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Prior Art - What's a Claim Limitation?
Saturday, October 13 2007 @ 01:56 PM EDT

Matt Asay notes all the coincidences showing up in the IP Innovation litigation against Red Hat and Novell, including this:
  • Novell changes all of its IP indemnification the same day (which it has named "Technology Assurance Program" as contrasted with Red Hat's Open Source Assurance Program Novell apparently isn't interested in assuring open source, just technology ;-);
  • Novell's new program notes a change in the Microsoft/Novell deal that covers GPLv3 code distributed by Novell for downstream recipients.

Hmm....I forget sometimes who is on which team, but it certainly seems like two sides have been conspiring on this, and I don't mean IP Innovation and Microsoft (which is almost a given).

So, here's my question: what is Novell talking about? How can we believe that Microsoft has agreed to indemnify GPLv3 code, when it has publicly stated it would rather leap off the Grand Canyon than touch it with a pinky? If they indemnify, it will, according to the authors of the GPLv3, spread the protection to everyone, not just Novell customers. I simply don't believe this is what Microsoft intends, at least not unless Microsoft says it.

So, while we wait, let's talk prior art. From all I can learn, there's no harm in looking for it in this fact pattern. So let's do. It'll be part of our education in patents. I thought in our continuing quest for knowledge, you might like to read a case IP Innovation lost. So here it is, IP Innovation LLC v. ECollege.com et al [PDF]. The reason I thought it was worth publishing here is that Appeals Court, the one specially set up to handle patent infringement appeals, explains a bit about how to know if a patent matches someone's product or not.

It's a 2005 case, so a lot has happened in the meantime. Oh, and if you are looking for prior art, the patent to look at first would be the oldest one of the ones IP Innovation has claimed in the Red Hat litigation. That is the one that I think needs to be knocked out either by prior art or by obviousness. The court here explains that it's a two step process of analysis:

"Step one, claim construction, is a question of law, that we review de novo. Step two, comparison of the claims to the accused device, is a question of fact, and requires a determination that every claim limitation or its equivalent be found in the accused device."

What's a "claim limitation"? If a patent is for a doohickey "embeddeed in a series of interrelated screens", that is the limitation, the embedded language. If your doohickey isn't embedded in a series of interrelated screens, it doesn't match up with the patent on that point, and every claim limitation has to be found in your device or it isn't infringing. That's what I get from this ruling. So take a look and extrapolate to the patents in the current case.

Here's a tutorial that may help: What are claims? [mp3] And here's another, "How to determine a patent's date [mp3]. And here's a helpful page, "When is something prior art against a patent? ("Prior art basically means any disclosure of the contents of a claim, prior to the application for patent....only documents published before the filing date of the application in question are considered."). Finally, here's Determining the scope of a patent. Unfortunately we have to read all this junk to find useful prior art. It's detailed and precise as to what is killer prior art and what isn't, so if we want to find the good stuff, we have to know what the good stuff means in this crazy patent regime's thinking.

It will probably drive you nuts to read this ruling, even though IP Innovation lost. It drives me nuts to listen to a court trying to decide if an HTML link is patentable. And indeed the issue of obviousness has been partially addressed by the Supreme Court since this case was decided. But the part that really gets me is that one of the defendants, Docent, tried to get its attorneys fees paid, on the grounds that after IP Innovation saw Docent's code in discovery, it had to know it had no case. But the appeals court said that it wouldn't disturb the lower court's denial, because IP Innovation had at least a plausible theory. And here's the infuriating part:

Moreover, five companies with products similar to the defendant's products took a license to the patented technology, which inferentially supports IP Innovation's argument that it had reasonable grounds upon which to initially bring suit against Docent.

Of course, it's not uncommon for folks to pay off a patent troll rather than spend more money to knock the patent out. For all I know, Red Hat might even do it, if there are no GPL implications. Unfortunately, that impacts on everyone else, while helping in the immediate. So if I were a patent troll, I'd settle for just under what it would take to go to court and lose on summary judgment. And of course they do.

What about if I were a secret friend of a patent troll? Here's what I'd do: I'd have them sue me for the same patent, and I'd pay them a secret amount, sealed of course, which would empower my friend the troll to go after the other defendant, and if we two had a really rich friend in common in on the plot, they'd get sued too, so as to allow a transfer of money to the troll, which would make them better able to go after the defendant of our mutual dreams. Wouldn't that be perfect if you were a low-down conniving you know what, looking for an edge in the marketplace and didn't care about ethics? It would look like we were victims too, but in reality, it'd be an elaborate dance where no one loses but the real target.

Just imagining.

And yes, the only real solution is for software and patents to get a divorce. The current situation is exhibit A as to why. And the more prior art and issues of obviousness we find, the more clear it will be to others who may not understand the tech just why that is so. So, we'll learn patent law stuff, and they can learn that software is usually just incremental steps, building on top of what others did before. It doesn't light up the sky. You ought to have to light up the sky to get a patent, I'd think. And perhaps the greatest help we can provide is to explain to those who are not technically trained or inclined just what is really innovative and what isn't. So in your comments, don't just say, "That's not innovative" or "That's obvious". Explain why, as if to a very interested young relative who knows nothing much about programming. And if you left a superduper prior art comment on the initial article or emailed me with some, feel free to repeat the information here. We had so many comments on that announcement article, you can't access easily any more until Mathfox updates Geeklog. It's a memory issue. In the meantime, if you need to access that article, if you add this to the url:

&mode=threaded

you can at least access. He'll get to the upgrade as soon as he can. I mean by that, if you get a 404, then add the above to the url and you'll get in. It's only certain modes that can't access at the moment. So the entire url would be:

http://www.groklaw.net/ article.php?story=20071011205044141

Update: We've set the memory higher, so that solves the problem short term.

*************************************

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record.

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

04-1571, 05-1153

IP INNOVATION, L.L.C.,

Plaintiff-Appellant,

v.

ECOLLEGE.COM,

Defendant/Appellee,

and

DIGITALTHINK, INC.,

Defendant-Appellee,

and

DOCENT, INC.,

Defendant-Cross Appellant.

_______________________

DECIDED: November 29, 2005

____________________

Before NEWMAN, RADER, and DYK, Circuit Judges.

RADER, Circuit Judge.

On summary judgment, the United States District Court for the Southern District of Texas determined that the defendants did not infringe U.S. Patent No. 4,877,404 (the '404 patent). Finding no reversible error, this court affirms the decision of the district court.

1

On May 29, 2002, IP Innovation, the owner of the '404 patent, sued WebCT and Thomson Learning for infringement of the '404 patent. IP Innovation later amended its complaint to add six additional defendants. Five of the eight defendants eventually settled. Only eCollege.com, DigitalThink, and Docent (the defendants) continued to litigate the case against them.

Before trial, the district court granted summary judgment of non- infringement to the defendants because the accused products do not satisfy two limitations under the court's claim construction. See IP Innovation, L.L.C. v. WebCT, Inc., Civil Action No. H-02-2031 (S.D. Tex. Jul. 1, 2004) (Summary Judgment Order); IP Innovation, L.L.C. v. WebCT, Inc., Civil Action No. H-02- 2031 (S.D. Tex. Jan. 12, 2004) (First Claim Construction Order); IP Innovation, L.L.C. v. WebCT, Inc., Civil Action No. H-02-2031 (S.D. Tex. Feb. 10, 2004) (Second Claim Construction Order); IP Innovation, L.L.C. v. WebCT, Inc., Civil Action No. H-02-2031 (S.D. Tex. Mar. 5, 2004) (Amended Claim Construction Order). The district court reached its claim construction after a Markman hearing and extensive briefing by the parties, though it provided no explanation in its orders for the meaning attributed to the claims.

After prevailing on summary judgment, the defendants unsuccessfully moved for attorney fees. IP Innovation, L.L.C. v. WebCt, Inc., Civil Action No. H-02-2031 (S.D. Tex. Oct. 4, 2004) (Order Denying Attorney Fees). IP Innovation appeals the grant of summary judgment of non-infringement. Docent cross

2

appeals the denial of attorney fees. This court has jurisdiction under 28 U.S.C. § 1295(a)(1) (2000).

II.

This court reviews a district court's grant or denial of summary judgment under the law of the regional circuit. Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1191 (Fed. Cir. 2004). Under the law of the United States Court of Appeals for the Fifth Circuit, this court reviews the grant or denial of summary judgment without deference. Condrey v. Suntrust Bank Of Georgia, --- F.3d ---, 2005 WL 2857452, at *4 (5th Cir. 2005) (citation omitted).

