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IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial - Updated
Thursday, May 13 2010 @ 12:58 PM EDT

I know the first thing you wanted to know after you heard that Red Hat and Novell had prevailed and the jury had found that IP Innovation's patents were worthless was this: did we at Groklaw help when we did prior art searching?

The answer is, Yes. It turns out that you did. I have the transcripts from the trial, and I've been reading them for days now, because even though I can't share the transcripts with you yet, until the court says it's OK, I know you are dying of curiosity, so I'm reading them to let you know what happened. So, let me tell you what I have learned, part one.

First, I know you want to know what prior art was used first thing, and here is the answer, from the judge's instructions to the jury just before closing arguments: the Chan Room system, the Macintosh Switcher, and the Amiga workbench. There is a story about the Amiga in particular, and that's where you come in.

First, a call went out on Groklaw for prior art. When news of this litigation first broke in 2007, and I asked if any of you knew of any prior art, one of the first comments mentioned the Amiga. I kid you not. Another almost immediately mentioned still owning an Amiga or two. In 2009, Red Hat officially asked the world for prior art, and again someone here mentioned the Amiga. So you guys knew before the lawyers did, which of course you would. It's your area of expertise. That's what I get from it. And that I should have made sure they were reading Groklaw in 2007. Next time.

Better still, you want to help. When Novell put out a statement about the jury's ruling, it said that the open source community will always fight for its software. And that is true. It did, it still does, and it always will.

Let's get back to our Amiga story, though. Many of you responded to the call for prior art. Some of you posted the need locally too, in your LUG or ALE lists, so the word spread. One such posting resulted in someone coming forward with a *working* Amiga, believe it or not, which he had carefully restored and gotten it going again. That Amiga went to court, and it was used to demonstrate to the jury that the Amiga represented prior art.

Now, one can never say for sure what it was that turned the tide with a jury, unless they tell us, which they haven't. But it surely helped to have three examples of prior art, one of which was used in a live demo. And from reading the transcripts of the trial, I can surely say it ought to be what did it, or at least had to be a major piece. So when the owner of the Amiga heard the news, guess what he had to say?

Apparently my habits of being an eclectic collector of historic computer gadgetry** and my work in restoring a 1986 Amiga 1000 system to its multi-screen, muti-tasking glory as prior art evidence for a Red Hat Linux patent fight paid off:

My Amiga Killed a Troll!

He gets his Amiga back now, and I'll bet it will be kept working forever and ever by one very happy geeky guy.

Of course, non-practicing entities usually appeal, and I expect that to happen. They don't have much to lose, after all. So time will tell what finally happens, but we know now what *should* happen.

And I wish I had been in the courtroom when they carried that Amiga in and turned it on. I'll bet the lawyers on the other side never in a million years thought they'd have to deal with a working Amiga from 1986.

See, that is why, despite others who talk prior-art searching down, I am firmly committed to it. I know you guys, and I have real confidence in you, that at least one of you will have restored whatever type of computer is needed. Or you can do it to order, if it's ever needed.

Better, you guys knew that an Amiga was what was needed, because you have lived computer history, and you know where all the bodies are buried. You did, in fact, know all three examples of prior art that were eventually used at trial.

Exhibit B. The Chan Room model, the next piece of prior art they used, was mentioned in 2009 by a member here in this comment in 2009. It is a master's thesis. He left the link to the PDF, so you can read it yourself. And here's a comment from 2007 listing the Amiga and the Macintosh. Here's another Macintosh mention.

I'd say you guys nailed it.

Update: If you'd like to see an Amiga 1000, you can visit OldComputers.net and choose it from the long menu on the left.

Update 2: A statement from Red Hat's Rob Tiller quoted in OSNews:

"The jury's decision shows that the open source community can stand up to coercion based on bad software patents, and that juries can see through arguments based on FUD," Tiller said

  


IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial - Updated | 261 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial
Authored by: Anonymous on Thursday, May 13 2010 @ 01:07 PM EDT
"Your honor, we shouldn't be required to look for prior art that precedes our invention, because shurely such prior art would be outdated and irrelevant" :-)

Does that mean the patent becomes valid when that Amiga stops working?

