Intuit Beats SSL Patent Troll That Defeated Newegg

Last fall, Newegg lost a case against patent troll TQP for using SSL with RC4, despite arguments from Diffie of Diffie-Hellman key exchange. Intuit was also targeted by a lawsuit for infringing the same patent, and they were found not to be infringing. mpicpp (3454017) sends this excerpt from Ars: U.S. Circuit Judge William Bryson, sitting "by designation" in the Eastern District of Texas, has found in a summary judgment ruling (PDF) that the patent, owned by TQP Development, is not infringed by the two defendants remaining in the case, Intuit Corp. and Hertz Corp. In a separate ruling (PDF), Bryson rejected Intuit's arguments that the patent was invalid. Not a complete victory (a clearly bogus patent is still not invalidated), but it's a start.

Comments

arguably stronger

[Anonymous Coward]

Modern browsers workaround the limitations or have TLS 1.1 or better. If you may be faced with clients that implement neither the workaround or TLS 1.1, rc4 can be better by virtue of being a stream cipher since TLS 1.0 flubbed the IV

Which proves judges are stupid

[Gothmolly]

Q: "How do you know so much about key exchange?"
A: "I invented it in the 70s."
Q: "Fail, you lose."

-vs-

Q: "How can you prove this is prior art?"
A: "Blah-biddy blah blah legal legal blah."
Q: "Seems legit. Intuit wins."

Re:Which proves judges are stupid

[SlaveToTheGrind]

Which proves you can't read and/or don't understand the subject matter. Even the summary clearly says Intuit won on non-infringement, not on invalidity.

It's not the infringement that's the issue

[X10]

it's the patents that are bogus. Judges need to invalidate more patents, they need to invalidate all software patents.

Re:It's not the infringement that's the issue

[Chrisq]

it's the patents that are bogus. Judges need to invalidate more patents, they need to invalidate all software patents.

But we're talking about Eastern District of Texas

Re:It's not the infringement that's the issue

[bluefoxlucid]

Many software patents are valid and novel. Software is a description of an algorithm to do a thing. Some software patents are well-known algorithms implemented on a computer, which has no standing; others are brand new algorithms, which are mathematical processes people have discovered to accomplish tasks.

Many compression algorithms use new techniques to achieve better results, especially with lossy encoding. The original JPEG algorithm used a Discrete Cosine Transform to change color into a precision-driven space, which you could then simply cut precision away from and compress more readily. The transformation of color intensity values per pixel to a more general mapping using the same space but able to approximate was novel. AAC uses an audio technique which biases a PRNG to produce something perceptually similar to the original even though it's technically noise, another novel technique.

These are no different than using a screw, but in a car engine, in the exhaust stream, as a turbine to drive a forced air aspirator. At the time, the concept of using a turbine to power forced air induction from the waste heat of the engine was novel (exhaust stream would have no pressure if you chilled it to intake temperature). Hell, an integrated circuit is just a PCB, but built out of etched substrate.

Re:It's not the infringement that's the issue

[N7DR]

it's the patents that are bogus. Judges need to invalidate more patents, they need to invalidate all software patents.

Putting aside the entire issue of software patents, the legal standards for invalidating a patent are rather high. I have seen many patents which we would all likely agree should be invalidated either for obviousness or because there's prior art; but actually meeting the necessary criteria to prove that conclusively to a judge or jury would have been impossible.

It has evolved this way because of the built-in assumption that the Patent Office does its job correctly, and therefore patents are assumed by courts to be valid and there is a fairly heavy burden imposed to prove otherwise. If the assumption is valid, then this isn't an obviously-bad system; but if it isn't valid, then it quickly becomes an expensive, frustrating situation for defendants.

Re:It's not the infringement that's the issue

[nomanisanisland]

The ability to create many copies of something for virtually free has nothing to do with whether it is patentable or not. Abstract mathematical formulas and algorithms are not patentable, but their application in something tangible is patentable.

The real issue isn't whether software patents as a class are valid or not in general - they are under current laws, even though some specific cases are not - no, the real issue is whether they should be patentable going forward. People forget that the concept of patents aren't an innate or natural right, but rather something invented for the purpose of incentizing R&D, and disclosing the invention so that others can see how it works instead of it being a trade secret. The question is if those benefits would not happen if there were no patents for software.

