I am all for patent protection
But this is rediculous.
The internals of MacOSX, Solaris, AIX, BSD, etc. are so different from what is described in this DoS patent.
A lawsuit has accused Apple of violating a patent describing a means of "quickly booting a computer system". Late last week, an outfit calling itself Operating Systems Solutions filed suit in the Middle District of Florida, claiming that Apple infringes its patent with Mac OS X. As pointed out by Patently Apple, the patent in …
A properly applied patent system works. This is not an example of a properly applied patent system, but of a fundamentally broken one. It cannot be used as an example of why patents are wrong, merely as an example of why the current system - which allows patenting of things that are neither obvious, nor novel, nor strictly even "inventions" - is wrong.
"It cannot be used as an example of why patents are wrong"
Yes it can, in at least the following respect: how can the granting of a monopoly on a discovery that could be, and probably is being, independently performed in any way ethical? Saying to someone that someone else owns the discovery they made and that they have to pay a toll on the work they did, just like anyone who never attempted to make such a discovery at all, is a blatant injustice.
And before you come out with suggestions of grand "inventions" done only by a single person or group, aside from the possibility that other groups achieved the same thing but obviously didn't get any credit for it, such occurrences are by far the exception. Especially in software, concurrent discoveries happen all the time. You can mention "high quality inventions" in the area of public key cryptography (yet more concurrent discoveries right there), but such work is better rewarded with a much narrower system of reward. Given the amount of publicly funded research that ends up patented and in some aggressor's portfolio, public awards would be a viable and fair alternative.
(The veneer of credibility above the presumed extortion of organisations like Intellectual Vultures is that the big portfolio of "defensive patents" protect even against other patent trolls. How? Because you get to play a game of Snap with the big pile of patents. That's how patents are undermined by the ubiquity of discoveries in the domain, merely compounded by the patent regime's tendency to rubber-stamp everything they see.)
"In other words, this *can* be used as an example of how the *current patent system" is wrong."
Yes, but given that any "ideal" patent system is still going to have patents granted for (1) stuff that other people have already done without whining about having a monopoly on it, (2) stuff that other people have done whilst also whining about getting a monopoly on it, leaving it up to the bureaucrats to turn one or the other applicant down, and (3) stuff that meets some magic criteria that represents a high enough "quality" where it is unlikely that a flood of applications will arrive covering that very same stuff, but where someone will inevitably find their own independent work covered by this artificial monopoly, it also works as an example of how an "ideal" patent system will also be wrong.
Advocating a mythical "ideal" system also happens to indirectly advocate the upkeep of the existing egregiously broken system because no-one is encouraged to consider the fundamental injustices. Claiming that patents somehow work, particularly with regard to software, is like claiming that you can shove an adult elephant through someone's front door. By the time you've made all sorts of caveats about building houses for giants, you might as well admit that the exercise is a futile one.
@martin owens Assumption? When patents were first created the system worked just fine - it was properly applied, requiring models, actual inventions and not just vague, broad ideas and legalese. Calling historical facts "assumption" either proves you know nothing, or that you're willing to ignore reality when it goes against your argument.
@ac, you obviously didn't read my post. this is an example of why the patent system is broken now, it has no bearing on the *concept* of patents, as ypu are attempting to argue.
"@martin owens Assumption? When patents were first created the system worked just fine"
Really? I thought the example of the steam engine patents had done the rounds, but I guess not.
"Calling historical facts "assumption" either proves you know nothing, or that you're willing to ignore reality when it goes against your argument."
Care to provide links to these "facts". I don't see how you shouting "facts!" is any different to anyone else shouting "assumption!" except that the burden of proof is actually on you.
"@ac, you obviously didn't read my post."
I did read your post. You can drop the condescension and re-read your own which started by claiming that, "A properly applied patent system works." I dispute that.
"this is an example of why the patent system is broken now, it has no bearing on the *concept* of patents, as ypu are attempting to argue."
You're arguing that "patents are OK, really - it's just stuff like this and the Patent Office that ruin the idea!" And I'm saying that actually there are fundamental reasons why patents are a bad idea, giving you one reason with regard to ethics. I'm actually disputing your sentiment because if you remove all the duplicate and overlapping patents from the landfill that currently exists and actually set extremely high standards, you still can't get past this ethical issue with patents.
