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Prior Art In Barracuda-Trend Micro Lawsuit
Joe Barr writes "Bruce Byfield reports at Linux.com that a Swedish developer, Goran Fransson, has 'given a deposition in the Barracuda-Trend Micro case that appears to seriously undermine Trend Micro's patent on gateway virus scanning.' Gransson has resurrected a product (still in its shrinkwrap) sold by Ten Four, the company he worked for at the time, to prove that it provided gateway virus scanning in January 1995. Trend Micro's patent application was filed in September of that year. If you were — or worked for — a Ten Four customer during 1995, you might be able to help Barracuda prove that Trend Micro's patent omits prior art." We discussed this important patent case when it was filed in January. (Slashdot and Linux.com share a corporate overlord.)
For those who didn't RTFA:
Fransson's deposition may be enough in itself to torpedo Trend Micro's case and patent. However, he suggests that the next move is to find the remnants of TenFour's American customers.
"I could give general information about how the product was used," he says, "But the details I can't recall. I can't say that this customer used it in this way in 1995. I remember some of the customers I was talking to, but I can't place those phone calls to a specific date or anything like that."
The problem, as he says, is that many of those companies no longer exist, and that many of his contacts have probably moved on in the past 13 years. Still, he remains optimistic. "Anybody who bought the product from the first of January 1995 to September 26th, 1995, and started using the product then -- those are the ones we're interested in getting a hold of."
His testimony alone might well be enough to kill this patent, but it would really be helpful for people who actually used the software to come forward. I'm just not sure there's much incentive for people, so hopefully someone will see the buzz about this case and come forward on principle to stop what Trend Micro has been trying to pull.
Posting to Slashdot was certainly a good way to get attention though. I never used the product, but hopefully one of you out there did!
Ok correct me if i'm too dense but...
What the article means is that even if the software was suited to do gateway virus scaning, since there is no proof that no one used it that way, then it doesn't count as prior art??
That's like someone using a car to demolish houses by smashing it at high speed against them and claiming that you have patented it as a new device, and since no one used it that way, you have a legit patent.
(complimentary car analogy included for the ease of understanding, i had a better one with a hammer used as a new "masage" device, but you know, cars are so much better)
Know what would stop these nonsensical patent claims? Massive punitive damages. Hit trend with a $30M fine if they are found to have made a patent claim that turned out to be obviously bogus. But I'm kidding myself. Congress who could stop this tomorrow doesn't give a damn. What do McCain, Hillary or Obama say about runaway patents. Not a damned thing.
IANAPL (I Am Not A Patent Lawyer) so someone else might be able to answer you specifically. I just would like to see as much testimony as possible because I don't necessarily trust the courts to make informed decisions in these cases, as we've seen so many times. Basically, the more the merrier! It doesn't hurt to provide a huge preponderance of evidence.
Don't blame the patent examiner on this one there is only between 8 hrs (most experienced) to 16 hrs (least experienced) to find prior art and then reject all the claims (time is not adjusted for extra claims). The largest source of prior art for an examiner is prior patents which for software/business methods it is lacking. The secondary source is non-patent literature or anything else you can find and I doubt there is barely even a trace of the program existing on the internet today. In fact based on the issue date (1997) the patent examiner may have only had old patents available in filing cabinets and whatever books he had! I mean 1997 I was still in HS logging onto the internet on 28.8, and surfing the web through lynx and there was no google.
Think of examiners as gate-keepers. Some things may slip through, but the bad patents will get mowed down by companies that can hire 5 people to search for 5 weeks.
Those 5 people who could whack it down would all have to pay thousands of dollars to challenge the patent.
There are at least two ways to fix this dilemna.
1) Allow anyone, at anytime, to submit prior art on any given patent, for a nominal fee, or if the prior art is the brinchild of the submitter, for free. It shouldn't take long to look at prior art and determine if it has merit or not. If it has merit then a process is begun to re-evaluate the patent at issue. This way, plausible deniability goes out the window and kamikaze patents would be defanged.
2) Do not allow patents on any software method, unless actual working code is submitted with the patent, or indeed any patent submitted must have physical proof of an actual working prototype. Just because someone has an idea doesn't mean they have the ability or skill to actually implement it. This would take care of probably all of the Lemelson patents.
3) Don't allow patents for software, unless it is tied specifically to another invention, such as a self-sentient android, and then the patent would only apply to the combined device. I'm not saying that any software should be patentable, but I can see a plausible argument for a truly mind-blowing new software design that is so far removed from anything in existence that it is a cosmic leap forward. The problem there is how would an examiner know this, and would issuing such a patent restrict the free exchange of scientific or mathematical ideas? I think not only does a patent have to be original and creative it also has to be something that wouldn't stifle acedamia and the greater good of society.
4) Patents shouldn't be issued unless, the examiner is an expert, or has sufficient depth of source knowledge, in the field being patented, and if not, independent professional organizations should be recruited to evaluate the patent. Such as AMA, IEEE, etc.
Ok, so that's more than two.
I'm going to step off the box now, before I really go off.
Fact is, you have no way of knowning if it is a nonsensical patent claim or not.
Yes he does if he is an expert in the field. In fact this is the only group which can say whether a patent is obvious
Having experts review patents would help, the problem with this though is the costs. An expert in the field would make more money working in the field than they would as an examiner. Patent application fees could be raised but this could have the adverse effect of preventing people from patenting. There is a solution though. First disallow software patents, software is already protected by copyright. Secondly have patents terms last only a short tyme, say 5 to 7 years. After that if the patent holder wants to keep the patent then require them to pay a royalty, the first five year extension would cost say 5% of the average of revenue the product had generated the first five years. For a second five year extension they'd have to pay say a 15% royalty. Patent holders can then decide whether it's worthwhile to keep a patent or release it.
Another way to reform the patent system is to require patent holders to release a product utilizing the patents within a couple of years of the issue of them. They could either release the product themselves or license the patent to someone else who has released a product. If within 2 years if a product is not released the patent is released to the public, ie put in the public domain.
Notice when talking about keeping a patent I said a royalty on the revenue the product made not on the profit. By using revenue instead of profit, they couldn't use Hollywood accounting. Then with a product needing to be released you avoid patent trolls.
FalconShould there be a Law?