Re:It's not the infringement that's the issue

[Anonymous Coward]

Software is a description of an algorithm to do a thing.

An algorithm is a description to do a thing too.

So why can't you patent math but you can patent math? All algorithmic patents (math, software, crypto, whatever you call it), should not be allowed. Period. Patents were suppose to be to cover your R&D, not someone's ideas that do not require R&D. (and please, don't bother mentioning how software companies managed to classify their entire wages as "R&D" in the financial statements)

Your examples are evidence that software patents are bullshit. It takes *one* person to have a *non-unique* idea and you have "implementation". And if you think someone hasn't thought of procedural sound generation, you'd be crazy. That's what PRNG are anyway.

Re:It's not the infringement that's the issue

[JMZero]

I agree with you in principle (and I think it's silly you got marked troll). To me the test for a patent's validity should be vaguely: assuming you wanted to do X, would a skilled person with access to relevant area knowledge quickly or obviously come up with solution Y. In the cases you've listed, I think the answer is "no" - and those smell like valid, patentable ideas (though I couldn't actually judge without knowing the landscape and what was common knowledge/technique at the times of invention). However, in many software patent cases, I feel like the patent is being awarded, essentially, for "doing X" in an obvious way (simply because X hasn't been done or done often).

I also think patent duration should be shorter across the board. Things can spin up faster than they used to; 20 years is an eternity when we're talking about technology or software - on balance, I think we'd be better served by much shorter durations.

Re:It's not the infringement that's the issue

[sjames]

The problem is that the USPTO assumes the courts can work out the validity for them and they rubber stamp things when they don't have a relevant expert in the art (or if they're busy, or it's Tuesday).

Re:It's not the infringement that's the issue

[bluefoxlucid]

If nobody has started doing X in a certain way, you have one of two situations. Either that method is novel and non-obvious, or that method is of no value. Either way, I don't have a real problem with patenting it.

If your method is well-known and you patent it in a new venue, you are fucking retarded. A process is still the same process on a computer, so you can't patent it unless it's a completely new process that hasn't been used for that purpose before. If you calculate the back-of-a-napkin math people use to find oil ON A COMPUTER, and try to patent the hundred-year-old algorithm ON A COMPUTER, you're still trying to patent a hundred-year-old algorithm used for prospecting for oil for the purpose of prospecting for oil. It's been done, everybody does it this way, this isn't novel, and fuck off.

Re:It's not the infringement that's the issue

[nmr_andrew]

Exactly, my first thought on reading this was the the venue had to be reported incorrectly. A patent troll got slapped down in the Eastern District of Texas. How could that have happened?

Re:It's not the infringement that's the issue

[Theaetetus]

The problem is that the USPTO assumes the courts can work out the validity for them and they rubber stamp things when they don't have a relevant expert in the art (or if they're busy, or it's Tuesday).

The USPTO "rubber stamps" applications [rejected] around 85% of the time. It seems more like they're assuming that everything is invalid.

Re:It's not the infringement that's the issue

[sjames]

That's the first action non-final ruling. Once you prove you're serious by appealing the matter, you get the approved stamp.

Look at the allowance rates in the same article and recall the goofy crap like teasing your cat with a laser pointer or swinging side to side.

Re:It's not the infringement that's the issue

[JMZero]

Yeah certainly. I don't necessarily think they need a new or different test, just to be more rigorous; if they could filter out "obvious" consistently I think that would pretty much solve things (especially if terms were also shorter).

But in practice, there seems to be a lot of bad ones get through - and perhaps more sweeping reform is the only way to fix it.

Re:It's not the infringement that's the issue

[Theaetetus]

That's the first action non-final ruling. Once you prove you're serious by appealing the matter, you get the approved stamp.

1) So when you said "they rubber stamp things", you meant "well, first, they deny everything, but later, eventually, you know, once everything is satisfied and you've fulfilled all the requirements, then they may allow it, and that's totally the same thing!"

2) Less than 1% of applications are ever appealed. So, apparently, you have no idea what you're talking about.

Re:It's not the infringement that's the issue

[sjames]

No, it means if you make noise, your bogus patent gets the approval. Then a bunch of poor suckers get to spend everything they have in court reversing the bad decision.

