Buffalo Tech Gets New Trial On Wi-Fi Patent

MrLint writes "It's been a long, nearly two years of silence since CSIRO won a patent battle against Buffalo Tech, causing an injunction preventing the Austin company from selling wireless routers. On September 19, 2008, a Federal Circuit Court of Appeals ruled that CSIRO patent claims are invalid and Buffalo is getting a new trial. With any luck, we will be able to get our grubby hands on low-cost Wi-Fi routers again!"

Comments

Are they expensive?

[geekoid]

I paid 29 bucks for mine.

Re:Are they expensive?

[morgan_greywolf]

Did it come with DD-WRT pre-installed? Buffalo's come with DD-WRT pre-installed and cost is typically slightly cheaper than LinkSys, D-Link or Netgear.

You could always get your hands on them,

[pwnies]

You just had to order them from Europe. Kind of a pain, but they're quality routers. Hopefully at the end of this trial we wont have to circumvent the system though in order to get our "grubby hands" on some quality, dd-wrt running hardware.

Re:You could always get your hands on them,

[qoncept]

You don't need to circumvent anything to get a Buffalo router if all you want to do is run dd-wrt. There are tons of routers supported, including the 2 I just had laying around from way before I'd ever heard of it. http://www.dd-wrt.com/wiki/index.php/Supported_Devices

Re:You could always get your hands on them,

[Lumpy]

High quality and high power. the HP versions go up to 350mw easily.

they kick the crap out of the other ones out there. Except for the new linksys 600N that's my new darling with fast processor, gobs of flash and ram and takes to DD-WRT quite nicely....

I wouldn't hold your breathe.

[darkmeridian]

The Federal Circuit only reversed summary judgment as to obviousness of CSIRO's patents. This means that Buffalo Tech. will have a chance to make its case on that issue alone. You see, based on the silence of the BT press release on the other issues against BT on summary judgment, I would have to conclude that the Federal Circuit upheld those.

I also have to add that the lawsuit is filed in the plaintiff-friendly (to put it softly) E.D. Texas.

Re:I wouldn't hold your breathe.

[Zordak]

You're right. This was hardly a big victory for Buffalo:

On appeal, we affirm the district court's summary judgment rulings in all but one respect. With respect to the issue of validity, we uphold the court's entry of summary judgment that the '069 patent was not anticipated. We also uphold the district court's entry of summary judgment that the '069 patent was not invalid because of the addition of new matter to the application or because the asserted claims lacked a sufficient written description in the original specification. With respect to the issue of obviousness, however, we conclude that the district court erred by entering summary judgment against Buffalo because we hold that there was a disputed issue of material fact as to whether the prior art references that were before the district court were combinable in a manner that would have rendered the asserted claims of the '069 patent obvious. Although we vacate the summary judgment of obviousness, we have nonetheless addressed the issue of infringement, on which the district court entered summary judgment against Buffalo, because that issue will continue to be important to the ultimate disposition of the case unless the claims are held to be invalid for obviousness. As to that issue, we uphold the district court's summary judgment of infringement.

The district court found (on summary judgment) that the patent was not anticipated, valid, not obvious, and infringed. Even for the E.D. Tex., that's a lot to hold on summary judgment, and usually indicates it's a pretty blatant case. The Fed. Cir. upheld all of those findings except obviousness. It did not hold (contrary to the summary) that the patent was invalid. It held that there was an issue of material fact as to obviousness that the district court would need to try to a fact finder. If the district court finds, on remand, that the patent is non-obvious, then Buffalo loses.

I know there's a huge anti-patent sentiment around here, but patents are my bread and butter, and I tend to believe that there are such things as valid patents. I haven't looked at this patent specifically, but if somebody has a slam dunk argument for why the specific claims at issue are obvious, I'd honestly be interested to hear it. I hate obvious patent too---probably more than you, because I have to litigate against them, fighting the presumption that they're valid with lots of money on the line. But this sounds more like a case where a lot of people are upset that they couldn't get something they liked because it infringed a possibly-valid patent. That is really just the price we pay to have patents at all. Some of the people here will disagree with the whole concept(many will accompany their disagreement with vitriol and poor grammar). But I don't think that a trade secret-only world would be any better.

