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Not So Fast, Bedrock
Monday, May 16 2011 @ 02:30 PM EDT

There was a good deal of gnashing of teeth just two weeks ago when Google was found to have infringed the patents of Bedrock Computer Technologies, Inc. with respect to caching in Linux. In terms of patent judgments, the award was relatively small, just $5 million. But it still raised issues with respect to other developers and users of Linux, many of whom were engaged in related infringement suits brought by Bedrock.

Well, lo and behold, in the same court in the Eastern District of Texas this week Bedrock lost [PDF] on its infringement claim against Yahoo (related NewsPick), another defendant using exactly the same technology, albeit without executing the Bedrock code.



Now wait a second. A jury says valid and infringed in one case, but in a second case before the same court but a different jury the jury concludes valid but not infringed even though the technology is, for all intents and purposes, identical. Does anyone need a better object lesson in the arbitrary aspects of our patent system when it comes to software?

Moreover, in a third case involving the same patents and Bedrock, Amazon has forced Bedrock to throw in the towel [PDF] and agree to a stipulation of dismissal with prejudice [PDF]. Whether this is the result of a settlement is not clear.

By the way, some of the other defendants settled either before or immediately after the Google judgment. Bet they are wishing they had waited. Meantime, there may be news in the next day or two with respect to the remaining defendants. Stay tuned.

While we may never know the agreements arrived to settle these suits, these settlements do raise a question about the terms of any agreed license since the software involved, Linux, is under the GPLv2. It is not impossible to get a patent license that is compatible with GPLv2; you only have to turn to the license [PDF] entered between Red Hat and DataTern to resolve that litigation. [You may remember this article on Groklaw at the time explaining this, as well as the article on Red Hat's explanation of the agreement.] As Red Hat explained at the time, they used a series of definitions with the license grant to assure that upstream developers, Red Hat, and all downstream recipients are covered by the license. A really clever bit of license drafting. While the idea of taking a license may be anathema to many in the free and open source software community, it is simply a cost of doing business for the defendants. The key question is whether they have resolved all claims without compromise with respect to the GPL.


  


Not So Fast, Bedrock | 305 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Not So Fast, Bedrock
Authored by: Anonymous on Monday, May 16 2011 @ 03:03 PM EDT
Post corrections here as so:

Korrections --> corrections



Good stuff. Welcome Mark.

[ Reply to This | # ]

Corrections Thread - non-Anonymous
Authored by: artp on Monday, May 16 2011 @ 03:08 PM EDT
After you, Alphonse! [Someone else posted the same time as me, and we both
deleted at the same time.]

Corections -> Corrections in the title, please.


---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Off Topic Thread
Authored by: artp on Monday, May 16 2011 @ 03:10 PM EDT
Let's keep it organized, so Mark doesn't wonder what he's gotten himself into!
;-)

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

[NP] News Picks threads
Authored by: Aladdin Sane on Monday, May 16 2011 @ 03:11 PM EDT
Comment on or around News Picks here.

---
Well, it's either Captain Kirk or Doctor Strangelove. —me, ca. 1984-1985

[ Reply to This | # ]

[COMES] Comes v. MS transcripts
Authored by: Aladdin Sane on Monday, May 16 2011 @ 03:12 PM EDT
Comes v. MS. docs here.

---
Well, it's either Captain Kirk or Doctor Strangelove. —me, ca. 1984-1985

[ Reply to This | # ]

Google was expected to Appeal
Authored by: rsteinmetz70112 on Monday, May 16 2011 @ 03:13 PM EDT
So with this loss is their appeal stronger?
One would think so.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Not So Fast, Bedrock
Authored by: Observer on Monday, May 16 2011 @ 04:19 PM EDT
Let's say a company "X" has opened up various patent infringement lawsuits against multiple companies, "A", "B" and "C". Let's assume that company "A" decides that it's a lot easier and in the long run, cheaper to just settle for some minimal amount. However, company "B" takes the case to court and wins.

Obviously, all three cases are likely to have their own unique points, but generally speaking, is the fact that company "A" caved in and didn't fight going to have a large negative impact on the lawsuite with company "C", or is the larger factor going to be the fact that "B" has already won in court???

