Become a fan of Slashdot on Facebook

 



Forgot your password?
typodupeerror
IBM

Coder Accuses IBM of Patenting His Work 249

Posted by samzenpus
from the do-your-own-work dept.
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 I had more or less forgotten this stuff, since for the last 7 years I've been coding for UNIX/Linux, where valgrind superseded Efence/dmalloc/etc.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."
This discussion has been archived. No new comments can be posted.

Coder Accuses IBM of Patenting His Work

Comments Filter:
  • ludicrous (Score:5, Insightful)

    by alphatel (1450715) * on Thursday November 25, 2010 @08:10AM (#34341934)
    Can I drop a hint about the patent office having no credibility any more?
    • Re:ludicrous (Score:5, Insightful)

      by ebbe11 (121118) on Thursday November 25, 2010 @08:15AM (#34341968)

      Can I drop a hint about the patent office having no credibility any more?

      Actually , the Patent Office does have crecibility in a few places. Unfortunately, courts of law are among them...

    • Re:ludicrous (Score:5, Interesting)

      by mcvos (645701) on Thursday November 25, 2010 @08:19AM (#34342004)

      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: (Score:3, Insightful)

        by hedwards (940851)
        Probably, I suspect that might be the sort of thing that resulted in Facebook being granted the trademark to "Face." Back when MS was trademarking for their new GUI, they had to include Microsoft in the name to get the trademark because windows is eponymous. I don't think they would've bothered even trying to get Windows.

        I know that ISO is apparently no longer a standards organization preferring to let the markets make the selection. Which begs the question of why do we need ISO if somebody else is choos
      • as the submitter's code is clearly prior art

        Put up or shut up. Write a rejection of Claim 1 based in part on the OP's website and/or code. And none of this handwavy "clearly prior art" bullshit. I'm talking something that would hold up in court.

    • Re: (Score:3, Funny)

      by rbanffy (584143)

      Courts still find it credible enough to accept patent lawsuits. Even trolls have credibility in East Texas.

    • by alphatel (1450715) *
      Seems the PTO are in desperate need of skilled programmers who speak geek
      • Re:ludicrous (Score:4, Informative)

        by Anonymous Coward on Thursday November 25, 2010 @08:43AM (#34342180)

        Pretty sure the patent office is accepting applications for examiners right now, lol. They like people with Master's degrees.

        • by celle (906675)

          "They like people with Master's degrees."

          To point out grade school stupidity.

          Maybe they should get regular college graduates or even high schoolers. That way they can have more of them and force the patents to actually be readable by the public. Never mind about affording enough people to do the job.

          Oh yeah, Tesla did get the patents, well some anyway, the court assigned them after he died.

        • Re: (Score:3, Interesting)

          by _Sprocket_ (42527)

          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 tha

      • by mrmeval (662166)

        No they're a money grabbing entity now. They're like your state's ticket bitches. They do no other thing then follow minimalist rules to garner maximum cash. Any attempt to stop this cash cow is met with stumbling blocks or in the case of ticket bitches and their judicial pimps out right threats of harm. I look to see a time when access to government is wholly codified in law as requiring payment.

    • Re:ludicrous (Score:5, Informative)

      by Dachannien (617929) on Thursday November 25, 2010 @12:52PM (#34343854)

      Before spouting off about how the USPTO sucks so much ass solely on the basis of what the OP says, first try a little independent research. You can look up the entire prosecution history of the application in question on the USPTO's website at Public PAIR.

      First off, the guy's website was cited by the examiner rather than by IBM. The examiner used the OP's website to reject the claims three times before IBM's attorney finally came around and amended the claims to include this:

      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, the allocation mode for the application

      This was cited by the examiner in the reasons for allowance. Does the OP's code do this?

      Once again, this is an example of people who know very little about the patent system reading the abstract or looking at the figures, and not understanding that the really important part of the application is the claims. Nothing to see here, move along.