[ Reply to This | # ]

Corrections thread (if any)
Authored by: alisonken1 on Thursday, May 13 2010 @ 01:10 PM EDT
Put a summary in the title to help, followed by full description in comment
please

---
- Ken -
import std_disclaimer.py
Registered Linux user^W^WJohn Doe #296561
Slackin' since 1993
http://www.slackware.com

[ Reply to This | # ]

Newspicks ...
Authored by: jsoulejr on Thursday, May 13 2010 @ 01:40 PM EDT
n/t

[ Reply to This | # ]

off topic
Authored by: jsoulejr on Thursday, May 13 2010 @ 01:42 PM EDT
n/t

[ Reply to This | # ]

all things COMEs here ???
Authored by: jsoulejr on Thursday, May 13 2010 @ 01:45 PM EDT
n/t

[ Reply to This | # ]

We should have a prior art museum, to house it all.
Authored by: Anonymous on Thursday, May 13 2010 @ 01:59 PM EDT
We should have a prior art museum, to house it all.

Between all of us, I can imagine we could fill a warehouse with what we keep
around. I know I got a few large rooms full (out of the way rooms, but still
alot of stuff).

Is there such a place? A museum, with a FOSS mentality?
For donations of working stuff?

[ Reply to This | # ]

What can they appeal on?
Authored by: deck2 on Thursday, May 13 2010 @ 02:10 PM EDT
If I remember from a previous article, it is very hard to appeal a finding of
fact by a jury. Did the Judge do anything which could be a cause of appeal?
Until we have the transcripts and can analyze them only PJ will know.

Will they pull a tSCOg and appeal on the issue that the patent invalidated the
prior art since they "invented" it indepedently, filed for and
received the patent.

[ Reply to This | # ]

That's it, I'm keeping all that old equipment...
Authored by: Anonymous on Thursday, May 13 2010 @ 02:45 PM EDT
Wow.

I've got 3 working Amigas; two A500s with Kickstart 1.2 and 1.3,
and a B2000 with Kickstart 2.mumble and a GVP 68030 accelerator
board. And an upgrade module to give it 2MB of CHIP RAM. And
a serial accelerator. And....

I ran that 2000 as my main machine for 9 years, well past it's
go-bankrupt-by date. One of the hard disks I had in it was
from a surplus store and still has "NFG" (No Functioning Good)
marked on it in felt-tip.

They don't hardly ever get used more than a couple times a year,
now, but they all still work.

I really need to find a scan converter for them.

[ Reply to This | # ]

And, of course, the REAL innovators didn't patent
Authored by: Anonymous on Thursday, May 13 2010 @ 02:50 PM EDT

The people who developed the Amiga didn't patent this idea. They were people who created things, not parasitic patent trolls. They were too busy developing exciting new technology to waste time reading the kind of rubbish that is in patent filings.

I guess that's one of the ways you tell the difference between creative innovators and parasitic patent trolls.

[ Reply to This | # ]

IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial
Authored by: trevorteusc on Thursday, May 13 2010 @ 02:55 PM EDT

My Amiga Killed a Troll!

Geeks rule!

[ Reply to This | # ]

IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial
Authored by: Rubberman on Thursday, May 13 2010 @ 03:36 PM EDT
Well, if this was for multi-tasking on PC's, then I think that QNX had the lead
on this, quite a bit before the Amiga, on the IBM PC and compatibles. Of course,
it was known as Qunix at the time, until AT&T complained that it was too
similar to Unix, so Quantum Software changed the name to QNX, which is still
around. QNX is now a division of Research In Motion who just bought it from
Harman International. FWIW, I still have my 5 1/4 inch floppies of pre-release
version 0.7, serial number 8 that I got in 1982.

