Coder Accuses IBM of Patenting His Work 249
ttsiod writes "Back in 2001, I coded HeapCheck, a GPL library for Windows (inspired by ElectricFence) that detected invalid read/write accesses on any heap allocations at runtime — thus greatly helping my debugging sessions. I published it on my site, and got a few users who were kind enough to thank me — a Serbian programmer even sent me $250 as a thank you (I still have his mails). After a few years, Microsoft included very similar technology in the operating system itself, calling it PageHeap. I had more or less forgotten this stuff, since for the last 7 years I've been coding for UNIX/Linux, where valgrind superseded Efence/dmalloc/etc. Imagine my surprise when yesterday, Googling for references to my site, I found out that the technology I implemented, of runtime detection of invalid heap accesses, has been patented in the States, and to add insult to injury, even mentions my site (via a non-working link to an old version of my page) in the patent references! After the necessary 'WTFs' and 'bloody hells' I thought this merits (a) a Slashdotting, and (b) a set of honest questions: what should I do about this? I am not an American citizen, but the 'inventors' of this technology (see their names in the top of the patent) have apparently succeeded in passing this ludicrous patent in the States. If my code doesn't count as prior art, Bruce Perens's Efence (which I clearly state my code was inspired from) is at least 12 years prior! Suggestions/cursing patent trolls most welcome."
Re:ludicrous (Score:5, Interesting)
Didn't the USPTO some years ago stop checking the validity of patents completely, leaving it to the courts to decide whether a patent is actually valid?
That means in this particular case, the patentholder just wasted a lot of money, as the submitter's code is clearly prior art. It also raises the question why patent applications are still so expensive if the patent office doesn't actually do anything anymore. (Answer: to increase profits, of course!)
Re:Answers and Suggestions and Further Questions (Score:4, Interesting)
Now, assuming that it does not satisfy you as an explanation, you could indicate that you are going to pursue legal action (the I in IBM stands for International) but you are willing to settle and sign away your rights for some relatively nominal fee.
What rights does he have to sign away? He didn't patent anything. He just published prior art under an open source license. So everybody already has the right to use this technology for free. IBM acquired a useless patent.
At least, that's as far as I understand patent law. Maybe someone will correct me if I'm wrong.
Re:Answers and Suggestions and Further Questions (Score:5, Interesting)
Patents (like registered trademarks, and unlike copyright) are assumed enforcable unless proven otherwise. They're not supposed to be granted in the first place if they're invalid.
Re:Cited by examiner (Score:5, Interesting)
Hmmm. It would seem that the patent is for an operating system memory management feature. Note in claim 1:
wherein setting the allocation mode for the process to enable determining in real-time an invalid access is performed in real-time, and wherein the setting sets the allocation mode for an application executed by the process without requiring recompiling, linking or loading of the application to set, in real-time,
So you don't have to modify your source or link against a certain library, either statically or dynamically. In fact, it *sounds* like you can turn this on for a process as it is running. An argument might be made that the existence of techniques for the programmer to compile and link his program with relative transparency makes putting this capability into the operating system an obvious step, but I think reasonable people might disagree.
Re:Answers and Suggestions and Further Questions (Score:3, Interesting)
Patents (like registered trademarks, and unlike copyright) are assumed enforcable unless proven otherwise.
Wouldn't prior art prove otherwise?
They're not supposed to be granted in the first place if they're invalid.
I seem to recall that some years ago, the USPTO stopped checking the validity of patents, simply approving pretty much every application. It would certainly explain the flood of ridiculous patents.
Re:Doesn't Look as if IBM really patented his work (Score:4, Interesting)
Re:They aren't claiming your invention. (Score:1, Interesting)
Yes, in fact the first action in the patent office was to reject the application because of his reference, and then the IBM people came back and explained why theirs was different. I don't have time to look at this any more deeply, but it looks like this is a case where the patent system actually worked as it was supposed to.
Re:Do not try to sue IBM (Score:4, Interesting)
Hey, sue IBM! No, bad idea.
+5 Insightful.
I've worked with our corporate lawyers on various issues over the years. These are some of the nicest people I deal with. Off work they're soccer moms, volunteers, pilots, geocachers, just ordinary people.
On the clock, though, they are seriously unnerving. When I'm having that conversation about the real topic, they listen to me with such intensity that it's frightening.