      • Re:ludicrous (Score:5, Insightful)

        by makomk (752139) on Thursday November 25, 2010 @02:28PM (#34344548) Journal

        First off, the guy's website was cited by the examiner rather than by IBM. The examiner used the OP's website to reject the claims three times before IBM's attorney finally came around and amended the claims to include this:

        In other words, IBM tried really hard to patent exactly the method used by HeapCheck and Electric Fence - down to the last detail. They eventually settled for a patent with just enough of an amendment to the claims to avoid the prior art, but not enough to actually be an improvement on the state of the art.

        (The extra stuff IBM have put into their claim is actually a trivial addition to something like HeapCheck - it's just that under most circumstances it's a pointless one. All it allows you to do is enable or disable checking prior to process startup on a per-process basis, and on most systems you can do that easily using LD_PRELOAD and the linker-loader.)

        This seems to be fairly common. Microsoft did the same with their patent on XML formats for documents. Amazon's patent on one-click shopping is even worse - they have a whole bunch of bizarre and narrow exclusions in the claims, each aimed at excluding a particular example of prior art.

      • MOD PARENT DOWN! (Score:5, Informative)

        by raftpeople (844215) on Thursday November 25, 2010 @02:41PM (#34344622)
        Nothing in your explanation describes why such simple coding (for someone with experience) should be patentable. The USPTO does "suck ass" because they allow patents that are pretty straightforward for any skilled practitioner.
  • Most likely, they're patenting a particular, specific extension of what was done before.

    • by Sockatume (732728) on Thursday November 25, 2010 @08:24AM (#34342046)

      "The shortcomings of the prior art are overcome and additional advantages are provided through the provision of a method of facilitating management of dynamically allocated memory. The method includes, for instance, having a dynamically allocated memory buffer; and determining in real-time that an invalid access of the dynamically allocated memory buffer has occurred."

      I'm no expert on HeapCheck but that doesn't sound far removed from its basic functionality.

    • by arivanov (12034) on Thursday November 25, 2010 @08:34AM (#34342114) Homepage

      As with all patents read Claim No 1. It should contain the novel element, you cannot leave it for later. The "novelty" in this one is that you do not need to recompile the program the way original efence worked.

      However, times have changed since the days of the original Efence and things are linked dynamically at runtime on all OSes which in turn means that any LD_PRELOAD-ed Efence like debugging library which relies on OS R/W page management to control access is prior art. It satisfies literally the requirements of claim 1.

      I do not recall off the top of my head what valgrind uses, but I would not be surprised if it fits the bill. The original Efence does not - it has to be linked in.

      • by wmelnick (411371) on Thursday November 25, 2010 @10:15AM (#34342690)
        Not at all. It is standard in the patent world to make the thing that you actually want to patent be the middle claim. The reasons are many and varied, but you can jump right to the thing that any company actually wants to get the patent upon by checking the center claim. There are 20 claims here, so it is likely this one: 10. The method of claim 1, further comprising: detecting that another allocation mode is to be used to allocate one or more buffers for the process; and dynamically deactivating the allocation mode that enables the determining in real-time, wherein the dynamically deactivating includes turning off an indicator in the process to deactivate the allocation mode, and wherein another dynamically allocated memory buffer for the process is allocated based on the another allocation mode, said another dynamically allocated memory buffer being allocated without additional memory as a guard.
        • In a set of original claims, you can sometimes tell what the "important" feature is because it's recited in a claim that has a lot of claims that are dependent from it. You can't just drop down to claim 10 out of 20 and say that's the important thing. In the present case, there's not really one such claim that stands out - there are a few claims that have several dependent claims.

          In the issued claims, saying it's claim 10 out of 20 is even worse, because the examiner may have renumbered some of the claims

        • by orgelspieler (865795) <w0lfie.mac@com> on Thursday November 25, 2010 @02:58PM (#34344738) Journal

          I hope you were trying to be funny.

          Here's how it works: the novel, non-obvious kernel of a patent is called the independent claim (or claims). Independent claims don't refer to any other claim. Any claim that refers to another claim is called a dependent claim. If you infringe on one of them, you also infringe on the independent claim. Therefore, the independent claims are the main ones that you have to focus on first.

