Philip Brooks' Patent Infringement Updates

Barracuda Networks Enlists Open Source Community In Trend Micro Patent Fight

The following is excerpted from Thomas Claburn's February 6, 2008 article at InformationWeek:

Barracuda Networks, a maker of e-mail and Web security hardware, has sent out a distress call to the open source community to save it from patent litigation at the hands of Trend Micro, a competing security company. On Tuesday it asked for help from anyone who can provide information that can invalidate Trend Micro's patent on gateway antivirus scanning.

Barracuda Networks has framed the dispute as an attack not only on itself but on the open source community and the free Clam AntiVirus software by "commercial patent holders attempting to unjustly hinder the free and open source community," as Dean Drako, president and CEO of Barracuda Networks, put it in a statement issued on Tuesday.

The patent in question, U.S. Patent No. 5,623,600, was filed in 1995. Fortinet, another security hardware vendor, was accused of violating the patent in 2004 and settled with Trend Micro in early 2006. Sweeny from Trend Micro confirmed that both Symantec (NSDQ: SYMC) and McAfee have licensed the patent as well.

"They're accusing us of importing open source software," said Drako. "How can you accuse someone of importing open source software? It's written everywhere." Nonetheless, Trend Micro appears to be doing just that it. If it prevails, Drako predicts trouble for companies that rely on open source software. "If Trend Micro is successful in claiming that we import Clam AV, and therefore that the ITC is the appropriate court, I could go claim that Linux is imported by IBM (NYSE: IBM) ... I could start suing them in the ITC. It could reinvent how patent litigation is done for open source software. It's a pretty bold move."

Read the full article here.

Accenture Files Patent Suit Against Guidewire

Anthony O'Donnell reporting yesterday, December 19, 2007, for Insurance & Technology writes:

Yesterday afternoon Accenture filed a lawsuit alleging that San Mateo-based Guidewire Software, a rival in the insurance claims software market, has infringed the U.S. patent protecting the Accenture Claim Components solution and has misappropriated trade secrets related to the design, coding and implementation of the Accenture software. In a preliminary response issued late last night, Guidewire denied the allegations and has followed up with further statements refuting the charges made by Accenture.

An Accenture statement referred to the company's belief that "Guidewire willfully and deliberately developed, manufactured, used and sold ... computer software and services used for insurance claims management that are covered by Accenture U.S. Patent 7,013, 284." Accenture also claims that Guidewire "willfully and maliciously obtained Accenture trade secrets without authorization" as part of an ongoing effort to compete against Accenture in the claims software market.

Accenture's allegations are based on what partner John Del Santo characterizes as good reason to believe that Guidewire had access to Accenture's confidential information. "We carefully compared our U.S. patent to the information available about the Guidewire system and concluded that they not only infringed the patent but that they must have gotten access to our trade secrets at a client somewhere," Del Santo says. "We believe that their product development trajectory was just too fast to result in the kind of product that they have, which looks fairly similar to ours. From our view that's too much of a coincidence, so there has to be a trade secret violation here, in our opinion."

Will this survive a Rule 11 challenge?

Intellectual property suits have been common in the software industry as a whole but not in the insurance software market, according to Light. "This lawsuit is a sign that there is a new front in the intellectual property wars: software that makes insurance companies better at executing their core functions," he comments.

From an industry perspective the Accenture/Guidewire suit is significant for several reasons, according to John MacPete, a patent litigator at Locke Lord Bissel & Liddell LLP (Atlanta). "First, I think it's a notice to the industry that they need to look at their software to determine whether they should have infringement concerns about the 284 patent or, frankly, any other patents that may be out there that are similar in nature to the 284," he comments. "Second, I think it's a notice to companies that either have licensed software or are in the process of licensing software in the insurance space to carefully examine or negotiate for broad non-infringement representations and indemnity language in their contract for third party infringement claims from their software providers."

Read the full article here.

Your Design Is Infringing On My Patent

Paul Marshall's article titled, "Your Design Is Infringing On My Patent: The Case Against User Interface and Interaction Model Patents and Intellectual Property" appears at UXmatters.  UX means "user experience."  Mr. Marshall writes:

The current US patent system—in combination with the litigious nature of many high-tech companies—make it likely that, somewhere down the road, something you design might incur the wrath of a patent troll.

