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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 I had more or less forgotten this stuff, since for the last 7 years I've been coding for UNIX/Linux, where valgrind superseded Efence/dmalloc/etc.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.
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?
Step 1 - Be a large company.
Step 2 - Afford the world's best lawyers
Step 3 - Sue
No luck for the rest of us.
"The shortcomings of the prior art are overcome and additional advantages are provided through the provision of a method of facilitating management of dynamically allocated memory. The method includes, for instance, having a dynamically allocated memory buffer; and determining in real-time that an invalid access of the dynamically allocated memory buffer has occurred."
I'm no expert on HeapCheck but that doesn't sound far removed from its basic functionality.
No kidding!!! What do you say at this point?
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!
As with all patents read Claim No 1. It should contain the novel element, you cannot leave it for later. The "novelty" in this one is that you do not need to recompile the program the way original efence worked.
However, times have changed since the days of the original Efence and things are linked dynamically at runtime on all OSes which in turn means that any LD_PRELOAD-ed Efence like debugging library which relies on OS R/W page management to control access is prior art. It satisfies literally the requirements of claim 1.
I do not recall off the top of my head what valgrind uses, but I would not be surprised if it fits the bill. The original Efence does not - it has to be linked in.
Baker's Law: Misery no longer loves company. Nowadays it insists on it
http://www.sigsegv.cx/
It seems their patent covers doing it on a per process bases plus the ability to turn it on or off in real time. Either way MS does have a similar thing in windows 7
did you forget to take your meds?
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.
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)
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.
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.
You could contact the FSF. They have a legal department that can help you with this.
Open Source Network Inventory for the masses! Kuwaiba
Indeed. Their extension uses the IBM logo.
May the Maths Be with you!
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.
Not at all. It is standard in the patent world to make the thing that you actually want to patent be the middle claim. The reasons are many and varied, but you can jump right to the thing that any company actually wants to get the patent upon by checking the center claim. There are 20 claims here, so it is likely this one: 10. The method of claim 1, further comprising: detecting that another allocation mode is to be used to allocate one or more buffers for the process; and dynamically deactivating the allocation mode that enables the determining in real-time, wherein the dynamically deactivating includes turning off an indicator in the process to deactivate the allocation mode, and wherein another dynamically allocated memory buffer for the process is allocated based on the another allocation mode, said another dynamically allocated memory buffer being allocated without additional memory as a guard.
You clearly have no idea how any large engineering company works.
First, no employee can just go out and file a patent, they sign that right away when they join a company like IBM.
Secondly, it's the legal department of IBM that would file a patent, the employee would just submit a proposal. The legal department meticulously goes through the proposal claims just as a patent office would to avoid scenarios like what the OP is implying.
Thirdly, the employee only makes a bonus once the patent is granted, not on the submission of a proposal, such that there is NO incentive for submitting stolen or invalid patent proposals.
What is happening here is that the OP doesn't understand what IBM patented. IBM patented an improvement of the OPs invention and specifically claims that they are NOT patenting the OPs invention.
while(1) attack(People.Sandy);
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.
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.
I hope you were trying to be funny.
Here's how it works: the novel, non-obvious kernel of a patent is called the independent claim (or claims). Independent claims don't refer to any other claim. Any claim that refers to another claim is called a dependent claim. If you infringe on one of them, you also infringe on the independent claim. Therefore, the independent claims are the main ones that you have to focus on first.
Inventors add dependent claims in an attempt to keep somebody from building a new patent on the independent claim. Sometimes, these extended claims make the original invention much more interesting or marketable, but they still depend on the core concept in the independent claim. It has nothing to do with hiding the heart of your invention under a pile of meaningless legalese. I'm sure it seems like that to the untrained eye, though.
I am not a lawyer, but I am an engineer that has successfully defended my company against a frivolous patent suit.