          Inventors add dependent claims in an attempt to keep somebody from building a new patent on the independent claim. Sometimes, these extended claims make the original invention much more interesting or marketable, but they still depend on the core concept in the independent claim. It has nothing to do with hiding the heart of your invention under a pile of meaningless legalese. I'm sure it seems like that to the untrained eye, though.

          I am not a lawyer, but I am an engineer that has successfully defended my company against a frivolous patent suit.

    • Re: (Score:3, Informative)

      by js3 (319268)

      It seems their patent covers doing it on a per process bases plus the ability to turn it on or off in real time. Either way MS does have a similar thing in windows 7

    • Re: (Score:3, Funny)

      Indeed. Their extension uses the IBM logo.

  • by eldavojohn (898314) * <eldavojohnNO@SPAMgmail.com> on Thursday November 25, 2010 @08:13AM (#34341960) Journal

    what should I do about this?

    Disclaimer: I'm not a lawyer; this isn't legal advice. But you've got a few options. All or none of which you can pursue.

    The first option is to simply contact IBM and ask them how their patent is novel or different or disjoint from your work. This could result in one of two things: no response or a response. If you are satisfied with the response, you might change your mind about your situation and congratulate them on putting some novel innovations on HeapCheck, patenting it and listing you in the claim references (do you own any patents related to it?). 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. You could choose to reveal you're not interested in a lengthy expensive court battle with them or you could make it sound like you are angry and this is all you have to do with 100% of your time. Either mentality will send them a message, that's up to you.

    The second option is to get litigious. Judging by your ccTLD (and awesome name), I'm guessing you are from Greece. Which means that you would probably have to hire a patent lawyer in your home country who can work with the Greek or European Patent Office in order to discuss your options. There should be channels through the WIPO [wipo.int] that allow things like these to be resolved almost exactly like they're on a local level. I'm guessing your options are going to amount to two things. Either pursuing your own patent on the technology in order to invalidate IBM's patent or presenting your evidence of prior art to invalidate IBM's patent. The former probably more expensive than the latter.

    Normally patents are only valid in the country they are granted but lately there have been intellectual property laws that have tried to extend patents on a global scale. Normally on this site people seem to be against this, often applying the logic of following their local laws when it suits them. Example: Pirate Party. But now we're so concerned if suddenly this is American company gets an American patent on a foreigner's work.

    cursing patent trolls

    Um, that phrase has a particular meaning, one that I cannot find in your story. Who did IBM sue with your patent? Did they sue you? Did they wait for everyone to adopt HeapCheck and then sue them? If anyone in this story is considered the patent troll, it's going to be you if you waited a decade before ligating against IBM.

    I would take Bruce Perens' approach and try working with IBM first. It's the cheapest, most sensible way to resolve this. You're angry but you just said you had forgotten about that work for seven years. Was your intention to leave that concept in the graveyard until you died, getting angry should anyone try to profit from it or license it?

    • by mcvos (645701) on Thursday November 25, 2010 @08:24AM (#34342040)

      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.

      • by Sockatume (732728) on Thursday November 25, 2010 @08:26AM (#34342058)

        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: (Score:3, Interesting)

          by mcvos (645701)

          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: (Score:2, Informative)

            by Darfeld (1147131)

            Patents (like registered trademarks, and unlike copyright) are assumed enforcable unless proven otherwise.

            Wouldn't prior art prove otherwise?

            Assuming someone is sued and find the prior art, the patent would be nullified. But the patent exist until then, and is still dissuasive for someone to use the technology.

            • by hedwards (940851)
              Generally speaking you want to prove that the patent isn't patentable, and only if it is do you want to go with prior art. Particularly for somebody like the OP who doesn't necessarily want to make money off of it that's probably the way to go.
          • by Spazmania (174582) on Thursday November 25, 2010 @09:48AM (#34342534) Homepage

            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.