The sad fact is that companies often file for and the US government actually grants patents for user interface and interaction design “innovations” that are either strikingly obvious or have appeared before in other systems—that is, when prior art exists, as someone in the field of intellectual property would say. This means, as user experience practitioners, we are at risk of litigation every time we design an application. Each time we fire up Visio or Photoshop, create a new design, then put it out into the world, there’s a good chance we’re infringing on someone’s patent.

In their groundbreaking 1993 shareware e-book “Task-Centered User Interface Design,” Lewis and Rieman provided some guidelines for designers to consider when deciding how to meet users’ needs by providing user interface and interaction elements. They grouped their recommendations into four categories labeled “things you certainly can copy (unless the rights have been sold),” “things you probably can copy,” “things you probably can’t copy,” and “things you certainly cannot copy (unless you get permission).” What’s interesting are the things they cited as probably safe to copy:

• Sequences or arrangements of menu items, commands, screens, and so on—You can copy their order if, in the original application, the designer clearly ordered them to improve their usability. For example, if the order were alphabetical or most-commonly-used-item first, or if there were only one way or a very few other ways items could be arranged.
• Obvious icons, ideas, commands, menu items, or words—You can copy words or graphic images when they are such obvious choices for the functions they represent that usability would be reduced if you used other words or images. For example, using the word print for printing or an icon depicting a mouse device that lets users select mouse options.

While these guidelines have been extremely useful to practitioners over the past dozen or so years, I fear that those items I’ve cited above likely now belong in the “things you probably can’t copy” category. The USPTO has issued too many overly broad and obvious patents on user interface designs for me to feel confident following Lewis and Rieman’s guidance anymore.

Read the full article here.

Open Source Developers Must Chart Clear Defense in the Patent Wars

Dean Drako, co-founder, president and CEO of Barracuda Networks, wrote on November 2, 2007 at LinuxWorld:

The United States patent and legal system has turned into a battlefield where companies and technology developers can be attacked. Open source and free software developers have historically ignored this secondary battlefield, focusing instead on the primary battlefield of development and proliferation of their project. This omission leaves open source projects and individual developers vulnerable to patent infringement lawsuits. By creating its own defensive patent portfolio as commercial companies do, the open source community can arm itself for this battle.

...the development of prior art in the open source community is a tremendously powerful tool, and it is crucial that source code repositories with comments and details be maintained. However, although such prior art can be successfully used to invalidate patents, it still takes money to mount the legal defense. In the commercial software environment the only really good defense against patents is to develop your own patent portfolio, as it is the threat of mutual self destruction that keeps most patent lawsuits at bay.

There are primarily two sources of patent attacks: 1) Competitors suing to obtain royalties or stop competition, and 2) Patent trolls suing to obtain money. The patent troll can come in the form of a company that has decided to augment its business with patent licensing or in the more traditional form of an entity whose primary business is patent suits and licensing for profit. The open source and free software communities' biggest threats are the lawsuits from competitors aiming to stop the proliferation of open source software. Patent trolls are typically less interested in open source developers and projects, because only minimal amounts of money are available given the low revenue of most open source projects.

Competitors to open source projects, however, may be very interested in stopping or hindering the development and adoption of free or open source software. In addition to suing companies utilizing open source software, it is not inconceivable that an individual developer might inadvertently infringe a patent, widely distribute the code on the Internet, and ultimately be held personally liable for tremendous damages by the patent owner. Such a tactic might be viewed as a strong deterrent to continued free or open source development.

Though filing patents may seem counter to the mindset of free and open software, the open source community can model what many commercial companies have learned is a necessary task and develop its own defensive patent portfolio. If individual open source developers begin to patent their inventions, and if these patents are assigned to a nonprofit institution with an appropriate charter, the broader open source community could draw from this patent pool to create an arsenal for legal battles. This defensive patent portfolio would be an effective deterrent, creating a cold war truce.

Read the full article here.

Linux Creator Calls GPLv3 Authors 'Hypocrites'

Paul McDougall's post yesterday, July 10, 2007, at InformationWeek's Open Source Weblog states:

Linux creator Linus Torvalds said the authors of a new software license expected to be used by thousands of open source programmers are a bunch of hypocrites and likened them to religious fanatics -- the latest sign of a growing schism in the open source community between business-minded developers like Torvalds and free software purists.

In an online post, Torvalds slammed executives at the Free Software Foundation, likening their mind-set to that of "religious fanatics and totalitarian states."

The Free Software Foundation last month published a revised version of the General Public License, which governs the use of many open source programs.

