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SCO and Two Patent Applications
Sunday, April 13 2008 @ 01:17 AM EDT

I told you I'd find out what the current status is of the patent application for "System of Software Code Comparison", listing Darl McBride's then-pal Michael Anderer and some guys from PointServe as inventors. We told you about it back in 2005, back when it was Patent Application 60/502,098.

It expired, but the inventors resurrected it and now it's 10/938,844, Publication Number 20050216898. Back then, we wondered if we'd found Darl's "MIT deep divers" at last, since the patent mentions spectral analysis, which SCO in 2003 claimed to have used to find infringing code in Linux, and the original Specification [PDF] filed showed SCO's logo from page 5 to 25. Duh. It looked like the inventors just attached a SCO presentation. Looking at it, I wondered if SCO used it to raise money back in the early days. As you'll remember, Anderer was helping SCO find money to fund their dream, and in his leaked memo, he mentioned patents and IPx, and you'll see IPx appears in the Specification too.

Alas for those of you rooting for this patent application, it seems there may exist prior art, because the inventors received a non-final rejection notice, mailed on April 4th, rejecting all the claims. The examiner listed four references, patent numbers 6,778,995 , 6,658,626, 6,954,747, and 6,182,067. Non-final means it's technically not quite dead yet in that the inventors can respond, but it's mostly dead.

But SCO has a patent application itself, one Groklaw member rand noticed, Number 20070067381, related to ME INC, I gather. It has reached the "PG-Pub Issue Notification" level. If you want to view the drawings or wish to download the entire transaction history of either application, go to the PAIR web site, type in the captcha words, then type in the application number. Look for the tab at the top of the page that says Image File Wrapper. You can then choose which documents you'd like to view or download. And if you want to see the earlier filings that each claims priority from, the easiest way from there is to just click on the tab that says "Continuity Data".

You might want to read the patent section in Software Freedom Law Center's Primer for Open Source and Free Software Projects, which explains IP law in language programmers can understand, if you are one, before doing so or reading on about the mobile devices patent application.

The Mobile Devices Patent Application:

It's #20070067381, filed September 19, 2006, "Systems and Methods for Providing Distributed Applications and Services for Intelligent Mobile Devices". Here's the overview:

United States Patent Application 20070067381
Kind Code A1
Grant; Bruce K. JR. ; et al. March 22, 2007
Assignee Name and Adress: The SCO Group, Inc.., Lindon, UT
Filed: September 19, 2006



In accordance with an embodiment, an edge processor may be configured to communicate with intelligent mobile devices via one or more mobile device networks. The edge processor may also be configured to access an entity's applications and data via a network of the entity. The edge processor may include one or more embedded applications. The edge processor may also include a command processor that is configured to route requests received from the intelligent mobile devices to the one or more embedded applications. The edge processor may also include at least one agent broker component that is configured to broker requests made from the one or more embedded applications to the entity's applications and data. At least one intelligent agent may facilitate communication between the one or more embedded applications and the entity's applications and data via the at least one agent broker component.

It's an application that is related to and claims priority from U.S. patent application Ser. No. 60/718,833 filed Sep. 19, 2005, for "Distributed Applications And Services For Smart Handheld Devices," with inventors Bruce K. Grant, Jr. and Scott A. Hawker. The earlier provisional application is easier to read, and it has a technical white paper by Bruce Grant about ME INC attached [PDF], and it seems to be about an edge processor that takes in requests from mobile devices, decides if the command is authenticated and should be implemented, and then gives the mobile device access to real time data on the company's server. There is a quality of service capabilities aspect to monitor the health of the system, and Java is in this, and web services. It takes in a request, finds the right embedded application to run, does so and sends the resulting info to the smart phone. The idea is that the executive on his smart phone can be anywhere in the world and still get work done. ME INC is a kind of middleman, I gather, preventing direct access to the proprietary data. This is a new invention? It's certainly possible they've executed it in a very fine way, but what is the new part? Which part can't Linux do already? It's certainly possible I'm missing something. My nightmare always has been that SCO gets a patent and then goes after everyone. They have the will, so I naturally hope they never get the way.

The "Spectral Analysis" Patent Application

You'll enjoy looking at the original Specification I linked to, the one for the expired filing, because of the attached SCO presentation. Remember Microsoft announcing it had licensed a SCO patent, when SCO didn't have one? Could this presentation have confused them? Page 9 says Patent Pending, and Anderer back then was helping SCO raise money, and his memo mentions Baystar and Microsoft.

Check out page 12, "SCO IP Model" mentioning "ZillionResumes" and page 16, "SCO Information Gathering". And the cherry on top, pages 19-22, examples of SCO's prowess at gathering "concepts" and on page 22, the Linux kernel appears, with the notation regarding driver files: "spectral similarity is apparent". Then on page 24 a comparison chart of System V and Linux. Then there is, on page 25, a comparison of AIX and Linux, titled "IP Tracing" based on "rare word searching". At the bottom of the page, there is the hilarious sentence: "The methods are implemented differently, but provide the SAME function, use the SAME variable names in the SAME order." I know. This appears to be how SCO fell into a hole it hasn't been able to get out of, beginning with the disastrous SCOforum slides that the world laughed at because it turned out SCO didn't actually own any of the code. What the system doesn't do, spectrally or otherwise, is check who owns the code. Of course, at the time, SCO claimed to own System V. Hardy har.