[ Reply to This | # ]

IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial
Authored by: Anonymous on Thursday, May 13 2010 @ 04:12 PM EDT
Cool! While I found an VS100 on ebay, carrying in an Amiga
into the court room is soooo much easier than a VAX 11/750 +
VS100.

I'm amazingly glad they were able to demo the Amiga.

[ Reply to This | # ]

Innovation and Amiga......
Authored by: Anonymous on Thursday, May 13 2010 @ 05:10 PM EDT
Amazing! But so was the Amiga in its day. I used one briefly for a project at work a long time ago. It was running CP/M on a Z-80 emulator, to support a cross-assembler for some microcontroller, probably 8048, and with all the layers of emulation it was still usable. Our client had done that because their old CP/M machine had died. Both the OS and the emulator must have been very tightly coded for it to perform acceptably.

But, more importantly, observe just where innovation did not come from! Just imagine how fast and efficient an up to date Amiga based on a Power PC or Cell would be, compared to your most hated OS!

[ Reply to This | # ]

Demonstrative Evidence - La Fuerza de los Diez Hormigas, Amiga
Authored by: webster on Thursday, May 13 2010 @ 05:22 PM EDT

Now, one can never say for sure what it was that turned the tide with a jury, unless they tell us, which they haven't. But it surely helped to have three examples of prior art, one of which was used in a live demo. And from reading the transcripts of the trial, I can surely say it ought to be what did it, or at least had to be a major piece.

That is a cautious statement by PJ. It is hard to overestimate the value of good demonstrative evidence.

Demonstrative evidence can be documents, pictures, videos, enactments, and objects. To have a witness enact with a toy how a subject held and wielded a weapon is better than a thousand questions and answers.

The only thing better than witnessing and being at the actual event in question is a video of the event. Drug dealers rarely go to trial when there is a video of the deals in question.

With this trial, the Amiga actually made the jury witness to the inventions in question. It was not a witness recalling an event. The event and the invention were right in the courtroom before them. They could take what the plaintiffs explained as their claims of invention and apply it to the Amiga. They could even use the plaintiff's own experts. It will then become clear that the Amiga does exactly what the patented invention claims. Then everyone is asked what came first, the patent or the Amiga.

The Amiga made a lie of the claim that the patent was an invention.

The jury wiped out these false patents. The question then becomes why did the plaintiffs go to trial against such strong and obvious demonstrative evidence? Were they advised by their lawyers? Did they proceed with no fear because they had a USPTO granted patent, valid or not? Or is it the troll IQ?

~webster~


[ Reply to This | # ]

I would love to see...
Authored by: hAckz0r on Thursday, May 13 2010 @ 05:24 PM EDT
I would love to see a photograph of *that specific Amiga* system with the
'window switching feature' prominently displayed just as it looked in the court
room that day, and to have that photo to adorn this monumental article here on
Groklaw. Why? Since this article may very well become archived in the Library of
Congress, what better way could be possibly thank this dedicated historic
collector? His hard work would thus be immortalized in the National Archives for
all US Citizens, present and future, to see until the end of time!

Many thanks to this dedicated technological historian!




---
DRM - As a "solution", it solves the wrong problem; As a "technology" its only
'logically' infeasible.

[ Reply to This | # ]

Prior Art Search
Authored by: dio gratia on Thursday, May 13 2010 @ 07:29 PM EDT

In addition to something used at trial the comment revealing the Exhibit B prior art also contained a second citation for another piece of Rooms and a third for Smalltalk-80. Not meant as ego gratification, rather it's acknowledgment of the work someone else subsequently put into the process doing analysis against patent claims.

While it took a few hours hours googling to find these prior art elements mostly searching for dates of publications while otherwise holding a semi-knowledgeable view of who, what and when, someone went to the effort of doing priority analysis of all these submissions. From an arm chair perspective it must have been a significant effort for each of the twenty-five or so prior art submissions. Finding prior art is the tip of the elephant's trunk, while successfully defending against the patents is akin to whole animal veterinary care. In my case I grabbed a bunch of elephants by the nose, handed them off haphazardly to the vets and wandered off.

