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.

A similar option is to look at the patent prosecution history in Public PAIR. 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 appears to require re-compilation to enable and disable the heap checking features.

Um...no. I was not talking about depriving the owner use of his or her car. Keeping an unauthorized copy of the owner's car keys does not deprive the owner of the ability to use the car or the original keys. What is lost is a bit more intangible: the owner's ability to control access to the car.

I'm not sure what legal doctrine would be most applicable if, for example, one were to make 1,000 unauthorized copies of someone's car keys, and then mailed them to that car owner's neighbors. However, I don't think such an act would be right (and I highly doubt it would be found lawful), even if those unauthorized copies were never used to deprive the owner of the car itself.

You are a little bit off in suggesting that jury makes some of the decisions on the law. Juries decide facts, not law. Often, the jury verdict forms will ask the jury to provide a conclusion based on applying the facts (which they jury implicitly finds) to the law (which the judge tells the jury.

The fact/law distinction is why jury instructions are often a basis for vacating a trial. If a judge gives an inaccurate description of what the obvious standard is, and the jury says that "X was obvious over the prior art," then it isn't clear that the jury made a decision that comports with the law.

Judges also perform fact finding when there are genuine disputes as to material facts. Thus, judges can decide unimportant facts without relying on the jury. Judges can also decide facts which no reasonable jury would find otherwise (although such factual questions aren't submitted to the jury to see if the jury was, in fact, reasonable).

But, juries aren't supposed to decide what the law itself is.

It's more likely that they are trying to improve the quality of examiner rejections. Consider a claim for a widget comprising component A and B. The Examiner finds component A in reference Andy, and component B in reference Bob. The examiner then says without providing any rationale that it would have been obvious to combine Andy and Bob to make the claimed widget. A weak rejection like that encourages the applicant to appeal instead of amending the claim. This is bad news, especially if the claimed widget is obvious over Andy and Bob, but the Board of Patent Appeals and Interferences or the Court of Appeals for the Federal Circuit, not having any rationale to review, didn't recognize that the claimed widget was obvious.

Well, if the Examiner rejections are stronger, then allowed claims would probably be stronger and thus harder to shoot down in court. But ultimately, the Patent Office has no say in how the courts determine whether a claimed invention is obvious or not. These guidelines aren't even enforceable through appeal with the Board of Patent Appeals and Interferences:

A patent practitioner could use these new guidelines to try to persuade an examiner (or that examiner's supervisor) that a rejection wasn't good. But, if the practitioner is unconvincing, then there may not be much that the practitioner can do based solely on these guidelines.

How on earth does a company like Apple seem to think they can steal someone's idea and get away with it?

How do you know they stole the idea? Independent invention is possible. If the iControlPad creators had filed for a U.S. patent, there is a good chance that they would be engaged in interference proceedings to determine who has the right to the patent.

In the United States, an inventor has twelve months after an invention becomes known to file for a patent. The fact that Apple filed for the patent after iControlPad became known doesn't mean anything by itself. What matters is whether Apple's employees were the first inventors (based on factors such as conception date and diligence in reducing the invention to practice).

So how about we just not allow Steve Jobs to hold any Apple stock?

Nothing I said suggests that Steve Jobs should not be allowed to hold any Apple stock. Apple shareholders should benefit if the fortunes of Steve Jobs' are tied with their own. However, as an officer and director of Apple, Steve Jobs cannot act on proprietary knowledge in his purchases/sales of Apple stock. He is also required to notify the SEC of changes in his ownership of Apple stock. Feel free to peruse his filings.

Who else here thinks both this and non-violent drug use should be NON CRIMES because in either case there is no victim and no injury?

You think that there are no victims and no injuries caused by insider trading? How about the people at the other end of those trades? What about the former shareholder who sold stock early, not having had access to information showing that the stock was undervalued? Or how about the new shareholder who did not have the information to know that the stock was overvalued? Those who have access to proprietary information, or who are in a position to manipulate the value of an organization, have a fiduciary duty of loyalty to shareholders. Insider trading violates that duty and is a subtle, but very real, method of stealing from them. For another perspective, click here.

For some reasons, the Business Software Alliance filed their pro-affirmance amicus brief around the same time that those filing in support of Bilski, or in support of neither party, all filed. Perhaps the BSA lawyers misinterpreted that deadline requirements. Or perhaps the BSA had previously considered supporting Bilski or supporting neither party.

The BSA brief is interesting too, with positions such as:

Although the Federal Circuit sought to provide clarity through the opinion below, the early response from the Patent Office suggests that, not only was the decision based on faulty reasoning, but confusion reigns. Accordingly, even if the Court decides to affirm the Federal Circuit's adoption of the machineor- transformation test, it is critical that the Court make clear that software-implemented inventions are protected by that framework.

Both the BSA and Hollaar/IEEE briefs were filed really early for amicus briefs supporting affirmance. It will be interesting to see what others file.

It seems to me that is a different thing than the original statement, "Attorney's eyes only". . . . "Attorney's eyes only" either means what it says, or it does not.

I can't disagree with you there. What the original poster didn't mention is that "Attorneys' eyes only" means what the protective order says "Attorneys' eyes only" means. You have to look to the protective order itself to see what exceptions exist to allow outside experts to view the material.