---
The Observer

[ Reply to This | # ]

What's Arbitrary?
Authored by: Anonymous on Monday, May 16 2011 @ 06:27 PM EDT
> Does anyone need a better object lesson in the arbitrary aspects
> of our patent system when it comes to software?

I asked another question under NewsPicks a couple of stories ago, but
either nobody knew, or were prepared to divulge:

What's the difference between the Google and Yahoo cases?
Same patent, same court, superficially same technology, but is it?
Different jury, different defendants, with different counsel.
To me it demonstrates the arbitrary aspects of a jury trial
on matters of "fact".

[ Reply to This | # ]

The problem appears to be too much secrecy
Authored by: Bystander on Monday, May 16 2011 @ 08:08 PM EDT

One of the biggest problems with the way things are currently handled is that excessive secrecy exists at all levels. If much of this secrecy were eliminated, many of the problems we see today would be greatly reduced.

Secrecy prevents people from fairly valuing many patents. In a free market system, the value of goods for sale is determined by the willingness of informed buyers to pay a certain price balanced against the willingness of sellers to provide goods at a certain price. With software patents, it is often unclear exactly what a party is getting when they purchase a license. The market is further distorted when knowledge of different transactions (such as prices and terms) are kept hidden from the view of other potential buyers.

The court system seems to be a willing accomplice in keeping many important details away from affected parties. For example, take a look at the list of docket entries for the Bedr ock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al. Virtually all of the documents containing any real information about the case have been filed under seal. Enormous effort from all parties goes into making sure that information is kept away from and out of sight of the public. This seems wrong. Companies should not be allowed to exploit the use of public resources to fight their own private battles without providing some significant public benefit in return.

To me, it seems that if companies want to utilize public resources such as the courts to resolve their disputes, then one of the requirements for that use should be that virtually all of the proceedings should be available for public inspection. That would serve several important purposes. It helps make the legal system more transparent and credible in the eyes of the public. It likely reduces the number of lawsuits from companies that are afraid to operate in the open, perhaps because of too many skeletons in the closet they want to keep hidden. And finally, it helps reduce some wasteful re-litigation over issues that may have already been fully addressed and settled in other cases.

--bystander1313

[ Reply to This | # ]

Non financial reasons to appeal
Authored by: Anonymous on Monday, May 16 2011 @ 09:50 PM EDT
Google has two non financial reasons to appeal. There is
the 'Dane geld' argument (made above) - show other potential litigants that you
are not an easy target. Then there is the desire to keep the Android software
free. Google presumably thinks it benefits from Android being open source, but
it can't be if it is encumbered by patents.

However, Google may feel they've already done enough Dane discouragement in
fighting it this far. "Android must be Free" can also be satisfied by
coding around the patent instead - some other comments indicate this has already
happened.

What we want Google to do may not be what Google thinks is best for itself.

[ Reply to This | # ]

"albeit without executing the Bedrock code"?
Authored by: Anonymous on Tuesday, May 17 2011 @ 01:23 AM EDT
I don't understand that phrase in this article. A patent doesn't contain code.
Bedrock didn't write any code in the Linux kernel--if it had, then it would have
been forced to put it under GPLv2 and attempting to sue for patent infringement
would be nonsensical.

So what is "the Bedrock code"?

[ Reply to This | # ]

Welcome, Mark
Authored by: pcrooker on Tuesday, May 17 2011 @ 01:39 AM EDT
I'm sure I can speak for all of us readers, thank you so much for taking on
Groklaw. I was so dreading the 16th May, but now it is just a new start.

I can keep getting my daily sanity fix. I'm truly grateful.

Just shout if you need a hand...

[ Reply to This | # ]

Transition...
Authored by: ile on Tuesday, May 17 2011 @ 05:39 AM EDT
Welcome, Mr Webbink!
And thank you for stepping up.
I know you will not think me discourteous in missing PJ,
too... :)

And a suggestion: the e-mail link on the (reader's) left hand
side column is to PJ (and glad about it, too). Should there be
one for you?

[ Reply to This | # ]

Not So Fast, Bedrock
Authored by: Anonymous on Tuesday, May 17 2011 @ 06:11 AM EDT
Now wait a second. A jury says valid and infringed in one case, but in a second case before the same court but a different jury the jury concludes valid but not infringed even though the technology is, for all intents and purposes, identical. Does anyone need a better object lesson in the arbitrary aspects of our patent system when it comes to software?