            • they rule more carelessly than a court

              You mean by a jury of people who have no expertise either with the subject matter or with patent law?

              Examiners are required to have at least a Bachelor's degree in their field of expertise, and they receive several months of training on patent law.

              Also, your example leaves out that to "file a modification" requires that either the person getting sued or (less likely) the patent holder or a third party files a re-exam request with the USPTO. The reason people do this is because it's orders of magnitude chea

          • by Sockatume (732728)

            Yeah, if you take them to court the prior art would be a slam-dunk, but it's an unfair burden of proof in this instance.

            • by mcvos (645701)

              I think the burden of proof is pretty unfair in most software patent cases. It's just impossible to know who might have done what when. That's exactly why software patents need to be abolished.

              • by Sockatume (732728)

                Or ensure that a such a patent is only granted if there is no doubt with regards to prior art, which would achieve the same thing in most cases while protecting genuine innovators.

      • by fishexe (168879)

        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.

        You're right on the nose, except for one thing: if IBM can somehow convince a court the patent is not invalid (probably relying on the court's ignorance) then they've acquired an ability to sue people for using tech they already had the right to use.

    • While gently and politely contacting IBM, notify them that: by the event they intend to challenge this patent in court, you will be requiered to document your prior art reference and their case will not stand up. So, not cleaning up the issue now may constitute a financial risk for them.

      My random/dumb guess is: As usual, bureaucracy though their attoney/legal department, preceeded in the systematic registration of any new listed technology to the PTO. That's stupidity at work. Nobody to blame.

    • You're angry but you just said you had forgotten about that work for seven years. Was your intention to leave that concept in the graveyard until you died, getting angry should anyone try to profit from it or license it?

      If he didn't take a patent on it, then there's nothing stopping IBM from using the same techniques. The problem arises when IBM patents it as if they were the first to invent the technique, then restrict everyone (including the OP) from using the OP's invention. If IBM just used it without patenting, no problem. Of course, it's entirely possible that IBM's invention is slightly different from the OP's - patent claims are rather hard to read for a layman after all.

      • by Svartalf (2997)

        But there is a bar to claiming them as a patentable item. If it was prior art one year or more before the filing, it's not patentable.

    • Re: (Score:3, Informative)

      by dataminator (1447053)

      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.

      Ok, you said you are not a lawyer, but you could at least try to know what you're talking about before writing such a post.

      IANAL either, but even I know that being granted a patent doesn't magically make you own all prior art in the domain. The patent examiner even noticed HeapCheck as related work! The author has no claims whatsoever against IBM, and the idea to push for a settlement is ridiculous. What can there possibly be to settle?

      Since the examiner approved the patent, while knowing about HeapCheck

      • Re: (Score:3, Informative)

        by Fareq (688769)

        With regard to the patents, he has nothing to negotiate. However, if he wrote the code, and released it under the GPL, he could definitely claim that their software which uses the technology is a violation of the terms of the GPL license. This claim might be legitimate (if they copied) or completely not legitimate (if they didn't re-use any of the code, and merely developed new software with similar capabilities and features).

        In reality, OP is going nowhere with this. The USPTO is unlikely to invalidate

        • Re: (Score:3, Informative)

          by Svartalf (2997)

          Just because they already considered it, doesn't mean they won't invalidate it.

          The truth of the matter is that just because an examiner "considered" it, doesn't make the examiner right. I've had patent submissions that didn't get done because I ran out of funds (it's expensive to file one of these things...) where the "examiner" did their initial rejection on one of my early claims, and went looking for things that "anticipated" the usage in question- none of which were relevant. If they had people that w

    • by ttsiod (881575) on Thursday November 25, 2010 @09:05AM (#34342296) Homepage
      I only take an issue with your last paragraph - I certainly didn't leave the code in a graveyard, I released it with an open source license, so that anyone could use it and make his life a bit better. The fact that 10 years later, someone else has now patented the ideas in Electric Fence and HeapCheck, and can now sue me and everyone else using it, is what got me mad (hence the "trolls" comment).
      • The fact that 10 years later, someone else has now patented the ideas in Electric Fence and HeapCheck, and can now sue me and everyone else using it, is what got me mad (hence the "trolls" comment).

