Google Linux servers hit with $5m patent infringement verdict A jury has found that in using Linux on its back-end servers, Google has infringed a patent held by a small Texas-based company and must pay $5m in damages. In 2006, Bedrock Computer Technologies sued Google and several other outfits – including Yahoo!, Amazon.com, PayPal, and AOL – claiming they infringed on a patent filed in …
DB2 used linked lists for db storage if I remember rightly. Must have had methods to count and remove records and indexes into the list, too.
I was using DB2 years before 1997.
If we're lucky the trolls' twisted corpses will be dug up in a few years next time the Information Super Highway is resurfaced. Why proof that you applied your patent to an invention or product isn't required I'll never know. Oh, actually I do. It's cos it's 'merrika
It is just a routine, an algorithm, a way of arranging and accessing data.
No doubt this patent is also an example of a patent for which the original application intentionally omitted prior art.
It is known that software patents routinely omit prior art in the application. And that effort is deliberate.
And, of course, Linux has nothing to do with it other than being one example of programming that happens to use the technology.
Maybe with some luck this case can be appealed to the US Supreme Court and convince just about everyone how stupid it is to patent software.
I wonder if IBM will join the party as the tiny company seems to have invented (!) their invention.
Linux is a huge deal for IBM and when IBM started Linux effort, people partied exactly because of that.
They were running virtual machines back in 1970s, that kind of company.
What was the term? Wake up Nazgul? Please do :)
DB2 isn't an OS.
Unless you can see the patent in its entirety, it is difficult to decide.
Again the burden is to disprove the patent outside of the lawsuit which can be expensive an if you're not successful you just wasted a lot of good money and also set up a precedence which will make it harder to fight the patent in a different lawsuit.
Without passing judgment on this specific case, once again the USPTO is flawed when it gave out software patents along with business process patents.
This sounds like DB2's b-tree balancing. Does this patent take ownership of b-trees andlinked list data structures?
This whole copyright thing has gone to hell on a horse, I bought a section of bedding plants last week, on the back of the tag "Protected by plant breeders rights. Propagation prohibited without a license" and a (c)HORTIPAK LTD
FFS, propagation of flowering plants without a license.........
Think of IBM, a small country sized company. In 80s, they were 10x more influential especially in government. I heard at one stage, USA govt. decided to sue them and they figured IBM has more lawyers than the government itself.
So, MS bought the CP/M copy to sell it to big blue. I bet if it wasn't IBM, a smaller company, they wouldn't start the company and BillG's rich family would have to pay some huge money.
>>So, MS bought the CP/M copy to sell it to big blue. I bet if it wasn't IBM, a smaller company, they wouldn't start the company and BillG's rich family would have to pay some huge money.<<
Gates was selling BASIC for the microcomputer to the Fortune 500 in 1975.
MBASIC would go on to become the first million-dollar software seller for the micro.
In 1980 Microsoft had a full suite of programming languages, a UNIX port for the micro in development, the Z-80 Softcard for the Apple II - and was beginning to move into both the consumer and business markets for applications.
IBM came to Microsoft for both programming languages and OS for their new micro and it was Gates who pointed them towards Digital Research.
When DR fumbled the ball, Gates was there to pick it up.
Promising to deliver a serviceable 16 bit CP/M clone in time for the scheduled launch of the IBM PC --- at the low, low, price of $50 a unit, retail list.
In exchange for a non-exclusive license.
This post has been deleted by its author
"forcing companies to spend millions and millions of dollars defending old, questionable patent claims"
Sorry Google, but if it was an "old" or "questionable" patent, the judge would not have found you guilty of infringing it.
Pay the fine, buy the patent off the guy and shelve it for when you want to go after M$ and Apple. You can afford it.
Simple fact is Google, Apple, M$ et al. have spent millions patenting finger swipes over capacitive surfaces, shapes of iGadgets and even page turning on e-readers. Why? Because the system lets them! They are trying to crate up ideas and concepts where the patent system was designed to protect inventions like the telephone, automatic transmissions or microwave ovens.