What's significant about this is that as a result open source evaded a major patent troll bullet through the same many hands contribution process that allows software success. It's also significant that the information is on the net still, can be found by egalitarian search and is not behind pay walls.

All the links I provided are still active. Imagine having to pay to find old information, or what you might find if the plaintiff to the infringement suit owned the 'one true search engine'. All the sudden those many hands wouldn't be able to contribute to the process. This speaks to net neutrality, ideological wars and propping up outdated business models. The Internet we have today is an amplifier of our abilities and represents the creative commons.

What happens when the Cloud is sawn into cubes and put into nice little proprietary boxes in the sky? I'm somehow reminded of Star Trek episodes focusing on the Ferengi where everything is pay as you go. Open source reflects the things in our history that proactively defend the creative commons against embrace, extend and extinguish - the reduction in production and distribution costs avoiding needless middleman expenses.

Open source depends on respect for 'intellectual property' laws. In this case it is demonstrated by the invalidation by prior art patents held in the hands of those out to wall off our creative commons. We're balancing innovation that entails profiting by walling knowledge away versus the ability to build on the shoulders of those who came before us whose work is in the creative commons.

There's a lot to be said for having a venue for readily contributing such as occurred here on Groklaw. In this case we made a difference. Imagine had Groklaw been silenced prior, would we have been able to then?

Thanks for the opportunity PJ.

[ Reply to This | # ]

The - My Amiga still runs thread ....
Authored by: Anonymous on Thursday, May 13 2010 @ 07:52 PM EDT
I happily own serveral Amigas that are still in working condition .....

A1000 with Kstart 1.3
A2000 With a 68030 from CBM
A2000 with a 68030 from GVP
A3000 With cutout slot where the Video Toaster used to live
A2500HD

All of which have a the old CBM ethernet card.....
(except the A1000 which uses instead a parnet connection)

But my pride and joy is the big Amy ........

A3000T - A 3 1/2 foot tall tower case running a GVP 68040


All of these still run - ask my kids (they fight over Lemmings to this day)

What are yours? Or am I the only one left playing?

Mikey

[ Reply to This | # ]

The good ol days of the Amiga, a prior art goldmine... (?)
Authored by: Anonymous on Friday, May 14 2010 @ 12:00 AM EDT
I grew up with Amiga 600, then later a 1200. It booted up in 10 seconds and
after those 10 seconds had very little HDD usage if any on a 14MHz 68030 CPU.
But if people looking for prior art or and in the business of searching for
prior art. Now there's a business idea - First there were patents, then Patent
Trolls, then Prior art collectors(?) (Art collectors, where have I heard that
term before? Isn't there money in Art Collecting?)

I could 'almost' consider the Amiga to be 'art' in the traditional sense of the
word. (4 channel stereo sound and 4096 colours on screen at the same time, back
in 1985. Said to be the original Multimedia Computer, although the term wasn't
used till years later.

I used to collect emulators, Frodo a Commodore 64 emulator. Shape Shifter an
Apple II emulator, but I'm not sure about the legalities of them, but I never
did get Shape Shifter working. PC-Task, an IBM PC emulator that I could run DOS
and Windows 3.1, although it was slow, it worked. I never would have thought
about emulating the same computer system on itself like VMWare, or Virtual PC,
there was no need back then. I also had other programs that simulated circuit
boards.

Also there was a Basic called AMOS that made it easy to create games. Within
AMOS was AMAL, an animation language. I have no doubt that if it was extended,
it would be what Macromedia Flash was years later. And I remember a vector
animation program that included a long animation of dinosaurs (in 2D that is) as
a demo with sound which I thought was awesome at the time, but I can never
remember it's name, but if you saw it today you'd think it was a flash animation
for sure. Blitz Basic was around as well and was better for writing Workbench
programs, and is now popular on Windows and Linux as well.

Many people, myself included thought the Amiga and it's inventor Jay Minor, were
years ahead of their time, which now makes it an ideal place to search for prior
art = ) Along with other systems of the time as well of course. Hopefully
someone somewhere finds my ramble here somewhat useful.

