Tag Archives: patent infringement

The Report Generator (RPG)

The Report Generator (“RPG”) is a new program from SAFE that automatically generates draft expert reports and declarations for litigation. Reports have several generic sections such as an expert’s experience and descriptions of the technologies involved in the examination, which can be shared amongst reports. By automating the compilation of the generic information into a formatted and structured draft report, the expert can focus on performing the analysis and writing the case-specific arguments.

When using the RPG, an expert selects the type of case, type of report, types of technologies involved, types of tools used, and expert background profiles from a GUI. Then a Microsoft Word draft report is generated that includes all of the selected generic information intermixed with blank sections where case-specific information should be filled in manually.

Currently, many experts either dig through their prior works to find specific descriptions or write them from scratch each time. Maintaining a library of generic report elements is a challenge, especially when multiple experts are involved. RPG acts as a version control system between multiple experts who can upload and download detailed descriptions of experts, technologies, and tools from a central server. The reports are generated according to specific formats, so an entire team of experts can easily produce reports that are consistently formatted with the most up-to-date descriptions.

RPG also keeps synced descriptions of CodeSuite, so it can include the most up-to-date descriptions and pricing of the tools without having to search the S.A.F.E. website or CodeSuite help files.

If you’re interested in trying out RPG, contact our Sales Department.

The Supreme Court rules about software patents and business method patents (kind of)

Many in the intellectual property business have been holding their breath waiting for this case to be decided. Many countries don’t allow software patents at all and most countries don’t allow business method patents. The United States allows both, but the lines, limits, and legality have been changing over the past years. The Court of Appeals for the Federal Circuit (CAFC) decided that Bilski’s patent on a method for handling energy hedge funds was not patentable because patents must be tied to a particular machine or transform an article from one thing or state to another. This “machine-or-transformation test” is probably as confusing to you as it is to the thousand of inventors and attorneys who had to understand it. Bilski appealed to the Supreme Court and on Monday the Supreme Court decided. Bilski loses his patent, but not because of the machine-or-transformation test. Abstract ideas have never been patentable and that’s what Bilski’s patent is, according to the Supreme Court. They also ruled that the machine-or-transformation test is only one test for patentability, not the only test as the CAFC had stated. They also ruled that business methods are patentable, as long as they are not abstract ideas.

Still confused? So are many others. Except for Bilski who now knows for sure that he doesn’t have a patent. Looking at it as an inventor, I see that the court has broadened the scope of patentable materials, which is good, but has made the test for patentability muddier which means I will spend even more time and more money arguing with patent examiners. Looking at it as an expert witness for patent litigation, this ruling is sure to cause a lot more disagreements, which means a lot more litigation, which means a lot more business for me.

An excellent discussion of the Bilski ruling can be found at Patently-O, written by Dennis Crouch, Associate Professor at the University of Missouri School of Law. His regular columns on patents are the best ones available anywhere.

Once again, Congress considers patent reform

With all the uncertainty surrounding politics, there is one thing I can be certain of every year. Congress will attempt, or claim to attempt, to reform the U.S. patent system. Patrick Leahy, the chair of the US Senate’s Judiciary Committee, recently announced that reform is around the corner, just as it has been every year for many, many years. Fortunately that corner is always pretty far away. As you can tell, I’m not a fan of so-called patent reform. Here’s a brief explanation why.

Background

Though each attempt at patent reform is slightly different, the major points are usually the same. Those who support the bill tend to be large engineering companies. Those who do not support the bill tend to be universities, small inventors, and pharmaceutical companies.