So, in fact, any patent, whether of "high" or "low" quality (good luck with your perfect patent system and deciding what these are, because everyone believes their own patents to be the former and everybody else's to be of the latter kind) presents this very ethical issue. My criticism affects all kinds of patent system, both the current one and the mythical one you mention.
Of course the patent system is broken now - we've just seen a cartel spend $4.5 billion on a bunch of paperwork of no practical benefit to them other than that of litigating against others - but my point, which contradicts your sentiment, is that the magical working patent system cannot exist without ethical deficiencies and generally cannot exist in the modern world anyway.
">> A properly applied patent system works.
Indeed. The author of the statement was clearly having a "cows in a vacuum" moment.
Even the poster child for patents - the pharmaceutical industry - has a pretty hard time showing that patents promote a well-functioning means, let alone an optimal means, of delivering treatments to patients effectively and at reasonable cost. And by patients I mean people whose life depend on such treatment, not some rich 80-year-old wanting a 24 hour stiffy and to look 40 years younger, and to whom the cost is mere pocket change.
The patent is specific to windows based computers and they are also trying to use it in a wider context?? hahahaha.. they're wanting to eat the cake and have it too.. heheheh...
There's no way this gets very far - if it does then a nuke is needed up all their A****...
Why is it even wasting the courts time even? and apple had deep sleep in powerbooks with mac os 8 or 9 can't remember when it started ...
The only enforceable part of a patent is the Claims section. Each additional Claim *widens* the scope of the patent, rather than narrowing it. Each Claim that can be said to apply will attract an infringement. So in this case Claim 12 - the one that refers to CONFIG.SYS and AUTOEXEC.BAT - will not apply, but many of the other claims will.
Basically, some of the claims (e.g. Claim 13) are drafted in a way that will cover any hibernate/resume process that stores main memory to a disk file and reloads it, so Apple surely infringes on those claims. Apple now have to prove that they or someone else invented it first, or somehow persuade the court to interpret the claims in a way that doesn't cover their software. However, courts often widen the claims further, so they could interpret 'Windows' in claim 10 to mean any windowing environment.
They could try the 'obvious' defence - that the claim would have been obvious to anyone skilled in the relevant art - but that usually fails.
My aunt had a Compaq 486 laptop that had hibernation support (although it was called some funky branded name). It was running DOS 6.22 and Windows 3.11.
I remember playing games on it when I stayed there while my parents were away for a week in 1994, and she'd had it for a fair while at that time.
I'm certainly no fan of Apple, but in this case, I hope Apple win. Trolls need to be shot in the face.
I see a ridiculous software patent, and don't get shocked by how absurd it is.
I see another patent troll trying to extort money, and don't get angry at this systematic abuse.
I've gotten too cynical about all of this. All I can do is go, 'Hunh. I'm surprised they didn't file in east Texas."
My guess is never.
However this is so obvious that I'd expect that Apple will go all out for a re-examination. If the results of the re-examiations in the Oracle-Google spat are anything to go by then I'd expect this one to get the reject stamp in pretty quick time.
This patent is hardly a leap in innovation. I can't help wondering if Apple might call in the likes of HP(aka Compaq) and even IBM to help show the obviousness.
All these boot acceleration technologies date back to 1970s, to IBM. For example prebinding (now dyld_shared_cache)
Microsoft was also the first to use all kinds of these tricks with Windows XP.
I am also sure FSF also gets irritated with this.
I mean, they may manage to make all these different entities allies of Apple on this case.
Apple also may thank to the fact that OS X minus frameworks and aqua is open source so they got the advantage.
This mightn’t be a patent troll at work, the original patent holder was LG, maybe LG are getting their retaliation in early given iJobs propensity to use iLawyers to do a Tonya Harding on the (android) opposition at all costs.
If we had an Elvis icon I would use it at this point, that's Elvis as in "suspicious minds"
"Though the description hereinbefore may refer to terms commonly used in describing particular computer systems and software, such as IBM personal computer and Windows95 operation system, the concepts equally apply to other systems and software"
So what you have then is an idea which you think could be generally applied? That's not patentable. Next!
How, why did someone get a patent on something that has been around for years before, even going as far as giving it the same file names and as also pointed out, could they not attack MS for, well everything up to current NT systems!
You know, ive always thought it was the folk applying for patents that have been acting like complete twats but really its the ones handing them out. Its like a cock fight, is it them thats at fault of wanting to kill each other or the people that put them in that situation in the first place!!
