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Coder Accuses IBM of Patenting His Work
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 I had more or less forgotten this stuff, since for the last 7 years I've been coding for UNIX/Linux, where valgrind superseded Efence/dmalloc/etc.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."
Can I drop a hint about the patent office having no credibility any more?
When the foot seeks the place of the head, the line is crossed. Know your place. Keep your place. Be a shoe.
Most likely, they're patenting a particular, specific extension of what was done before.
September 2011: Looking for Cocoa/iOS work in Boston area Cocoa Programmer Quincy, MA
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 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?
My work here is dung.
FWIW, your site wasn't cited by IBM's application, but by the USPTO examiner.
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PTXT&s1=7552305.PN.&OS=PN/7552305&RS=PN/7552305
No kidding!!! What do you say at this point?
Oh, why libel - the fact that IBM linked their invention with yours caused you irrevocable damage to your reputation; not only as a F/OSS developer but as an honest human being.
RIP America
July 4, 1776 - September 11, 2001
Neither Electric Fence nor valgrind were new ideas either; they just did for open source what commercial and mainframe software had been doing even longer.
Unfortunately, by citing your work and getting it past the examiner, it's now much more difficult for you to claim that your work is prior art. The presumption (idiotic as it is) is that the examiner must have looked at your work and determined that it was sufficiently different from IBM's that he would grant the patent.
Step 1 - Be a large company.
Step 2 - Afford the world's best lawyers
Step 3 - Sue
No luck for the rest of us.
Hi there,
I can sympathise. Being a South African Engineer I've had a local patent copied (blatantly) and filed separately in the USA. This USA patent has subsequently been used to file a PCT and register the work throughout the EU and even in China.
A commercial decision was taken not to produce a product and so the patent was just there "squatting" on IP.
Given the decision above and the cost of litigation (although I did have a meeting at WIPO in Geneva) I just had to deal with the fact that some moron stole my stuff.
From your post I figure you had made a similar (commercial) choice, and so I hope you can find solace in UNIX.
Cheers.
I saw a good article on the intertubes that explained this very well, but I lost the link. Other slashdotters may deliver...
I rarely respond to comments. Also, don't ask for clarifications: a brain and Google are faster, believe me!
It might look like IBM have patented your technology but what they have actually a patent on is what is given in the claims, no more and no less.
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.
Schroedinger's Brexit: The UK is both in and out of the EU at the same time!
Step 1: Go to http://portal.uspto.gov/external/portal/pair
Step 2: Pass CAPTCHA
Step 3: Select "Patent Number" among the radio buttons, enter "7552305" as the number, click search
Step 4: Click "Image File Wrapper"
Step 5: Tick the box next to each line saying "(Non-)Final Rejection" and "Applicant Arguments/Remarks Made in an Amendment"
Step 6: Click the "PDF" icon towards the top right of the page
Step 7: Read the arguments between the attorney and the USPTO
Step 8: Discuss on Slashdot
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 are a problem.
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..
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]
Bruce Perens.
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.
Léa Gris
companies tend to settle rather than fight.
Actually in another post by Sockatume pointed the USPTO examiner is the one mentioning his website and not IBM.
(for some reason I cannot link the article)
Obviously if the examiner cited HeapCheck, then he/she new of the art and the IBM patent is somehow novel in light of HeapCheck. You should order the prosecution history to fully understand the dialogue between IBM and the patent office over novelty.
They are claiming an improvement on your invention. That's why they reference it.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
If you check the prosecution history on public pair,
http://portal.uspto.gov/external/portal/pair
you will see that the examiner cited your prior art in the 8/30/2007 office action (CTNF) and that the applicant amended the claims in a response on 1/30/08 (CLM) and argued that the amended claims were not anticipated by your art (REM).
Wow, an examiner actually found prior art! Of course, that's what they're supposed to do... I'll have time to decompose the claims next week. If anyone wants to do it this week, go ahead.
Bruce Perens.
Remember that US patents are given to the first to file for a patent and not the first to invent, as can be demonstrated by the US patent for the incandescent lightbulb: http://www.coolquiz.com/trivia/explain/docs/edison.asp or the telephone: http://en.wikipedia.org/wiki/Invention_of_the_telephone
Of course, the first one shows that the US patent office can issue a patent for something already patented elsewhere in the world.