Proposed changes to which I object:

  • First to File: Right now the person who invents something (“first-to-invent”) has the rights to the patent. The bill would change the law so that the rights belong to the first person to file the patent (“first-to-file”), as it works in every other country. However, the US is the most innovative country in the world and the rest of the world should look to us not the other way around. This change will favor the large company with lots of lawyers and money to file patents quickly over the small inventors and the universities that don’t have as many resources to file patents. Pharmaceutical companies do have a lot of lawyers and a lot of money, but they spend so much money on research and development that on the small chance that some other company files for a patent first, they have a lot to lose.
  • Additional Post Grant Review: Within 12 months of issuance, a third party can file a cancellation petition based on any ground of invalidity. This means that even after a patent is filed, there is a one year period where the patent owner must defend his patent. Any large company can simply request a review of the patent by the USPTO that the patent holder must fight. This will waste resources of the small inventor. Once a patent is issued it should be valid and should be difficult to overturn. The cost of overturning it should rest with the organization that objects to it, not the patent holder. The problem that reform should really be addressing is making the patent examination more efficient so that good patent applications get issued quickly and bad patent applications get rejected quickly.

Proposed change that I like:

  • Pre-Issuance Submissions: Third parties can submit prior art during examination of the patent as well as a statement regarding the relevance of the art. This means that those organizations that believe that patent is invalid should submit invalidating reasons before the patent is granted, not after. This will be useful only if it is used to speed up the patent process, not slow it down. I’m in favor of anything to speed up the process and make sure that innovative inventions are issued patents quickly and poor inventions are detected and rejected quickly.

Proposed changes that about which I don’t have enough information
to evaluate:

  • Damages: When a party is found to infringe on a patent, the damages are limited based on the importance of the invention to the infringer’s overall business.
  • Patent Litigation Venue: Some areas of the country are believed to be more friendly to plaintiffs (e.g. the Eastern District of Texas). This provision limits the ability to bring a case in a district unless there is some legal connection to that district.

There are other provisions about which I don’t hold strong opinions and don’t seem particularly controversial, but almost everyone involved
with patents has strong opinions about patent reform. It will be interesting (and possibly scary) to see what, if anything, eventually happens.

Who really invented the computer?

The digital computer is usually credited as the invention of two professors at the University of Pennsylvania, J. Presper Eckert and John Mauchly. Funded by the United States Army, the ENIAC computer was designed to calculate tables for launching artillery shells accurately in World War II, but was not completed until after the war in 1946. Unlike earlier computers that had a fixed purpose, ENIAC (meaning “Electronic Numerical Integrator And Computer”) could be reprogrammed to handle many different purposes. But were Eckert and Mauchly really the pioneers of today’s modern digital age?

Actually no. The real inventors of the digital computer were physics professor John Atanasoff and his student Clifford Berry who created the first digital computer in a laboratory at Iowa State College. The ABC (“Atanasoff-Berry Computer“) was built in 1939, yet by the time of ENIAC’s introduction to the world, the ABC had been forgotten. What had happened? World War II broke out and  Iowa State as well as Atanasoff and Berry simply didn’t realize the power of what they had created. Atanasoff was called up by the Navy to do physics research, eventually participating in the atomic bomb tests at Bikini Atoll.

When Atanasoff returned to Iowa State he found that his invention was gone to make room for other equipment—because the ABC was built piece-by-piece in the laboratory, it was too big to move out and so it had to be dismantled. Iowa State had decided that a patent was too expensive and so never filed one. John Atanasoff went on to gain recognition for a number of inventions involving physics, but the ABC was mostly forgotten.

In the 1970s there were a handful of companies that saw the great potential in the electronic computer. Sperry Rand Corporation, which was formed through a series of mergers and acquisitions including the Eckert–Mauchly Computer Corporation, held U.S. Patent 3,120,606 for the digital computer. In 1973, Sperry Rand sued Honeywell, Inc. and Honeywell reciprocated. Thus began one of the most important intellectual property cases in history.

During the research for this case, Honeywell found out about John Atanasoff and the ABC, which became pivotal information. The case was tried for 7 months after which Judge Earl R. Larson handed down his decision that stated, among other things, that the Eckert-Mauchly patent was invalid.

Some people have disputed this finding, arguing that this was a “legal” finding or a “loophole” or that a lawyer or a judge simply couldn’t understand the complex engineering issues involved. Here’s my take on this.

