Telematique, water and fire.

Thousands of Patent Decisions Potentially invalidated?

As if the US (and, because of its impact, the global) patent environment wasn't already in deep yogurt ... This is going to be a mess. I can't imagine that a decision (by fiat) on the part of the Dept. of Justice will satisfy the loosers in the enormous number of patent cases that went to panels for decisions. We're talking about re-opening challenges on patent decisions and litigation on a scale of Biblical proportions.

One of the only pieces of enjoyment I'm getting is the schadenfreude of thinking about what's going on in the board rooms of the patent trolls and in the minds of the investors who have decided to make a buck out of buying up patents solely for the purpose of legalized extortion.


In One Flaw, Questions on Validity of 46 Judges - New York Times

... (John F. Duffy) has discovered a constitutional flaw in the appointment process over the last eight years for judges who decide patent appeals and disputes, and his short paper documenting the problem seems poised to undo thousands of patent decisions concerning claims worth billions of dollars.

His basic point does not appear to be in dispute. Since 2000, patent judges have been appointed by a government official without the constitutional power to do so.
...

But the Justice Department has already all but conceded that Professor Duffy is right. Given the opportunity to dispute him in a December appeals court filing, government lawyers said only that they were at work on a legislative solution.

They did warn that the impact of Professor Duffy’s discovery could be cataclysmic for the patent world, casting “a cloud over many thousands of board decisions” and “unsettling the expectations of patent holders and licensees across the nation.” But they did not say Professor Duffy was wrong.

The Ripples of OVF

I've been watching the blogosphere for reactions to OVF. This post from William Vambenepe is notable for two reasons.

First, he definitely understands the impact of OVF's ability to specify a collection of VMs as the ingredients of an appliance.  He's also correctly identified the inherent problem of network configuration and placement that this capability reveals.

The second reason for noting this post is his suggestion about how to handle the EULA that's incorporated into the OVF wrapper... a URI to a well-publicized collection of pre-approved (or at least, well vetted and understood) EULAs, so that unattended deployment of the appliance can be subject to automated policy enforcement.

William Vambenepe’s blog » Blog Archive » A review of OVF from a systems management perspective

I was very intrigued by the promise that the specification “directly supports the configuration of multi-tier applications and the composition of virtual machines to deliver composed services” but this turns out to be a bit of an overstatement. Basically, you can distribute the VMs across networks by specifying a network name for each VM. I can easily understand the simple case, where all the VMs are on the same network and talking to one another. But there is no way (that I can see) to specify the network topology that joins different networks together ...

Speaking of lawyers, the section that allows the EULA to be shipped with the virtual appliance is very simplistic. It’s just a human-readable piece of text in the OVF file. The specification somewhat naively mentions that “if unattended installs are allowed, all embedded license sections are implicitly accepted”. Great, thanks, enterprises love to implicitly accept licensing terms. I would hope that the next version will provide, at least, a way to have a URI to identify the EULA so that I can maintain a list of pre-approved EULAs for which unattended deployment is possible. Automation of IT management is supposed to makes things faster and cheaper. Having a busy and expensive lawyer read a EULA as part of my deployment process goes against both objectives. ...

How Obvious is the eGenera Patent?

While I've been holed up in conference presentations on virtualization, I completely missed the fact that Egenera has been awarded a patent on an N+1 tiered disaster recovery solution. I came across the news through the following post by Joe Foran. I have to agree that this one should be reconsidered in light of the recent ruling on patents and "Obviousness". While definitely written with an unapologetic point of view, this post is a good read and worth the time.

Why the eGenera Patent is Dangerous — Server Virtualization Blog

...The short of it - You have multiple boxes on a network that are mirrors of one another. One fails, another takes over its role. There’s usually hardware or software in-between that keeps things synchronized and detects the failure. This part of the patent is worded to be host-, network- and processor-inclusive, which would be obvious because most clusters are situated on networks, don’t necessarily need to run the same processors, and are hosts. The “big” improvement is in the use of the term “site” - where the product is meant to restore an entire data center’s configuration. In the press release, this means that if you have four data centers and one disaster site, if any one data center fails, the disaster site takes on the complete configuration of the failed site (i.e., all nodes, network configurations, etc.). This is a huge step forward in disaster recovery, but it’s not patent-worthy because there are a zillion ways to do this.

[Update] Bob McNeil of Egenera, whom I met on Tuesday and the IDC Virtualization 2.0 conference in San Francisco, pointed out to me that Joe Foran had the company name wrong. It's Egenera, not eGenera. He also points out that the patent was more than six years in the making and covers quite a lot of IP.

Technorati Tags: eGenera, DR, disaster recovery

Technorati Tags: disaster recovery, DR, eGenera

Company Gets Patent On Digital Downloads; Sues Everyone

Techdirt has a take on Intertainer's recent patent suit(s) regarding video download. I really like the quote from Eric Goldman.