In an exceptional case, a court may award attorney fees. See 35 U.S.C. § 285. "Although the determination of whether a case is exceptional is a question of fact reviewed for clear error, this court reviews a district court's decision to award attorney fees in an exceptional case only for abuses of discretion." Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1460 (Fed. Cir. 1998) (en banc).

This court reviews a district court's denial of a motion for sanctions under the law of the regional circuit. See Nystrom v. Trex Co., 2005 WL 2218632 (Fed. Cir. 2005) (citation omitted). The Fifth Circuit reviews the denial of a motion for sanctions for an abuse of discretion. Test Masters Educ. Serv. Inc. v. Singh, --- F.3d ---, 2005 WL 2650945, at *16 (5th Cir. 2005) (citation omitted).

III.

Infringement entails a two-step process: "First, the court determines the scope and meaning of the patent claims asserted . . . [and second,] the properly

3

construed claims are compared to the allegedly infringing device." Cybor Corp., 138 F.3d at 1454 (citations omitted). "Step one, claim construction, is a question of law, that we review de novo. Step two, comparison of the claims to the accused device, is a question of fact, and requires a determination that every claim limitation or its equivalent be found in the accused device." N. Am. Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335, 1344 (Fed. Cir. 2005) (internal citations omitted).

In Phillips, this court explained: "It is a 'bedrock principle' of patent law that `the claims of a patent define the invention to which the patentee is entitled the right to exclude.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). Thus, this court's analysis begins with a review of the claim terms which "'are generally given their ordinary and customary meaning.'" Id (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). "The inquiry into how a person of ordinary skill in the art understands a claim term provides an objective baseline from which to begin claim interpretation." Id "Importantly, the person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification." Id

In the '404 patent, the parties dispute the district court's interpretation of two limitations: (1) embedded in a series of interrelated screens (the embedded limitation); and (2) operatively connected (the operatively connected limitation).

4

The embedded limitation appears in all three of the '404 patent's independent claims. Claim 1 is representative:
1. An interactive computer software system permitting a user to take a pre-selected computer course or access a pictorial data base, comprising:

....
(c) a graphics computer sub-system operatively connected to said host computer sub-system, said graphics computer sub-system executing said course upon interrogation by said host computer sub-system wherein said course includes a series of interrelated pictures displayed by said graphics computer sub-system, said series of pictures defining a course responsive to input data from the user and interactively dialoguing with the user as the user progresses through said pre-selected course or data base; and

(d) wherein said pre-selected computer course comprises a distributed program embedded in said series of interrelated pictures.

'404 patent, col. 8, l. 49-col. 9, l. 3 (emphasis added). The district concluded:

In claims 1, 11, and 14 of the '404 Patent, "embedded in a series of interrelated screens" means:

The patent covers a program whose graphic elements include their instructions in a single file for each screen with all of the control codes being directly accessible on the consumer screen.

Amended Claim Construction Order, slip op. at 1 (emphasis added).

The specification supports the district court's interpretation. Turning first to the background section, prior art systems suffered from a saving format that was unalterable during the use of the program. '404 patent, col. 1, ll. 11-15. Specifically, "[r]eferences to pictures [in prior art systems] are embedded in the control program along with all the other programming codes necessary to create a functional course." Id, col. 1, ll. 40-43 (emphasis added). In contrast:

The present invention inverts the normal construction of a course. Where prior art systems embed picture references into a control program, thus, producing a large executable file containing thousands of programming language command lines, the present

5

invention embeds the control commands necessary to run the course into the graphic pictures the author and operator see. These control commands are called microscripts, and may be visible or invisible graphical elements of the complete picture presented to the human operator.

Id, col. 1, ll. 51-60 (emphasis added). Thus, "the invention . . . execut[es] the distributed 'program' that is embedded into the numerous pictures or screens, as opposed to the more universal 'compiled' program [of prior art systems]." Id, col. 5, ll. 45-50 (emphasis added). These pictures or screens may, in turn, be stored on a disk as individual ASCII coded files, though each picture file is to be totally self-contained such that modification of one does not affect the others. Id, col. 1, l. 68-col. 2, l. 3; col. 2, ll. 28-29.

Thus, the inventor specified that "the invention" requires an association of command codes with individual pictures or screens. Moreover the invention permits alteration of each picture or screen (e.g., by changing the associated command codes) without affecting the other pictures or screens. The district court properly articulated that the invention's graphic elements (i.e., pictures and screens) must include their own instructions, which allows independent modification of each graphic element.

In addition, the district court also properly determined that the instructions (i.e., command codes) for a given picture or screen must be stored in a single file. IP Innovation concedes that the specification only discloses a "single file" embodiment, see id., col. 1, l. 68-col. 2, l. 3, but argues against importing this limitation into the language of the claims. The '404 patent, however, repeatedly uses the phrase "the present invention" or "the invention of the present disclosure" in describing its inventive features (including the embedded

6

limitation), rather than the phrase "in the present embodiment" or "in one embodiment." See, e.g., id., col. 1, ll. 51-52; col. 2, ll. 16-20, 53-59, 62-64; col. 3, ll. 11, 45-47, 56-60; col. 5, ll. 47-50, 57-58; col. 7, ll. 17-25. In contrast, the '404 patent uses the term "embodiment" in reference to non-inventive features, such as the graphic monitor and memory components. See, e.g., id., col. 4, ll. 63-66. The only other reference to "embodiments" in the '404 patent is common boilerplate language that does not specifically address the inventive features in any detail. Id, col. 4, ll. 17-28; col. 8, ll. 43-47.

Thus, the '404 patent does not disclose multiple embodiments having different implementations of the embedded limitation as suggested by IP Innovation. Rather, the 404 patent's narrow characterization of what "the invention" covers in reference to the embedded limitation supports a construction requiring location of all of the command codes for a given picture or screen within a single file.

Finally, the district court also properly determined that the command codes for a given picture or screen must be directly accessible from the computer screen. IP Innovation contends that this feature has absolutely no relation to the term "embedded." To the contrary, the '404 patent states: "[t]he microscript may be embedded anywhere in the pixel pattern of the screen." Id, col. 2, ll. 30-31 (emphasis added). Embedding the microscript in the pixel pattern of the screen means that it must be directly accessible without reference to another file. In other words, a user need not access another file to obtain the command code when it is already present in the pixel pattern of the screen. This discussion in

7

the specification supports the district court's requirement that the code be directly assessable on the screen.

The prosecution history confirms the district court's interpretation. During prosecution, the '404 patent applicant amended the claims to incorporate the "embedded" limitation to traverse a prior art rejection. The applicant also included remarks that distinguished the claimed invention over prior art touch screen displays, which allegedly did not disclose the "MicroScript principle as disclosed and claimed by the Applicant[.]" Contrasting the claimed invention from these prior art displays, the '404 patent applicant explained: "[t]his invention visibly, physically, and electronically connects the button to its command, embodied as a MicroScript" by embedding the MicroScript code in each picture or screen. This explanation reaffirms the district court's construction requiring direct accessibility of the command code.

In brief, the district court properly construed the embedded limitation to mean providing graphical elements (i.e., individual pictures or screens) with corresponding instructions (i.e., command code) in a single file for each graphical element, such that all of the control codes for a given graphical element are directly accessible on the consumer screen. The narrow characterization of the invention in the specification and file wrapper do not permit IP Innovation's broader interpretation.

As to the operatively connected limitation, this limitation appears in two of the '404 patent's three independent claims. Claim 1 is representative:

8

1. An interactive computer software system permitting a user to take a pre-selected computer course or access a pictorial data base, comprising:

....
(c) a graphics computer sub-system operatively connected to said host computer sub-system, said graphics computer sub-system executing said course upon interrogation by said host computer sub-system wherein said course includes a series of interrelated pictures displayed by said graphics computer sub-system, said series of pictures defining a course responsive to input data from the user and interactively dialoguing with the user as the user progresses through said pre-selected course or data base; ....

'404 patent, col. 8, l. 49-col. 9, l. 3 (emphasis added). The district court construed the operatively connected limitation to mean "the graphics computer subsystem communicates with the host computer subsystem through an unmediated mechanism." Amended Claim Construction Order, slip op. at 1. To the contrary, the broad language "operatively connected" does not require communication through an unmediated mechanism.