Agrajag: "Oh no, not again!"
File a "Citation of Prior Art." It's very easy to do, and anyone can do it. Next, file a Request for Reexamination. There are two kinds of reexaminations: Ex Parte (which means you submit the request and the fee, and then your personality responsibilities are terminated), and Inter Partes (which means you have a say throughout the entire re-examination). The latter is more expensive. Here is a link that may help you get started: http://www.uspto.gov/web/offices/pac/mpep/documents/2200_2210.htm#sect2210 Since your work was listed as prior art, you are going to have a very tough time ahead of you. That designation means that before the patent was granted the examiner looked at your work and said "IBM's invention was not obvious from the prior art." If you are unable to cite your own work due to it already being cited in the patent, you could try citing the work that predates yours by twelve years (and also mentioning your previous work as well). [Disclaimer: I am not an attorney, and I am not a patent agent. I'm not giving you any legal/non-legal advice, just some ideas that you might want to talk to a patent attorney/agent about.]
They are 20 of them in this patent ; you have to start reading with claims #1, 12 and 16 that are independant claims, and continue with the other claims that refine one of those 3 main claims.
If at the end of your reading you can answer that "Yes, my work does this" for ALL of them, then yes your work is prior art and can be used to refute this patent "novelty".
If ANY of the claim describe something your code did not implement, then no, it cannot be used as "prior art" as the patent describe an "enhancement" from your code and hence can be considered as a novelty.
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
Expert in software patents or patent law? Contribute to the ESP wiki!
the patent system just 2 articles ago, calling me a 'moron' for saying it could not work. where are you now ...
Read radical news here
I don't see why you are complaining... software patents are stimulating innovation. In this case they stimulated innovation by stealing someone-else idea, patent it and now they can start sueing the asses of the original inventors... that's innovation... what part don't you get? Hail innovation, hail software patents. My name is Steve Ballmer and I approve this message.
You could contact the FSF. They have a legal department that can help you with this.
Open Source Network Inventory for the masses! Kuwaiba
Don't simply look at the title and/or abstract and conclude "that is my work". The title and abstract are not what is the legally protected invention. The legally protected invention is only that which is described by the claims of the patent, nothing more.
So, first, read the claims. Read them very carefully, and with an open mind. Do they include at least one part that differs from your work? If they do include something that differs from your work, then the claims protect something that is different from your work, and not your work itself.
The only reason for you to do anything more is if what the claims describe is the same thing as your work (and your work has to have been public before the filing date (in this case, October 25, 2005)).
If it is the same, then you have a few choices.
Most involve lots of lawyer fees.
But there is one that does not involve lawyer fees, if you are willing to do the footwork yourself:
http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_301.htm#usc35s301
http://www.uspto.gov/web/offices/pac/mpep/documents/2200_2205.htm
If you are willing to follow all the fine points of the second URL, you have have your own detailed explanation of why you think the patent claims are invalid put into the patent records. Now, while this will not likely result in invalidation of the patent, it means that if IBM were to try to use it against anyone else that you've already given that anyone else ammunition with which to shoot the patent down.