So somebody tell me, what is obvious about this patent? I'd be interested to know.

Re:I wouldn't hold your breathe.

[femto]

I just happened to be involved in the university project that produced this patent. The patent was filed before I got involved, so I can't comment on the perceived obviousness at the time of filing (or any other aspect of the filing). From personal experience, in 1995 most people I spoke to about what I was doing didn't "get" it and questioned why anyone would bother doing such a thing. It's hard to tell how much of that was due to the technology being non-obvious, or how much was due to applications being non-obvious.

It's interesting that there is only one name in common between the list of authors on the patent and the paper, and that person isn't the lead author on the paper. I guess that might be because the paper is about the second implementation. The first implementation, on which the patent is presumably based, was done in software in non-real time (burst mode). If judging obviousness, it would be worth comparing with the HiperLAN project and the work that went into it.

Re:I wouldn't hold your breathe.

[sjames]

I could accept a patent system IFF there was a presumption that independent re-invention proved obviousness and deliberate disclosure of one's own patents without a WARNING/NDA in advance was a crime (to prevent patent holders from trying to poison the well).

I would also say that if a competent engineer in the field couldn't replicate the invention without additional research just by reading the patent, it's void.

To me, this actually sounds like some worked their butts off to actually do something useful and then someone else saw a passing similarity to something they did once (but then left to rot somewhere) and decided to cash in.

It's noteworthy that many attorneys advise engineers to NEVER look at patents because it could drastically increase liability if they should happen to see one vaguely similar to anything they have implemented even if the dense patentese kept them from recognizing it.

I personally object to patents as they are now because I have personally had ideas that I considered too obvious for a patent or discarded outright because they weren't really all that good (or both) and then seen them patented. Why should anyone have the right to sue me for a fortune if I re-use one of my own ideas?

Re:I wouldn't hold your breathe.

[Anonymous Coward]

The CSIRO is Australia's 'Commonwealth Scientific and Industrial Research Organisation' - they pretty much do pure research, mostly government funded. There's branches of it that do applied research with industry alliances. I'm pretty sure the documented research of these guys provided the slam dunk.

Re:I wouldn't hold your breathe.

[HuguesT]

Your ideas sound good but are probably unworkable. Independent re-invention does not prove obviousness, as it happens all the time even for very difficult subjects (e.g. in maths, physics, not just engineering). The first to invent should get the credit as in research.

Your second point, I wholeheartedly agree with however. Patents are supposed to make something "patent", i.e. totally obvious to make with the knowledge of the patent. Some patents are like that but not all.

The third point is the opposite of reality. CSIRO are the one who worked their butt off to make wireless communication more reliable, effective and efficient, but they are not a manufacturing entity, they are a government research agency. They patented their discoveries as they should have. Even if Buffalo or others certainly made contributions into the manufacturing process, the basic scientific principles of their device is based on CSIRO's invention.

Nobody complains when IBM (say) patents a new silicon manufacturing process like SOI and makes wafer makes like Applied Materials pay licences. In effect the research arm of IBM makes billions a year from patent licences. People know that IBM has legal werewithals and don't think they can get away with cheating with IBM's inventions.

Here I'm pretty sure the Dells, HPs, Netgears of this world knew they were infringing but thought "who is this CSIRO thing? an Aussie gov. body? come on, can they even patent things in the US? can they even prosecure?" and tried to cheat knowing full well that at worse they might be liable for some fees down the line and might be able to settle for cheap somewhere down the line. They probably thought it would be a nice way for their legal department to make them some money for a change.

If patents like these are invalidated this is pretty much closing the lid on a whole body of strategies for applied research to fund itself through licences and commercial agreements. CSIRO is not a submarine patent shop. They employ around 6000 people and do very fine research in all areas of science. If they made a fine invention like it sounds they have, way in advance of everybody else, they should get a fine reward. This is the heart of the patent system.