Keep in mind, the rejections include a big pile of some idiot patenting something that came and went before he was born but he's totally convinced nobody ever thought of it before because he packs the bearings with cat hair plus the ones that are just a vague thought with no reduction to practice at all. That and a pile of zero point energy anti-gravity whoosiewhatsises.

If not, how do you explain this?

Re:It's not the infringement that's the issue

[Theaetetus]

No, it means if you make noise, your bogus patent gets the approval. Then a bunch of poor suckers get to spend everything they have in court reversing the bad decision.

That kinda goes against your whole "they rubber stamp patents blindly" rant earlier, then.

Keep in mind, the rejections include a big pile of some idiot patenting something that came and went before he was born but he's totally convinced nobody ever thought of it before because he packs the bearings with cat hair plus the ones that are just a vague thought with no reduction to practice at all. That and a pile of zero point energy anti-gravity whoosiewhatsises.

If not, how do you explain this?

I explain that as Slashdot's usual practice of paraphrasing an invention by describing it in known terms, forgetting that 10 seconds ago they just paraphrased the invention, and angrily complaining that the known terms are the invention and that therefore it's old. An article about a patent on the transmission of the Tesla Roadster would probably be "Inventor claims to have patented the Model T plus AA batteries! USPTO insane!"

In your example, the patent claim is:

1. A computer-implemented method comprising:
selecting a file having a path name in a distributed file system, wherein the file is divided into a plurality of chunks that are distributed among a plurality of servers, wherein each chunk has a modification time indicating when the chunk was last modified, and wherein at least two of the modification times are different;
identifying a user profile associated with the file;
determining a memory space storage quota usage for the user profile;
deriving a file time to live for the file from the path name;
determining a weighted file time to live for the file by reducing the file time to live by an offset, where the offset is determined by multiplying the file time to live by a percentage of memory space storage quota used by the user profile;
selecting a latest modification time from the modification times of the plurality of chunks;
determining that an elapsed time based on the latest modification time is equal to or exceeds the weighted file time to live; and
deleting all of the chunks of the file responsive to the determining.

Without needing to go into all of the ways it's different from a simple "expiration date" metadata field, we can simply look at the first step - the file is divided into a bunch of chunks, and they have different modification times. Under the old system, do you delete some of the chunks before deleting others, because they weren't modified? That's bad. There's also that whole weighted file time to live based on storage quotas. Expiration date metadata doesn't even touch that.

So, how do I explain it? Bad Slashdot article, and the patent is certainly valid over what the article thinks is anticipatory prior art. Maybe there's other art out there, but that one sure as shiat ain't it.

Re:It's not the infringement that's the issue

[sjames]

Do you know what an aggregate file is? It's a file! Do you know what the modification time of an aggregate file is? The latest modification time of any chunk of the file. So, do we want the least or greatest credible TTL figure? Six of one, half dozen of the other, so which to pick.....OH OH Mr. Kotter! we can split the difference! Wow, nobody's ever thrown up their hands and split the difference before!

I'm not saying it wasn't good thinking, just that pretty much any competent team faced with the same problem would have come to a very similar solution. I *DO* hope you're not a patent examiner.

Re:It's not the infringement that's the issue

[Theaetetus]

Do you know what an aggregate file is? It's a file! Do you know what the modification time of an aggregate file is? The latest modification time of any chunk of the file. So, do we want the least or greatest credible TTL figure? Six of one, half dozen of the other, so which to pick.....OH OH Mr. Kotter! we can split the difference! Wow, nobody's ever thrown up their hands and split the difference before!

I'm not saying it wasn't good thinking, just that pretty much any competent team faced with the same problem would have come to a very similar solution. I *DO* hope you're not a patent examiner.

Do you know what hindsight is? It's when you say "pff, pretty much any competent team would have come to very similar solution, and I can prove it because... my gut says so." Legally, it's about as viable as saying, "that guy's totally guilty, and I can prove it because... my gut says so." 'Obvious' or 'guilty' are conclusions, which need to be supported by evidence, not feelings.