In this case, the exception is found in paragraph 9 of the protective order (PACER access required; the cost for the document is $1.92 - goes to $0 if you don't download $10 worth of documents by the end of the year):

9. For purposes of this Protective Order, a consultant or expert shall be defined as a person who is neither an employee, agent or representative of a party, nor anticipated to become an employee, agent or representative of a party in the near future, who is not involved in the application or prosecution of patents for the party, and who is retained or employed to assist in the preparation for trial in this litigation, whether full or part time, by or at the direction of counsel for a party. The procedure for having a consultant or expert approved for access to confidential material designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order shalI be as follows:

a. Outside counsel for the receiving party shall (1) provide the consultant or expert with a copy of this Protective Order, (2) explain its terns, and (3) obtain the written agreement of the consultant or expert, in the form of Exhibit A hereto, to comply with and be bound by the terms of this Protective Order. Before providing information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE by a producing party pursuant to this Protective Order to a consultant or expert, the party seeking to disclose the information to a consultant or cxpert shall identify the consultant or expert to the producing party in writing and provide the producing party with (a) an executed Exhibit A, and (b) a written statement setting forth the consultant's or expert's residence address, business address, employer, job title, curriculum vitae, and past or present association with any party, as well as a list of litigation matters for which the consultant or expert has provided any professional services during the preceding five years;

b. Five (5) court days following the identification specified in the preceding subparagraph, the identifying party may disclose the information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order to the identified consultant or expert unless the party receives a written objection to the identification, served by facsimile or electronic mail, setting forth in detail the grounds on which it is based. Failure to object within five (5) days of the identification shall be deemed a waiver of the objection. If an identifying party receives such an objection within five (5) days of the identification, the consultant or expert shall be barred from access to any information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order for fourteen (14) calendar days commencing with the receipt by the producing party of a copy of the executed Exhibit A and accompanying information required in subparagraph (a) above;

c. If within fourteen (14) calendar days, the parties are unable to resolve their differences and the opposing party moves for a further protective order preventing disclosure of information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order to the identified consultant or expert, then the confidentid material shall not be provided to said consultant or expert except by further order of the Court. Any such motion by the opposing party must describe the circumstances and reasons for objection, setting forth in detail the reasons for which the further protective order is reasonably necessary, assessing the risk of harm that the disclosure would entail, and suggest any additional means that might be used to reduce that risk. The party opposing the disclosure to said consultant or expert shall bear the burden of proving that the risk of harm that the disclosure would entail (under the safeguards proposed) outweighs the seeking party's need to disclose the confidential material to said consultant or expert.

A judge could establish a protective order which allows only the attorneys to view discovered materials, without exception. But I doubt many judges would do so (at least not intentionally). They want input from experts who can understand the technical details.

An attorney is bound by ethical standards and whatnot that a random "analyst" wouldn't be and could conceivably be disbarred (and thereby lose his livelihood) for breaching a confidentiality order. This "incentive to do the right thing" is not present with the random analyst. There may be other sanctions that would apply to both the attorney and the random analyst, but my point is that the attorney has an additional incentive to be, for lack of a better word, trustworthy.

An expert who signs off on a protective order and has access to confidential material has plenty of incentive not to violate the protective order. Being fined or imprisoned for perjury wouldn't be much fun. Plus, any use of the confidential material could lead to a lawsuit for misappropriation of trade secrets.

If the sanctions that apply to the ordinary citizen are sufficient, there would be no need for the additional obligations that attorneys are required to undertake as officers of the court.

Sorry, I'm not sure what you're getting at here. Protective orders are issues as part of the discovery process in order to establish duties that the attorneys have to the other party. Attorneys do have certain ethical duties to persons other than clients (see Rules 4.1-4.4 of the Model Rules of Professional Conduct for typical examples), but protective orders generally create new duties specific to the case.

If the outside experts you mention are not attorneys, what good does it to to hire them to review something that they aren't allowed to see?

They are allowed to review the source code. But they have to abide by the protective order too.

And having a bunch of attorneys reading a bunch of source code is a great way to get a really definitive and correct interpretation of the ramifications and effects of that source code.

One of the nice things about the U.S. is that our law schools are graduate schools with no pre-law undergraduate requirements. That means that many U.S. lawyers have an education in math, biology, physics, medicine, computer science, electrical engineering, etc. Thus, it is possible to find a lawyer who really can read and understand source code.

But even when a firm has a lawyer with the right background and experience, it is common to hire an expert to provide support (and possibly testify on findings). Professors with relevant expertise, but without a stake in the outcome of the case, are typically brought in to fill this role.

Even better (at least from the perspective of whoever wants to understand some bit of code, especially code that says "/* you're not expected to understand this */"), the organization itself can be deposed under FRCP Rule 30(b)(6). The lawyers provide notice to the organization that it is being deposed in order to explain the workings of various pieces of source code. The organization then has to provide people who can explain the workings of the identified pieces of code.

Of course, it still helps to have a lawyer who knows enough technology to be able to ask the right questions and who can understand the answers (or know when the answers are obtuse). Otherwise, you could end up with an six hour explanation of how a linked-list works.

Just like a software developer can provide a detailed critique of the Criminal Code and the Income Tax Act...

You don't have to be a lawyer to read statutes and cases and have an opinion regarding the law. Statutes and cases have their own vocabulary and historical nuances that can lead to some opinions being misguided (e.g., tax protestors who argue that income tax is unconstitutional or illegal are severely misguided). But, a lot of policy implications can be readily understood and fairly critiqued, at a surprisingly detailed level. Legal nuances can also be learned without committing to three years of general legal study. I once had a fascinating conversation with a software developer who, in the course of expressing his views on criminal punishment, unwittingly outlined many of the principles behind the United States Federal Sentencing (advisory) Guidelines.