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 I had more or less forgotten this stuff, since for the last 7 years I've been coding for UNIX/Linux, where valgrind superseded Efence/dmalloc/etc.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."

Comments

ludicrous

[alphatel]

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

Re:ludicrous

[makomk]

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

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

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

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

Answers and Suggestions and Further Questions

[eldavojohn]

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?

Re:Answers and Suggestions and Further Questions

[42forty-two42]

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

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