax alive.

How is this still possible when combined with a non email system ? I figure it's
not. When combined with eMail the fax gives up its only reason to exist.

So it looks these moral-fiber-deprived faxman are just squeezing the last drop
out of there bussiness.
And since they probably missed the boat on several new technologies all they
have left is there stupid patents.

Patents just do damage.A failing bussiness model should just disapate into
nonexistance without the possibility of dragging some other more successfull
folks down with them.

Who could the Dynosaur sue when he found out he was an evolutionairy dead end
?

[ Reply to This | # ]

Patent Infringement Lawsuits That Involve FOSS
Authored by: Anonymous on Thursday, August 11 2005 @ 02:44 AM EDT
Haha, i guess patent trolls won't like if ALL of their patents are being
re-examined, not just the one they actually pulled out of their hat.
Is it possible to get retail prices for mass re-examination?

[ Reply to This | # ]

Patent Infringement Lawsuits That Involve FOSS
Authored by: Anonymous on Thursday, August 11 2005 @ 03:50 AM EDT
Is there anyway we can set up an OS/FOSS patent fighter org - $10 each from a
few hundred thousand people should cover a case and hopefull put a stop to this
nonsense.

[ Reply to This | # ]

Patent Infringement Lawsuits That Involve FOSS
Authored by: Anonymous on Thursday, August 11 2005 @ 03:57 AM EDT
I have a question...

Am I right in assuming that these patent suits are relevant in the US only? So
any injunctions would be US only?

Seems to me that this is the best way of ensuring that the US falls behind the
rest of the world.

Even more reason to oppose patents in Europe, methinks.

[ Reply to This | # ]

The Real IP Pirates
Authored by: Anonymous on Thursday, August 11 2005 @ 04:42 AM EDT
Since terms like "Pirates" and "Piracy" are widely-used,
it's time now to review who and what pirates really were.

For the benefit of our American readers, let's consider the Barbary Corsairs.
They laid claim (with at least some case for legitimacy) to an area of the sea
off their coast. To pass through those waters, American merchant shipping
companies had to pay a toll to the corsairs, for which they would be given
permission to pass through the corsairs' waters. Any ship caught there without
permission would be taken or sunk, and the crew enslaved and/or ransomed.

It's all there: Property rights, monetisation, permitted use of the property,
and enforcement against infringers.

The US Navy went to war to stop those pirates. Who is going to stop their
modern equivalents?

(and lets consider who has the more defensible claim to property: the people of
a country against alien shipping off their coast, or a firm of lawyers against a
victim who has no reason even to know the coast exists when they
"infringe").

[ Reply to This | # ]

Patent Infringement Lawsuits That Involve FOSS
Authored by: MadTom1999 on Thursday, August 11 2005 @ 05:14 AM EDT
I believe that (in the UK at least) I can use the effects of a patent for non
profit use. That means that I can use a piece of software that has patented
parts as much as I like and cant be touched for it. I would imagine that means I
can use it as part a another piece of software so long as I dont profit from
it.
So I think I can continue to use Linux and help develop it and other bits of
software.

[ Reply to This | # ]

A legal question
Authored by: Anonymous on Thursday, August 11 2005 @ 05:18 AM EDT
Since there won't be any software patents in Europe any
time soon, would it make a difference if american
developers host there projects in Europe? Or does it count
_where_ the project is developed?

[ Reply to This | # ]

Patent Infringement Lawsuits That Involve FOSS
Authored by: Anonymous on Thursday, August 11 2005 @ 08:04 AM EDT
I know you don't want political discussion but given that
the US Gov is the best Gov money can buy, one needs to
get use to this kind of activity because that is the way
the US is going; protect the wealth of the few at the
expense of the masses.

;/

[ Reply to This | # ]

A Patent onSpamm
Authored by: Anonymous on Thursday, August 11 2005 @ 08:33 AM EDT
20050131944 - Method and apparatus for automatically performing an online
content distribution campaign

It looks like this patent is a patent on spamm which is a illegal activity.
Does the USPTO give patents for those things ?