... system hibernation to me.
Excerpted from the article, with relevant points emphasised w/ asterisks:
"The method for a quick boot process includes the steps of performing a power-on self test (POST) operation when a personal computer system is powered on or a reset button is pressed; performing a normal boot process after the POST operation;
***saving the contents of memory and the status of the attached devices to a hard disk***;
checking if a reboot is requested;
***restoring the saved boot configuration information from the hard disk, after POST is completed***
during the reboot process;
***checking whether or not an initial device configuration file and/or an automatic batch file were changed***;
and executing commands in the two files and
***saving a newly created boot configuration information to the hard disk***
for future boot."
Windows 98 supported ACPI (Advanced Configuration and Power Interface) -based hibernation (though not very well, unless every driver on the system was WDM-compliant), and even Windows 95 had a "pseudo-hibernation" feature known at the time as "Suspend-to-Disk," back in the ol' APM (Advanced Power Management) days...
Most importantly, hibernation stores the last state of the machine. The technique listed in the article would restore an initial boot state. So that instead of running all of the commands required to boot the OS, it would simply load the resulting system state from the drive. The boot state shouldn't change very often, making it a mostly static image, rather than the hibernation image which would always be different.
Secondly, it's adaptive. Hibernation just checks to see if there's a hibernation state to load or not--though it may also give you the choice to load the hibernation image. With this technique the computer would check to see if the boot state is still valid; if so, then it loads it. But if not, it checks to see if even part of it is valid. If so, then it can load the useful part of the boot state and run the other commands to finish the boot process.
It does seem pretty reasonable to make something like this if you know about hibernation though. The only non-obvious parts I see are in how it loads only part of the image and that it should necessarily be faster than running the code to boot the machine as usual.
Rule 1. If you make a patent, you must make the product that uses the thing you patented.
Rule 2. People can have the same idea at the same or different times. Just because you patented having a shit in 1920 doesn't mean I have to pay to go potty in 2011.
Patents are going to kill developments. They simply should not be permitted to be sold without the product being still produced by the purchaser.
Lodsys and the rest of you patent mungers - GFY. I mean......in-app purchases are like the wheel - my 2-year-old could invent the wheel :-p
@Rule 1: Not everyone is capable of producing the things they can invent/improve by themself. Unless you are MS or Apple you can't really make a profit off of OS related patents except by licensing or selling them to an OS vendor.
@Rule 1: Not everyone knows every potential use for an invention. Lots of things get patented so that they can be implemented in one scenario and later someone else notices that that same idea can be used in a very different scenario. As an example, epoxys are often used to bind two surfaces together. Surely someone patented these mixtures at one point--would explain why they come in different colors. However, several years ago, some people noticed that the mixed epoxy also worked well for making small, detailed sculptures. Should we really issue a new set of patents for the same mixture just because the original inventor didn't notice that epoxy could be used as a sculpting material?
@Rule 2: If it's so obvious that someone can reinvent it in five minutes, then it probably shouldn't have been patented in the first place. Though quite a lot of things are perfectly obvious in hindsight. Often, the better the idea, the more obvious it is in retrospect. If it takes longer to reinvent it, then the reinventor would probably have been better off spending some time to find out if someone else had already solved the problem instead of insisting that he's the only one that could possible invent such a thing.
@Rule 2: Patents also come with a time limitation. Though the patent can be extended if the owner continues to patent new and substantial improvements on the original patent.
@Patents...: They've existed for a couple hundred years already and things have still been developed in that time. Even software patents haven't managed to kill off the software industry yet, despite all the whining in forums.
@Lodsys: Either the guy that issued the patent was an idiot or you've simply trivialized the patent because you've got an axe to grind. I know which one I'd put my money on. Though it's possible we've all just trivialized the non-obvious requirement in the patent laws.
Well ... that is the ironic part; they weren't. Actually when the modern patent system was coming into place somewhere at the end of the 19th century it was because there were a lot of people inventing a lot of stuff. But nobody wanted to disclose his secrets because of fear for the competition. That is why patents came: you could show your invention and keep getting money for it!
I don't know when or where it went all wrong, all i know now is: please kill this system!
Let 'em have it with all guns blazing. They're quite happy to spray the patent love in all directions themselves. Let the whole lot of them rot in their own spew. Have a look at the capital markets, the state of the economy, China's rise to power. The patent system is yet another fuck-up of biblical proportions.