        Well, then you can stop being mad. Both Electric Fence and HeapCheck were invented before the invention in the patent ( I'm assuming it would be relatively easy for you to prove that the code was written 10 years ago). This is an absolute defense to patent infringement. This is true even if IBM's patent is valid. In fact, their contention that it violates the patent (if they were to make one) would be pretty good proof that HeapCheck is prior art and that, therefore, the patent is invalid. IBM's lawyers kno

      • Re: (Score:3, Interesting)

        by Kalriath (849904)

        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.

    • by gnasher719 (869701) on Thursday November 25, 2010 @10:25AM (#34342760)

      The first option is to simply contact IBM and ask them how their patent is novel or different or disjoint from your work. This could result in one of two things: no response or a response. If you are satisfied with the response, you might change your mind about your situation and congratulate them on putting some novel innovations on HeapCheck, patenting it and listing you in the claim references (do you own any patents related to it?). 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. You could choose to reveal you're not interested in a lengthy expensive court battle with them or you could make it sound like you are angry and this is all you have to do with 100% of your time. Either mentality will send them a message, that's up to you.

      There is a problem here. The only situation where his code would affect IBM's patent is if he has published prior art that would genuinely make their patent invalid. But in this case he has no rights that he could sign away. Patents are not like copyright. If you illegally copied my code, I could say "give me $100,000 and I give you the rights to this code", and maybe you accept and we are both happy. If you use my patent without a license, I could say "give me $100,000 and I'll give you a license". If he has prior art that makes their patent valid, then it is out of his hands. _Anybody_ can invalidate the patent. He could say to IBM "give me $100,000 and I'll forget about my prior art". But even if IBM pays, I could then say to IBM "give me $100,000 and I'll forget about this guy's prior art". What makes it prior art is that it has been published. If this guy can prove that it has been published, then so can I, and everybody else. He doesn't get any rights from having created the prior art. The right to invalidate the patent is something that _everybody_ has.

      Of course he can spend a lot of money to invalidate IBM's patent, but even if he wins, at an enormous cost, all he gets is that IBM's patent is invalid. There is no money to be had from this. The only way to make money is to carefully collect evidence for the prior art (collect evidence that the invention was available to the public), and if he hears that IBM sues anybody for patent infringement, then he can go to the defendant and say "give me $100,000 and I give you clear documentation that proves beyond any doubt that their patent should be invalid".

    • by The Empiricist (854346) on Thursday November 25, 2010 @11:03AM (#34343068)

      The first option is to simply contact IBM and ask them how their patent is novel or different or disjoint from your work.

      A similar option is to look at the patent prosecution history in Public PAIR [uspto.gov]. Get through the CAPTCHA, click on the Image File Wrapper tab, and look at the rejections, amendments, responses, etc.

      It looks like the Tsiodras reference was used by the Examiner to reject the patent application. What happened is that the applicants amended their claims so that they would not cover what was taught by HeapCheck 1.2. For example, the applicants state that in the HeapCheck 1.2 documentation "it clearly states that all source files that want to make use of the alternative heap memory allocation mode must be compiled to include specific header files and then linked to a specific library that will satisfy those requests (see, e.g., Section 4 'Usage')." After this argument was first made, it wasn't enough for the Examiner, who ended up rejecting the application two more times before satisfactory claim language was submitted.

      The point is that IBM has already said why it thinks that they have something that is novel and nonobvious, so it is a good idea to look at what they've said before demanding that they say it all over again. More importantly, HeapCheck (version 1.2 at least) does not infringe on the patent claims. According to the documentation on the HeapCheck v1.2 web page, you have to compile support for it into the software you are creating. But the IBM patent requires that "setting the allocation mode for the process . . . is performed in real-time, and wherein the seting sets the allocation mode . . . without requiring recompiling, linking or loading of the applicaiton to set, in real-time, the allocation mode for the application."