So when someone sues Google for such a patent violation I just laugh quietly to myself as this is them being hoisted on their own petard. The corporations created this beast and if it turns and bites them on occasion then all the better motivation to fix the bloody system.
The patent system is broken everywhere Mr. Knox; not just Texas. Have a nice day.
Guess the Americans are learning this, like so much else, the hard way.
"The jury found that Google did not provide by a "preponderance of evidence" that these clams were invalid." - wtf? Does this seem ridiculous to anyone else: you have to prove you *didn't* infringe on a patent?
- is this specific to the Texan legal jurisdiction?
- cannot this be used as a means to discover how your competitor is doing a task just by claiming it must infringe on your patent?
- given the burden of proof, what is there to stop creating frivolous lawsuits, regardless of the size of your company, just to harass your competitors?
No wonder US lawyers are the most competitive and best paid in the world. It must seem to them the entire world is their oyster ...
... using a hash (globally unique identifier, or GUID) as a search key to identify a specific linked list, which contains a set of records, in which said records contain time-stamp/expiry information, and a collision detection algorithm thrown-in to make sure conflicting updates are not made on the linked list.
This is utter bollocks.
How to manage linked lists is part of Programming 101 (Structured Programming), using a unique key to identify a set of structured data is part of Programming 201 (Relational Database Management and Design), and collision detection and avoidance of simultaneous updates on a specific chunk of data is part of Programming 301 (Parallel/Threaded Programming).
Just about every operating system and relational database management system makes congruent use of all three methods; here are just a few that come quickly to mind:
-- Microsoft Windows: Active Directory object record updates in combination with AD replication conflict resolution...
-- Just about any clustered SQL server solution provided by Microsoft, Oracle, IBM, Sybase, Pervasive, etc....
-- DNS record updates and scavenging...
-- 4ESS/5ESS telephone switching equipment state tables...
I am sure there are many more.
**Note: I am not against patents per se, as long as couple conditions are met:
-- Patent holders should be required to produce an actual product based upon their patents within X years of initial award (4 to 7 years to allow for commercial development seems fair; maybe a bit longer in the case of medicines that are stuck in double-blind-study-limbo by government drug safety authorities), otherwise the patent enters the public domain. ("Put up or shut up.")
-- Patents on software which provides general methods of manipulating data in various ways should be invalidated; after all, that's what general-purpose computers (and the apps that run on them) are designed to do. ("How I arrange my LEGOs is my business.")
Who needs to be productive and actually invent things, when you can just patent known techniques, wait ten years, and sue in hope that the company will pay?
A sum of $5 millions is calculated so that Google might just pay to get rid of the problem and hope they will go away bother somebody else.
East Texas is just down the road from me and let me tell you, these are some of the most inbred sons of britches (sic) in the whole of the USA.
If this patent will fly then I'm going to patent the art of taking a shite and take their collective inbred asses to the cleaners.
Paris - because when she drove through East Texas the average IQ of the state doubled.
The bullet points listing the infringements describe a linked list and the operations one might want to perform on it as far as I can tell. I learned linked lists in 1991 in a Pascal programming class at Uni, they were hardly new then. Where is the new art in the patent?
Now if the patent holder had a way to search a linked list without using a key value, or to delete entries without using a key value then the patent holder would have something!
I think I will patent a process I will call 'Eating'.
A person opens their mouth and an object we will call food is inserted by the left or right hand sometimes on a fork. The food is chewed in the jaw and is subsequently swallowed and digested in the stomach.
Once this is filled and approved I guess anyone doing the above mentioned will have to pay me a fee.
Easy money!!! Yippee
The objects called "food" will be stored in a FIFO with a method called "upchuck" for deleting unwanted entries from the linked list. In the event that list defragmentation and reordering is required a separate process called "surgery" will be employed ... hey, we can sue the medical profession to ya'll!
Steve,
Sorry! Been done before or actually something very similiar and over 50 years ago.
Read the relevant parts of the 1957 Goon Show Episode "The Great Regent's Park Swim".
"Grytpype-Thynne:
Well, I've just invented the word "Help" for people who are drowning."
Later in the show.....
