yes, I recall it, and you may recall that I didn’t agree with your
assessment. The situation with rsync is quite complex, and it is
certainly not nearly as clearcut as you make out.

I have spent considerable time looking at the various patents on
differencing techniques. As is common, I can’t disclose the details of
that analysis (that is one of the problems with this field, and is why
I chose a defused patent and a made-up patent in my talk).

On your second question, my understanding is that there is no need to
‘re-active’ the non-infringement argument. You should discuss with a
patent attorney for real advice, but I think the most likely way it
would go is you would try to prevail using a non-infringement argument
as a summary judgment motion. You would also put your claim
construction arguments at the Markman hearing (if it gets that far).

This is straying outside of my area of expertise however. What I’m
trying to teach is patent analysis from the engineers perspective,
where the primary role is to develop the argument which can then be
presented to a patent attorney. I want to ensure the engineers in the
FOSS community know how to present their knowledge effectively, and to
ensure they know what their role is in the whole patent defense
process.

Cheers, Tridge

You might recall the occasion when I pointed out how rsync infringes Travelling Software’s patent, and how the protocol could be reversed (checksum blocks on the sender, scan on the receiver) to avoid the patent – which actually improves the scalability of file distribution servers because the block checksums can be pre-computed and no server-side computation is needed, just an HTTP server, and even an HTTP cache, including one that can cache partial (HTTP subrange) entities (does such a thing even exist?)

I never understood why you didn’t take that suggestion seriously. Is it because you never actually received an infringement claim from TS? My employer took the possibility seriously, and we even improved on the reversed protocol by using compressor flushing to allow remote differencing of compressed files (as also discussed with you at the time)… The technique is unencumbered AFAIK – we certainly didn’t proceed with our patent application, thank goodness.

On another note, if you’re hit with a patent attack and you clearly don’t infringe the patent being used, yet due to whatever reason it goes to the (hella expensive) “process of discovery”, is there any way you can shortcircuit that process by reactivating a non-infringement argument?

My primary experience has been with the US patent system, and my talk
was based on spending many years working with very experienced patent
attorneys in the US system.

When I write this up more fully, instead of in a short talk, the type
of reference I will use will be this sort of thing:

http://nopr.niscair.res.in/bitstream/123456789/3068/1/JIPR%2014%281%29%207-13.pdf

which explains the doctrine of equivalence quite well, as well as the
ways that the doctrine can be limited by the prosecution history,
prior art and other considerations.

My experience has been that the broader the patent claims look at
first glance, the more that you end up finding they are narrowed by
the prosecution history. This is not a hard and fast rule, it is just
the observation based on the patents that I have had to develop
defensive materials for.

The aim of my talk was to teach engineers what they should do. It
wasn’t a talk aimed at patent attorneys, or even general lawyers. It
is the job of the engineer to put forward the best non-infringement
arguments they can, then it is the job of the patent attorney to shoot
it down based on a judgment of the likelihood of the success of the
defense, usually using as a basis whether a positive result at summary
judgment is likely.

I have had plenty of my non-infringement arguments shot down by patent
attorneys. When that happens I go back and develop better arguments,
or I work out ways to change the code so the weaknesses in the
arguments are removed.

I do not want to stop people from developing non-infringement
arguments because they are afraid of the bogey man of the doctrine of
equivalents. It is not for a lay person to judge whether the doctrine
applies in a specific instance. That requires deep knowledge of the
patent system, and possibly consultation with a patent litigator.

I tried to be careful in my talk to emphasize the importance of
presenting your arguments to a patent attorney. I hope that came
through clearly enough. What I really want to do though is stop the
insanity that currently prevails in the FOSS community where people
stop at the title or abstract of a patent and shout “prior art!” then
think they are done.

If I can get people to start developing non-infringement arguments
instead, then I think we will have moved forward a long way.

Cheers, Tridge

First of all, let me say that I admire your work, especially on Samba

I think your message, as far as you encourage reading and carefully analyzing patents is a *very* important one.

But I’m also afraid you’re dangerously underestimating the power of equivalent infringement. Maybe what you suggest is true for Australia – I don’t know anything about the specifics of that country’s patent system.

However in the E.U. and the EPC member states (especially in Germany, the leading “patent country” under the EPC regime), equivalent infringement is a *very* powerful tool. Probably as many infringers loose their case based on it as on direct infringement. From what I understand, in the U.S and Japan it is a quite serious thing, too.