Lets say i file for a bussiness method patent for:
An Apparatus pointed a person and when pulling the trigger it will eject a small
lump of metal pucturing the pointed person !

a no... to obvius or not for the USPTO

Now: Claim 1:A system comprising: a set of switches coupled to a circuit
switched network for receiving a set of incoming call signals, wherein the
incoming call signal includes an inbound address, and wherein a switch in the
set of switches redirects an incoming can signal from a first communications
server to a second communications server if a first condition occurs;
and...(etc)

This sound like the ISDN system to me

If i'm going to fax from my computer i will use a faxmodem.
It has chip in it for data transmision and all royalties are payed.
Sending a fax over internet is nothing more then sending a email with a binairy
file attached which can represent a picture.

So the only part left is taking the fax put it on a scanner and email it..
Can i take a patent on taking a fax and drop it in a bin.
Now that will make monly !!

/Arthur

[ Reply to This | # ]

Maybe IBM will join the fray
Authored by: Anonymous on Thursday, August 11 2005 @ 09:01 AM EDT

I would be surprised if IBM doesn't join this fight
eventually. They have enough of a stake in FOSS now to
make them take notice, especially Krevlin's involvement.

Is my impression correct that challenging a patent makes
it unenforceable for the duration of the challenge?

[ Reply to This | # ]

"they can't distinguish between software and any other machine"
Authored by: lm on Thursday, August 11 2005 @ 09:09 AM EDT
Strictly speaking, the line between hardware and software is pretty blurry. In
most (if not all) cases a custom logic board can perform the exact same sequence
of instructions as a computer program. Yet one is hardware and the other is
software. As a matter of principle, it boggles the mind as to why some people
think that one ought to be patentable and one ought not to be patentable.

On the other hand, sense can be made of the issue if it is approached entirely
as a practical matter. If we go back to viewing patents in their original
purpose as a revenue generating mechanism for the state, then the argument can
be made that some forms of patents bring about a higher societal cost than is
justified by the amount of revenue they bring to the state.

A similar argument could be crafted for the US conception of patents expressed
in the late eighteenth century. If patents are a way to encourage individuals
and corporations to publicly describe their inventions for the sake of the
common good, then it follows that the common good ought to be the measure of
what types of patents are allowed. This argument, however, is a harder one to
make because the common good is much more nebulous concept than monetary costs.
While I don't agree with their argument, strict free marketeers can (and do)
make the argument the revenue generated by companies through their patents is
for the common good.

The problem is, IMO, that it will be prohibitively difficult to get any
particular government body to actually engage in meaningful dialogue over what a
patent ought to be and why the government should or should not grant patents. It
is possible. Stranger things have happened, after all. Who would have thought
that the Women's Temperance League could have possibly once made the entire US a
dry country? For things to change, consistant and direct pressure needs to be
applied to elected officials.

[ Reply to This | # ]

Patent law is just fine
Authored by: Anonymous on Thursday, August 11 2005 @ 09:17 AM EDT
There is nothing wrong with the current patent law. It is doing exactly what it is supposed to be doing, to wit:
1. Protecting monopolies from competitive upstarts.
2. Transferring money to lawyers from productive people.
3. Retarding progress (a real benefit since change threatens established interests)
It all just depends on your persepective and who you happen to be.

[ Reply to This | # ]

Patent Infringement Lawsuits That Involve FOSS
Authored by: Anonymous on Thursday, August 11 2005 @ 10:00 AM EDT
"Someone really needs to do something about the US patent mess, don't you
think? How bad does it have to get before someone fixes it?"

pj, I try to be a glass half full person but frankly my guess is a lot worse. I
am in Oz and with our Free *cough and splutter* trade agreement we are looking
down the (double) barrel of this.... rage on the neo conservatives; thanks guys,
don't you know conservative means tred warily.... sheesh talk about a
misnomer!!

Baz

[ Reply to This | # ]

Patent Infringement Lawsuits That Involve FOSS
Authored by: blacklight on Thursday, August 11 2005 @ 10:17 AM EDT
"Some of you will be able to find prior art on the patents being used
against Mijanda in your sleep, I'd guess. But isn't it a crying shame that
someone has to?" PJ

It would be even more of a crying shame, if nobody lifts a finger. Whatever we
can do to seriously damage or destroy these patent trolls' portfolio, we must
do. And the most effective way to do it is to find enough prior art to nullify
these patents.