Let it pass buddy, let it pass. If you wanted to Patent your work, I hate to say it, but as the voice of total logic if you wanted your work patented you should have done it whenever you were finished writing your code. On your own HeapCheck disclaimer page you say "I am releasing my humble efforts to the public so that some programmer's life gets a little easier." You can't then file for a patent on that work, because you put it out and stated that you were releasing it to the public. Essentially you waived all exclusive rights to your work when you released it for free to the public. You can't suddenly decide that because IBM used it that you want to cash in. You said you released it to the public. Now I know you have it under the GPL but if you state elsewhere on the same site that you're releasing your efforts to the public I'm pretty sure the courts are going to see that in very lenient terms for IBM. They have every right to think they are free to use it if you state that you are releasing it to the public. Your best bet, I would think would be to contact a patent attorney and run your case by them. Realistically given your statement that it's been released to the public the only grounds that I can see you challenging their patent on is that they aren't following the terms of the GPL. But the even with the restrictions placed by the GPL if the work IBM did is substantially new they'll still be able to patent their work. For example you say they are accomplishing the same goal, but if their means of execution are substantially different than yours then your patent doesn't apply. Additionally a patent lasts only 18 years, and you haven't brought any other previous claims, even when you found Microsoft to be doing the same thing IBM is now. That will hurt your case big time. Ultimately though my advice isn't based on the law. I'm not a lawyer and I think when it comes to patent law NO ONE really knows what's going on because so much of it is just winging it. But I think most patent lawyers would probably tell you that legally it would be hard to pursue your case because you said you were releasing it to the public, you never issued a patent claim about anyone else using your work, it's not even clear (since we don't have the code) if IBM used your code or if they just liked what your code did and figured out a different way to accomplish the same goal. But ultimately all those things are irrelevant, because I'm pretty sure if you run this by most patent attorneys they'll probably tell you that suing IBM is virtually impossible. IBM made $2.6B the first quarter of 2010. IBM can and does afford the best, and I'm sure one of the most ridiculously abundant legal teams, of any company in the world. Talk to a patent attorney see what they tell you, but don't be surprised if it gets into the simple logistics of suing a company that has a regular cash flow of nearly $20B dollars per quarter.
And what is given in the claims is what *looks* like the submitter has produced as prior art.
The statement is that IBM has done something innovative.
They should prove that statement.
Currently, what is patented INCLUDES in certain claims what Valgrind does, where the patent should be on the EXTENSION of what Valgrind and the submitters' work does. If that turns out to be the null set, there's no patent. If that turns out to be trivial, there's no patent. If that turns out to be novel, then ONLY that innovation is patented, NOT what the claims say is patented.
TBH, this is the problem with software patents.
Source code marking WHAT is the patented work MUST be put there, much the same as you have to have technical drawings of a new screw thread you wish to patent.
You're saying there's people who steal those kind of things even if such things are under a binding license.
Now, what makes you think the same people would not steal/patent/abuse non-opensourced monetizeable code too?
If he was using a BSD license, I would agree with you. But this guy used GPL. And I'm sure you know the difference. If you don't, then why don't you look it up.
I'm not Jewish, but do we really need a tag for this story that says "Jews?" Stereotype much?
I hate being bipolar; it's awesome!
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.
Laws affecting technology will always be bad until enough techies become lawyers.
Fixed that for you.
If claim #12 states something that is in HeapCheck, then that claim is voided. EVEN IF claim #1 is valid.
If claim #1 is invalid from prior art, then all dependent claims are invalid, EVEN IF independent ones are still valid.
HE DOES ***NOT*** have to disprove ALL claims.
If some of the claims are invalid, then the patent needs to have those invalid claims stricken.
E&OE, remember.
As to do about it, well if you load up that sling shot, just remember to aim for the 'I'.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
i.e. the call moves from his lib to the OS lib.
And he could link with his lib and have the trace feature turned off, which would be the same as he had.
(for some reason I cannot link the article)
Unfortunately, Slashdot already has a patent for "Disabling copy-paste in certain browsers (e.g. Chrome)"
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 has the muscle to make a case out of it. Maybe it can add to the stockpile of arguments they prepare in the case patent war is declared on OSS.
The Wise adapts himself to the world. The Fool adapts the world to himself. Therefore, all progress depends on the Fool.
The Examiner cited your work. He also used it as the basis of a rejection for three office actions. It was only after IBM included "without requiring recompiling, linking or loading of the application" that the Examiner allowed the patent. It looks like the Examiner gave full consideration to your work.
You reference Edison for proof that the US is a first-to-file system... But did you read your link?
Edison fared no better back home in the U.S., where the U.S. Patent Office already ruled, on October 8, 1883, that Edison's patents were invalid, because he based them upon the earlier art of a gentleman named William Sawyer.
I think, based on your links to the lightbulb and the telephone, that you don't actually understand how patents work... Patents cover the claims, no more, no less. As a result, there are frequently new inventions that are improvements on earlier work that are valid because the claims claim the improvement. For example, there have been literally thousands of patents relating to lightbulb technology, but they don't all say, "I claim, 1. A lightbulb." Instead, each claims specific improvements, such as this one from 1998:
1. A light bulb, comprising: a housing configured to fit at least one of a halogen, incandescent and fluorescent light fixture; an illumination source including a plurality of light emitting diodes (LEDs); a processor coupled to the illumination source and controlling current to the plurality of LEDs to generate color within a color spectrum, wherein the illumination source and the processor are disposed within the housing; and, at least one of a receiver and a transmitter coupled to the processor for respectively receiving or transmitting a data signal from an external device.
