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.

amazon one-click patent – federal court decision

If I were to pick a subtitle for this post, it would probably be “Bilski, Canadian style”.

One of my colleagues (Thanks Peter!) was kind enough to mention that the judgement of the Federal Court of Canada (PDF) was released earlier today, so I set aside a few minutes to go through it. Admittedly, I haven’t been following the case all that closely.

In any event, rather than slogging through all 35 pages yourself, the following is a rather abbreviated summary of the decision:

  • After quite a bit of back and forth on the application process, the Commissioner of Patents ultimately rejected Amazon’s patent application in 2009
  • The Commissioner rejected Amazon’s patent on the basis that it was “non-patentable subject matter”, primarily for any one of three reasons:
    • the claimed invention was not physical in nature nor did it result in some change or effect on physical objects;
    • the claims were claims on business methods, which the Commissioner concluded were not patentable; and
    • the claims were not “technological” in nature (meaning that they could be used to address a technical problem) and therefore not patentable.
  • The Federal Court disagreed with each of the Commissioner’s reasons:
    • the Court was of the opinion that the physicality test was too restrictive – instead, the proper test was whether or not the claims had “practical application” – i.e. something that results in a “change in character or condition” and found that Amazon’s claims could meet that standard through Amazon’s customers “manipulating their computer and creating an order”;
    • the Court did not agree that business methods were non-patentable under Canadian law; and
    • the Court did not agree that there was a “technology” test for patentability under Canadian law.

On the first point relating to physicality, the Court’s comments seem to echo, to some degree, the Bilski decision by the US Supreme Court and its rejection of the “machine or transformation” test.

Although the Federal Court did not agree with the Commissioner’s rejection of the patent, it also did not affirm its validity nor did it grant the patent. Instead, it sent back the patent for re-examination.

Of course, there is quite a bit more in the decision itself, including riveting details on novelty, analyses of the process used to assess patentability, elements of that process versus application of same to the patent itself, etc. etc. So consider the bullet points above a gross oversimplification and use accordingly.

us supreme court releases bilski decision on patents

The US Supreme Court yesterday released its decision on the Bilski v. Kappos case.

The bottom line:

Business methods can still be patented in the U.S.

The summary:

Bilski attempted to patent a method of hedging energy commodities, primarily in the form of a mathematical formula. The US Patent Office rejected the application. The rejection was upheld by the Board of Patent Appeals and the Court of Appeal for the Federal Circuit.

Most notably, the Court of Appeal rejected the previous test which had enabled the claiming of business method patents (the State Street Bank & Trust case), instead holding that “a claimed process is patent eligible [only] if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing”.

Needless to say, this new test would have put a bit of a damper on business method patents.

The Supreme Court did not agree with the Court of Appeal. It held that the “machine or transformation” test is not the only test for patent eligibility for a process and that business method patents are in fact permissible under the Patent Act.

That being said, they nonetheless agreed with the Court of Appeal that Bilski’s patent should be rejected, not because it failed to meet the “machine or transformation” test, but rather because it was an attempt to patent an abstract idea rather than a business method. The Supreme Court affirmed that abstract ideas are not patentable.


Many like the EFF seem to be disappointed, but from a jurisprudential perspective the judgement makes sense to me. The Supreme Court’s rationale was that courts “should not read into the patent laws limitations and conditions which the legislature has not expressed” and there was no reasonable basis on which the term “process” had to be specifically tied to a machine or the transformation of an article.

In other words, it’s not the job of the courts to make up new stuff when it comes to the law – their job is only to interpret the law correctly. And if there’s any issue with the Patent Act, then it should be dealt with through legislative change rather than a judicial decision.

Perhaps not quite the interventionist approach that some might have been hoping for.

So, as the EFF notes, all of you out there that have a glimmer of inspiration on how to make your fortune from, for example, a system for reserving toilets, (or suing others who come up with the same thing but didn’t apply for a patent) can still pursue that dream.

Bilski v. Kappos (PDF)

bilski going up to the supremes

As most readers probably know, Bilski was a rather important case on patent law in the US. There have been many, many, many analyses and commentaries on the impact of the decision of the federal circuit court which would significantly limit the patentability of business methods. In short – patents would only be available if embodied within a machine or transformed one tangible thing into another.

According to SCOTUSblog, the decision is being appealed:

“This case,” the petition’s opening line says, “raises the most fundamental question in patent law: what can be patented? Are patents only for manufacturing processes that are tied to a particular machine or produce some physical transformation? Or do patents also embrace modern business procsses that do not depend on a particular machine or device?”

First time since 1981 since the Supreme Court has considered this, according to SCOTUSblog. Patent agents everywhere await with bated breath.

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…

ibm withdraws patent claim

Interesting release from IBM on Bob Sutor’s Open Blog:

IBM has put into the public domain and withdrawn its application for patent number US2007/0162321 – Outsourcing of Services. This patent application covers analyzing work flows, skills, economic costs, etc.

Now, I’ve not reviewed the application at all, but a patent for outsourcing? My first thought echoed the first comment made on the entry, to wit:


October 4th, 2007 at 6:13 pm

Wow, I thought this was a joke. Apparently not.In gratitude I’ve decided not to patent Money for Old Rope.

Where did I put that patent application on using written documents to evidence legally binding agreements?

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

Celebrity Patents!

This comes by way of Engadget. In short, an interesting story about a bunch of patents filed by celebrities. Some of them are interesting, but not that surprising (e.g. Eddie Van Halen creating a support for a guitar). Others, though, leave me scratching my head. Like these:

Makes you wonder, doesn’t it?