I'm a bit slow to pick up on stuff like this, but eventually came to understand that they work 100% for the company, and are defending only the company's interests. That leaves 0% for concern over what happens to me. If they hear just one word that sounds like I acted without corporate approval, the tone in the room drops by 25 degrees, and the questions get a lot more personal until they satisfy themselves that there's nothing further to pursue; or at least they leave me with the impression that it's over.
After the interviews I feel like someone's going to slip in behind me like a buttered ninja, and end it all without my saying another word.
In contrast, I've worked with external lawyers brought in to work specific tasks. There's definitely a different dynamic. External lawyers seem to be more interested in completing the paperwork, and less interested in what I'm saying. Or maybe they're just that much better at staying on task and not pursuing side issues unless they hear something that sounds actionable. Perhaps I'm not as scared as I should be!
Re:Answers and Suggestions and Further Questions (Score:5, Interesting)
Wouldn't prior art prove otherwise?
As I understand it (and IANAL so I could be way off base) the process goes something like this:
You're sued for infringing X.
You assert that Y (which they failed to cite or differentiate) is prior art for X.
They file a modification to X adding a citation for Y and explaining the difference between Y and X.
Rinse, repeat.
If the patent on X is still broad enough to cover your use, you either settle or lose in court.
If the patent on X has been narrowed enough that it no longer covers your use, they settle or lose in court.
Generally, one or the other of you decides to settle once things are fully fleshed out. The matter becomes pretty obvious and there's no point in either of you continuing the expense. You're not going to succeed on process-related counterclaims; they had a reasonable belief that you'd infringed the patent when they sued.
Occasionally the mistaken party gets stubborn and goes to court anyway. When that happens, it's about 50/50 whether the court rules in favor of the plaintiff or defendant. The court rarely invalidates the patent; when ruling in favor of the defendant, it's usually because the defendant's use was enough different from what the patent has become by the time of the actual trial that it doesn't infringe.
Generally speaking, the patent office is not your friend in this situation. When you submit a claim of prior art, they rule more carelessly than a court and once they rule the court is loathe to reconsider.
Re:Answers and Suggestions and Further Questions (Score:3, Interesting)
You missed one point completely - for once, Microsoft is on the same side as you here. You could probably point out to Microsoft legal that IBM has attempted to patent technology that's been in Windows since 2001, and see where that goes.
Remember, if you aren't large enough to get in the fight, just open the gate and let one of the bigger dogs do it.
Re:ludicrous (Score:3, Interesting)
Pretty sure the patent office is accepting applications for examiners right now, lol. They like people with Master's degrees.
NASA requires science and math degrees in their civil servants to include IT positions. I met one person who's sole qualification for the system they were responsible for was that they had a math degree. They had no experience and very little understanding for the system they were responsible for, much less any general IT experience. They were great to work with; very smart. But bluntly put, they were unqualified for the role. The only reason they took the job was that they wanted an in at NASA and that was the only position they were offered. A couple years later, offered a position elsewhere that more closely matched their interest in manned space so they moved on. There are numerous individuals in that same IT organisation who's sole qualifications are the degree and a desire for a career change that involves "working with computers."
I don't have any insight with the Patent Office. However, having witnessed other US Federal bureaucracies at work, I wouldn't put a whole lot of weight in their requirement for Master's degrees.
Re:They aren't claiming your invention. (Score:3, Interesting)
... from reading the patent's claims, I can see only one thing that was not in HeapCheck, but which DID exist in Electric Fence: the ability to enable heap checks at runtime, without recompilation. Electric Fence allowed one to do that via LD_PRELOAD, so I am sorry, but I stand by what I said - I can see nothing in there that didn't exist in either Efence or my HeapCheck.
It sounds like, if I were to implement the algorithm in a compiled language such as C or C++, I wouldn't have to worry about IBM's patent. But if I were to recode it in a very similar language such as java, perl or python that does run-time compilation, it would be a violation of IBM's patent.
So what IBM has actually patented is the run-time compilation of languages like java, perl or python. I'd wonder how this makes for any sort of "innovation" or improvement of the algorithm on IBM's part. Or is IBM just trying to lay claim to coding in languages that "don't need recompilation" because they compile code dynamically at runtime? If so, any work being in such languages may be at serious risk when they are used to implement public-domain and GPL'd algorithms.
I wonder what would happen if I (or IBM) were to apply for a patent on the concept of array bounds checking without recompilation (which java, perl and python do, and other languages did back in the 1970s) ...