  1. Both sides had a lot of time, and access to technical experts, to make the best case they could.
  2. So much was at stake, and a huge amount of money was spent to bring out the truth. Both sides had very significant resources. If a case with this much at stake could not convince a judge after seven months, then there is little hope for any IP case.
  3. Evidence was found and witnesses verified that John Atanasoff had attended a conference in Philadelphia where he met John Mauchly and described his work. He then invited Mauchly out to Iowa where Mauchly spent several days examining Atanasoff’s computer and many late nights reading Atanasoff’s technical specifications. Letters were produced, signed by Mauchly, that thanked Atanasoff for his hospitality and for the tour of his amazing invention.
  4. Mauchly testified at the trial. He admitted that he had met Atanasoff and eventually admitted that he had examined the ABC and read its specification.
  5. Mauchly and Sperry Rand Corporation were challenged to produce a single piece of evidence that Mauchly or Eckert had written about or researched digital electronics before Mauchly’s meeting with Atanasoff. The best Mauchly could do was produce a circuit for a model railway flasher that he claimed was a binary counter—it counted from 0 to 1 and then back to 0.

In fact, it became clear that Mauchly and Eckert attempted to claim much more credit than they deserved and tried to deny credit to others. They had actually greatly improved on Atanasoff’s original design. Had Eckert and Mauchly been more humble, had they added Atanasoff’s name to their patent, had they patented their own improvements instead of the entire invention, they may have given Sperry Rand the most powerful IP in technology history. Instead the invention of the computer entered the public domain without restriction, and the rest is history…

For a good book on the subject, read The First Electronic Computer: The Atanasoff Story by Alice R. Burks and Arthur W. Burks.

Interesting software IP cases of 2009

Here is my list of the most interesting software IP cases of 2009,
in chronological order:

What to look for in an expert?

I recently came across a study in the Journal of the American Academy of Psychiatry and Law out of the The University of Alabama entitled “Credibility in the Courtroom: How Likeable Should an Expert Witness Be?” To be honest, I’m not sure I understand their conclusion:

The likeability of the expert witnesses was found to be significantly related to the jurors’ perception of their trustworthiness, but not to their displays of confidence or knowledge or to the mock jurors’ sentencing decisions.

Reading the paper doesn’t make it a whole lot clearer for me, and I think their mock trial setup is a bit contrived, particularly since the jury consisted of psychology students, a demographic that you’d be unlikely to find on a real jury. Also there were only two expert witnesses for the comparison. To their credit, they discuss these potential shortcomings. I do think, however, that the paper points out something (that may have already been obvious)—there is more to being an expert witness than just being correct. Personality and presentation are strong factors.

On the other hand, I feel that this subjective aspect should be minimized. Experts need standards and measurable quantities whenever possible. Before I began developing the concept of source code correlation, the way software copyright infringement and trade secret theft cases were resolved was to have two experts give contrary opinions based on their years of experience. The judge or jury would tend to get lost in the technical details, a strategy purposely employed by some experts and attorneys, and a judgment would depend on which expert appeared more credible.

Instead, I decided to expand the field of software forensics and made it my goal to bring as much credibility to the field as DNA analysis, another very complex process that is well accepted in modern courts. I still believe that an expert’s credibility and likeability will always be factors in IP litigation, but that the emergence of source code correlation and object code correlation provide standard measures that bring a great deal of objectivity to a lawsuit’s outcome.

SAFE Corporation is looking for great ideas

There are a lot of unanswered questions about source code, and we want to work with you to figure them out. We realize that currently accepted algorithms for analyzing, comparing, and measuring source code leave a lot to be desired in many cases. Also, there are a lot of techniques that have never been studied on large bodies of modern code. For example, measurement techniques developed in the 1970s were probably tested on assembly languages and older programming languages like BASIC, FORTRAN, and COBOL. Do they still hold on modern object oriented languages like Java and C#?