If this doesn't work then the patent system is not only ineffective, it is simply evil.
 

Re:I wouldn't hold your breathe.

[sjames]

It's not a presumption, but that is one of the factors of obviousness a court can consider.

Exactly. I believe it should be a presumption. That alone could save millions in litigation costs.

Most countries have an "absolute novelty" requirement. If you disclose your patent publicly before you file, you can't get a patent. The U.S. has a one-year "grace period," which I think is pretty reasonable. And most patents get published 18 months after their earliest filing date.

I'm talking about after the fact. If you know I'm working on the same thing you are, it's not fair if you are allowed to mail me a copy of your notebook on your way to the patent office in order to destroy my independent inventor status.

I haven't looked at this case in detail, but my guess is that it's more than a "passing resemblance." The court found infringement on summary judgment, and the Fed. Cir. upheld it. That has to be a pretty compelling case for infringement. If somebody infringes your valid and enforceable patent, you're entitled to legal relief, even if the other guy worked really hard.

I would say that it strongly depends on the other guy's knowledge of my work. Interestingly, my argument is the same as the one commonly used to support patents in general: people should not be deprived of the fruits of their labor.

Things look a LOT worse when you're a developer and you realize that your hard work may be snatched from you (and worse, you may be ordered to hand a small fortune ober to the person who snatches it) based on a decision made by someone who may or may not be able to turn on their PC unassisted.

I realize the example I am about to give may seem quite odd to you, but it is (as close as I can get it) how many developers and engineers feel about patents and their effects on our field.

Consider how you might feel if your professional actions might do one of succeed, fail, or cost you (or your employer) $10,000,000 because an engineering committee decided that the confzigulator efficiency coefficient was too low for their taste. You ask what's a confzigulator and just how efficient it needs to be and they answer: "well, that depends...." and suggest you get an engineering degree or consult an engineer prior to submitting any legal documents or giving an oral or written opinion. Of course, that engineer's opinion will be helpful but non-binding. You might still be liable.

Put another way, imagine if at any time, someone could hire an engineer to look at your legal arguments in what you think is a routine civil trial and claim up to 100% of all fees you collect for handling the matter. You have the right to hire your own engineer to counter the claim, but he will cost you 200% of the fees you hope to retain.

Who invented that crazy system you have to live in? The IEEE, of course.

IMHO, one of the problems with law as a whole as it is practiced today is that there is literally no course of action or policy one can follow that can even approach absolute assurance that there won't be legal trouble. In the area of patents, nobody at all can tell me if I will or will not become subject to expensive patent litigation for any thought I may attempt to reduce to practice. Imagine how lawyers (or anyone else in the general public) might feel if they asked "will that bridge collapse if I walk across it?" and the engineers answered, "gee, we guess not, but we won't be sure until you cross it".

Time Capsule like NAS devices

[Anonymous Coward]

One product Buffalo used to sell before this injunction were hard drives with a wireless interface on them, similar to Apple's Time Capsules. This was before Apple's product hit the market. I wondered why this company was barred from selling these while Apple was free to do so.

I hope Buffalo wins this round.

Re:Why these routers?

[King_TJ]

Well, for whatever it's worth, I've installed a LOT of wireless routers for people over the years - and I learned to generally AVOID Belkin.

If you've got one that's working well for you, great. But on the whole, they were known for having sub-standard firmware in their devices. I remember, for example, when 802.11g was the "latest and greatest thing", Belkin had a "g" capable router that had a major bug in the firmware, preventing any "g" devices from connecting to it if it was configured to also allow backwards compatibility with "b" devices.

They did release a firmware update to correct that, but you still had a relatively weak/limited set of configuration options in the product.

I also recall finding Belkin wi-fi routers to have worse-than-average range.

People seemed to generally like Buffalo because they were priced a little bit lower than the competition, especially on things like wireless access points (which seem to generally be a big ripoff to this day, since they cost 2x to 3x more than a full-blown router, which can be programmed to function as an access point anyway!). That and they gave good performance for the money, and had better than average web-based interfaces.

Re:Why these routers?