Re:It's not the infringement that's the issue

[sjames]

Aggregates of pretty much anything have been dealt with that way for a very long time. It's not a 'gut' thing, it's based on work I have personally done in file systems.

Again, I *DO* hope you're not a patent examiner. You seem to be impressed very easily.

Re:It's not the infringement that's the issue

[Theaetetus]

Aggregates of pretty much anything have been dealt with that way for a very long time. It's not a 'gut' thing, it's based on work I have personally done in file systems.

Great, then you can probably provide some evidence of that, such as a published spec, that shows everything in the patent claim, right? Or is this more of an "out of my ass" feeling?

Again, I *DO* hope you're not a patent examiner. You seem to be impressed very easily.

I'm not. But incidentally, I notice you completely skipped over the part of the claim about the weighted TTL based on storage quotas. I hope you're not a programmer, since that requires at least a bit of attention to detail.

Re:It's not the infringement that's the issue

[sjames]

Everybody poops. Most people don't feel a need to write a paper about it each time (not even the author of "Everybody Poops").

Why wouldn't resource cost (as determined by scarcity or, TADA how tight the quota is and how close to the limit you are) be considered when deciding how important something is. Ever notice how when people are moving they start out carefully wrapping and boxing everything but by the end when they are tired and the truck is full they become willing to just chuck it? Same idea. Did you consider that I skipped it because it was unremarkable? Good programmers know when NOT to get bogged down in the details too. If you had relevant expertise in the art, you might know that.

Re:It's not the infringement that's the issue

[Theaetetus]

Everybody poops. Most people don't feel a need to write a paper about it each time (not even the author of "Everybody Poops").

Why wouldn't resource cost (as determined by scarcity or, TADA how tight the quota is and how close to the limit you are) be considered when deciding how important something is. Ever notice how when people are moving they start out carefully wrapping and boxing everything but by the end when they are tired and the truck is full they become willing to just chuck it? Same idea. Did you consider that I skipped it because it was unremarkable? Good programmers know when NOT to get bogged down in the details too. If you had relevant expertise in the art, you might know that.

So, back to the hand-waving "I don't have any evidence, because my gut tells me this feature that I lack any evidence as having existed before is 'unremarkable'"?

On the one hand, you could be right and this patent merely claims a 40 year old, widely used technology, and everyone involved in it, from the inventor, to Google's internal counsel, to the patent attorney who prepared the application, to the multiple Examiners and supervisors at the USPTO were all incompetent... On the other hand, maybe the feature you admit you're ignoring as "unremarkable" may not actually be 40 years old and widely used. Sure, Occam's Razor would suggest the latter, but that doesn't really fit with your "I'm a super genius and everyone else is a moron and/or corrupt" narrative. I'm sure that will be equally persuasive to a court reviewing validity of the patent.

Re:It's not the infringement that's the issue

[sjames]

I'm fairly convinced that if I claim the moon is not made of cheese you will insist that it's hand waving unless I present you with a core sample and video to prove it was taken from the moon. If you want to go all starry eyed and say OOOOOOOOOOoohh every time someone describes common knowledge using the word plurality, beat my guest.

Re:It's not the infringement that's the issue

[Theaetetus]

I'm fairly convinced that if I claim the moon is not made of cheese you will insist that it's hand waving unless I present you with a core sample and video to prove it was taken from the moon. If you want to go all starry eyed and say OOOOOOOOOOoohh every time someone describes common knowledge using the word plurality, beat my guest.

I think your guest is fine without my efforts, and if you're outraged by the use of 'plurality', then you've got bigger problems than I can help you with.

Best line ever...

[pla]

"In addition to the disagreement between the parties as to the meaning of the agreed-upon claim construction"

I don't fully speak legalese, but the ruling had me literally LOL'ing. The threw everything from grammar naziism to stare decisis.

Re:Best line ever...

[PRMan]

They both agreed as to WHICH claim was in question but they disagreed as to its meaning.

Overall happy

[grasshoppa]

...but intuit. Ya...

If those folks were forced out of business tomorrow, I'd be just as happy.