Claims 1 and 11 use the phrase "operatively connected" to describe the communications that take place between a graphics computer sub-system and a host computer sub-system during operation. The claim language does not state or suggest, however, that these communications must be done on a non- mediated communication mechanism. While the specification does contemplate a non-mediated communication mechanism, see '404 patent, col. 4, ll. 58-59, the particular communication mechanism in any given system has nothing to do with the '404 patent's improvement over the prior art. In other words, the manner in which the host system and the graphics system communicate has no bearing on the modification of one picture or screen without affecting the other screens.

9

This feature was the '404 patent's key innovation as outlined in the specification and prosecution history. Thus, this court agrees with IP Innovation that the operatively connected limitation does not require communication over an unmediated communication mechanism.

Having determined the proper interpretation of the disputed claim limitations, the analysis shifts to an examination of the accused products. In all of the accused products, an HTML file for the first screen is downloaded and displayed when a user initiates the program. Once the first screen has been displayed, a user then selects a hyperlink to navigate to the next screen, which causes the browser to download an HTML file for the next screen and display that next screen for the user. These screens may be edited independently, without affecting the other screens. Accordingly, IP Innovation contends that these screens satisfy the embedded limitation as claimed. IP Innovation acknowledges, however, that a hyperlink itself is not the actual command code located in the HTML file, but submits a hyperlink is a graphical representation of the command code which can be made visible using a "right click" function that is analogous to the transcriber function disclosed in the '404 patent. See '404 patent, col. 7, l. 62-col. 8, l. 6.

Contrary to IP Innovation's contention, the transcriber function disclosed in the '404 patent has nothing in common with the right click function in the accused products. Rather, the disclosed transcriber function converts unreadable command code to a human readable font. Notably, the command code in the '404 patent is still "embedded" in the pixel format of the screen prior to

10

transcription, albeit in an unreadable format. '404 patent, col. 7, I. 58-col.8, I. 15. In other words, the code is literally present on the screen but illegible (e.g., converted to hash marks or rendered in a color that matches the background color). In contrast, the command code in an HTML file is not physically present on the screen. Rather, HTML files direct a browser to retrieve various graphic files and arrange those graphic files in relation to text in generating a screen displayed for the user. The generated screen does not actually contain the HTML command codes themselves; instead, the generated screen is simply a picture created based on the command codes contained in the HTML file.

By way of analogy, a building does not contain its architectural blueprints "embedded" thereon. Rather, blueprints determine the location of various pieces to assemble the building, similar to the manner in which an HTML file is used to create a picture in the accused products. In contrast, IP Innovation's disclosed transcriber is analogous to a magnifying glass used to read the fine print at the bottom of a form contract -- the text is physically "embedded" thereon, but is simply so small that it is invisible to the naked eye until "converted" or "transcribed" to a larger size. For at least this reason, the district court properly concluded that the accused products do not satisfy the embedded limitation, and thus properly granted summary judgment of no literal infringement.

In addition, the accused products do not satisfy the embedded limitation under the Doctrine of Equivalents (DOE). Rather, because the '404 patent applicant added the embedded limitation and argued this distinction in traversing the noted prior art rejection during prosecution, DOE coverage is unavailable.

11

See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 736 (2002) (narrowing amendment for purposes of patentability); Eagle Comtronics, Inc. v. Arrow Communication Labs., Inc., 305 F.3d 1303, 1316 (Fed. Cir. 2002) (argument-based estoppel); Elkay Mfg. Co. v. EBCO Mfg. Co., 192 F.3d 973, 979 (Fed. Cir. 1999) (argument-based estoppel). There has been no showing that any of the so-called Festo exceptions to prosecution history estoppel applies here. See Festo Corp., 535 U.S. at 740-41; Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 344 F.3d 1359, 1368 (Fed. Cir. 2003) (en banc). Thus, the district court properly granted summary judgment of non-infringement under the DOE as well.

Finally, because this court concludes the accused products do not satisfy the embedded limitation literally or under the DOE, this court need not address whether or not the accused products satisfy the operatively connected limitation. Therefore this court affirms the grant of summary judgment of non-infringement.

IV.

In Docent's cross appeal, Docent alleges the district court abused its discretion in denying its motion for attorney fees. Specifically, Docent argues that it presented the district court with substantial evidence demonstrating the baseless nature of IP Innovation's suit. Docent faults IP Innovation for not explaining the nature of its case or its infringement position after receiving Docent's source code. Essentially, Docent argues that IP Innovation should have stipulated to non-infringement rather than forcing the defendants to brief the

12

summary judgment issues. Docent accuses IP Innovation of being a patent "troll" that sought to exact a settlement to avoid litigation expenses.

Contrary to Docent's position, IP Innovation provided both the trial court and this court with a plausible infringement theory under the claim construction adopted by the district court and also under IP Innovation's proposed claim construction. While both courts rejected IP Innovation's theories, they were not so implausible as to suggest the district court abused its discretion in denying the attorney fee award. Moreover, five companies with products similar to the defendant's products took a license to the patented technology, which inferentially supports IP Innovation's argument that it had reasonable grounds upon which to initially bring suit against Docent. Thus, this record does not suggest that the district court abused its discretion in denying Docent's motion for attorney fees.

V.

In conclusion, because the district court properly determined that the accused products do not satisfy the embedded limitation, this court affirms the grant of summary judgment of non-infringement to the defendants. Additionally, because the district court did not abuse its discretion in denying Docent's motion for attorney fees, this court also affirms the denial of the fee award requested by Docent.

13


  


Prior Art - What's a Claim Limitation? | 449 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Prior Art - What's a Claim Limitation?
Authored by: Anonymous on Saturday, October 13 2007 @ 02:09 PM EDT
WoW # 1

[ Reply to This | # ]

Corrections here...
Authored by: Erwan on Saturday, October 13 2007 @ 02:21 PM EDT
If any...

---
Erwan

[ Reply to This | # ]

OT, The off topic thread...
Authored by: Erwan on Saturday, October 13 2007 @ 02:23 PM EDT
Remember to use the preview button when using html tags..

---
Erwan

[ Reply to This | # ]

News picks discussions here...
Authored by: Erwan on Saturday, October 13 2007 @ 02:24 PM EDT
As usual.

---
Erwan

[ Reply to This | # ]

Prior Art - What's a Claim Limitation?
Authored by: Anonymous on Saturday, October 13 2007 @ 02:43 PM EDT
It's fairly obvious that the judges don't want to be in the position of being
forced to judge, in a patent case. It's like the Judgement of Solomon; 2 women
both claiming to be the mother of a baby, and the judge has to decide who to
give the baby to.

It looks like the 'process' is designed to drag the proceedings out expensively,
so the parties will settle it amongst themselves.

[ Reply to This | # ]

Will Novell sell out?
Authored by: skyisland on Saturday, October 13 2007 @ 02:51 PM EDT
And thus put Red Hat precisely on the spot?
What a setup!

[ Reply to This | # ]

What is IP Innovation?
Authored by: Anonymous on Saturday, October 13 2007 @ 02:57 PM EDT
It's obvious that the innovation is has very little to do with computing, and reminds me of a not-so-old joke about the music industry, that goes something like this:

As a musician, I went to work for a Music Label, hoping to innovate--it turns out that if I wanted to innovate, I would have had to become a lawyer and join the legal department!

[ Reply to This | # ]

Calling it "multiple desktop" does not make it so
Authored by: Anonymous on Saturday, October 13 2007 @ 02:57 PM EDT
My "single" KDE desktop has an area that is ten (10) times
the area of the display.

The number of apps. that can be active on my desktop
is limited only by my hardware. Moving from one app.
to another is accomplished in several ways, mouse scrolling
off of the edge moves to the adjacent app.. There is a
handy link on my tool bar (panel?) that allows "click"
switching to anywhere on *the* desktop instantly. I am
also allowed to "drag" an app. frome one place on *the*
desktop to another; wheather or not either of those
locations is in an area that is currently in the displayed
field.

[ Reply to This | # ]

I don't think Novell is part of the plot
Authored by: jbb on Saturday, October 13 2007 @ 03:04 PM EDT
I know I tend to sometimes give people too much benefit of the doubt and I think we will discover which side Novell is really on in the fullness of time. Goodness knows, I've been sorely disappointed before.