      Tsiodras could have trouble if future versions of HeapCheck included features that fall within the scope of the claimed invention, but even version 1.34 [ece.ntua.gr] appears to require re-compilation to enable and disable the heap checking features.

    • by michelcolman (1208008) on Thursday November 25, 2010 @08:20AM (#34342010)
      You mean patent examiners actually examine patents? Wow, that's news to me! Maybe they just pick a few and auto-approve the rest?
    • Re:Cited by examiner (Score:5, Interesting)

      by hey! (33014) on Thursday November 25, 2010 @08:37AM (#34342126) Homepage Journal

      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.

      • The ability to configure a program's settings without recompiling it is not some earth shattering idea. Patents shouldn't be for obvious, incremental improvements that are getting done to most or all things in the field already.

        • by Rockoon (1252108)
          What you are missing is that there isnt a 'setting' that can be 'configured without recompiling'

          This isnt a case where the program was compiled with a disabled feature that can later be enabled via a setting. This is a case where an external process creates the feature, that such feature was never a part of the original program.

          In short, its not any more of a 'setting' than a virus scanner or a packet sniffer. You wouldnt label them 'program settings' would you?
  • by Haedrian (1676506) on Thursday November 25, 2010 @08:22AM (#34342030)
    Step 1 - Be a large company.

    Step 2 - Afford the world's best lawyers

    Step 3 - Sue

    No luck for the rest of us.
    • by jeffmeden (135043)

      I was instantly reminded of the Graphene patent story of just a few weeks ago...

      The guy told me, "We are looking at graphene, and it might have a future in the long term. If after ten years we find it's really as good as it promises, we will put a hundred patent lawyers on it to write a hundred patents a day, and you will spend the rest of your life, and the gross domestic product of your little island, suing us." That's a direct quote.'

      How true it is. It's hard enough fighting this inside the US where the courts just might listen to you and your prior art. Try being a foreign national and saying some work you did but didn't bother promoting or protecting is now patented by a US company. They will laugh your limey ass all the way back across the pond. Not that I am saying it's right, but it's true.

  • by PolygamousRanchKid (1290638) on Thursday November 25, 2010 @08:32AM (#34342104)

    I had to give a deposition on the IBM / SCO case, since I had access to AIX source code, and also worked for their Linux Technology center. Damn good folks! The lawyer worked for a law firm with a 5th Avenue address in New York City. Although he talked very polite with me, I had the feeling that he could skin me alive, if necessary.

    Hey, sue IBM! No, bad idea.

    • by PseudonymousBraveguy (1857734) on Thursday November 25, 2010 @09:21AM (#34342384)

      The IBM laywers are also known by the term of Nazgûl. It has been said they can blacken the sky with their legal arguments, if IBM so desires. So don't mess with them unless you either have a certain ring in your posession, or at least a bunch of enchanted swords.

    • by plover (150551) * on Thursday November 25, 2010 @09:44AM (#34342520) Homepage Journal

      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!

  • Much prior art. (Score:5, Informative)

    by Ancient_Hacker (751168) on Thursday November 25, 2010 @08:42AM (#34342166)

    Back in 1990, I redid the Borland Pascal memory allocator so each block was given its own hardware-protected segment descriptor and length. Worked magnificently, as any reference outside a valid block would immediately fault. Only prob, you could only allocate about 4000 blocks as there were only 4,096 entries in the hardware segment table. So the next refinement was to allocate each block with short pre and postambles set to $12345678 and check thee for overwriting periodically. Worked almost as well, if not so immediately finding the errors.

    And no, I did not try to patent this, as I knew the Burroughs machines, since 1961, allocated a fresh memory-protected segment for each array, and using pre and post safety zones sure sounded like an "obvious" thing to do..