"Moriarty:
Aaagh! (etc)
Grytpype-Thynne:
Steady, Moriarty.
Moriarty:
(more sounds of agony)
Grytpype-Thynne:
Steady, Moriarty. You know that I charge one thousand pounds for using
my invention, namely, the word "Help".
Moriarty:
(sounds of agony, interspersed with growls)
Seagoon:
What a bit of luck, folks. Whilst the Bengal tiger was fighting Moriarty, I ........."
and even later in the show.....
"Grytpype:
... and I warn you, nobody shout "Help". That is a word I've just invented and will cost anybody five hundred pounds to use. Now, give me that green liquid. Right, Neddie, into the canal.
Seagoon:
But I can't swim without that green liquid. Aarrggh
FX:
(splash)
Seagoon:
You swine, you pushed me in! Help!
Grytpype-Thynne:
Out you come, Ned. To using the word "Help", five hundred pounds
FX:
(cash register)
Grytpype:
Thank you.
Seagoon:
Wait, wait, but I ...
FX:
(splash)
Seagoon:
Help!
Grytpype-Thynne:
Out you come, Neddie. To using the word "Help", another five hundred
Pounds.
F.X.:
(cash register)
Grytpype-Thynne:
I thank you.
Seagoon:
But look here, I ...
FX:
(splash) floundering
Seagoon:
You swine, you pushed me in. Help!
Grytpype-Thynne:
Out you come, Neddie. To using the word "Help", another five hundred pounds
FX:
(cash register)
Grytpype:
Thank you.
Seagoon:
Wait. (splash) Help!
(repeated several times, getting faster)"
...How I miss Spike Milligna and Neddy Seagoon!
Link to full script: http://goo.gl/N5lhQ
It shouldn't surprise anyone that courts become specialists in certain kinds of cases, whether jurdistiction is formally granted to them or not.
What does surprise me is that a jury trial was demanded - and that the case was taken all the way to a jury verdict.
That is expensive and very high risk.
Because a jury's decisions on matters of fact will not be second-guessed.
You can argue that damages they awarded were excessive - but is about as far as a trial court or court of appeal will allow you to go.
>>"The jury found that Google did not provide by a "preponderance of evidence" that these clams were invalid." - wtf? Does this seem ridiculous to anyone else: you have to prove you *didn't* infringe on a patent?<<
The jury was asked three questions, which must be answered consistently:
1 Did the plaintiff prove - based on the weight of the evidence - that Google infringed their patent?
On Claim 1 - Yes. On Claim 2 - Yes
2 Did Google prove - based on the weight of the evidence - that they did not infringe the plaintiff's patent?
On Claim 1 - No. On Claim 2 - No
3 If - and only if - the plaintiff has a valid claim, what is your assesment of the damges - based on the weight of the evidence?
$ 5,000,000
> Does this seem ridiculous to anyone else: you have to prove you *didn't* infringe on a patent?
Ridiculous? Yes. But unfortunately, that's how it goes.
The courts have taken the position that the USPTO has a clue. They have decided that, as the USPTO has examined the patent application and granted it, there must be some substance to the patent, and therefore a defendant claiming invalidity has quite a high hurdle to strike down a granted patent.
Unfortunately, the USPTO takes the view that it's quite costly to examine a patent thoroughly, so do they do a cursory check[1], and grant anyway - they expect the court system to sort out any errors.
So we have each side expecting the other to do the hard work, and neither actually does. The upshot of that is that crap patents are easily granted and difficult to revoke, even when they are absolutely brimming over in bogosity.
The US patent system *has* to change. It is toxic to all - even those that currently profit from it.
Vic.
[1] The USPTO assessment seems to consist of grepping the application for the text "this application is utter bollocks in every respect". If the search fails to find that phrase, the patent is granted[2].
[2] Yes, I had three US patents granted before I knew any better. Yes, they are all total bollocks, and really shouldn't have been given house room. But I didn't *say* they were bollocks at the time...
Well if that's the correct, it seems to me the jury got it right. The jury weren't asked the critical question: whether the patent should have been granted in the first place or whether its valid. It seems the jury had to assume it was a valid patent.