[_PimpDaddy7_]

- They are quality routers
- You can flash them with some excellent software
- Sync them up so you have longer wi-fi distance running through you house, apt, etc.
- Their range tends to be larger than other routers.

Belkins, netgear, Linksys always seem to have died on me, but my Buffalos are still roaming -bad pun intended :)

Re:Why these routers?

[thetoadwarrior]

From my experience Belkin routers become unreliable quite easily.

Re:Why these routers?

[fuzzyfuzzyfungus]

Your history of Belkin's sins omits the most amusing one: At one point, they baked firmware into their routers that would, from time to time, jack an http request from a machine on the lan, and feed them that image instead. Major WTF. Slashdot had the story back in the day.

WTF with reading comprehension

[R2.0]

"On September 19, 2008, a Federal Circuit Court of Appeals ruled that CSIRO patent claims are invalid and Buffalo is getting a new trial."

The Circuit court did no such thing - it ruled that the judge had erred in issuing a summary judgment, and it needed to go back to trial. NOWHERE in the link does it say that the Appellate Court ruled on the validity of the patent.

Re:WTF with reading comprehension

[initdeep]

this is /.

these facts are not the ones you are looking for.....

*waves hand*

Buffalo AirStation

[C_Kode]

I own a Buffalo AirStation wireless ethernet converter. Best wireless device since the WiFi router.

Before you get too excited...

[Anonymous Coward]

You may want to check out the case pending in the Western District of Wisconsin where Fujitsu, LG and Philips have sued Netgear under the following 3 patents: 4975952 (claims 1, 4 and 6), 6018642 (claims 2, 6, and 8), and 6469993 (claims 1, 2, 3, 6, 21, 25, and 26).

Plaintiffs are using the stupid theory that the 802.11 standard infringes the patents therefore Netgear's products also infringe. The plaintiffs have accused more than 100 Netgear products.

Netgear is the sole defendant in the case. Some details from Netgear's SEC filing:

In December 2007, a lawsuit was filed against the Company by Fujitsu Limited, LG Electronics, Inc. and U.S. Philips Corporation in the U.S. District Court, Central District of Wisconsin. The plaintiffs allege that the Company infringes U.S. Patent Nos. 6,018,642, 6,469,993 and 4,975,952. The plaintiffs accuse the Companyâ(TM)s wireless networking products compliant with the IEEE 802.11 standards of infringement. The Company filed its answer in the first quarter of 2008. This action is in the discovery phase. The District Court has scheduled an August 15, 2008 claim construction hearing and an April 27, 2009 jury trial.

If you want to fight patent garbage, buy Netgear products.

Re:Why these routers?

[Anonymous Coward]

Belkin, Netgear, Linksys, Buffalo, & D-Link are your major home/small office brands.

They all have stinkers, they all have decent models.

In general however, Netgear tends to come in at the bottom of the price AND quality range, with a few in the mid-range of quality, Belkin is sort of like this as well, but maybe a little better.

D-Link & Linksys tend to have more models that are average or slightly above average, both in price & quality. D-Link had some firmware issues a while back, and Linksys you need to check the product VERSION in addition to model numbers.

I've heard good & bad about all the brands, basically do your research, they all have ups & downs.
If you hear anybody ranting about how great or terrible one brand is in general, they probably have some bias.

Re:Why these routers?

[frostband]

From my experience, I have set up a network with about 10 Belkin routers, they didn't have great range and the WDS on them was sometimes "shakey" (probably due to range/antenna issues perhaps). I was also having to restart some of these too often. I tried to put DD-WRT on some of them, and after bricking a few, it was time to move to something else.

I then tried to switch over half of the network to Linksys ones, but they didn't do the WDS for some reason at all. I returned all of those.

Now comes the Buffalo routers, I flashed all of them with DD-WRT and now I have a very stable network set up with about 12 (and growing!) WDS-connected routers. Most are Buffalos with DD-WRT and hopefully one day they all will be since you can do SNMP (sp?) monitoring on them.

Bottomline: All the points the parent mentioned plus they have been very stable for me compared with others and they have had better range (whoops, that's one of his points).