If you just look at the titles of patent applications, you wouldn't realize this, however. That claim is from a patent titled "smart light bulb", so not understanding that the titles are legally irrelevant would lead to complaints that the patent office was allowing someone to patent things that had already been invented before.
Remember that US patents are given to the first to file for a patent and not the first to invent, as can be demonstrated by the US patent for the incandescent lightbulb: http://www.coolquiz.com/trivia/explain/docs/edison.asp or the telephone: http://en.wikipedia.org/wiki/Invention_of_the_telephone
Of course, the first one shows that the US patent office can issue a patent for something already patented elsewhere in the world.
This is blatantly WRONG. Unlike most of the world, the US is a first to INVENT system. http://en.wikipedia.org/wiki/First_to_file_and_first_to_invent http://inventors.about.com/od/firsttoinvent/First_to_Invent_Rule.htm and I could keep going with google results 3, 4, and 5.
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 comments to this article, you see many people noting that the patent's claimed ability to enable heap checks at runtime without recompiling didn't exist in submitter's work. So, the patent system worked just fine - they searched, they found the closest prior art, and they realized that it doesn't teach everything in the patent.
... and "all right" is two words, Moron.
This is not informative, it is in fact wrong. The United States is one of the few countries that imposes a first-to-invent rule. Most other countries with patent system use first-to-file. What being the first to file in the U.S. gets you is what amounts to a rebutable presumption that you were first to invent. The later-to-file person who claims to have invented first has to file interference proceedings.
That there are counterexamples where someone who invented first lost the patent to the first filer does not change what the law is or the way it is typically applied.
A few years ago I bought an ipod shuffle. Nice little player but no screen. Sometimes I would have liked to have known what track was currently playing, but how do you find out that info if there is no screen available? Apple put a suggestion box on their site, asking for ways to improve the shuffle, and I put forward the suggestion that when track was copied to the shuffle, a second small sound file would be bundled with the track, containing the song name, artist and album. On pressing a button the snippet would play over the track. I suggested the feature would work like "speakable items" in the mac os. A neat solution to the problem but I never heard back from them.
Flash forward a few years and Apple unveils the latest, greatest innovation: VoiceOver, patented to the hilt.
Thanks, Apple
It isn't enough to invent a bulb that will burn for 13 hours on a lab bench.
You need a long-lived bulb.
You need to design a safe and commercially viable electrical power production and distribution system suitable for residential and commercial use.
The switch a child can use without risk of electrocution.
Projects on that scale are ideal for the corporate research and development lab that Edison pioneered.
The Software Freedom Law Center provides legal advice to free software developers without charge. Since your program is distributed under the terms of the GPL, contact them to see if they can help you in any way.
There is no case here. He can't ask for payment because he doesn't own the technology, because it was never legitimately patented. Unless the plan is to blackmail IBM, but that sounds pretty dangerous to me.
The only thing that can be done is what has already be done. Make it publicly known that this patent is not valid, and if IBM presses anyone this software can be used in any court battle to prove prior art.
I am assuming his interpretation of this patent is 100% correct. And that the patent isn't more specific than his particular implementation.
The United States Patent Office(tm) is a JOKE! Oh sure, blood sucking lawyers will take the paper they issue and cry out "ALL OF YOUR EVERYTHING ARE BELONG TO ME/US!!!!!!!!" Sadly, their fee acceptance department is fully staffed with over 100,000 people ready and willing to take your money. Their paper printing plants have a dozen presses, publishing officialdom for blood sucking lawyers to hold up and cry when defending their Johnny-come-lately clients (the ones with periscope hats). And their patent checkers? The ones trusted to check for prior art? The ones who check that a patent hasn't already been issued? The ones who check the technical validity of the patent? Oh, that's old Fred in the back. In order to speed Fred up, every year they hire 250 interns from the local college. They get the kids in, and mount specially designed rubber stamps, (one for each hand) to each of them. The minimum number each has to stamp is 250 patents per hand per day, with a bonus that if you can wear a stamp out in a month, you get a $300 bonus, if you go through the most patents per month, you get a $1000 bonus, and if you can do both, you get a $1350 bonus. File baby, file!