So it seems there is a lot more to come to this story: Google, who, much as I dislike their immoral business strategies, are't stupid, must surely be working on getting the patent overturned. If they succeed then presumably they go back to the court and say, "hey that patent isn't valid, so how can we have infringed it".
This is crazy.
The PICK operating system was using this sort of hash lookup for storage and dates from the 1960's.
Like so many posters have mentioned already, this is such a basic programming 'invention' that it's been in use for decades BEFORE the patent was registered.
Typical Texas TROLLs making out like bandits. Not surprising this is in Bush country. Clearly the bible does not mention linked lists so the Texas company must have invented them so they deserve cash.
Idiots.
A good many of the comments so far are outlining potential instances of prior art. Since Google's lawyers are not stupid, they almost certainly would have presented such systems in court. Therefore:
Either the jury cannot comprehend the notion of prior art (possible, I'll admit), OR there is a genuine difference between such systems and the specifics of the patent claims (whether such differences are "obvious to someone skilled in the art" is another matter).
So, what's it going to be? Genuine patent claim, or incompetent jurors?
Actually, it's probably option 3: slack-jawed yokels siding with "local folk" against the "outsiders" with money.
I have thought for years that no productive programmer can fail to infringe a US software patent (or more) about daily. Here the USPTO granted a patent that is non-novel and rather obvious to any ordinarily competent practitioner of the programming art, citing Knuth (1973), other textbooks, and three other similarly non-novel and fairly obvious patents, each of which also cites Knuth. I did not have the stomach to go further. New infringing code must be written daily; I probably have myself (but probably before the application was made). Anonymous, just in case.
I hope Google fights this to the patent holder's last dollar. Unfortunately, there seems no way to punish the stupidity that leads to these outcomes.
.. but do you really imagine Google and their lawyers did not think of *prior art* and have a proper presentation to convince a jury ?
.. perhaps the lawyers were sloppy and Google didn't think this could be a $5,000,000 hit .. maybe they thought they could get off paying a less than competent lawyer $100,000 or less to defend and didn't take this seriously enough .. but Red Hat apparently was involved as well ..
.. I suspect there will be an appeal on this, or when they go sue Red Hat, or IBM, or Microsoft, or Amazon, this will get reversed ..
.. just saying .. there was either valid infringement of a valid patent, or Google defended poorly
.. suspect the later
> suspect the later
You might want to read up a bit on the history of software patent actions in East Texas.
It's a bit of a cottage industry out there - accept the case, ignore the defendant's argument, find for the plaintiff, get more cases sent to you.
Sooner or later, they *will* reap what they have sown. But to date, they're making out like bandits.
Vic.
The entire Internet is becoming more and more like gangland Chicago during Prohibition. As one of the so-called 'leaders' of the Web, Google could change the atmosphere--but they obviously don't care as long as can show a profit. However, I'm most annoyed by their passive support of spammers in Gmail and their more active support of various criminals on YouTube and on their hosting services...
Don't be evil? Google? ROFLMAO.
Surely it's not beyond the wit of man for Cisco, MS, Google, Redhat and Apple and a couple of others to just exclude east Texas from their terms of use. Add a condition that any patent infringement due to ignoring those terms of use is the users responsibility and you are away. Pretty sure the Texas voters would demand a change pretty quick after that.
Your suggestion is a reflex kick in the shins, which is understandable but you haven't thought it through (like all reflex actions).
This court is not deciding a criminal matter for criminal acts committed in its jurisdiction. It is deciding a civil suit brought by a plaintiff for actions carried out by the defendant anywhere in the USA. I think it also can decide regarding actions anywhere in the world, provided the defendant is resident in the USA.
I'd be happy to throw more wood on your fire but it won't do anyone any good.
it's time to simply ignore all that patent trolling lark. chocking the courts with cases that lead nowhere will quickly dispense with the parasites riding the patent/copyright system. no society can afford to litigate themselves into oblivion, the tipping point is reached when normal people stop paying heed to those bottom feeders and just break and circumvent patents and copyrights and other laws and regulations that are hostile to real life. zed!