[ Reply to This | # ]

Non-obvious
Authored by: Anonymous on Thursday, August 11 2005 @ 10:24 AM EDT
Can someone please explain to me what happened to the nonobviousness requirement?

Yes. There is none.

Patent #6,368,227. Method for swinging on a swing sideways. If this isn't bloody obvious, I don't know what is.

[ Reply to This | # ]

  • Non-obvious - Authored by: Anonymous on Thursday, August 11 2005 @ 12:56 PM EDT
    • Non-obvious - Authored by: Anonymous on Friday, August 12 2005 @ 01:12 PM EDT
Easy solution
Authored by: Anonymous on Thursday, August 11 2005 @ 10:30 AM EDT
The patent office is clearly incapable of examining patents for validity and
prior art. The patent examiners are overburdened and have to rush through each
application. But hiring more patent examiners is not a solution. Ultimately the
patents are written in legalese, and many of them cover areas where very
specific domain knowledge is required. So no matter how much money we throw at
the patent office, it will never be enough.

So rather than trying to fight the problem, the smartest solution is to make the
problem irrelevant. To wit, rather than going through patent examination, the
patent office's role should be to simply rubberstamp each application it
receives -- the purpose being to simply certify that the patent has been
received at the specified time. However, if the patent holder decides to sue
someone for patent infringement, they do not get a presumption that the patent
is valid, as is currently the case. Currently, the burden is on the defendant to
prove that either the patent is invalid or they do not infringe. I propose
shifting the burden to the plaintiff so that they first have to prove in court
that the patent is valid. That would quickly put an end to patent trolling
schemes.

[ Reply to This | # ]

  • Easy solution - Authored by: Anonymous on Thursday, August 11 2005 @ 10:43 AM EDT
    • yes, good point - Authored by: Anonymous on Thursday, August 11 2005 @ 12:19 PM EDT
    • Easy solution - Authored by: Anonymous on Thursday, August 11 2005 @ 02:29 PM EDT
  • Easy solution - Authored by: Anonymous on Thursday, August 11 2005 @ 11:45 AM EDT
    • Easy solution - Authored by: Anonymous on Thursday, August 11 2005 @ 12:41 PM EDT
      • Easy solution - Authored by: Anonymous on Thursday, August 11 2005 @ 03:31 PM EDT
    • Easy solution - Authored by: blacklight on Friday, August 12 2005 @ 10:30 AM EDT
    Suggested FOSS Patent Strategy
    Authored by: Hyrion on Thursday, August 11 2005 @ 10:49 AM EDT

    I believe Venali has the right idea. Target not only the patent that the company is charging FOSS with, but all patents the company currently has in it's portfolio.

    As P.J. has mentioned before, Groklaw is a community with a wide-variety of careers showing up. We have current lawyers, retired lawyers, engineering, software analysis, teachers, little ol' ladies, and a whole host of others I'm not aware of. I myself, am a systems analyst.

    What happens if we, as a community, target ALL patents within the portfolio of the company that decides to target an FOSS company? I see a couple scenarios:

    1. The patent that FOSS is infringing is actually valid. Well, FOSS would then have to work around the patent if possible and pay the fines decided by the court.
    2. The patent that FOSS is infringing is invalid, due to prior art or whatever. We may end up putting that particular patent holding company out of business depending on how many valid patents they actually have.
    Along with the main company in scenario two, we will end up raising an awareness with any companies that prefer litigation over providing a sound product. With research, we can even find out who originally patented a particular patent and assigned that patent to the litigation group. That particular company shows up on the assignment radar three times, we target all the patents within it's portfolio.

    The above would be legal as the public has the right to examine ANY patent. You can bet that after a few companies loose a good portion of their patent portfolio to the communities efforts, they're going to think twice about attacking again.

    True, in the meantime the company that was the target of the original patent lawsuit could end up going out of business due to legal costs. However, I'm not too sure what we could put into place to protect against that when so many anti-FOSS companies can group their funds/tactics together.