But I think it would be incredibly stupid of Novell to pay off this patent troll because it would invite in more patent trolls, even those not secretly backed by Microsoft. Also, Novell must realize that Microsoft is intent on destroying all of Linux, not just Novell's competitors. And finally, I think Novell's GPLv3 announcement is significant even if Microsoft never verifies it. It shows what Novell's understanding of the GPLv3 is and also shows their intent to include GPLv3 software in SUSE which is a key step in providing patent protection to everyone.

With that said, I think it is possible there was some discussion between Microsoft and Novell (via lawyers so the conversations would be privileged) about the proxy patent troll either before or after the suit was launched. Or it could be that the relationship between Microsoft and Novell soured which resulted in Novell's GPLv3 announcement and the addition of Novell to the patent troll target list. Another possibility is that Novell was added to the target list as a PR move for Novell in order to counteract some of the horrendous publicity they got for getting into bed with Microsoft. I agree that the GPLv3 announcement and the patent troll attack are probably related. But the evidence so far doesn't allow us to distinguish between it being a sign of Novell acting as a sleeper agent for Microsoft or a sign that the deal between Novell and Microsoft has turned sour.

Time will tell but for now I just can't believe that Novell would be so colossally stupid.

---
You just can't win with DRM.

[ Reply to This | # ]

What happened with the Hibernate patent?
Authored by: Anonymous on Saturday, October 13 2007 @ 03:17 PM EDT
If I am not mistaken this is not the first patent attack against FOSS, because a
year ago a firm called Firestar sued RedHat for Hibernate.

As far as I know, Groklaw is not following this case and it could be interested
to see the current status. Maybe we can see OIN and similar organizations acting
against patents.

[ Reply to This | # ]

Another curious coincidence
Authored by: Anonymous on Saturday, October 13 2007 @ 03:48 PM EDT
I can't help but notice that Novell and Red Hat are the same Linux distributors
that were sucked into the SCO debacle. Only the "users" are missing
this time.

Novell's deal with Microsoft doesn't grant them any immunity; the pages of
history are littered with the corpses of companies who had a deal with
Microsoft. Microsoft only has allies of convenience; if Microsoft sees some
benefit from attacking their "allies" they'll do it without
hesitation.

In the big picture, Microsoft has decided to go to war with Linux. Their
paranoid "us or them" mentality won't allow them to do anything else.
Since Novell is a Linux vendor, they are a target. Microsoft may be diplomatic
as they maneuver Novell into position for the kill, but sooner or later it's
going to come down to just exactly that.

What to do about the patent trolls? Learn from the SCO adventure. They showed in
ample detail how to drag a proceeding out for months and years - financing the
ongoing legal battle will deplete the troll's assets; sooner or later they'll
cry "Uncle!"

Our community can assist with the defense; ask the attorneys defending Red Hat
what kind of research they could use and provide it for them.

The more the better; if you can't take their money, bury them in
documentatiion...

[ Reply to This | # ]

A quibble
Authored by: Anonymous on Saturday, October 13 2007 @ 03:57 PM EDT

And yes, the only real solution is for software and patents to get a divorce.

Agreed. I think anyone who has ever been a software developer would agree.

And the more prior art and issues of obviousness we find, the more clear it will be to others who may not understand the tech just why that is so.

But this is the wrong reason. Software patents are bad, not because they cover unoriginal or obvious things. They are bad because they block innovation. If software patents were awarded only for new, non-obvious ideas, they would still be bad, they would still block innovation, and they would still siphon money from productive people to unproductive patent trolls and lawyers.

A good software developer solves problems every week. He/she uses books, published research, and the Web, of course. But faced with a problem that doesn't seem to have been solved before, a good software developer will go ahead and solve it. Reading through the turgid verbiage of patents would usually take longer than solving the problem de novo; in 30 years as a software developer, I have never known a colleague read a patent, other than to find out what not to do. So software patents do absolutely nothing to advance the state of the art.

Telling software developers that they mustn't solve problems creatively, but instead spend their days reading patents, would bring progress in the world's software to practically a complete stop. Whether the patents are new and non-obvious or not is irrelevant.

[ Reply to This | # ]

I hope Red Hat moves to dismiss because software isn't patentable
Authored by: kawabago on Saturday, October 13 2007 @ 04:07 PM EDT
They could quickly appeal it to the Supreme Court, which has hinted they may not
agree on software patentability.

[ Reply to This | # ]

The '404 Patent?
Authored by: Anonymous on Saturday, October 13 2007 @ 04:16 PM EDT
PJ is in good company when she complains "[i]t drives me nuts
"to listen to a court trying to decide if an HTML link is
patentable."

Then I have to double take, reading that these guys have patented
the "Page not found" response. ... Just kidding, I've been here long
enough to know the abbreviation system.

Thanks PJ also for the tip on collapsing the threading when the
comments exceed buffer memory. But I would observe (related ?)
that I have been getting a high strike rate of #404 on Groklaw
foo.pdf these last 4 days. Is this because I am anon, not logged in?

[ Reply to This | # ]

The other big kid watching the fight
Authored by: Anonymous on Saturday, October 13 2007 @ 04:34 PM EDT
IBM has considerable reason to hope that Red Hat doesn't lose. So, Microsoft is
cheering against Red Hat and IBM is cheering for Red Hat. We all think
(reasonably) that Microsoft is aiding and abetting one of the fighters. I
wonder what IBM will do.

I agree with PJ that the judgement defies logic. If we postulate that people
will pay off a patent troll, and they do so, then surely it isn't logical to
assert that the fact that they did so proves that there is no patent troll.
Simply stunning!

[ Reply to This | # ]

Indemnification
Authored by: Anonymous on Saturday, October 13 2007 @ 04:43 PM EDT
PJ wrote "If they indemnify, it will, according to the authors of the
GPLv3, spread the protection to everyone, not just Novell customers."

I'm not sure that is quite true. It would be true if MS openly accepted the
terms of the GPL. If they don't do so, however, somebody would have to find an
example of MS distributing GPL'ed code and sue them for copyright infringement.
MS could then choose to defend themselves by claiming license under the GPL or
could just as freely choose to admit to copyright infringement and pay whatever
penalty the court imposes. Before getting to that point, though, MS could use
its vast wealth to drag out the court fight, making it hugely expensive for the
plaintiff.

None of this helps someone else who is being accused of patent infringement by
MS, but who would have a license if MS were subject to the terms of GPL v.3. The
defendant in the patent infringement matter would not likely be able to prove
that MS had accepted a license under GPL v.3 and might not have standing to sue
MS for copyright infringement, even if they had the money to go through with it.


[ Reply to This | # ]

Prior art candidates
Authored by: AdamBaker on Saturday, October 13 2007 @ 05:02 PM EDT
None of the threads so far seem to discuss possible prior art so I'll start one
for that purpose.

[ Reply to This | # ]

Scenes a Faire
Authored by: Anonymous on Saturday, October 13 2007 @ 05:49 PM EDT
PJ, we need a good tutorial on scenes a faire. Skimming through this patent, it's all just ordinary computer science. Back when this patent was issued, I was using windowing systems with almost identical features to what's described here. Had you asked me to code up a competing product, I'd have done exactly what the patent describes. It's just ordinary object-oriented programming, which was widely taught at the time, which means it's got no non-obvious parts. But more importantly, you'd have a hard time coding up a competing product without violating this patent, because this is the way these things are done, and even back when the patent was issued, that was true. Isn't that what the scenes a faire defense is all about?

[ Reply to This | # ]

Prior Art - What's a Claim Limitation?
Authored by: Pogue Mahone on Saturday, October 13 2007 @ 05:53 PM EDT
OK then. Here's my analysis of the patent's claim limitations:

Claims 1 to 20 can be thrown out straight away, because as far as I know neither Red Hat nor Novell are in the business of maufacturing or selling systems with displays. The same goes for claims 38 to 43, 49 to 52 and 56 to 58. That's because each claim in each group is based on the first claim of the respective group, and each of those claims a "system comprising a display [...]"

The remaining claims are the corresponding "method" claims (that's "software" to me and you), so will need further analysis. However, the following analysis also applies to the above claims, so that if the troll loses and then goes after a hardware manufacturer who bundles Linux, the "system" claims fail for the same reason as the "method" claims.