No it is first to invent in the US. Cherry picking instances that can be argued for the contrary is specious.
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.
Bye!
Most companies write it in the clause in black and white, any code developed during company time is property of their company. Usually this means even during your breaks and what not....so if you really want to separate your coding time from company time, then do it at home. This ensures they can not copy your code, as it never gets into their hands!
IBM probably patented the technology to protect themselves. Just register your work with the prior art databases like ip.com and get the URL referenced by the USPTO working again (if you can).
If IBM sues someone, then that will be enough to defend themselves.
It sucks that a company can get away with this, and it is a little scary. But, of all the companies which behave in this type of behavior, IBM is much less likely to sue for this type of 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.
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 ?
Read radical news here
The feature cited in the reasons for allowance was 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
Why didn't you just call _CrtCheckMemory(); That's a standard feature of microsoft's debug heap implementation since at least 1998 (VC6). There's other _Crt calls you can set all kind of flags for enhanced heap checking.
It's the only way.
Oliver's law of assumed responsibility: If you're seen fixing it, you will be blamed for breaking it.
I realize slashdot's first instinct is to hate the guy with a patent, and I'll fully admit that I'm too lazy to go look, but ...
To me, common sense says if they referenced your work directly in their patent, they are pretty freaking confident they have something over you.
I'm pretty sure even at the patent office that if you submitted a patent that said 'we did what this guy at this website did and we're patenting it', which is what you claim, that it wouldn't even get accepted with as bad as they are.
$500 says IBM patented something different and better than what you did, and you're just trying to get people riled up and probably extort something from IBM in the process.
Persistent Volume manager for Kubernetes - https://github.com/dwimsey/openshift-pvmanager
This is one of the more interesting Slashdot stories in a while. I can put myself in your position and feel you emotions on this potential theft. It looks as if IBM is claiming they've made a substantial enough modification to the code/process/design to warrant a patent for them. As far as the USPTO lately, ever since the patented '1 click checkout' , the office has been suspect in my eye. I wonder how big of a potential market this patent has? One thought that I haven't seen mentioned is that, while this might be the more evil of two evils, you could contact the companies/people that are buying companies just for their patents. If this patent had enough value this might be a place to obtain some backing, again the value of this patent is unknown to me. Other than that it's more of a personal pride and justice argument, in these days of the Mortgage crisis and unbridled greed, with seemingly absolutely no consequences, there seems to be no honor, even among thieves anymore. Best of luck. look forward to a future post about the outcome.
http://bits.blogs.nytimes.com/2009/03/30/trolling-for-patents-to-fight-patent-trolls/
This is a great explanation of what's actually going on in this case.
Huh. I thought that was just Chrome acting screwy yesterday. But no, it really doesn't work - ever!
For a site about things like basic rights, Slashdot users sure do like to censor "dissent".
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.
https://secure.wikimedia.org/wikipedia/en/wiki/First_to_file_and_first_to_invent
Actually, the USA is the only country in the world where that isn't true. The patent can be granted to the first to file but in the USA there is a process to take the patent back if you were the first to invent it. Every other country in the world is first to file keeps the patent.
Read my short stories - You won't regret it.
The best way to go is to modify HeapCheck so that it infringes the supposedly new and novel method of the IBM patent and release it as open-source. Then, If IBM sues you, you can say that the original patent application did not include too novel an idea to be granted a patent and sue IBM instead for damages and defamation.
Nazi supporting idiots. You can't beat the Nazi's, as they now run the United States Government.
Either way, we win. Unless Microsoft sues me for infringement of its patent on innovation.
cut him in on the take and you, my friend, may be the new owner of IBM.
Sorry pal, but USPTO is the end of all the buttjokes in the worldwide patenting business
When you file for a patent on an innovation, you are required to cite all the similar inventions and inventions you are improving. Just because this guy was cited does not mean he has been "ripped off". He could have had a patent and if IBM's improvement was novel enough, they can get a patent for their improvement. Now, if the guy expects to get paid a licensing fee, well, sorry ... you can only charge for a patent license if you bothered to get a patent in the first place, which he did not.