Here is the history of this patent:

04-04-2008 Mail Non-Final Rejection
03-31-2008 Non-Final Rejection
03-11-2008 Case Docketed to Examiner in GAU
11-20-2007 Case Docketed to Examiner in GAU
06-08-2005 New or Additional Drawing Filed
09-13-2004 Request for Foreign Priority (Priority Papers May Be Included)
10-03-2007 Transfer Inquiry to GAU
09-28-2007 Transfer Inquiry to GAU
09-13-2004 Request for Foreign Priority (Priority Papers May Be Included)
11-08-2006 IFW TSS Processing by Tech Center Complete
06-17-2005 Application Return from OIPE
06-17-2005 Application Return TO OIPE
06-17-2005 Application Dispatched from OIPE
06-17-2005 Application Is Now Complete
06-08-2005 Payment of additional filing fee/Preexam
06-08-2005 A statement by one or more inventors satisfying the requirement under 35 USC 115, Oath of the Applic
06-08-2005 Applicant has submitted new drawings to correct Corrected Papers problems
11-08-2004 Notice Mailed--Application Incomplete--Filing Date Assigned
10-22-2004 Cleared by L&R (LARS)
10-18-2004 Referred to Level 2 (LARS) by OIPE CSR
09-27-2004 IFW Scan & PACR Auto Security Review
09-13-2004 Initial Exam Team nn

Again, if you want to view the drawings or the history, go to PAIR, type in the captcha words, then type in 10938844 as the application number. Look for the tabs at the top of the page. You can then choose which documents you'd like to view or download. Here's the explanation of what it means to claim foreign priority, if you are interested. And here's what Group Art Unit, or GAU means.

Here's one problem the application claims the patent purports to help solve:

[0005] ... The problem is that most open source software, while freely available for downloading is not in the public domain.

[0006] In particular, open source software is not unrestricted -- to the contrary it is often subject to licenses that restrict not only the open source software code itself but any modification thereof and any software that incorporates it as well. Typically, these open source licenses may require that the source code of any proprietary system using some open source software code be publicly disclosed. In other words, a programmer who uses open source code in a proprietary application may unintentionally subject the proprietary application to constraints and restrictions of an open source license. This may have devastating affects [sic] on the ability of the company to protect software IP or pursue further intellectual property protection for the software.

I know. So totally back in the 80s. I bet you didn't expect to see antiGPL FUD in a patent application, so now you can say you've seen everything. By the way, this is totally not true. No one inadvertently can end up having to open source their proprietary code.

That isn't the only possibility the patent inventors have stayed up nights trying to figure out:

[0007] In addition, open source software has another inherent risk - it is unknown to what extent open source software incorporates proprietary technology by others.

Now here's a problem that is easy to solve. Open Source means you can look at it. So just look. If you see any of your code, sing out.

I'd like this idea of mine patented, by the way. "Method of determining if open source software incorporates proprietary technology by others". Why shouldn't I get my pot of gold at the end of the patent rainbow too?

And may I just point out that with any software code, proprietary or not, there is a risk, nay a likelihood, that it infringes somebody's patent somewhere. You know why that is? Because software patents are an unfortunate joke, which is why Microsoft is currently being sued in numerous lawsuits in what some have called a litigation lottery-like environment, according to Bloomberg. Hence the call for patent reform.

So I view this patent application as a throw back to a headier time for patent trolls, when you could hold up a company with very little down side. "Microsoft has about four dozen suits pending, almost all filed by owners that don't make products," the article tells us. My point is that the risk is across the board, for proprietary companies like Microsoft and for FOSS, and you can thank the patent system for that. It has nothing to do with any special risk of open source. If you recall, when Samba saw the list of patents Microsoft claimed needed to be licensed, there wasn't one on the list that Samba thought it needed for anything. But often just the threat of litigation results in the defendant/victim paying up just to avoid not just the risk of losing but the extraordinary costs of proving one's innocence.

Now *here's* an IP risk, claiming you own code that you don't, a risk SCO took and one which it will end up paying dearly for, it appears, particularly when IBM and Red Hat's counterclaims start to throttle SCO's neck.

Even a little child can figure out, then, that the worst IP risk in the world is to falsely claim IP infringement, something this patent might just help you to do, by my reading. It may be designed as an IP troll enabler, but in the end it may prove an IP troll destroyer. Hmm. Maybe I should root for it. It seems to have undermined SCO rather well.

Still, with SCO you can't be too careful. SCO with a patent is a scary thought. They were trouble enough with copyrights they didn't even own. It's like with toxic waste. Or Ebola. Prevention is better than hoping for a cure.

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