Fighting patent aggression the open source way | Opensource.com

Fighting patent aggression the open source way

Posted 18 May 2010 by 

Rob Tiller (Red Hat)
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One of the most important aspects of the recent trial victory for Red Hat and Novell was a finding that the asserted patent claims were invalid.  This meant that the jury was persuaded by clear and convincing evidence that the patents were improperly granted.  Getting to this decision involved collaboration that demonstrated the power of open source to defend against patent aggression.

For the open source community, it's worth noting with pride that a substantial portion of the prior art used in the case was identified by community members.

Groklaw helped rally support, and drew many prior art contributions. The Open Invention Network's Linux Defenders program posted the patents on its Post-Issue Peer to Patent page, and drew numerous useful contributions as well. In fact, all of the prior art used as prime examples at trial (Apple Switcher, Commodore Amiga 1000, and Chan Room Model), were identified on both Groklaw and Linux Defenders.  Many thanks to all who contributed and showed how open source can  help invalidate patents that should never have been granted. 

Explaining prior art to a jury is itself an art, and our invalidity expert, Dave Wilson, did a great job.  He was smart and engaging, and managed to make some challenging material really interesting.  For those interested in the technical details on invalidity, I'm posting his entire testimony, but here are a couples of excerpts that will give some idea of what he did.

Pages28-29

Q. (By Mr. Lyon) Does this summarize the types of research that you did?

A. Yes. First, because I've been around since the beginning of the personal computer revolution, I had a lot of personal experience with products, including some of the products on the table. I also reviewed lots of publications and user manuals and publications in learned journals and publications in popular magazines. And then I obtained old software and hardware, picking and choosing the parts that fit together that I knew were the correct dates and the correct versions for what we're interested in.  And then I started getting them actually to work and testing them and taking screen shots and figuring out how they worked.
 
Q. Now, as part of your work in this case, have you formed any opinions?

A. Yes.

Q. And what opinions have you formed?

A. Well, I found a number of prior art systems that anticipate each of the claim elements and render  the claims invalid.

Q. When you said anticipate, what do you mean by that?

A. Well, the claim -- elements of a claim are anticipated, if, in a prior art system, you find every feature described in the elements of the claim based on the Court's claim construction, how to interpret the claims.  And those features may be explicitly there. If the claim calls for a display object, you look on the screen and say, okay, I have a display object. If the claims call for some data structure underneath the display object, that may be -- it's not explicitly something you can see on the screen, but it's inherently there. It has to be there for that thing
that you see on the screen to exist.

Pages 44-45

Q. (By Mr. Lyon) Now, you mentioned that you believe that the patent claims are anticipated. Which prior art systems do you think anticipate the claims at issue?

A. In fact, the three shown here I'm going to discuss in more detail. The Amiga system, I'll give you a live demo of that and tell you why I think it anticipates the claims. Under the -- but the Amiga system is special. It anticipates the claims under the interpretation of the claims that Dr. Zimmerman has given. The Chan Room system anticipates the  claims under my interpretation and Dr. Zimmerman's, and so does the Switcher system. So I'll show you an  animation of the Chan Room system or a simulation of it. I'll show you the Amiga live and Switcher live, so you can make up your own minds.

Dave did a live demonstration of Switcher and of the Amiga from the mid-1980s, and he clearly really loved these machines “of a certain age.”  Dave Wilson does not try to hide the fact that he is no spring chicken, and so I'm confident it will not hurt his feelings to share one more excerpt, this one from the cross examination by Mr. Wesley Hill.

Page 164

Q. (Cross by Mr. Hill)  And did you hear Mr. Krevitt tell the jury not only did the products not infringe the patents because they didn't perform the functionality, they were incapable? So the position of the defendants in this case is that their modern, new product cannot perform the functions described in our patents, but these 25-year-old dinosaurs can?

A. I'm not speaking for the position of the defendant. I'm speaking for my opinions regarding these 25-year-old products that would have hurt feelings if you called them dinosaurs.

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3 Comments

stites
Open Source Champion

Dave Wilson did a great job both in getting the obsolete systems to work and in presenting the prior art in terms that the jury understood.

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Steve Stites

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Harry505

I recall a similar patent contest during my days working out of rented offices in the city of London which applied some of the chracteristics you have refered to above. Whilst working within the city of London I had to deal with a number of these enquiries and each of them I recall were very complicated.

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Kerbyz

Isn't this a common problem in the open source community though? By its very nature the fact that these problems occur are directly related to the openess of the code. The same could be applied to the food industry, in the UK there is much concern around the fact that millions of tons of food are wasted as a result of inadequate food labelling, the UK government is currently issuing some guidance around the matter in order to halt the growing trend which sees all this food wasted each year.

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Rob Tiller is vice president and assistant general counsel for Red Hat, where he manages patent, trademark, and copyright matters. He is a frequent speaker and writer on open source legal issues. Before coming to Red Hat, he was a partner with the law firm of Helms, Mulliss & Wicker, PLLC, where he specialized in commercial and IP litigation. He is a graduate of the University of Virginia School of Law, and a former clerk for Justice Antonin Scalia of the U.S. Supreme Court, and Judge

Should I use a permissive license? Copyleft? Or something in the middle?