Re:WAT

[Anonymous Coward]

It is not of high quality.

http://en.wikipedia.org/wiki/RC4#Security

http://threatpost.com/attack-exploits-weakness-rc4-cipher-decrypt-user-sessions-031413/77628

http://blogs.technet.com/b/srd/archive/2013/11/12/security-advisory-2868725-recommendation-to-disable-rc4.aspx

https://www.schneier.com/blog/archives/2013/03/new_rc4_attack.html

http://www.networkworld.com/article/2164421/security/potential-weakness-in-ssl-tls-security-downplayed-by-certificate-group.html

Logic is not part of the M.O. of law

[Anonymous Coward]

judges are stupid

Judges merely pattern-match against statutes and case law, and logic is absolutely not allowed to override either of the latter. In that specific sense, yes, judges indeed cannot act intelligently, because any intelligence they may possess must be suppressed to remain within the M.O. of their profession.

No judge could ever pass the Turing Test under such mental shackles. The normal M.O. of law is a disaster for humanity, an otherwise semi-rational species.

Re:Logic is not part of the M.O. of law

[sg_oneill]

Having worked in courts many years this is the biggest load of horseshit. Judges are some of the most fearlessly intelligent people you'll meet. The problem is the laws they have to apply tend to be arse, and they are oft required to rule on fields they have no expertise on. Making a shitty judgement in that situation isn't a sign of unintelligence, it's just the hand that's been dealt.

"Clearly bogus"?

[Anonymous Coward]

Can someone please explain why the original patent is "clearly bogus"? Just because it's being wrongly applied to situations it was never meant to cover doesn't make the patent itself wrong.

If Swingline uses stapler patents to sue Mozilla over pinning browser tabs, that doesn't invalidate the stapler patents themselves. (Does it?)

Re:"Clearly bogus"?

[tarius8105]

What is getting me is the wording of the patent specifically states modem in the abstract. The title basically states a complete system not just a piece. Also, wouldnt the federal government have prior art on this? I would suspect that their communications over telephone grade wires would have been encrypted.

Re:"Clearly bogus"?

[Mathinker]

Prior art has to be published. Until recently, the courts were very particular about what constitutes publishing, to the extent that "properly publishing" patents was (is?) an industry.

Re:WAT

[SJ2000]

Just like the Leaning Tower of Pisa has never fallen down!

Re:WAT

[SJ2000]

Yes you can. There are many types of cryptographic weakness (Eg: an attack that reduces the effective key space) but specifically regarding RC4, there are weaknesses which make it difficult to use properly in common scenarios.

Not sure...

[KellyFriedman]

I honestly wonder if any of these are legitimate claims or just "Trolls" as they are labeled.

Re:WAT

[bluefoxlucid]

You only need to avoid 256 IVs for that key scheduling algorithm weakness. The layout is very well-known, and it's only important for repeated use of the same key: SSL doesn't suffer from this, as it generates a random key for each session; WEP does, as it uses a permanent pre-shared key for all sessions, initialized with each packet.

By contrast, AES lets you eliminate 2 bits from its cryptographic brute force space just by being AES. It's also vulnerable to other attacks in fewer rounds implementations, but those attacks are not relevant because AES specifies 9 rounds at 128 bit and 14 at 256 bit. You can crack Rijindael 256-bit with 5 rounds, but that's not AES.

Re:WAT

[Mathinker]

> RC4 is math. It's either broken or not-broken. You can't go half way.

Security isn't binary. Cryptography, being targeted for practical application, is different than theoretical mathematical statements, which we all know can be discovered to be either correct or incorre... hang on, Godel is calling me from the afterlife...

(heard from distance) What? Really! Mind-blowing, man. Yes, I know your name has those two funky dots, but Dice thinks "pretty" is more important than "functional", so it might be a while before Slashdot can actually display them...

Re:WAT

[bluefoxlucid]

Your signature contains the name of a fifth dimensional being.

Nothing to see here, move along

[American Patent Guy]

All this judge did was say the defendant did not do what this patent covered, as defined by the claim. It does not invalidate software patents. It does not declare the plaintiff to be a "patent troll". It does not declare this patent to be invalid. Whoever submitted this story must be desperate: like throwing a handful of party snaps into the air at a gun show...

Re:WAT

[SJ2000]

My point is, it's not black and white like you were saying.

Law firms

[ayesnymous]

Remind me to hire Intuit's law firm instead of Newegg's if I am ever in this situation.