  • by Bruce Perens (3872) <bruce@perens.com> on Thursday November 25, 2010 @08:44AM (#34342188) Homepage Journal

    I am busy this week and have not been able to look at the patent. However, if IBM referenced this person's work in the prior art section of the patent, they are admitting that his work IS prior art, and is not subject of the patent. The issue then becomes, do any of the PATENT CLAIMS (not the summary) claim art that is exercised in his program.

    Electric Fence is listed as prior art in two ATT patents. When they saw it, they refrained from including two claims they otherwise would have, because I had precedence. The ATT patents should have expired by now.

    I doubt there's anything to worry about in this specific case. However, software patents in general present a severe problem. [Oops - previously submitted this as AC. Sorry]

  • by John Hasler (414242) on Thursday November 25, 2010 @09:00AM (#34342270) Homepage

    They are claiming an improvement on your invention. That's why they reference it.

    • Re: (Score:3, Informative)

      by ttsiod (881575)
      I am a coder, not a lawyer - and 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.
      • by The Empiricist (854346) on Thursday November 25, 2010 @11:36AM (#34343346)

        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

        But this patent requires the ability to set allocaiton mode in real-time without requiring recompiling, linking, or loading. Using LD_PRELOAD to link to the Electric Fence library would still be an instance of requiring (dynamic) linking and loading. Someone else suggested that enabling/disabling application configuration settings at runtime might be an obvious modification to HeapCheck. That may be the case, but there is a difference between something that is not new (i.e., it has already been done before) and something that is obvious (i.e., it has not been done before, but it really isn't new enough).

        If someone actually gets sued or is threatened by this patent, then the courts will get a chance to consider whether the Patent Office erroneously allowed the patent. Alternatively, if you want to get together with some of your buddies, you could file a request for reexamination (the filing fee is only $2,250.00, less than $23 each for 100 angry /.ers). Perhaps the Patent Office will take another look at the claims and reject them based on some insight that you provide.

      • Re: (Score:3, Interesting)

        by jc42 (318812)

        ... 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

  • In a domain where all the practitioners are big companies (pharma, car manufacturing), this isn't a big problem because all the practitioners have the resources (time, manpower, cash) to contest this sort of abuse. In software where many practitioners are unpaid individuals, hobbyists, and employees whose pay is for something other than directly writing software, the checks and balances don't work.

    * http://en.swpat.org/wiki/Publishing_information_is_made_dangerous [swpat.org]

  • the patent system just 2 articles ago, calling me a 'moron' for saying it could not work. where are you now ...
    • the patent system just 2 articles ago, calling me a 'moron' for saying it could not work. where are you now ...

      Right here. And I was calling you a moron because, in an article about trademarks, you were whining about the patent office.

      And here, I'll call you a moron again. As noted by the submitter, the patent includes his work in the list of references, and it was even cited by the Examiner. That means that the Examiner did a search, found submitter's work, looked over it, and decided that the patent claims recite an improvement that is not anticipated or obvious over his work. In fact, if you look over the commen

    • by ADRA (37398)

      Looking through the comments up to now, it seems that the patent could still be valid, as the examiner themselves went out and found the OP's software and decided it wasn't exactly prior art. Looking through comments relating to dynamically loading the code during runtime without interfering with the original, it seems very likely that the OP's software doesn't invalidate the patent anyways.

      • by unity100 (970058)
        lets say, by nitpicking, we have justified this case too. patent was valid.

        does it even needs saying that, at this rate, it wont be a few months until we come to a point where the patent system totally goes out of the realm of logic ?
  • FSF (Score:2, Informative)

    by snookiex (1814614)
    You could contact the FSF [fsf.org]. They have a legal department that can help you with this.
  • Tag: Jews? (Score:3, Insightful)

    by Trip6 (1184883) on Thursday November 25, 2010 @09:44AM (#34342516)

    I'm not Jewish, but do we really need a tag for this story that says "Jews?" Stereotype much?

    • by Trip6 (1184883)

      So a few minutes after I post this, the tag is changed to !jews. Nice touch.

    • by dmesg0 (1342071)

      The first inventor (and probably the only one, the rest are usually just added to get the corporate patent bonus) of the patent in question is Dryfoos, Robert O.