You were happy without a patent, so shut up and be happy you at least are getting the proper citations you deserve.
kzm nerede dizisi
...teh patent system PROTEHCTS inventors!
And this is why the entire thing is a joke. This is not patentable:
void *malloc(size_t size)
{
char *p = VirtualAlloc(size+2*pageSize);
VirtualSetPageFlag(p, FLAG_NO_READWRITE);
VirtualSetPageFlag(p+size+pageSize, FLAG_NO_READWRITE);
return p+pageSize;
}
And this is patentable:
void *malloc(size_t size)
{
if (heapalloc_enabled)
{
char *p = VirtualAlloc(size+2*pageSize);
VirtualSetPageFlag(p, FLAG_NO_READWRITE);
VirtualSetPageFlag(p+size+pageSize, FLAG_NO_READWRITE);
return p+pageSize;
}
else
{
return HeapAlloc(GetProcessHeap(), size);
}
}
Yes, I can see it now. Only a genius could have figured that one out. I guess we better hope HeapAlloc doesn't add an enable/disable toggle switch to the library!
As someone else pointed out, the examiner cited your site. That means the examine brought it up to IBM as possible prior art. At the point, IBM would have tried to convince the examiner that they are going beyond what you did. Their patent will only cover what they did beyond what you did.
First thing to do is read the description. That sets the background, and the claims are interpreted to be consistent with the description. In particular, the description may impose limitations on the claims. The description is one place where IBM may have limited their scope to work around your prior art.
The other place to look is the file wrapper. That's the set of all correspondence between IBM and the patent office concerning this patent. In a patent like this, where they are trying to patent improvements over the prior art, it often takes several iterations. The examine rejects the patent, and cites some prior art. The applicant either revises the patent to work around that, or writes a letter to the examiner trying to explain how they differ from the prior art.
I don't know if there is any free, online way to get a copy of the file wrapper.
I don't know the particulars of this case. But could the fact that the code was under GPL be used to force IBM to release the source for stuff they don't want to somehow.
I suspect IBM staff are encouraged to file. Someone did, the patent office then cited prior art, IBM er then adds minor addition to fulfil their patent quota. Payrise received.
J
The Burroughs B6500 stole much of this idea back in 1969. But, you could not turn it off, it was always on. And it had an additional memory protection feature, preventing an erring program from trying to execute data as an instruction or treating an instruction as data, or overwriting a pointer to memory with data. It detected all memory access or overwrite errors at memory access time.
It's all been done before, just in patently different ways.
Anyways isn't a word. ;)
Does the value of the patent and your time exceed the cost of hiring an attorney and gaining a settlement? If it does then start by hiring a lawyer and formally contacting IBM. It is possible that IBM would simply settle. If not then it will get costly.
If I were you I would consult a patent litigation attorney or other patent professional, to learn more about your legal options. Sometimes a request for reexamination can invalidate an issued patent. If a challenger can prove that a patent holder didn't actually "invent" the item it has patented, then that may serve as a basis for invalidation of a patent. Unfortunately, it doesn't seem likely that you can sue on the basis of patent infringement, since you never patented your program. But there are ways to challenge issued patents. And, in the future, you might consider applying for patents on your inventions. By the way, Microsoft's acts are not "patent troll" behavior. In common usage of the term, a "patent troll" is a company that doesn't make its own products, but purchases patents owned by inventors, and then sues (usually large) corporations that have used the technology protected by the patents it purchased.
IBM has work in several areas about write protection, so it is not clear which one you are refering to.
The ones I am familiar with depend on a hardware feature that I am not sure that INTEL has. In fact (from a iffy memory) almost all IBM's write protection methods depend in hardware and software feature that I am sure INTEL does not have. So if you are talking software I am guessing its not the same. The hardware has to be there before the software can take advantage of it. So without seeing your code I doubt that it is the same. The differences between IBM's hardware archetecture and INTEL's is dramatic (from what I have been told since its difficult to to find out exactly how INTEL's arcitecture really works. IBM publisizes their in several books (free to everyone) but just knowing how the instructions work does not help you have to get into design of the OS. IBM also publishes most of that (exceptions do exist).