Oh and one last thought, the operating system was in ROM of which still needed a
floppy disc or HDD to boot. And you could get a copy of the source code, in C,
from a book store, (I remember buying a 2nd hand one for $2) without signing a
NDA or anything like that. Such was the trust in the good ol days before patents
went mainstream and before they tried to extend copyright.

D/\/O
(This is how I remember things and it's likely I'm wrong on some of this, so if
anyone wants to correct me, by all means please do)

[ Reply to This | # ]

IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial
Authored by: Anonymous on Friday, May 14 2010 @ 03:49 AM EDT
It is not likely that there will be an appeal, if I'm remembering the verdict
right. The jury found non infringement and patent invalidity. For an appeal
to be useful, plaintiff would have to get both of those findings overturned.

That is similar to the case Acacia lost against Microsoft in 2007. The
verdict was similar, and those were the reasons they did not appeal that
one.

[ Reply to This | # ]

IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial
Authored by: The Mad Hatter r on Friday, May 14 2010 @ 10:54 AM EDT

See, that is why, despite others who talk prior-art searching down, I am firmly committed to it.
Of course there are people who talk Prior-Art searching down. They are terrified of it, because a good demonstration like this can kill a patent, which means that they've wasted resources.

You see the problem is that there is Prior-Art out there for EVERYTHING. Seriously. The USPTO is terrible at searching for Prior-Art, and so they grant tons of patents of all sorts (hardware as well as software) which legally should not be granted. Over 90% of ALL patents are junk, and should not have been issued. As to the remaining 10%, I have my doubts about them as well.

---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial
Authored by: Anonymous on Saturday, May 15 2010 @ 12:46 AM EDT
This may be a huge surprise to you (judging by your amazement that an amiga from
1986 still works) but most computers from that era still work fine. I collect
Atari's and amigas and I have a room with probably 25-30 of them in various
models and all work fine. Several of them run 24x7. The only ones I have
trouble with are the 520ST's and people had trouble with those back in their
heyday.

[ Reply to This | # ]

Amiga 1000
Authored by: Anonymous on Saturday, May 15 2010 @ 01:30 AM EDT
As a committee member of one Amiga club and a attendee of another... we often
see working A1000's. It's virtually impossible to kill them... so unless one is
thrown out it's still working.

http://go.to/maug

www.aug.org.au

Other more powerful amiga's A500's, A2000's, A3000's and A4000's, etc... are
likewise preferred to A1000's... but A100;s remain used regularly by at least
some members of our club. Most of these computers are 20 years old or more...
and but continue to be used with some of the newest hardware (wireless,
internet, SSD's, USB, etc...) demonstrating that they embodied advanced
engineering concepts which are often only appreciated in hindsight.

:-)

[ Reply to This | # ]

  • Amiga 1000 - Authored by: Anonymous on Saturday, May 15 2010 @ 03:17 AM EDT
IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial
Authored by: Anonymous on Saturday, May 15 2010 @ 06:21 AM EDT
OK... But I'm a bit worried by this, what if nobody had been able to produce
the Amiga in court? Would the case have been lost?

I don't see why a brochure from the period wouldn't be enough, to just
"describe the idea" - that's all the IP Troll does, no implementation
is actually
needed.

Failing that what about documentation? A historical document to describes
how the Amiga worked (past tense).

I don't like the idea that one always has to find some old machine that works
to prove prior art, seems the burden of proof is somewhat skewed.

I guess if it means that some of these old machines are kept working that's a
good thing, but does seem rather unfair.

[ Reply to This | # ]

  • Relax - Authored by: Anonymous on Saturday, May 15 2010 @ 09:19 AM EDT
IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial
Authored by: Anonymous on Saturday, May 15 2010 @ 06:52 AM EDT
I have two 500's and a 1200 with a 68030 board +MMU.