      Maybe it is the beginning of the new Dreyfus affair [wikipedia.org]?

    • I'm not Jewish, but do we really need a tag for this story that says "Jews?" Stereotype much?

      I'm surprised anybody leaves tags turned on at all. Back before I realized I could turn them off, I frequently thought Slashdot had a team of 12-year-old boys in charge of thinking up tags.

      • by H0p313ss (811249)

        I frequently thought Slashdot had a team of 12-year-old boys in charge of thinking up tags.

        Don't be hating, they patented the process to cover their asses.

  • by Compulawyer (318018) on Thursday November 25, 2010 @09:57AM (#34342570)
    If a reference is listed in the prior art section of a patent, that means that a patent examiner felt that the reference was pertinent, but that the *claimed invention* was sufficiently *different* from the prior art reference so as to be patentable. God was the only one who ever created something from nothing. Everyone else has had to build off what was already here - including previous versions of software. The phrase *claimed invention* is key here. To properly evaluate a patent, you must focus on the claims at the end. If a patent issued over prior art, the general rule is that there is some feature recited in the claims that is not disclosed in the prior art. You can argue whether the examiner was wrong, but it is virtually never the case that someone saw someone else's invention and then decided to get a patent on the exact same thing.
  • IBM pays its employees a bonus for patents. I bet one of their enterprising and less ethical employees needed a new TV or some quick cash for a vacation, swiped your stuff and patented it. The guy's name might even be on the patent.

    As to do about it, well if you load up that sling shot, just remember to aim for the 'I'.

    • Re: (Score:3, Informative)

      by O('_')O_Bush (1162487)
      You clearly have no idea how any large engineering company works.

      First, no employee can just go out and file a patent, they sign that right away when they join a company like IBM.

      Secondly, it's the legal department of IBM that would file a patent, the employee would just submit a proposal. The legal department meticulously goes through the proposal claims just as a patent office would to avoid scenarios like what the OP is implying.

      Thirdly, the employee only makes a bonus once the patent is granted, not on
      • by H0p313ss (811249)

        The legal department meticulously goes through the proposal claims just as a patent office would to avoid scenarios like what the OP is implying.

        The problem is that the legal department is only marginally less technically clueless than the patent office. I'm willing to bet that the average Slashdot troll is more technically qualified to judge the appropriateness of a patent application than 99% of patent lawyers. I'm not saying that the lawyers are malicious, just technically incompetent.

      • by Greyfox (87712)
        I've worked at both IBM and Sun in the past. Admittedly on only one occasion did I personally see an IBM employee file the paperwork to start the patent process for something going on in some code he hadn't written, but at least it was code that belonged to the company. I don't know if it ever went anywhere, I heard he left the company shortly thereafter and started a liquor store or something.
  • So I say, ask for money. Go to the company that owns the patent, say that you clearly have a case as you are mentioned in the patent itself, so prior art is recognized. Threaten slightly, ask for a pay. Depending on your inclinations you may want to give this money to the EFF or keep it for yourself. Alternatively, you can contact the EFF and ask them if they have any idea on how to use this situation in the battle against software patents. You clearly have the legal high grounds on this one and the EFF ha
    • by ADRA (37398)

      Why in all the earth would the company give you money? Any money given to you can never affect the patent's validity. The only power the OP -could- wield would be to tell the defendants in a potential patent suit about it, but unless the lawyers are nitwits, they should be able to find that out through due diligence and discovery. Patent suits last years because they do a LOT of research for just this type of thing.

      Secondly, lets assume that the patent is 100% covered by the software. Then what? The patent

  • Have you just asked them to correct it? State your case thoroughly and at least give them a chance to not need to go on the defensive. Be nice about it they're people too. Projects might be patented as a matter of routine and not necessarily by the actual programmer. If you attack them they most certainly won't bow out gracefully.

Man will never fly. Space travel is merely a dream. All aspirin is alike.

Working...