Claims 21 to 37 are all based on claim 21, so we need to get rid of that. The claim is for a method of switching desktops such that each desktop has a widget of its own that appears to be the same widget but isn't. So if the desktop managers in the Linux distros have widgets that are physically the same data and are included in each desktop by reference, there's no infringement. I don't know exactly how each desktop manager works, but I wouldn't mind betting that all, or almost all, use physically the same data structure for the desktop selection widget in the taskbar.

Claims 44 to 48 would disappear for the same reason. So would 53 to 55 and 59 to 62.

If there is a desktop manager in Linux somewhere that does use different widgets that are perceived as the same widget, it should be relatively easy to modify so that it doesn't. That's gets rid of future infringements. But to knock out the past infringements we'd have to look at the details of how the switching is achieved. Unfortunately the details specified in the patent are so vague that it's impossible to tell exactly how the claimed invention works. If you were writing a program using this patent as a spec, you'd have to do a fair amount of invention yourself to get the thing to work at all.

In fact, the second paragraph of the "SUMMARY OF TGHE INVENTION" section roundly contradicts itself. It first says that the desktop switching widget is a single widget that is linked from all desktops, and then goes on to say that they are different widgets that merely appear to be the same. However, all the claims are quite clearly for systems or methods where the widgets are separate and appear to be the same. Would this contradiction be enough to have the patent thrown out?

---
(c) 2007 Typo, Inc. All rights reversed.

I'm not afraid of receiving e-mail from strangers - see bio

[ Reply to This | # ]

Blackberries and Barnyards: Patent Trolls and the Perils of Innovation
Authored by: Anonymous on Saturday, October 13 2007 @ 06:32 PM EDT
Blackberries and Barnyards: Patent Trolls and the Perils of
Innovation

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=921252


GERARD N. MAGLIOCCA
Indiana University School of Law - Indianapolis

Notre Dame Law Review, Forthcoming
 
Abstract:     
This Article provides context for the ongoing debate on
opportunistic licensing (or patent troll) litigation by
pointing out that the same phenomenon occurred in the
nineteenth century with respect to design patents on farm
tools. This previously unexplored episode shows that trolls
(or sharks, as they were called then) explode when patents
are extended to inventions that: (1) are cheap to acquire;
(2) are hard for a defendant to substitute away from; and
(3) evolve incrementally. Modern information technology and
basic farm tools share these traits, albeit for different
reasons. The Article then compares the remedies proposed in
each era and concludes that curbing trolls through a
comprehensive reform is bound to fail. A better approach
would seek either to abolish software and business method
patents or reduce the arbitrage spread by raising the
maintenance fees charged to retain patents.
 

[ Reply to This | # ]

Prior Art - What's in a book?
Authored by: Anonymous on Saturday, October 13 2007 @ 06:42 PM EDT
I have a book entitled "X Window System C Library and Protocol
Reference" by Robert W. Scheifler, James Gettys, and Ron Newman, published
by the Digital Press (i.e. DEC) in 1988. It's copyright jointly by MIT and DEC
in that year. The ISBN number is 1-55558-012-2.

This book describes the inner workings of the C Library for X. But the
Introduction and Chapter 1 spend some time on the history and structure of the X
Window System. Although I won't pretend to understand all the legalese in ye
olde Xerox patent 5072412 (filed Mar 25, 1987, issued Dec 10, 1991 on which
Acacia is now relying), I believe its concepts are anticipated by the designers
of X, and MIT/DEC had early versions of the X Window System running by the
spring of 1985.

So there. I think this patent should never have issued, even if software patents
are legal.

[ Reply to This | # ]

Prior Art - What's a Claim Limitation?
Authored by: Anonymous on Saturday, October 13 2007 @ 06:43 PM EDT
"And yes, the only real solution is for software and patents to get a
divorce. The current situation is exhibit A as to why."

You might want to put a little meat on the plate to back up that claim.

[ Reply to This | # ]

Leveling the Patent Playing Field
Authored by: Anonymous on Saturday, October 13 2007 @ 08:29 PM EDT
Leveling the Patent Playing Field
By Peter Detkin
The John Marshall Review of Intellectual Property Law

http://www.jmripl.com/Publications/Vol6/Issue4/Detkin.pdf

Peter Detkin is Intel former director of patents,
licensing, and litigation.

PDF so no abstract.

[ Reply to This | # ]

Complete list of Acacia patents?
Authored by: Anonymous on Saturday, October 13 2007 @ 09:32 PM EDT
Maybe it would be useful to look at the rest of the Acacia patent profile with
regard to prior art / obviousness as well? Anyone know how to go about finding
all of the patents held by this gang of patent trolls?

[ Reply to This | # ]

Is the original author of the patent the final say in what the patent covers?
Authored by: brindabrain on Saturday, October 13 2007 @ 10:41 PM EDT
Who is the author/s of the patent? Can they talk about it and perhaps spread
some light on what was intended? Would what they say now have any weight with
respect to the law?

Sorry, I have only questions...

One more. How did they acquire this patent? Can its journey be traced?

Ok, that was two.

[ Reply to This | # ]

It's not just computers
Authored by: The Mad Hatter r on Sunday, October 14 2007 @ 01:03 AM EDT


And yes, the only real solution is for software and patents to get a divorce. The current situation is exhibit A as to why. And the more prior art and issues of obviousness we find, the more clear it will be to others who may not understand the tech just why that is so. So, we'll learn patent law stuff, and they can learn that software is usually just incremental steps, building on top of what others did before. It doesn't light up the sky. You ought to have to light up the sky to get a patent, I'd think. And perhaps the greatest help we can provide is to explain to those who are not technically trained or inclined just what is really innovative and what isn't.


But almost all of human endeavor is just incremental steps, building upon what has been done before. The number of really original thinkers like Einstein is very limited.

Let's consider the automobile industry. The switch from External Combustion engines to Internal Combustion engines is an obvious move. Both provide power, though internal combustion engines are more efficient. This is why you do not see steam engine except in museum pieces. But under the current patent regime a patent could be issued for "A Means of Building an Automobile with a More Efficient Power System".

Almost all patents are for incremental modifications to existing products. Very few are for real breakthroughs in technology.

OK - I know I've stated this before, many times. I also know that there are a number of you who don't understand this. Take a look at the products that you have in your own house, write down the patent numbers, and look them up. You'll be amazed at the junk that receives a patent.

---
Wayne

http://sourceforge.net/projects/twgs-toolkit/

[ Reply to This | # ]

Prior Art - What's a Claim Limitation?
Authored by: Anonymous on Sunday, October 14 2007 @ 01:35 AM EDT
This patent is silly. Sketchpad written by Ivan Sutherland (1962?) did
everything this patent talks about. It had Master Drawings and Instances. This
stupid patent is less capable than Ivan's program.

[ Reply to This | # ]

Question for the legal eagles on vagueness
Authored by: Juggler9 on Sunday, October 14 2007 @ 02:40 AM EDT
IANAL, let's get that out of the way.

I've read numerous comment on this story about how vague the patent in question
is. I was under the impression that the description in a patent had to be clear
enough and complete enough to enable "one skilled in the art" to
build/implement it.

Since this does not appear to be the case could the patent be challenged on that
point also?

If so, is that enough to invalidate the patent?

[ Reply to This | # ]

Prior Art - What's a Claim Limitation?
Authored by: Anonymous on Sunday, October 14 2007 @ 02:46 AM EDT
In a quick review of the underlying patents, I believe they refer to virtual
window management. If this is the case, or if virtual window management is at
least one embodiment of the claim(s), then an example of prior art is tvtwm,
with at least one posting date of 30-Aug-90.
Start by looking at Wikipedia under Virtual Window Manager (or fvwm and then
eventually tvtwm). I'm having a hard time remembering what I used to use on
Yggdrasil Linux 0.99 (um, yeah, I'm a graybeard Unix guy) when I was working at
home instead of on the Sun 4.x box at work (where it was either Open Look or one
really smart guy's fixup of Motif 1.1.3 that he got working on the Sun boxes,
all legally because of the UW Madison's license agreements). But I digress.
See below for a snippet.
rchive-name: tvtwm/30-Aug-90
Original-posting-by: t...@ninja.Solbourne.COM (Tom LaStrange)
Original-subject: tvtwm is available
Archive-site: expo.lcs.mit.edu [18.30.0.212]
Archive-directory: /contrib
Reposted-by: e...@math.lsa.umich.edu (Edward Vielmetti)

As many of you have no doubt seen, tvtwm has shown up in comp.sources.x.