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A company I've never heard of with an extremely generic name is suing a rich target over something that would be generic if it didn't mention Windows 95 system files.
I smell a troll. But that's what patents are for nowadays, apparently!
It'd be nice if all patents expired automatically and non-renewably after ten years. If you invented something and can't capitalize on that work when the market for it is yours for ten years, that's your fault. After that, the patent should serve as nothing more than a public record of technology, archived for the benefit of the public. The whole point was to protect inventors by preventing new inventions from being copied by competitors fresh out of the oven after letting the inventors do all the work--not to protect an invention from competition permanently so the inventors (or, more likely, the inventors' employers, who first made their employees sign over the rights to any work they do there) can keep charging royalties for the same invention indefinitely.
"If you invented something and can't capitalize on that work when the market for it is yours for ten years, that's your fault."
If your invention is a sudden flash of inspiration, maybe you are right. If your invention is the outcome of many man-decades of R+D (a clever application of nano-tech for example) then arguably you should be entitled to a cut of any profits other people make from your research for longer than that.
The problem comes when your invention isn't an invention at all, in which case there shouldn't be a patent in the first place.
We were using this on Honeywell GCOS6 MOD 400 operating systems years before this patent was granted. You did one reboot to initialise the environment and after that you could quick boot as much as you liked until the hardware or software changed. Rinse and repeat as required.
It certainly does, and for proof you need look no further than the extensive prior art mentioned by earlier commentards.
Do El Reg commentards count as "skilled in the art"? Are these pages admissible as evidence? Certainly if I were the judge, this one case alone would be sufficient to mark the plaintiffs down as malicious litigants. No-one with even half a clue about operating systems could bring this case to court without feeling morally soiled.
Dear CEO of Operating Systems Solutions,
My lawyers (Rabid, Snarling & Nasty) have advised me to inform you that you are in breach of a number of patents I hold.
The Patents are:
#278943234/1876 - Method for using oxygen in a respiration system
#2348231992/1123 - Method for using muscular power to move lungs to induce breathing
#8823149253/223 - Method for using Adenosine-5'-triphosphate for intracellular energy transfer.
You are hereby required to CEASE AND DESIST IMMEDIATELY from using these technologies, or face substantial fines and licencing costs.
Yours with Deep Anger & Resentment.
My lawyers (Sue, Cripple and Sneer) will be contacting you shortly to discuss your recent violation of one of my patents, namely "System and Method for for using Stupid IP Laws to Extort Money using Frivolous Patents".
I'm hoping that an amicable agreement will be impossible, and that you, your businesses and legal advisors will all be reduced to a smouldering crater by the somewhat technologically inept judicial system in the fine state of Texas.
Didn't Jef Raskin produce (or at least design) a computer that did just the same thing? Turn it on, and it was back where it was when you shut it down. I think it was one of the ideas that didn't make it into the Macintosh -- and so early 1980s. But then Apple would know all about that ...
I see a potential revenue stream for the National Museum of Computing. Tons of prior art in there! All they need to do is to get Apple to pay for the rebuilding of whatever bit of decades old technology would prove prior art, and make a video of the relevant feature being used, and case closed. Apple would spend it's money on a worthy cause, instead of lawyers, the Museum would get a shiny new exhibit and OSS would be bankrupt.
By the way, shouldn't the CIA sue OSS for trademark infringement?
I know there have been many comments about prior art in one way or another - so here's another.
I have a Cambridge z88 portable from 1987. I use to use it on the train each day while I was working on a book. When I got to my station I switched it off - when I got to my desk I switched it back on again and within a couple of seconds the cursor was flashing at the end of the line I had written on the train.
Further to the other cries of prior art, I used to use RAD disks with the Amiga OS - load your 3 disk game or whatever into RAM (as a RAD device) do a soft reset - result = almost instant boot and fast access from then on. Wikipedia has a section on "RAM Disk" here : http://en.wikipedia.org/wiki/AmigaOS
While the patent may include broader claims, and have an illustrative example for a Windows PC, as far as I'm aware, Microsoft didn't have to license that patent to add the "sleep" feature to Windows. And that sounds like what it is describing.
Now, if there is some specific reason why the power-on self-test - something a lot of computers do - was not used by Microsoft for sleep mode, but Apple is using it, at least for that laptop, then they might even have a case. But I doubt it.
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