    Just a thought! I for one, think I'm going to start spending my spare time examining the patents of J2 to see what I can find.

    ---
    There are many kinds of dreams. All can be reached if a person chooses. - RS

    [ Reply to This | # ]

    • Hear hear - Authored by: Anonymous on Thursday, August 11 2005 @ 12:58 PM EDT
    Thomas Jefferson on software patents ????
    Authored by: Fredric on Thursday, August 11 2005 @ 11:03 AM EDT
    This sentence was penned by Thomas Jefferson (he used the word art instead of process), and it is this sentence that the CAFC interpreted to mean that Jefferson meant for software to be patentable.
    Mr. Jefferson was probably an extraordinary person with many talents but I doubt that he had very strong opinions about software. He died almost 10 years before Charles Babbage began to work on his Analytical Engine.

    Btw. I found a Jefferson quote that may tell us more about what his views on SW patents might have been had he lived today:

    "I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man."

    ---
    /Fredric Fredricson
    --------
    [Funny sig temporarily removed for tests on Salisbury Plain]

    [ Reply to This | # ]

    Patent Infringement Lawsuits That Involve FOSS
    Authored by: Anonymous on Thursday, August 11 2005 @ 11:45 AM EDT
    the only way to get it changed is to make software patents a subject for your
    candidates to take office.

    Write your representative and tell them you are not going to vote for them or
    anybody unless there is software patent reform.

    They aren't going to do anything about it because microsoft is basically a money
    machine for the government and they aren't going to bite the hand that feeds
    them (stop buying their products). Unless we the publice demand it be an issue
    and bring to the forefront.
    so make noise about it - I know I have written my representatives numerous
    letters but nothing has happened but I will keep trying. It should not have to
    be this way - it should be a government for the people not for corporations.

    Sad but true.

    [ Reply to This | # ]

    someone help me decide on patents
    Authored by: Anonymous on Thursday, August 11 2005 @ 12:29 PM EDT
    It does seem that many software patents are getting way out of hand.

    Problem is, I don't know where I fully stand on the issue, and maybe someone can
    point out a resource or two that reasonably considers how to rectify this and at
    the same time protect genuine innovation.

    Of course, there are all the egregious examples that we all roll our eyes at and
    wish they didn't exist. So I ask this not as a troll or an ignoramus... give me
    some good discourse on software patents.

    Thanks,
    D

    [ Reply to This | # ]

    Effecting change on the USPTO
    Authored by: pooky on Thursday, August 11 2005 @ 12:36 PM EDT
    I submit that the only way the system is going to change is if it becomes a
    problem that effects elected officials. It's never going to be an election issue
    in an environment where gay rights and abortion dominate election years, period.
    This is way too low on the radar of normal people for the masses to care.

    So, we need to make it a problem that the US Congress has to deal with. I would
    suggest that challenging every software patent ever filed would be a good way to
    get someone's attention. Yes that's lots of work and we wouldn't really have to
    challenge them all, just enough of them to swamp the PTO with requests they have
    to process. A deluge of requests might get some questions asked.

    Just a thought.

    -pooky

    ---
    Many Bothans died to bring us this information.

    [ Reply to This | # ]

    J2's friends
    Authored by: Anonymous on Thursday, August 11 2005 @ 12:47 PM EDT
    With major partners including Microsoft, Intuit and WebTV, j2 Global
    Communications offers two ways to make business opportunities happen for you.

    http://www.j2global.com/jcom/j2/page/businessOpportunities

    Look who else raises their head, j2 Global to Present at RBC Capital Markets
    Technology Conference.

    http://eclipse.sys-con.com/read/114904.htm

    Perhaps to with the expectations to get more investors.

    Also some of J2 Global Communication Inc's products can be integrated into M$
    Outlook and Office perhaps a warning shot over the bow of OSS office solutions.


    vegast

    [ Reply to This | # ]

    Just cancelled my eFax subscription
    Authored by: davep on Thursday, August 11 2005 @ 12:59 PM EDT
    ...and let them know why.

    Hopefully others will do the same.