I understand that it is difficult to say everything important in only 45 minutes (oh my, I suffer from the same problem in almost each of my talks…) but I suggest it’d be important to at least clarify that one would have to check *all* elements of the independent claims and should at least also generally consider what the dependent claims add to that.

Or you’ll have to put more emphasis on the fact that all these suggestions apply only when one is already talking to a lawyer and building a defense in a case.

You’re suggesting that by only checking some elements of independent claims and ignoring dependent claims, we are “safe”.

We are *not*.

The point of my comment is that it is misleading to suggest that by

0. reading patents
1. not caring about dependent claims
2. making sure you’re not using ALL elements of an independent claim 3. you can’t be infringing the claim in question and therefore you’re on the safe side

is misleading at best and probably quite dangerous. That’s one of the
main reasons why software patents are so dangerous and
happily coexisting with them is a much more complex issue than
Andrew’s talk suggests.

You are right that it can mean that patents are more broadly interpreted, but the key thing to understand is that
the doctrine of equivalents is a fragile thing. It can easily be lost, especially through the normal to-and-fro discussion
between the patent office and the patent applicant.

For the patents I deal with, it is common that the patents have been through a very lengthy process of rejection and revival
during the examination process. This may leave very little of the doctrine of equivalents left for the patent, if any. That is
also why I suggested that reading the file wrapper can be helpful, as it tends to narrow the claim construction.

The main idea of this talk was also to teach people how to prepare material for a patent attorney to review. The patent attorney
will be able to offer an assessment of how broad the claims of the patents would be interpreted at a potential Markman hearing.
It is still up to the engineer to present the possible non-infringement arguments, it is then up to the patent attorney
to decide of that defence material is sufficient.

I am planning on writing more extensive “field guide to patent analysis” at some stage, perhaps as a series of blog postings which
would then be collated into a single work. I’ll have more time in that format to do into detail on these sorts of issues.

Teaching patent analysis in a 45 minute talk was always going to be a challenge

Cheers, Tridge

Today, we have a totally different picture with software. Not just a few or some but a great many people do create in their “garages”, and in fact beat out the large “bully” corporations to the distribution punch, all without even considering taking out a patent or even a major loan. This was an unheard of concept when patent was worked into law. [Note that when creation is inexpensive, you find many talented people willing to create for something greater than money.]

Because of the special properties of software, many did not attempt to use the patent system on software; however, the greediest among us eventually realized what was perhaps possible and sought exploitation, and others had to move as well for defensive purposes (in fact, the line between hardware/tangible and software is blurred).

Today, this patent system is being used not as it was intended. [Something like the machine test from Bilski was essentially implied throughout our history with patenting.] As an individual user or small business or even a larger user, I should never have to worry about software patents being used against me. Not only might the law as it stands today back me, but arguments of equity and reasonableness surely do.

Once we move to the domain of attacking small businesses or individuals, we have to revisit our assumptions and also realize that the rough parts of the law can get magnified tremendously.

The SCOTUS hearing on Bilski should have made it very clear that the Justices were very hostile to the notion of the patenting of business methods, even if arguably such would be allowed by the law as written. [Note business method patents also weren't an issue in 1950.]. As I just mentioned, when we deal with material goods that cost a lot and where much time might be needed to distribute and recoup costs (though likely much less than 20 years), we can look aside some problems and even worry about the “poor inventor” being shut down unfairly. When we deal with “inventions” within the purvue of ordinary folks and small firms, we have to realize this system is very broken.

Also, note that copyrights are $0 and this means anyone can participate. We have a much more educated population today, so this $0/auto combo is very useful. We also have much more advanced (cheap) tools and collaboration available today [yes, copyright law needs more revising as well.] Patenting is still not $0 and implicit. This creates a tremendous disadvantage for the small entities (who in the past were assumed not to be participants by and large — obviously, an assumption that doesn’t hold for software today).

Again, as stated in earlier comments above, SCOTUS has ruled software is not patentable and it is a trivial step to load it into a computer. [Except at the hardware interface end] software are algorithms based on an ideal model that transcend physics. Software is already covered by copyrights. Well… I won’t repeat everything I’ve already stated above….

There is at least one *CRUCIAL* mistake however: You are by no means on the safe side of non-infringement if you manage to dismantling just one (or more, but not all) of the patent claims. What still can — and quite often will — be alleged is known as “equivalent infringement”, at least in the U.S. and quite everywhere around the EU.

As the U.S. Supreme Court put it in Graver Tank & Mfg. v. Linde Air Prods (USSC 1950): “One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare form of infringement.”

For starters, even the Wikipedia entry on the doctrine of infringements might be helpful.