The same sort of thing happens in other areas of law. There have been many criminal cases where two defendants accused of being equal participants in a crime but who were tried separately have had different outcomes on the same evidence, for instance.

In a civil case, such as a patent case, I don't see why this kind of thing would be surprising. After all, if one side's case were so strong that no reasonable jury could find for the other side, the case would be decided on the pretrial motions and wouldn't ever get to the jury. If it gets to the jury, there is some chance of either outcome, and so if essentially the same case is tried multiple times with different juries, we should expect to have some differing outcomes.

Here's a question that I hope is interesting. Suppose company A and B are both using Linux. They get their Linux from the same source. They are both sued over this patent. Company A loses, pays a lump sum to cover their past infringement, and has to pay a royalty on future Linux use.

Company B, on the other hand, is found to be non-infringing.

What happens if company A starts getting their new Linux kernels from company B, instead of staying with the kernels that came with their distribution? Can A now stop paying royalties to the patent holder, because they are using a copy of Linux that was found to be non-infringing?

[ Reply to This | # ]

SCO Appeal When?
Authored by: Anonymous on Tuesday, May 17 2011 @ 07:56 AM EDT
Shouldn't we be getting it soon?

It would be nice to get a judgement that makes SCO history.

[ Reply to This | # ]

Um, just curious, but who wrote this?
Authored by: The Mad Hatter r on Tuesday, May 17 2011 @ 09:07 AM EDT
It's not PJ's style, so I'll assume it's Mark. The problem is that there's going
to be other people contributing in future as well.

So I'm going to suggest that all future posts should be signed by the poster.


---
Regards

Wayne Borean

http://madhatter.ca - Through the Looking Glass
http://wayneborean.ca - About Writing
http://weblit.ca - Web Lit Canada

[ Reply to This | # ]

Hi Mark thanks for joining us.
Authored by: Anonymous on Tuesday, May 17 2011 @ 09:10 AM EDT
Now that you have taken over I have a few questions that are bothering me.
Will there be any changes to Groklaw's Comments Policy, and other
infrastructure? At present it is still very PJ centric.
Will your contributions be clearly marked as such?
Will she continue to own the copyright on Groklaw going forward?

[ Reply to This | # ]

What does the Bedrock patent demonstrate?
Authored by: iraskygazer on Tuesday, May 17 2011 @ 10:14 AM EDT
<p> As a developer all I see in front of me is a field full of patent
landmines. I don't have a pot of money, like Google, to fight unintentional
infringement. Also, I don't have enough money to hire a lawyer to help me
determine if a claim of patent infringement is valid.
</p>
<p> To put it simply, software patents styfle innovation by anybody that
isn't part of a corporate entity. The only way to protect individual software
developers is to eliminate most software patents.</p>

[ Reply to This | # ]

  • Agree - Authored by: Anonymous on Tuesday, May 17 2011 @ 12:08 PM EDT
Now I know that I don't understand the law.
Authored by: Anonymous on Tuesday, May 17 2011 @ 12:32 PM EDT

A jury says valid and infringed in one case, but in a second case before the same court but a different jury the jury concludes valid but not infringed even though the technology is, for all intents and purposes, identical.

Cases argued by different lawyers? The better legal team won in both cases?

Tentative conclusion: the side with more money to spend on its legal team has a big advantage?

Does anybody think that the US legal system has anything to do with "justice", as that word is commonly understood?

[ Reply to This | # ]

Does the Editor allow.......
Authored by: Anonymous on Tuesday, May 17 2011 @ 01:43 PM EDT
.....links to scofacts.org ?

[ Reply to This | # ]

Patent question
Authored by: Anonymous on Tuesday, May 17 2011 @ 07:11 PM EDT
If I look at a patent and build a device that uses the patent am I guilty of
infringement or are there conditions that would trigger infringement (such as
distribution)?

[ Reply to This | # ]

Not So Fast, Bedrock
Authored by: Anonymous on Wednesday, May 18 2011 @ 09:17 AM EDT
guess this patent doesn't apply to friends of microsoft

[ Reply to This | # ]
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