[ Reply to This | # ]

Acting in good faith?
Authored by: Anonymous on Sunday, October 14 2007 @ 03:03 AM EDT
It would seem to me that the author(s) would be the one(s) liable for any patent
violation. Are Red Hat and Novell being sued because they wrote the software
that supposedly violates IP Innovations patent(s)?

If neither company actually wrote the software in question, then they could
claim that they have acted in good faith. Especially if IP Innovation never told
them before the suit that there was a violation. Further, shouldn't IP
Innovation go after the author(s) of the code and, if they don't, isn't that
some sort of implicit permission for the code to exist?

[ Reply to This | # ]

PJ have you patented your patent troll idea?
Authored by: MadTom1999 on Sunday, October 14 2007 @ 04:51 AM EDT
If you patent that then you could be very rich in the future!
Either that or there would be some fascinating prior art!

[ Reply to This | # ]

Excuse my simplification
Authored by: Anonymous on Sunday, October 14 2007 @ 05:03 AM EDT
'A patent for an invention is the grant of a property right to the inventor'

Court - Are you the inventor?

Troll - No, but...

Court - Dismissed.

Perhaps we should get back to basics. Why patents?

Tufty

[ Reply to This | # ]

in a larger sense
Authored by: Anonymous on Sunday, October 14 2007 @ 07:02 AM EDT
"Of course, it's not uncommon for folks to pay off a patent troll rather
than spend more money to knock the patent out. For all I know, Red Hat might
even do it, if there are no GPL implications. Unfortunately, that impacts on
everyone else, while helping in the immediate. So if I were a patent troll, I'd
settle for just under what it would take to go to court and lose on summary
judgment. And of course they do."

it just goes to show that in the corporate(and probably legal)world there are no
good guys except circumstantially.




[ Reply to This | # ]

Prior Art - What's a Claim Limitation?
Authored by: sciamiko on Sunday, October 14 2007 @ 07:13 AM EDT
IANAL, so I thought I'd look for something that could give me an overview of what the aims have been over time in enacting patent laws. I found this paper (Economic History Services) by Zorina Khan that seemed to explain things in a straightfoward manner in both a historical and global context. It also has a long list of references for further research. I especially liked this quote
However, strongly enforced rights do not always benefit the producers and owners of intellectual property rights, especially if there is a prospect of cumulative invention where follow-on inventors build on the first discovery. Thus, more nuanced models are ambivalent about the net welfare benefits of strong exclusive rights to inventions. Indeed, network models imply that the social welfare of even producers may increase from weak enforcement if more extensive use of the product increases the value to all users.
s.

[ Reply to This | # ]

Software patents by mistake?
Authored by: HighlandSun on Sunday, October 14 2007 @ 07:19 AM EDT
I may be hallucinating, but I distinctly remember reading a comment on groklaw
that stated that the only reason we actually have software patents in the US is
because of a misquoted/misreported judgement. I.e., the judge said "X is
not valid" and it was reported as "X is valid." Does anyone else
remember this story, and which case was being referenced?

two hours of googling haven't turned it up for me, so I'm giving up and asking
for someone with a better memory to jump in...

[ Reply to This | # ]

Sorry this is all mad - Software cannot be patented in good faith.
Authored by: SilverWave on Sunday, October 14 2007 @ 07:23 AM EDT
The only people who would think so are the ones who make money from this farce -
the patent lawyers.

Its as daft as patenting E = mc˛

Patents for actual drugs and machine yes.
Patents for software and math no.
Software Patent lawyers = leeches on the creativity of mankind.

---
Georg Greve (FSFE):
A Screaming victory, I mean “Sometimes The Good Guys Do Win!”

Monday 17 Sept 2007 - STGGDW! ;-)

[ Reply to This | # ]

Prior Art - What's a Claim Limitation?
Authored by: Anonymous on Sunday, October 14 2007 @ 08:06 AM EDT
"which it has named "Technology Assurance Program" as contrasted
with Red Hat's Open Source Assurance Program Novell apparently isn't interested
in assuring open source, just technology"

Matt, that would be because Novell also sells non-Free-software where the
technology assurance program also is valid.

[ Reply to This | # ]

Prior Art - McDonalds Sandwadge - Cucumber sandwich
Authored by: Anonymous on Sunday, October 14 2007 @ 08:34 AM EDT

United States Patent
D527,165
Stenzel
August 29, 2006
Cucumber sandwich
Claims
CLAIM The ornamental design for a cucumber sandwich, as
shown and described.
Inventors:
Stenzel; Alexander (Pacific Palisades, CA)
Appl. No.:
D/203,550
Filed:
April 14, 2004


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=D
527165.PN.&OS=PN/D527165&RS=PN/D527165

[ Reply to This | # ]

Prior Art - Method and apparatus of karaoke storage on a wireless communications device
Authored by: Anonymous on Sunday, October 14 2007 @ 08:40 AM EDT
United States Patent
7,079,026
Smith
July 18, 2006
Method and apparatus of karaoke storage on a wireless
communications device
Abstract
A wireless communications device that alerts a user to a
predetermined event includes a transceiver, a speaker,
memory, and a controller. First and second pre-recorded
audio files are stored in the memory, and may be, for
example, pre-recorded music and the user's pre-recorded
voice. When the device receives an incoming call, for
example, the controller combines the first and second audio
files to form a combined audio signal. The controller then
plays the combined audio signal through the speaker for the
user as a personalized ring tone.
Inventors:
Smith; Glen (Durham, NC)
Assignee:
Sony Ericsson Mobile Communications AB (SE)
Appl. No.:
10/777,007
Filed:
February 11, 2004

[ Reply to This | # ]

Homunculus constructed from common rubberbands
Authored by: Anonymous on Sunday, October 14 2007 @ 08:44 AM EDT
United States Patent
D522,914
Read
June 13, 2006
Homunculus constructed from common rubberbands
Claims
CLAIM The ornamental design for a homunculus constructed
from common rubberbands, as shown and described.
Inventors:
Read; Steven Matthew (Missoula, MT)
Appl. No.:
D/215,307
Filed:
October 18, 2004

[ Reply to This | # ]

A scorched earth assault is what we need ...
Authored by: Wol on Sunday, October 14 2007 @ 12:28 PM EDT
Other people have talked about it.

Can we get a list of all Acacia's patents, and organise them in order of
importance. Obviously, the most important are the ones being used in this
litigation.

Second in importance are either the ones that have been used in past litigation,
or the ones for which they've paid most money.

Then the tail should be listed, longest life first.

And lastly, we need a few patent attorneys to help us go down the list, picking
them off one by one and invalidating them.

Oh - and the task won't be a hydra's head job - who's going to lend them money
to buy more patents if they've got us lot targeting them for invalidation? Only
fools or people (like MS) with ulterior motives and who are happy to throw money
away.

If we carry through on this, no-one will dare sue Open Source companies.
Hopefully, this litigation will collapse as the patents get blown out from under
it. Then Acacia's licence fee income will collapse as the patents it sued over
get blown away and its victims stop paying licence fees - "you sold us a
pig in a poke"...

And then the backers walk away as all this precious "eye-pee" they
paid mega-bucks for turns into leprechaun gold.

Turn one troll to stone this way, and the next one will think twice. Petrify a
second troll, and the bankers will crucify the third troll for us :-)

Cheers,
Wol

[ Reply to This | # ]

Status on public analysis?
Authored by: Sandtreader on Sunday, October 14 2007 @ 01:21 PM EDT
Are we still in 'lockdown' on doing public analysis of this, as implied by
PJ's/Tridge's posts in the initial thread?

It seems to me the claimed novelty in the '412 patent is a hack to work round
limitations of a specific windowing implementation and is highly unlikely to
impact on modern window managers. Is it OK to elaborate on this here?
--
Paul

[ Reply to This | # ]

    This is stupid from a programmer's view...
    Authored by: Anonymous on Sunday, October 14 2007 @ 01:39 PM EDT
    This should fail the "obvious" test with no problems. The main claim
    they are saying was violated is "Use a series of linked data structures to
    represent objects on the screen".

    Any programmer asked to create a list of objects on the screen so the rendering
    engine can build the screen, will create a linked list. The only other option
    would be to have an array; however, arrays are normally fixed in size so you
    could only have a fixed number of objects on the screen.

    Also, the patent only deals with 2 displays. I know GNOME & KDE normally
    default to 4. The patent claim also doesn't state if the display is text or GUI;
    thus wouldn't any virtual text display system would also do this. The linux
    kernel allows multiple virtual text sessions; does this count and also how long
    has this been supported?