If you have a research idea relating to code analysis, and you can use the SAFE tools, let us know. Email Larry Melling, VP of Sales and Marketing with your ideas. If they pass our review process you’ll get free licenses to our tools, free support, and help getting your results published. This could be the beginning of a beautiful friendship.

Is software (really) patentable?

Should software be patentable? That’s been debated ever since the dawn of software. Some countries, like India, say definitively no. In Japan you can only patent non-obvious software that solves technical problems, not business problems (of course, if it’s obvious, it can’t be patented anyway, so that seems redundant). In the United States, just about all software was patentable starting with the decision of the US Federal Circuit Court in State Street Bank & Trust v. Signature Financial Group in 1998. Then earlier this year, the US Court of Appeals for the Federal Circuit put limits back, by requiring a “machine or transformation” test. Software can be patented if it is implemented on a “particular” machine or it transforms an article from one thing or state to another. So what does that mean exactly? No one is quite certain, so the US Supreme Court decided to take up the appeal this fall and rule on it.

There are a number of arguments for and against software patents, but only two really seem reasonable to me.

Against

Laws of nature, mathematical formulas, and abstract ideas are not patentable. Some people against software patents say that software simply comprises mathematical formulas. Although I understand the argument, I don’t subscribe to it since programs are actually steps in a process that consist of mathematical formulas and lots of other things (like printing messages to the screen and reacting to clicks of a mouse).

For

Methods have always been patentable, and software is a method. This makes sense to me. I don’t see why one should differentiate between a method for cutting a pattern in a piece of cloth if the method is performed by gears and levers or transistors and electric current (both of which are not controversial) or lots of transistors comprising a microprocessor and memory.

For other opinions about patenting software, here are some good references.

Software patents – good or bad?

The idea that software can be patentable is a fairly recent one, and still a somewhat controversial one. The US Patent and Trademark Office (USPTO) considers patents to cover processes, machines, articles of manufacture, and compositions of matter but not scientific truths or mathematical expressions. In the 1970s, the USPTO gave no protection for an invention that used a calculation made by a computer. In the 1980s, the US Supreme Court ruled on the case Diamond v. Diehr where a process implemented one of its steps using a computer program. This forced the USPTO to accept that some computerized inventions are patentable. In the 1990s, the US Federal Circuit Court ruled in State Street Bank & Trust v. Signature Financial Group that almost all software is patentable. Given that methods have always been patentable, this seems to be a reasonable conclusion because software is a method implemented on a computer.

The patentability of software varies from country to country. In the United States any kind of software is patentable, though the recent case of Bilski v. Doll requires that a patent meet the “machine-or-transformation test.” In other words, the patent must explicitly state that the method is implemented on a machine or must transform data in some way. Just this week, though, the Supreme Court agreed to hear the Bilski case, so stay tuned for further changes to U.S. patent law.

In the European Union software that solves technical problems is patentable but not software that solves business problems. In Japan software is patentable if it solves technical problems in a non-obvious way (though non-obviousness is a requirement for patentability of an invention in any country). In India, a change was proposed to the patent system to allow software patents, but it was killed by the Indian Parliament in April 2005. In Australia, like the United States, any software that solves technical problems or business problems is patentable.

There are a number of arguments put out by a number of groups for and against software patents. The debate is heated, and many groups are pushing for laws in the United States to disallow software patents, among several other proposed “reforms.” My own opinion is that the United States is the most innovative country in the world and the patent system, in effect since the founding of this country, needs only minor tweaking. The best solution would be to make patent examination more efficient in order to quickly eliminate bad patent applications and quickly issue good ones.

This is my blog on software intellectual property

Welcome to my blog. I’m the founder and president of SAFE Corporation. I’ll be regularly updating this blog with useful and interesting information about software intellectual property and software analysis. I’ll be posting facts and current events relating to IP litigation, software plagiarism detection (also known as copyright infringement), trade secret theft, and patent infringement. At SAFE Corporation we’re developing unique ground-breaking tools for analyzing, measuring, and comparing software — of course I’ll be updating you on all the cool new tools.

So stay tuned and feel free to comment.