Company Gets Patent On Digital Downloads; Sues Everyone

There's been quite a trend lately of companies who had otherwise completely failed in the marketplace to suddenly reinvent themselves as "patent licensing firms" and then go and sue everyone who actually was able to successfully innovate in the market. The latest entrant is Intertainer, a company that was fairly well known for a few bubble years, but was unable to find a real market for their online video distribution system. ...
The best comment in the article, though, goes to Eric Goldman, an expert in high tech law, who notes: "I have the same problem with this patent as so many of the patents of the dot-com boom days: I don't know what it means."

Technorati Tags: Intellectual Property, Patent

I.B.M. Puts Its Patent Filings Online

From Steve Lohr in this morning's New York Times, Hoping to Be a Model, I.B.M. Will Put Its Patent Filings Online

I.B.M., the nation’s largest patent holder, will publish its patent filings on the Web for public review as part of a new policy that the company hopes will be a model for others.

If widely adopted, the policy could help to curb the rising wave of patent disputes and patent litigation.

The policy, being announced today, includes standards like clearly identifying the corporate ownership of patents, to avoid filings that cloak authorship under the name of an individual or dummy company. It also asserts that so-called business methods alone — broad descriptions of ideas, without technical specifics — should not be patentable. ...

The encouragement of realtime patent reviews, and a bit more light shed on patent filings (in advance of patent awards), plays to the strength of the internet's communal and social nature. Finding the road to transparency and openness in intellectual property is not easy. I'm encouraged that IBM and other big-name companies are making moves like this. I wonder how long it will be before the smaller companies take the plunge? Is it too dangerous? Does it offer unknown advantages?

Technorati Tags: Intellectual Property

How translucency could defuse the Turnitin/McLean High controversy

Great (and fun) piece by Jon Udell on the use of one-way hash functions to create a database of documents, against which other documents would be compared to detect plagarism.

Jon Udell: How translucency could defuse the Turnitin/McLean High controversy

...
Turnitin's business is (or should be) only to detect plagiarism. To do that, it must build a database. But surprisingly and counterintuitively, the documents stored in that database need not be readable by human beings. To meet the business requirement, they need only be machine-readable versions derived from the human-readable originals.

Suppose the previous sentence appears in a student assignment. A cryptographic hash function can convert that sentence into this sequence of characters:

119ffe6a7c1f54b96beb6e38d822ebd0cb8df63d

The operation is called a one-way hash because although it will reliably and repeatedly convert the same sentence into the same sequence of characters, you cannot reverse it. The sentence is not recoverable from its derived sequence. What's more, it's very unlikely that two different sentences will yield the same sequence.

So here's a strategy for Turnitin. Convert each sentence of each student document into its corresponding sequence of characters, store only that sequence in the database, and discard the original sentence. Now the database contains no intellectual property subject to misuse. Even if it wanted to, Turnitin couldn't improperly mine the database. Neither could anyone who bought or stole the data.

But Turnitin can use the database for its sole valid purpose: to detect plagiarism. How? By deriving one-way hashes from each sentence of each document that it checks for plagiarism, and then by searching its database for those derived sequences of characters.
...

The important point here is that some properties of data can be selectively exposed, while simultaneously masking the "clear text". In other words, there exist degrees of freedom as to what a data steward can safely reveal. It's not just "all in the clear" or "all in the dark."

One question in the article that's a real brain-teaser: Does cryptographic transformation create a derivative work also subject to copyright protection?

Technorati Tags: Data Protection, Intellectual Property, Security Incentives

Laundering Internet usage data to protect privacy

Google's apparent willingness to comply with the Brazilian court order that seeks to have Google provide to authorities identifiable information from the Orkut service users, has prompted Tom Foremski to posit the notion of offshore data repositories, tasked with obscuring or stripping the personal data.

Laundering Internet usage data to protect privacy | Tom Foremski: IMHO | ZDNet.com

I've been thinking about Google handing over identifiable information about users of its Orkut service to Brazilian authorities, and disclosures by Yahoo in China–couldn't such things be avoided fairly easily?

Enron set up huge numbers of off-shore companies to hide its debt and obscure its financial data. Why couldn't such a method be used by Google, for example, to hide and obscure its data collections?

Offshore companies could be created and made responsible for administration of parts of its services. They could pass back data to GOOG but that data would be only data that was needed for specific tasks, and could be stripped of indentifiable information.

I have two reactions. First, I keep thinking of cyberpunk novels from Gibson and Sterling about offshore data "nations" created solely to bypass national laws regarding copyright and other IP issues. Second, in suggesting that Google take this approach, I can't say that I'd find it workable, nor would I consider it responsible on the part of Google. (Just the fact that Foremski's reference is to the rather odious efforts of Enron to hide and obscure financial data makes me want to say..."No, that's not a good idea.")

Despite AOL's faux pas, I would not want the wholesale and "permanent" de-identification of personal identifiable information. There are (and should be) legitimate uses, policies and legal procedures under which such information is provided to legitimate authorities.

What's more to the point is the question of just how much of this data needs to be gathered (a business decision by services like Google), and, when gathered, how best to prevent it from inadvertent or intentional exposure.

Technorati Tags: Data Protection

Battles in Open Source

BusinessWeek Online has published an article about the divergent forces and efforts within the open source licensing community and the revision of the GPL license.