    The patent claim also doesn't state if the displays are virtual or physical.
    Thus any dual monitor GUI system should also be prior art.

    Also of note, if this is a refinement of any earlier patent, then I would like
    to know how they stored the data structures defining the display objects in the
    old patent. I can't believe updating a patent with claims A to D to include
    claims E & F would make claims A to D protected again. I would think A to D
    would become public 20 years after the old patent and only E & F would
    continue for 20 years after the update.

    Joe P.
    I'm a Programmer and not a lawyer so forgive me.

    [ Reply to This | # ]

    Can It Withstand KSR Test?
    Authored by: maz2331 on Sunday, October 14 2007 @ 02:19 PM EDT
    The patent doesn't appear to be anything more than a specific conglomeration of
    already-known techniques that yields a predictable result.

    I'd say this one is really ripe for a challenge under the recent KSR decision.

    [ Reply to This | # ]

    Model-View-Controller as prior art
    Authored by: nyarlathotep on Sunday, October 14 2007 @ 02:49 PM EDT
    Model-View-Controller (MVC) was a key principle of Smalltalk. The use of multiple views for a single object with multiple controllers (multiple workspaces are one way of getting mutiple controllers) was first described by Trygve Reenskaug, of Xerox PARC, in the 1979 paper Applications Programming in Smalltalk-80(TM):How to use Model-View-Controller.

    Although this paper doesn't predate the application date by more than a year, Burbeck's 1987 paper on MVC found here: How to use Model-View-Controller gives a good overview.

    I am extremely surprised that Stuart Card (a luminary in the field of HCI and winner of the CHI Lifetime Achievement Award) allowed his name on this patent given the numerous prior art at the time. I would be very interested to hear the backstory behind the patent.

    [ Reply to This | # ]

    Microsoft's GPLv3 defence
    Authored by: stites on Sunday, October 14 2007 @ 05:05 PM EDT

    "How can we believe that Microsoft has agreed to indemnify GPLv3 code, when it has publicly stated it would rather leap off the Grand Canyon than touch it with a pinky? If they indemnify, it will, according to the authors of the GPLv3, spread the protection to everyone, not just Novell customers. I simply don't believe this is what Microsoft intends, at least not unless Microsoft says it."

    There is an interesting comment in a blog about Novell saying that GPLv3 code is now protected by the Microsoft-Novell agreement.

    the 451 Group

    In the comments section to the article Bruce Lowry of Novell said:

    "What Microsoft said concerning GPLv3 is that the SUSE Linux Enterprise Server certificates it was providing would not entitle customers to any code under GPLv3 in Novell offerings, including maintenance and support. Novell subsequently said that, notwithstanding that qualification from Microsoft, we would, in fact, support customers with the latest version of SUSE Linux Enterprise, even if that included GPLv3."

    I think that this statement points to the method that Microsoft will use to fight GPLv3. Microsoft denies that the Microsoft coupons can be used by customers for GPLv3 code distributed by Novell. Therefore Microsoft can claim to not be distributing GPLv3 code. If Microsoft is not distributing GPLv3 code then the clauses in GPLv3 which flip Microsoft's patent protection from being exclusively for Novell customers to being applicable to all open source users do not take effect.

    My guess as to the answer to PJ's question is that Microsoft is switching to basing their defence on the idea that the coupons do not constitute Microsoft distributing SuSE.

    So now the Free Software Foundation has to wait until Novell actually distributes some GPLv3 code. Then somebody (anybody?) has to redeem a Microsoft certificate for SuSE. Then somebody who does not buy Novell products has to establish that they are now protected by the Microsoft patent protection pledges in the Microsoft-Novell agreement.

    The Free Software Foundation certainly has their work cut out for them.

    --------------
    Steve Stites

    [ Reply to This | # ]

    Prior Art - What's a Claim Limitation?
    Authored by: proceng on Sunday, October 14 2007 @ 06:02 PM EDT
    Interesting link (with text):
    From the U.S. Code Online via GPO Access
    [wais.access.gpo.gov]
    [Laws in effect as of January 3, 2005]
    [Document not affected by Public Laws enacted between January 3, 2005 and October 30, 2006]
    [CITE: 35USC103]

    TITLE 35--PATENTS

    PART II--PATENTABILITY OF INVENTIONS AND GRANT OF PATENTS

    CHAPTER 10--PATENTABILITY OF INVENTIONS

    Sec. 103. Conditions for patentability; non-obvious subject matter
    (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
    Patentability shall not be negatived by the manner in which the invention was made.

    Source: WAIS Document Retrieval

    Emphasis mine

    ---
    And ye shall know the truth, and the truth shall make you free.John 8:32(King James Version)

    [ Reply to This | # ]

    What exactly is this patent about?
    Authored by: Jude on Sunday, October 14 2007 @ 08:41 PM EDT
    IANAL, but I've been looking at this patent and I think PJ picked a good topic
    of Claim Limitations.

    The patent abstract and a lot of the claims might lead one to believe that this
    patent covers every GUI in the world today, but a closer reading suggests this
    it might be a lot narrower, and might pertain only to a particular way of
    organizing workspace elements that don't easily fit on one screen. I got this
    impression after reading the "Background" description that begins on
    pages 23.

    That said, I'm having a hard time figuring out exactly what the claimed
    infringement is. The complaint is just a naked assertion that there is
    infringment. I have yet to find any description of exactly what the alleged
    infringing elements are, and I can't offhand see what the typical Linux GUI
    desktop does than might be infringing.

    I'm also suspicious that the troll waited so long to assert their rights.
    AFAICT, this patent expires in 13 months. If it really was as broad and
    all-inclusive as it first appears, then why hasn't the troll been aggressively
    pursuing all of the apparent infringers?

    [ Reply to This | # ]

    Prior Art - What's a Claim Limitation?
    Authored by: Anonymous on Sunday, October 14 2007 @ 11:19 PM EDT
    Anyone who worked on digital flight simulators in the 70's and 80's would see
    nothing novel in this patent.

    Each displayable object was a set of linked faces which were independently
    manipulated and displayed on a common screen. Instead of a mouse, the pilot had
    a joystick. Big deal. And on top of all that there was the "Head-up"
    display which was another series of independent tasks sharing the common display
    - functioning and looking very much like the pictures in the patent application.


    There is a lot of prior art much more sophisticated than this patent.









    [ Reply to This | # ]

    The Emperor's New Clothes
    Authored by: sproggit on Monday, October 15 2007 @ 01:50 AM EDT
    With the greatest of respect to all those who have already posted here, this
    seems to be a self-defeating approach to this problem.

    There is another way.

    The reasons that this is self-defeating are varied, but boil down to the
    following incomplete list of observations:

    1. Irrespective of anything else on this subject, the use of patents and patent
    disputes has become Microsoft's weapon of choice in what they see as a fight to
    the death with Open Source. Anyone who engages with Microsoft in any form of
    patent dispute or patent case is agreeing to dance to their tune.

    I cannot stress this point highly enough: software patents are Microsoft's tune!
    Don't dance to it!


    2. Microsoft know that any legitimate business with shareholders has to respect
    the law. Because patents are enshrined in the law, MS can use patents as a
    business weapon against competitors. But they have to choose their opponents
    carefully. Too small - individual contributors - and they run the risk of
    adverse publicity and punching themselves out. Too large - think IBM - and they
    will not survive the counter-strike... it would be mutually assured
    destruction.


    3. Microsoft have managed to influence the US Patent And Trademark Office - with
    the help of others, to be sure - that software can be patentable. If the FOSS
    Community is going to resist *anything*, then this should be the target. Yes, we
    have to help Red Hat and Novell and others to defend against Patent Trolls.
    That's just tactical defense. But more than that, we simply must overturn the
    notion of software patents. Without the removal of the concept of software
    patents, any commercial aggressor can simply "rinse, repeat" the
    patent attack until all the commercial Linux vendors are dust.

    4. Not all countries support software patents. The EU is one area of the world
    with lots of FOSS contributors that does not (yet) despite Microsoft's best
    efforts. Given MS' recent court experience with Microsoft, they may be shy of
    going back there any time soon. We should exploit this and ensure that the EU
    remains a software-patent-free-zone if we can.