Among several provisions viewed by many as anti-business is a GPLv3 rule forbidding commercial users of open source software from prohibiting customer modifications.

The provision was aimed in part at digital recorder manufacturer TiVo, which restricts customers from tampering with the software-based digital rights management technologies built into its boxes. The Free Software Foundation calls such policies "Tivoization" and, in a recent press release, referred to them as "malicious."

In a posting on the Linux kernel mailing list, Torvalds said the Free Software Foundation's position on Tivoization is one reason he won't license his Linux kernel under GPLv3. "The GPLv3 doesn’t match what I think is morally where I want to be," Torvalds wrote. "I think it is okay to control people's hardware, I do it myself," he continued.

TiVo recently warned investors that GPLv3's anti-Tivoization rules may weaken its ability to include future digital rights management technologies in its set-top boxes. DRM is crucial to TiVo's ability to strike deals with content partners concerned about illegal duplication of their products.

Last week, Microsoft put a freeze on distributing any open source software licensed under GPLv3 through its alliance with Novell. Microsoft is believed to be concerned about a GPLv3 provision that forbids open source distributors from suing open source users. Microsoft claims Linux and other open source programs violate its intellectual property rights and may be looking to preserve its right to take legal action against them.

Read the full post here.

Three Scenarios For How Microsoft's Open Source Threat Could End

Charles Babcock wrote in the May 21, 2007 print issue of InformationWeek:

Microsoft executives are escalating their open source rhetoric, asserting that 235 company patents are being infringed by the Linux operating system, OpenOffice desktop applications, and other open source code.

This time, Microsoft's remarks go well beyond an off-the-cuff comment from CEO Steve Ballmer. General counsel Brad Smith and his deputy for intellectual property and licensing, Horacio Gutierrez, made the assertions in an interview with Fortune magazine, then Microsoft followed up with press releases to underscore its point.

In November, Microsoft struck a two-way deal with Novell that protects Novell's customers from any potential patent claims by Microsoft while giving Microsoft customers patent protection from Novell. Microsoft has made clear since then that other Linux users, especially those of Red Hat, lack protection from any patent claims it might eventually make. Red Hat last week assured customers they could "deploy Red Hat with confidence."

Where does Microsoft take this saga next? Critics note that the company won't say which of its patents are being violated. "The whole, 'We have a list and we're not telling you' itself should tell you something," says Linus Torvalds, Linux's lead developer. Microsoft's ambiguity, Torvalds argues, prevents Linux developers from writing around a violation or disproving a bad claim.

Microsoft, however, must proceed with caution. Implicit in its deal with Novell is the subtlety that Microsoft products may be violating the patents of other technology companies. Says Jim Zemlin, executive director of the Linux Foundation: "Microsoft has to be careful about what it starts because it doesn't know where it will end."

We don't either. But here are three plausible scenarios.

• SCENARIO 1: HANDSHAKES ALL AROUND
• SCENARIO 2: COMPETITION SNUFFED OUT
• SCENARIO 3: IT BLOWS UP IN MICROSOFT'S FACE

Read the details of the scenarios here.

Pick Your Open Source Poison: Microsoft's Patent Claims Or GPLv3

Charles Babcock wrote in the June 11, 2007 print edition of InformationWeek:

After months of debate, the release of the next version of the General Public License, under which most open source products are issued, is imminent. The Free Software Foundation plans to issue GPL version 3 in its final form June 29. As the revised license nears completion, however, new doubts are being raised over whether it's headed in the right direction.

On one front, Microsoft continues to challenge the legitimacy of Linux and other open source products, claiming they violate hundreds of Microsoft patents. Microsoft is offering patent-protection deals to Linux distributors to shield them from any future lawsuits it might file. Last week, it disclosed pacts with Linux distributor Xandros, which represents less than 1% of the market, and Korean manufacturer LG Electronics, which embeds Linux in some of its devices. The deals have the same "we won't sue your customers" provision of an earlier arrangement with Novell.

Mark Radcliffe, an intellectual property attorney with DLA Piper, portrays such arrangements as relatively meaningless. If Microsoft's patents had teeth, he says, more major Linux vendors would be forced to the table.

As if to reinforce that point, Red Hat last week reaffirmed its resistance to any such agreement. Open source software "should not be subject to an unsubstantiated tax that lacks transparency," a company spokesman said by e-mail.