Open Warfare in Open Source

...

But the impetus to make a profit (and its associated compromises) isn't sitting well with true believers in free software. And the resulting rifts were apparent at last week's LinuxWorld conference in San Francisco. On one side is Richard Stallman and his Free Software Foundation. When Stallman says "free" he doesn't mean price, he means freedom. He believes all software should be freely available to be modified by the public. And for him, this is nothing short of a moral fight.

On the other is Linus Torvalds, the father of Linux. He and others in his open-source camp believe that freely sharing code simply produces the best software, but if other people want to hide their code, that's fine, too. Companies will just vote with their feet.

...

The two biggest sticking points (in the GPL's second draft released in July) are patents and digital rights management. HP's objection is a part of the license that says anything touched by GPL code becomes open source. In other words, if a company bundles its hardware with open-source software and ships it to customers, it surrenders rights to enforce patents. "HP had hopes that the second draft would clarify the patent provision such as to ease concern that mere distribution of a single copy of GPL-licensed software might have some adverse [intellectual property] impact on a company," HP said in a statement. "Unfortunately, the concern lingers in draft 2."

Technorati Tags: Intellectual Property

Patent, publish, and prosper. - India and IP

An interesting article on today's Technology Review site. After being bombarded with articles about intellectual property and countries without a sufficient legal framework for IP protection, I've noticed a recent reduction in the volume (both number of articles and agitation level). I'm not sure I know the cause. Perhaps I have not been taking as much notice during the past year or so. China's efforts in particular to manage its image regarding IP seems to have been successful. It's possible that there has been real progress toward an appreciation and recognition of IP in the emerging economies.

It may also be possible that the approach to IP protection (and its avoidance) is becoming more sophisticated and subtle. In a time where the developed economies (particularly the US) are dealing with broken patent systems, I think it worthwhile to revisit IP around the globe. It's interesting to contrast the approach set out in this article about India and IP with that of China. I'll start looking more carefully to see what's happening.

Technology Review: India's 10-Year Patent Drive

A decade after India launched an innovate-and-patent campaign, early signs of an Indian technology invasion are evident. Just two examples: a U.S. company has purchased the patent for ­Indian-­designed software that eliminates noise from complex digital data, and fruit growers in California and Turkey have bought a pomegranate deseeder invented by an Indian college dropout.

The patent portfolio of 38 publicly funded Indian laboratories has increased from fewer than 30 U.S. patents in 1995 to more than 720 in July of this year -- and those patents are beginning to translate into licenses outside India. This growth reflects a dramatic transformation in India's research culture. For decades, most research conducted within India's closed economy was aimed at "reverse engineering" -- a euphemism for copying technologies. "Without true innovation, we would always lag behind the best," says Raghunath Mashelkar, director general of the network linking the 38 public labs, known as the Council of Scientific and Industrial Research, or CSIR.

After India opened its economy in the early 1990s, foreign products slipped in -- from cars to cornflakes. Industries and scientists had to compete. In that changed environment, Mashelkar spearheaded a patent drive and preached a new mantra to scientists: "Patent, publish, and prosper."
...

Technorati Tags: Intellectual Property

Patent, publish, and prosper. - India and IP

An interesting article on today's Technology Review site. After being bombarded with articles about intellectual property and the problems with countries without a sufficient legal framework for IP protection, I've noticed a reduction in volume (both numbers and agitation level) of late. I'm not certain as to the reason. I may have not been taking as much notice. China's efforts in particular to manage their image regarding IP have been successful. It's possible that there has been real progress toward an appreciation and recognition of IP in the emerging economies.

It may also be possible that the approach to IP protection (and its avoidance) is becoming more sophisticated and subtle. In a time where the the developed economies (particularly the US) are dealing with broken patent systems, I think it worthwhile to revisit IP around the globe and where things are heading. It's interesting to contrast the approach set out in this article about India and IP with that of China. I'll start looking more carefully to see what's happening.

Technology Review: India's 10-Year Patent Drive

A decade after India launched an innovate-and-patent campaign, early signs of an Indian technology invasion are evident. Just two examples: a U.S. company has purchased the patent for ­Indian-­designed software that eliminates noise from complex digital data, and fruit growers in California and Turkey have bought a pomegranate deseeder invented by an Indian college dropout.

The patent portfolio of 38 publicly funded Indian laboratories has increased from fewer than 30 U.S. patents in 1995 to more than 720 in July of this year -- and those patents are beginning to translate into licenses outside India. This growth reflects a dramatic transformation in India's research culture. For decades, most research conducted within India's closed economy was aimed at "reverse engineering" -- a euphemism for copying technologies. "Without true innovation, we would always lag behind the best," says Raghunath Mashelkar, director general of the network linking the 38 public labs, known as the Council of Scientific and Industrial Research, or CSIR.

After India opened its economy in the early 1990s, foreign products slipped in -- from cars to cornflakes. Industries and scientists had to compete. In that changed environment, Mashelkar spearheaded a patent drive and preached a new mantra to scientists: "Patent, publish, and prosper."
...

Technorati Tags: Intellectual Property