linux kernel found to infringe patent

Well, this is rather disconcerting. By way of Engadget, I came across this blog entry on FOSS Patents about how a small outfit in Texas, Bedrock Computer Technologies LLC (apparently a non-practicing entity, otherwise typically described as a “patent troll”), has won a $5 million claim for patent infringement against Google.

But the part that is perhaps a bit more worrisome than either the amount or the defendant is the fact that the infringing technology in question is a portion of the Linux kernel. From the entry:

Like I said further above, the question of Google possibly having to pay $5 million (unless the judge decides otherwise or an appeal succeeds) is not really the issue. In addition to money, Bedrock also asked for an injunction, and now that Google has been found to infringe a patent deemed valid by the jury, it remains to be seen whether an injunction will be granted either by this court or on a possible appeal.

The problem is that Bedrock is now in a pretty strong position to collect royalties from other Linux users, especially those utilizing Linux for large server operations.

It’s a bit difficult to tell, based on the claims asserted in the patent, whether or not Google would be able to excise the offending part of the kernel or find some other way to avoid infringing use. I’m sure they can, but if they can’t,  an injunction might have some implications for Google’s server farms and therefore its operations.

In addition, there’s also the possibility that this will impact Android:

Concerning Android, I wouldn’t rule out that maybe some of the hundreds of thousands of Android applications out there use the teachings of the infringed patent claims in one way or another. Even if that is not the case, Google might have to modify the Linux kernel it distributes with Android in order to remove the infringing code because otherwise there’s always the risk of contributory infringement should any app make use of that portion of the Linux kernel.

Needless to say, there could be quite a few companies impacted by this, though I imagine folks in the open source community are starting to look at workarounds, hopefully. It’s difficult to tell from the claim in the patent how fundamental it is or how difficulty or easy it would be to work around.

Perhaps its just me, but sometimes get rather irritated when reading software patent claims. Often, they seem to describe things that already well known or rather mundane. Take for example the claims in this case:

1. An information storage and retrieval system, the system comprising:

  • a linked list to store and provide access to records stored in a memory of the system, at least some of the records automatically expiring,
  • a record search means utilizing a search key to access the linked list,
  • the record search means including a means for identifying and removing at least some of the expired ones of the records from the linked list when the linked list is accessed, and
  • means, utilizing the record search means, for accessing the linked list and, at the same time, removing at least some of the expired ones of the records in the linked list.

2. The information storage and retrieval system according to claim 1 further including means for dynamically determining maximum number for the record search means to remove in the accessed linked list of records.

I’m not trained as a patent agent, so cannot speak with much authority on this, but these claims, to me, seem rather mundane.

patent tides turning?

Alas – been too long, old blog. And I see I have a backlog of 174 partially written entries. Anyway, just a brief mention of a very interesting decision reported by The Denver Post about a rather unusual turn of events in a patent infringement case:

A federal judge recently got so infuriated by the conduct of two highly regarded trial attorneys that he overturned a jury’s $51 million verdict, then ordered the lawyers to pay the fees and costs of the opposing lawyers, a sum that could total several million dollars.

U.S. District Senior Judge Richard P. Matsch sanctioned attorneys Terrance McMahon and Vera Elson of the firm McDermott, Will and Emery, of Chicago and San Francisco, for “cavalier and abusive” misconduct and for having a “what can I get away with?” attitude during a 13-day patent infringement trial in Denver.

Not surprisingly the decision is the subject of much comment on the interwebs, many wondering if this marks the turning point in patent litigation by so-called patent trolls in the US. Still working on finding the judgement itself.

Update – someone posted the decision on slashdot.  Would read it but alas drafting to do…

Patent Lawsuits Catch-Up

A nice summary of the 2006 e-comm lititation in the E-Commerce Times. Not surprisingly, they call 2006 the “Year of the Tech Patent Lawsuits”. An excerpt on one of my favourites:

For better or worse, patent attorneys can thank the NTP v. Research In Motion case for introducing the word ‘patent troll’ into the general lexicon and more fundamentally, highlighting how easy it is for an upstart to challenge an established company. In short, it made patent law sexy.

This and many other recent cases in with which an e-commerce patent has been challenged by a small company has led to a steady call for reform by the software industry, he said.

“At every opportunity, today’s software market-leaders have called for reductions in the power of patents, increases in the difficulty of obtaining patents, and an enforcement bias toward companies that practice the patent.

Some see the proposed reforms as improving ‘patent quality’ while others see them as a way to squeeze out upstart competitors,” he explained

Wow. I never thought I’d live to see the words “patent law” and “sexy” used in the same sentence, much less using the latter to describe the former. I’ve already ruminated about this topic previously so will keep this one short. Links to the articles below.

Part 1 Part 2

Microsoft Patents RSS. Or Tries To. Maybe.

Interesting post on someone else’s blog about Microsoft apparently trying to patent RSS:

The applications, filed last June but just made public yesterday, cover subscribing and discovering what Microsoft calls “Web feeds.” That comes as a bit of a shock to anyone who’s been working on RSS, which has its origins in a format developed seven years ago at Netscape Communications.

Microsoft executive Don Dodge, while not involved in the patent applications, says he suspects the filings were made to defend the company against “patent trolls”. (The filings were made shortly before Microsoft announced plans to build RSS technology into its upcoming Vista operating system.) Still, if granted, the patents would give Microsoft a legal cudgel to wield against other companies using RSS.

Well. They do have a point. Generally speaking, I don’t think patent trolls (those that basically file overly broad patents and then sit on them in a dark cave until someone who actually does something useful, and therefore has deep pockets, unwittingly infringes, at which point the troll comes out and clubs them over the head with a lawsuit or settlement) are a good thing. That being said, its ironic that Microsoft feels the need to abuse the system in the same way as patent trolls in order to proactively defend itself. It will be interesting to see how things turn out.

Unfortunately, I’m not necesarily sure that prior art would necessarily invalidate these patents – after all, most of NTP’s patents were more or less considered invalid, but that didn’t stop them from collecting several hundred million from RIM. And its not like there haven’t been other, um, rather broad patents asserted in the past. You know, like back in 2002, when British Telecom asserted ownership of hyperlinks (which they lost) though of course BT doesn’t quite fit the description of a patent troll.

Then again, it begs the question as to who or what should or shouldn’t be considered a patent troll – for example, its well known that IBM has a huge, gigantic, enormous arsenal of patents at its disposal. IBM also actively licenses these patents (and of course threatens litigation where it believes its rights are being violated), but it isn’t necessarily the case that IBM would otherwise have exploited these patents in what I’ll call “active” business – i.e. making and selling something based on the patent as opposed to primarily seeking royalties and licenses from those do – even though IBM does do so in some cases. So does that make IBM a patent troll? What about Philo T. Farnsworth who, arguably, never started producing televisions but instead sought legal claims against others?

My perhaps overly simplistic take on this is that patent trolls are not inherently the problem, but rather the ability, primarily in the US, to register patents that should have never issued in the first place. If someone comes up with a smart, cool, inventive, and truly novel way of doing something, then they should certainly be free to either produce something with it, or sue the living daylights out of someone else who comes along and infringes the IP even if they don’t (or can’t) make productive use of it themselves. Not actively exploiting a patent is not necessarily tantamount to being a bad guy, IMHO.

It will be interesting to see what happens on this front, if anything. If nothing does, then I may well turn to drafting patents, the first being “Method of Utilizing a Rhythmic Cadence in the Expansion and Contraction of Multiple Muscular Groupings to Faciliate Indefinite Continuation of Metabolism of Cell Structures.” I like the sound of that. Yes indeed.