Last week, new doubts were voiced not by Microsoft, but by William Hurley, chief architect of open source strategy at BMC Software and chairman of the Open Management Consortium, a group committed to producing open source IT infrastructure management software. GPLv3 is designed to forestall Microsoft's patent deals, restrict digital rights management, and ban restrictions that sometimes get placed on open source embedded in hardware. Maybe GPLv3--intended as a license that grants freedom to developers--is trying to do too much, suggests Hurley.

Read the full article here.

IT Companies Pile on Patents in the US

I recently came across the Lightbulb blog published by Dilanchian in Syndey, Australia.  In an April 2007 post, Noric Dilanchian provided the following statistics on business system and software patent applications:

The US Patent Office received 330 business system patent applications in 1995. This increased to 2,800 in 1999, 7,800 in 2000 and an estimated 10,000 in 2001. These figures come from "Patenting of Business Systems" a July 2002 Issues Paper by the Australian Government's Advisory Council on Intellectual Property.

Turning to software patents, using information derived from patent classification data published in August 2005 by the US Patent Office, William R. Haulbrook of Goodwin Procter, a US law firm, has estimated that the number of software patents issued per year in the United States increased almost every year since 1990. The number for 2004 was five times the number issued in 1990 (about 11,600 versus 2,400 patents).

Read the full post here.

Head Of Patent Peer Review Deflects Infringement Concerns

CNN Money.com reported yesterday, March 28, 2007:

Initial testing for an online peer review of up to 250 patent applications is set for next week even as the program's director deflects fears that participants could be liable later for willful patent infringement.

IBM Corp. (IBM), Microsoft Corp. (MSFT) and other technology innovators have funded and agreed to public review of some software patent applications filed with the U.S. Patent and Trademark Office. Yet some engineers, attorneys and others worry whether comments on a rival's application could make them vulnerable later to willful or deliberate infringement charges.

The potential for triple damages when willful infringement is proven creates " a lot of fear," says Marc Williams, an official in IBM's governmental programs office.

Beth Noveck, the program's director, insists deliberate infringement laws apply to patents, not applications. She's a professor and director of New York Law School's Institute for Information Law & Policy, which is running the project.

General Electric Co. (GE), Hewlett-Packard Co. (HPQ), Oracle Corp. (ORCL) and Red Hat Inc. (RHT), which helped fund the project, are also participating in the program aimed at improving patent reviews. The goal is to provide government examiners with the most current and informed opinions of professional, academic and everyday experts, Noveck said earlier this week at a forum to discuss the project.

The pilot is designed for the scientific community to compile a "top 10 list" of commentary and relevant information on an application for patent examiners, Noveck said. She hopes to launch the pilot by June 1.

Read the full article here.

Ben Klemens on Software Patents

Peter Zura writes at his 271 patent blog:

Ben Klemens, author of "Math You Can't Use," is a guest scholar at the Center on Social and Economic Dynamics at the Brookings Institution, where he writes programs to perform quantitative analyses and policy-oriented simulations. He also consults for the World Bank on intellectual property in the developing world and computer-based simulations of immigration policy.

Ben is also an aggressive critic of software patents (who has previously butted heads with the 271 blog on this topic), and has just published a working paper titled "Drawing the Line: The Rise of the Information Processing Patent." The paper highlights many of the points brought up in his book, and provides some updates on recent developments in software patents.

Ben's work is important because he is one of the few critics that does a decent job at times in dissecting many of the problems facing the software industry in light of patents (as opposed to IP anarchists Eben Moglen and Richard Stallman, who propose banning software patents and other IP entirely). While I do not agree with many of his conclusions (e.g., software is math and is therefore unpatentable), his papers are often thought-provoking and well-written.

The timing of Ben's most recent article is interesting, since the criticism of software patents has now served as a catalyst for other industry and business members to call for sweeping reforms that would limit patentable subject matter and restrict patent rights across the board. While people have reflexively equated patents with a "pro-business" outlook, this has started to change. As Professor Wegner stated in his recent post on Patently-O, in today's business climate, being "pro-business" means to some people that you are "anti-patent."

Read the transcript from Brookings Institution symposium "Software and Law: Is Regulation Fostering or Inhibiting Innovation?"

Patent Trolls: The paper addresses "patent trolls" and also provides a revised definition of "patent troll," which, in my opinion, is more accurate: "a patent troll is one who unfairly takes advantage of informational asymmetries by suing independent inventors who are ignorant of the field of patents in which the troll works."

Read Mr. Zura's full article and access the links here.