    [ Reply to This | # ]

    Red Hat, Microsoft and Patents
    Authored by: Bill The Cat on Thursday, August 11 2005 @ 01:24 PM EDT
    The Register has a story running on Red Hat Pushes Microsoft for Patents Statement where they say:
    In the event of disputes, Microsoft should approach Linux distributors with complaints and avoid SCO Group’s tactic of prosecuting customers, he says.
    It's an interesting article asking M$ not to threaten developers and customers with infringement claims.

    ---
    Bill Catz

    [ Reply to This | # ]

    If I send you a PDF of a scan...
    Authored by: Anonymous on Thursday, August 11 2005 @ 02:03 PM EDT
    If I send you a PDF of a scanned document, does that count as a fax, as far as
    these fools are concerned?

    [ Reply to This | # ]

    Calling Eliot Spitzer!
    Authored by: Latesigner on Thursday, August 11 2005 @ 03:44 PM EDT
    I see no difference between this and what SCO tried to do, except they didn't
    pull it on IBM.
    It all depends on the other guy not being able to defend himself, either cash
    wise or with knowledge, from what are extortion attempts.
    It's dressed up by taking it to court but it's a shakedown.
    Why isn't this treated as fraud?
    Is there such a thing as patent fraud?


    ---
    The only way to have an "ownership" society is to make slaves of the rest of us.

    [ Reply to This | # ]

    Patent Infringement Lawsuits That Involve FOSS
    Authored by: Anonymous on Thursday, August 11 2005 @ 05:51 PM EDT
    With regards to "while Jaffe and Lerner brush them off -- they devote one
    and a half pages of their 256 page book to software, which is just long enough
    for them to declare that they can't distinguish between software and any other
    machine."

    IEEE Spectrum recently had an op ed where they remind us that formal proofs of
    software is mathematics (a painful experience for any CS major), i.e. all
    software algorithms can be expressed as mathematical algorithms. So if math =
    software = machine, and machines are patenable while math is not..... as your
    teacher said, I leave the answer as an exercise for you to do own your own.

    [ Reply to This | # ]

    Amazon.com
    Authored by: Steve Martin on Friday, August 12 2005 @ 05:43 AM EDT

    If allowed, proprietary companies will gladly divvy up the Internet -- and every function on it that we all need to use every day -- until it ends up entirely balkanized and proprietized after all.

    PJ, you're right on the mark. Amazon.com just settled< /a> a $40 million suit filed against it by Soverain, for alleged infringement of three software patents held by Soverain.

    ---
    "When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

    [ Reply to This | # ]

    Catch Curve... Cares about your privacy... well... kinda....
    Authored by: slash-n-burn on Friday, August 12 2005 @ 05:49 PM EDT
    Information We Collect

    We use your IP address to

    ...diagnose problems with our server

    ...administer our Web site

    ...measure the use of our Web site

    ...improve the content of our Web site.

    In short we use your IP to gather aggregate demographic information. There are
    no few places where we give you an opportunity to provide us your personal
    information.

    [Huh?]

    ... no data transmission over the Internet or any wireless network can be
    guaranteed

    ...there are security and privacy limitations of the Internet which are beyond
    our control

    ...security, integrity and privacy of any and all information and data exchanged
    between you and us through our web site cannot be guaranteed

    ...information and data may be viewed or tampered with in transit by a third
    party.

    [Huh?]

    [ Reply to This | # ]

    Patent Infringement Lawsuits That Involve FOSS
    Authored by: Anonymous on Wednesday, August 17 2005 @ 11:10 PM EDT
    Catch Curve bought these from Audiofax.

    Audiofax has been trolling for a long time. They have already sued, and
    settled, dozens of major corporations. Catch Curve appears to be the next
    iteration of Audiofax - going after the few remaining big co's and smaller
    entities that were not worth Audiofax's time.

    Old news, however. Do a search on patent suits by Audiofax. These have been
    heavily litigated.

    [ Reply to This | # ]

    Groklaw © Copyright 2003-2013 Pamela Jones.
    All trademarks and copyrights on this page are owned by their respective owners.
    Comments are owned by the individual posters.

    PJ's articles are licensed under a Creative Commons License. ( Details )