I remember going to computer clubs with my mate and his A1000
and forgetting to bring a kickstart disk. We taped one to the
base "just in case" after that.

I remember it being a big deal that it could spawn 1000
processes and still keep the ball bouncing. Of course the OS
would die every five minutes, but it was "science!" :)

[ Reply to This | # ]

IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial
Authored by: Anonymous on Saturday, May 15 2010 @ 07:18 AM EDT
I have a working A1000...i also have a working A500 (the next generation for the
mass market), I also have several newer Amigas too. A1200, A600 and A4k. the
only real Amiga that I have never owned is an A3000 - strangely i still found
that more desirable than the A4000...but maybe because of the thinner form
factor? either way....all these systems are working and, even though its 15
years later..none of the currect systems work as intuitively or works for the
user (Windows, MacOSX, Linux, the computer makes you work its way)

[ Reply to This | # ]

IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial
Authored by: Anonymous on Saturday, May 15 2010 @ 09:35 AM EDT
Prior-prior art: in the 1970's Stanford Artificial Intelligence Laboratory (SAIL) ran a networked, time-shared OS with a multi windowed graphical UI named WAITS. This was the pre-cursor of Xerox Star, the Apple Macintosh, and the Sun workstations.

Quote from SAIL Farewell:
I got a rather elegant display system in 1971 that put terminals in everyone's office, with full computer text and graphics, including grayscale, 7 channels of television (some lab-originated and some commercial) and 16 channels of audio all for about $600 per terminal. It had a multiple-windowing capability and was far ahead of anything commercially available at the time but unfortunately we never told anyone about it. Dick Helliwell made displays on unused terminal read "TAKE ME, I'M YOURS."

I have a number of advanced features that still are not available on many modern systems, including the ability for individual users to dial out on telephone lines and contact other computers througout the world, the ability to detach jobs and leave them running, then later attach them to either the same terminal or one in a different place. I also would remind users of appointments at the appropriate times. In the 70s my users decided to give my operating system a name since it had evolved quite a bit away from the DEC system running on other PDP-10s. The users chose the name WAITS, because, they said, "it waits on you hand and foot" (or was it the user who waits for me, I forget -- I'm sort of Alheimerish these days). To this day I still run this reliable system with its very reliable disk structure. Some people thought WAITS was the Worst Acronym Invented for a Timesharing System, but I've grown rather attached to it.

[ Reply to This | # ]

IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial
Authored by: Anonymous on Saturday, May 15 2010 @ 10:19 AM EDT
http://toastytech.com/guis/guitimeline.html

[ Reply to This | # ]

This story got me to thinking. . .
Authored by: Anonymous on Saturday, May 15 2010 @ 01:00 PM EDT
What if the guy hadn't had the working Amiga? Are we on the threshold of an age
where things get re-patented every 20 years because the tech which was prior art
is no longer functional?

Hopefully some good museums of technology are going to be setup around the world
to keep a lot of this old stuff in working order (I know there are some museums
already including computers and other tech in their collections, but I hope
we'll have enough that anything for which there should be prior art, will have
working specimens; I also hope that various blueprints/cad files/source code
repositories/etc are being preserved, so that full replicas can be manufactured
as the original equipment becomes non-functional [or so old it has to be kept in
special vaults to preserve it]).

[ Reply to This | # ]

IP Innovation v. Red Hat/Novell - The Prior Art They Used at Trial - Updated
Authored by: Anonymous on Monday, May 24 2010 @ 03:51 PM EDT
There is one reason that the NPE ("patent troll") business model has become increasingly popular: it works. It is also legal, and often helps protect independent inventors and SMEs from exploitation of their intellectual property by larger, more powerful entities. Notably, it is almost invariably such multinational corporations that complain most about NPEs -- because, before the latter became so prevalent, greedy corporations could more often infringe SMEs' IP with impunity. Although abuse of the system should be condemned, most so-called trolls do nothing worse than Wall Street traders, for instance. Like it or not, NPEs are here to stay. And that may be a good thing.

[ Reply to This | # ]

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