One of these days I'll set up a blog post or something detailing my network. This network is at a lodging facility on a lake where all the buildings are semi-sparsely located and it's actually a major selling point to a lot of guests looking for a place to vacation.

Using mine with Tomato

[Ma8thew]

Got a G54 preinstalled with DD-WRT from Buffalo last week. Immediately installed Tomato on it, and it's performed brilliantly. Whereas before I would have to reboot my router once every other day, this one has an up time of eight days so far. I love the QoS features of Tomato. Keeps the web speedy during torrent downloads.

Well...

[Zouden]

With any luck, we will be able to get our grubby hands on low-cost Wi-Fi routers again!"

They're only low-cost because they aren't paying the inventors for their work.

Re:Well...

[VorlonFog]

I've been reading this court document describing the recent decision this evening. IANAL, but it seems Buffalo has presented entirely reasonable and valid evidence for prior art. Additionally, CSIRO's '069 patent as originally filed specified the 10 GHz frequency range while 802.11 A/B/G/N transmissions occur in the 2.5 and 5 GHz ranges. It seems CSIRO in 1995 amended/revised their patent to remove the very specific 10 GHz reference and instead cited the more general term 'radio frequencies'. They also added new claims specifically cited in the Buffalo case. I've only read the first 25 of 40 pages, but IMHO Buffalo has presented a strong case to be reviewed more carefully than any summary judgment ever oculd. In other words, it's not so much "they aren't paying the inventors for their work" or stealing Intellectual Property. It's more like, "Buffalo presented a case the court summarily ruled against, and CSIRO is trying to enforce a possibly invalid patent." Read the document, and make your own decision. Then come back and post some more.

proof that /. is blatently anti-patent

[Anonymous Coward]

"With any luck, we will be able to get our grubby hands on low-cost Wi-Fi routers again!"

a completely valid patent (it's for a hardware implementation, and was non-obvious at the time) and /. hopes it's overturned. I'm happy to agree that software patents have no place in this world, and the patent system needs an overhaul, but this is ridiculous. you're a bunch of hypocrites, getting all worked up when china ignores US IP when to make cheap products, but then you turn around and do the exact same thing to the australians. lame

CSIRO didn't start the fight, but will finish it.

[ufoolme]

I'm all for breaking IP if its for personal use, or to increase the scope of the research.
But in this case its a massive company being greedy! Not paying its due to a non profit organisation devoted to research. Who developed wi-fi when no one else was really interested in it.
That to me is analogous to the open source movement, especially so when you consider that Buffalo sued CSIRO first.

Re:CSIRO didn't start the fight, but will finish i

[Anonymous Coward]

CSIRO is an Aussie Government research institute. They come up with a lot of awesome technologies used around the world and the money is channeled back into R&D. Australia has so few research labs CSIRO is one of the few that is still around. I hope they win because the work they do is outstanding and they're one of the last bastions of creative development in Australia.

Re:Almost need a poll to explain it

[earlymon]

Not sure of your time frame, but just in case you still have it, maybe their website is better now:

http://www.buffalotech.com/support/downloads/

If it's a discontinued model:

http://site2.buffalotech.com/support/downloads2.php

I assume that you're referring to XP SP2 - my buddies and I had a lot of various USB problems prior to that. Sorry if that's obvious beyond all recognition, just covering bases.

Re:Why these routers?

[kimvette]

I like Buffalo because:

• they work
• they run dd-wrt
• they sponsor the dd-wrt project
• they don't take steps to prevent installation of dd-wrt, unlike other companies (Read: Linksys/Cisco)

Re:Why these routers?

[corsec67]

I only have 1 Buffalo router, a WHR-G54S, and it is mounted to a pole, outside in the sun, rain, snow and ice (it is in Colorado, so that isn't a mutually exclusive list). It is fed a little bit too much voltage over 100' of sprinkler cable, in a telcom case. At this point it has been there for over a year.

Current uptime: 123 days

The only issues I ever have with the router is antenna misalignment from my other 19 dBi antennas being accidentally moved.