    5. It seems to me that all of this pretty much hinges on whether you can
    describe software as an invention, thus making it patentable. Well, for an
    alternative point of view, it seems to me that software is every bit as much
    art-like, expressing creativity, as it is an engineering discovery. There are
    many ways to paint a yellow flower, so the first artist to do so surely cannot
    patent the whole concept.

    6. Much has been said about "The Freedom To Innovate". Microsoft have
    been singing this song for so long that people have stopped looking at those
    words to see what they mean. Patents, which were introduced as a means to
    protect inventors from their hard work, have become corrupted and polluted by
    the software giant into becoming a barrier to entry into the software
    marketplace. So they have become a block on innovation, not it's savior. We
    instinctively know this, but your average lawmaker does not. Well, law-makers
    all live somewhere. Time we found out where they are and wrote to them... [I
    know, I know, it's been done before].



    Sorry for an early-Monday-morning rant, but although it's essential that we
    defend against this latest attack, if that's *all* we do, then we are doomed.

    The best way forward is to take away the weapon of the enemy by removing the
    threat of software patents. No matter how hard, it's the only way.

    [ Reply to This | # ]

    What if the court case takes a while...
    Authored by: Anonymous on Monday, October 15 2007 @ 09:18 AM EDT
    If this patent law suit takes long enough, and some things in both Red Hat and
    Suse Linux are GPL v3, and then Novell and/or Red hat settle with the patent
    troll, won't that automatically spread the patent coverage to all Linux users?

    [ Reply to This | # ]

    • Nope. - Authored by: Anonymous on Monday, October 15 2007 @ 01:35 PM EDT
      • But GPL v3... - Authored by: Anonymous on Monday, October 15 2007 @ 02:01 PM EDT
        • Simple - Authored by: Anonymous on Monday, October 15 2007 @ 08:28 PM EDT
    Lawyer Ethics Are NOT Human Ethics
    Authored by: Anonymous on Monday, October 15 2007 @ 10:38 AM EDT

    I'm not the poster you're replying to, but:

    "I assume you're new to Groklaw - but apart from PJ, I don't think anyone
    has posted here in YEARS who believes for one second that attorneys have a shred
    of ethics in their professions - you cannot seriously expect anyone who has ever
    watched the antics of the US legal system over the last few decades to treat
    such a comment with anything but contempt."

    Lawyers do indeed have very strict ethics. The problem is their ethics, like
    their language, do not conform to human norms.

    A lawyer's ethics boil down to a three basic points. 1) They must abide by the
    letter of all laws that apply, both to them (there are some) and to their cases.
    2) They must represent the interest of their clients to the exclusion of
    anything that doesn't violate point #1. 3) Point #1 is negotiable, within
    certain boundries.

    Your mistake is assuming there is only one True Ethics(tm), and that any
    deviation from that set of ethics means an individual has NO ethics.

    The fact that lawyer ethics often conflict with ethics as practiced by most
    humans is irrelevant. At least, to the subject of havings ethics.

    The reason most lawyers are treated with contempt by the rest of society (cue
    all the lawyer jokes) is primarily that point #2 (client interest) overrides
    EVERYTHING except the exact letter of the law--laws are negotiable within
    certain guidelines. (Lawyers call this "interpretation").

    As for the "MS connection" to Acacia (ie having a couple of ex-MS
    employees) that's pretty lame. I would point out that Real Networks was created
    by an ex-Microsoft employee, want to spin any conspiracy theories about Real
    Networks? :)

    Besides, Acacia is a *patent troll*. Anyone working for them obviously likes
    working for patent trolls. More than, I suspect, working for a sofware
    company...or they wouldn't leave one to work for the other, hmm?

    [ Reply to This | # ]

    Groklaw needs to be closed. Microsoft has patented mind reading
    Authored by: JR on Monday, October 15 2007 @ 12:00 PM EDT
    The open source movement is fried, groklaw will be closed; Microsoft has
    invented mind reading.

    http://technology.newscientist.com/article.ns?id=dn12788&feedId=online-news_
    rss20

    I am no lawyer, nor I am a mind reader.

    [ Reply to This | # ]

    Multiple views of the same object(s)
    Authored by: Anonymous on Monday, October 15 2007 @ 04:51 PM EDT
    What's a SQL for?

    [ Reply to This | # ]

    Amiga Prior Art
    Authored by: Anonymous on Monday, October 15 2007 @ 08:50 PM EDT
    I have the documentation of the SDK for the Amiga. The
    first version consists of four books copyrighted 1986. The
    titles are as follows:
    1 Amiga Intuition Reference Manual ISBN 0-201-11076-8
    2 Amiga ROM Kernel Reference Manual: Exec ISBN
    0-201-11099-7
    3 Amiga ROM Kernel Reference Manual: Libraries and Devices
    ISBN 0-201-11078-4
    4 Amiga Hardware Reference Manual ISBN 0-201-11077-6
    Prior art is most likely in the first one.

    [ Reply to This | # ]

    Xerox '412 patent analysis, comparison to metacity
    Authored by: Sandtreader on Sunday, October 21 2007 @ 01:49 PM EDT

    I've been analysing the '412 patent and how it compares to current Linux managers (in particular, metacity).

    The key limitation of the claimed invention appears to be the part about "the display object means generating the first and second display objects so that the second display object is perceptible as the same tool as the first display object...". This is repeated in all of the independent claims, sometimes rephrased as "the first and second tool display objects being perceptible as the same tool". Everything else in the independent claims seems to be either already known from the quoted prior art or data structures required to implement the 'trick'.

    So, the key point is that you have two different "display objects" (for which read windows in an X system) which appear to be the same one because of various data structure tricks and manipulation during workspace switching. The idea is to provide access to the same tool from multiple workspaces - the obvious one being the workspace switcher itself (the door icon in their drawings).

    Why is this trick needed? Here's my guess...

    The environment of this invention is an existing strongly object-oriented windowing system - ROOMS (see http://en.wikipedia.org/wiki /Virtual_desktop - which references this patent series) - in which it appears that workspaces are strict containers of their windows, and windows cannot be moved between workspaces - e.g. see

    5:59: "Although a display object cannot be transferred between workspaces ..."

    So the invention is trying to work around this limitation without having to rewrite the underlying software:

    12:5 "This aspect of the invention is based on the discovery of techniques for implementing workspaces with an existing windowing system without extensively modifying the existing window system's software"

    Like the old saw about all computer science problems, it can be solved with another level of indirection - the "placements", which appear to be 'proxies' for the underlying object in each workspace. But note that the idea of multiple proxy views of the same object is not new in itself.

    Given all this, what do we think is the likely target of the action? The most obvious one is of course the workspace switching functionality of GNOME/KDE. As far as I'm aware from some quick Googling, both Red Hat and SUSE use GNOME as the default GUI, and metacity as the default window manager - but others should be able to confirm or deny that. I use Debian, and GNOME/metacity is the default there - which I'm using now.

    So if I'm right that about what their target is, the key point is going to be how metacity (and potentially other X window managers) implement workspaces and switching.

    Firstly, a critical point: Unlike the environment described in the patent there is no concept of a workspace in the underlying X GUI and hence no reason for a workround like that claimed. The simplest way to implement workspace switching in X is simply to keep a record of which windows are in which workspace and show and hide accordingly them on switching. Windows that are on all workspaces (like the switcher itself) simply have a flag which means they always get shown whichever workspace is active. There is only one display object involved and hence the claims fail.

    Looking at the metacity code at:

    confirms this is what is happening, in metacity at least. There is an 'mru_list' (most recently used?) of windows in each workspace, and normally a window is only in one of these. However when a window is added with the "on_all_workspaces" bit set, it gets added to the mru_list in all workspaces. On switching, ignoring various complexities about windows moving between workspaces, it simply changes the active workspace and then asks each window to calculate if it should be showing, which they do in meta_window_should_be_showing().

    Obviously the metacity authors can confirm whether I've got this right, but to reiterate, in metacity at least, there are not two display objects (windows) pretending to be the same 'tool', as in the '412 patent claims; there is really only one display object which remains in place while the other windows are hidden or revealed.

    Hence in my quick analysis (we're talking a couple of hours here), there is simply no case to answer, assuming it is a direct attack on workspace switching rather than something more indirect. One wonders whether the patent assignees bothered to spend that couple of hours before launching this case!

    I hope this helps focus the discussion a little...

    --

    Paul (NAL, but 25 years in software and patent experience from both sides)

    [ Reply to This | # ]

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