I represent Ugg the Caveman, who invented and patented a process for liberating chemical potential energy stored in dead plant matter in the form of heat and light, and you all owe me trillions of pounds in royalties and damages for unlawful patent infringement for using fire without paying.
(I am also instructed that. strictly as a gesture of goodwill, he is prepared to overlook major infringement of a second patent claim, relating to foot coverings made from animal skins with the fur on the inside, in return for prompt settlement; because you at least gave proper attribution.)
I suspect that the judge restricted the jury to the question of whether Google infringed the patent and explicitly excluded the issue of whether the patent was valid.
As the patent has been quoted, Google probably did infringe it and is guilty!!!!
Whether the patent is valid is another question and possibly a matter for an appeal.
For the record I would contend that there is about 30 years of prior art, I certainly was teaching these techniques back in the late 80's early 90's
Who do they get to approve these patents in the USPTO - the tea boy? certainly not any IT professional!
Move datacenters out of the USA, run near-penniless shell companies in the USA (most probably do that now as part of their tax avoidance strategies), ask your employees to pick a country of choice and leave the East Texas court to vent its spleen all it wants.
One has to ask - Linux has been around for decades, these ideas have been around for decades too, so why wait until now before suing? Patents should have a clause similar to "adverse possession" for land. If you do not actively use/protect a patent for a period of time (say, 5 years) then you lose all rights and that patent goes to the Public Domain.
Or something.
I thought the USA was all about freedom? To live the dream? Seems it's more about oligarchies and protectionist cartels these days.
Here in Australia, one could not Patent anything that was obvious to somebody skilled in the art.
Interestingly, the cited Patent text makes several references to "skilled in the art". Furiously waving hands to distract from the fact that evaluating encounterded leaves during a search for their eligibility to expire in also obvious to somebody skilled in the art.
Bleeding obvious to somebody skilled in the art.
> one could not Patent anything that was obvious to somebody skilled in the art.
That rule is in effect the world over.
Unfortunately, the USPTO doesn't enforce it. They allow you to patent a "method of swinging on a swing"[1].
Vic.
[1] Seriously. It was US Patent #6368227. It was eventually re-examined and rejected, but the patent was originally granted. Twats.
US Patent #6520942: Method to Improve Peri-Anal Hygiene After a Bowel Movement by Wiping. Enough said.
And you can bet that if any of us were sued over this in East Texas, we'd lose. For whatever reason there's a perfect storm of hatred for big companies and wealth, ignorance and general disregard for sanity going on over there. Patent trolls learned this a decade ago and have been riding it into the ground since (go find a stupid patent lawsuit, check where it was filed, never fails).
There needs to be some serious reform. Maybe make a jury of Google's software engineering peers be... you know... software engineers?
Not entirely true. You can file in any court that has jurisdiction, and in a case like a patent for software that's being used globally that means you can pick a court.
Also, patent troll firms started mass migrating to Texas a while ago when East Texas threatened to stop taking cases where neither party was headquartered locally. Remember, this company exists only to hold patents and sue, no business, no employees, no research, nada. By their nature they can pick any jurisdiction they want even if your stricter interpretation were de facto because anything can be the PO box that serves as their headquarters.
I envy you people who live in countries with more reasonable approaches to patents (software in particular). I wouldn't be surprised to see outfits like Google more their engineering and operations to these locations should this sort of nonsense continue.
Sure, the use of the patented technology would still be prohibited within US borders. But the servers would be beyond the reach of the trolls. And good luck suing every Google user for their share of a $5m penalty (a fraction of a penny apiece).
Google, for a small fee of on €1M I'll sort it out for you....
Prior art:- Algoriths by Robert Sedgewick, ISBN O-201 -06672-6, Copyright 1983 by Addison-Wesley Publishing Company,
Chapter 11. Priority Queues, Page 127
Applications of priority queues include simulation systems (where the keys might correspond to “event times” which must be processed in order), job scheduling in computer systems (where the keys might correspond to “priorities” which indicate which users should be processed first),
Also
Chapter 14. Elementary Searching Methods, page 171 - Covers: Sequential Searching, Sequential List Searchang, Binary Search, Binary Tree Search, Indirect Binary Search Trees.
Chapter 15. Balanced Trees, Page 187 - Covers Top-Down 2-9-4 Trees, Red-Black Trees, and other Algorithms
Chapter 16. Hashing, page 201 - Covers: Hash Functions, Separate Chaining, Open Addressing, Analytic Results
Chapter 18 External Searching, page 225 - Covers Indexed Sequential Access, B-Trees, Extendible Hashing, Virtual Memory
In addition ot Kunths book mentioned in the patent, I also have another book which I can't find at the moment , a fairly thin volume called "principles of operating systems" which describes the a lot of what in also in the so called "invention" described in the so called patent.
Seems not only are the jury a bit thick, so are Google's lawyers.
Texas was chosen as the venue as aresult of its favourable treatment to the plaintiffs in such cases. The catch - at least one defendant has to be from Texas. The big boys - Google, RedHat etc are not. So how did the cases get standing? One defendant is from Texas - it is a one-man IT company that has been deunct for several years. If this case succeeds for the plaintiff, then it means retrospective guilt applies.
Hey, this signals the end for old-fashioned Linux! I'm rushing to switch over to Bedrock OS. If they have patents like this, I'm sure their software must be the very latest and best. Look out Microsoft!
Oh, what's that you say? Bedrock doesn't have an operating system? It doesn't even make any software at all? It's just a lawyer sitting in an office???
Well, that certainly is what the patent system was designed to accomplish.
when a ridiculous patent case is taken in a bought and paid for state where the chances of justice are low you waste no money on the case just appeal and appeal until the case has to move to somewhere where there is a chance of justice and the costs to the litigator are on a par with the 'damages' offered in the earlier cases.
Then Bedrock will go the way of SCO and with luck the mickey mouse legal arena's will find their source of revenue from these cases drying up.
Or maybe that last pint I had was just too good.
Reading the full patent - the only slightly possible patentable thing is the removing of 'expired' items 'on the fly'
The linked list to resolve hash collisions is well known - and the patent references prior art for this
There is nothing in the patent that defines what 'expired' is in this instance, and we can conceive of many methods to define expired so this is not the sole basis of the patent.
So the final and more likely grounds for the patent is 'on the fly' - which is simply that during the linked list iteration phase of a normal search the algorithm checks each node for whether it is expired - and removes it.
I have personally (in 20 years) not seen this 'on the fly' removal - I have seen explicit removal and garbage collection task, but I can not believe for a minute that this was profound, or new in 1996.
I am fairly confident prior art will be found and this Patent will be invalidated, well I bloody hope so!
@frank ly, what you don't understand is that patent trolls ALL file in east Texas, they COULD file somewhere else but then there would be a fair trial, which would usually have the numerous cases of prior art come up and invalidate their patents. The argument for bringing these cases into east Texas, instead of somewhere with fair judges, is that these companies do business in east Texas. If I started a business, I DEFINITELY would exclude this area from my business, forcing any patent trolls to do battle in a fair location.
...if in a few years Bedrock try to make a tablet or PMP that supports all common web video formats. I understand the WebM license will come back to bite them rather hard.
Fortunately for them they're just a bunch of trolls. Try searching for them. Only links I find are either to this court case or other litigation.
If you're a technology company doing well without having to sell in the US then please do not sell to them.
Selling anything in the US means paying bribes to the government-owning incumbents any time you do anything vaguelly clever.
Someone in the US needs to scrap the corrupt patent system and start allowing invention -- until then the rest of the world should keep out and let them fuck around trying to please their corporate masters.
It must be lawsuits like this one that convinced Google to try to buy up all of Nortel's patents, for "defensive purposes." Since Intellectual Ventures started suing, I now completely disbelieve the claims of any business entity that it is buying up patents for "defensive purposes only." However, even when it does inevitably start suing, Google will likely be able to evade the "patent troll" label (and thus take advantage of judicial preference for "practicing" entities over NPEs/PAEs), since it also engages in R&D. Clever.
http://www.youtube.com/watch?v=LkQELhZeDYQ
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