Market Analysis for Infrastructure Software from Lustratus Research Limited

Come in Texas East District Court, your time is up

Published September 15, 2009 | By Steve Craggs

If there is one thing guaranteed to get me gnashing my teeth, it is the role of the Texas Eastern District Court as the bully boy of the crumbling US Software patents world.

For those unfamiliar with this marvelous district court, every major software patent suit has been brought in this court, regardless of where the claimant or defendants are based. My own opinion is that just as the UK is the infamous world capital for divorce settlements because of its apparent unique and extensive bias towards the wife,the Texas Eastern District Court has the same levelof notoriety for software patents with its apparent unprecedented bias towards the plaintiffs. Any self-respecting patent troll (if that is not an oxymoron) is be quick to praise the name of the Texas Eastern District Court.

The latest in this long line of cases appears to be a couple of suits raised by a guy called Mitchell Prust, of Minnesota US, against Apple and others, that are threatening to completely derail the Cloud Computing model. These two cases can be taken as the tip of the iceberg – expect more to appear in the same courtroom. Essentially Prust got three patents approved in thearea of remote storage management, the earliest in 2000 – these patents basically deal with the virtualization of storage to allow multiple users across the world to carve out their own little space and manage and use it, as Cloud users do.

One thing that has forever confused me is how patents get approved in the US system. Anyone who knows IT will probably be aware that the IBM VM (Virtual Machine) operating system that started in the late 1960s provided this type of storage virtualization. Perhaps the difference with thesepatents is that each makes a big thing of the client system being attached through ‘a global computer network’. The implication is this means the Internet, which would rule out the IBM VM solution which clearly predates the Internet. However, global access to these systems through global networks was certainly possible in the old days too – when I worked in IBM in the 80s I was able to log on from a remote location across the network, and then continue to interact with my virtualized piece of the greater storage pool. Does this equate to a ‘global compute network’? Seems to me to be pretty damn close.

This brings up an interesting point. One reason this particular court is popular is that it has a habit of taking definitions in the patent claims, and interpreting them in a most eccentric way. In a recent case, still ongoing, the Texas Eastern District court judge decided on a definition of ’Script’ that was a mile from what most IT people would think, and therefore instead of that particular patent covering software that employed scripts in the IT sense, it now covers a far wider set of products that are in reality nothing to do with scripts. For reference, the definitions for script (and I am indebted here to Vincent McBurney’s painstaking tracking of the case) were (and remember this was a patent to do with data movement)

SCRIPT

Plaintiff: a group of commands to control data movement into and out of the system, and to control data transformation within the system

Defendants: A series of text commands interpretively run by the script processor, such that one command at a time is translated and executed at runtime before the next command is translated and executed, and that control data movement into and out of the system and control data transformation within the system

Judge: a group of commands to control data movement into and out of the system, and to control data transformation within the system

So, according to this definition, any code, for example a GUI or an executing program, that controls data movement based on some sort of input is now classed as a ‘script’.

If the Court follows the same approach in the case of these remote data storage patents, it could not only derail Cloud Computing but do a fairly comprehensive job of annihilating the virtualization market too.

Somehow, order has to be restored to the much-maligned US software patent system. It is absolutely right and proper that inventors should be properly recompensed for their innovations – this is healthy, and stimulates technology advancement. But to me the clear indication of the failure of the system is that every plaintiff heads to East Texas, presumably because it gives the answer the plantiff wants to hear. Statistics appear to bear this out. The implication is that any other court in the land would risk a less favourable judgement…dare I say it, perhaps a more just one?

I’ll sign off with the old joke about the soldier marching with his unit past a collection of family members. A spectator turn to a woman watching the march ans says, ‘Madam, your son is marching out of step!’. The woman replies, ‘No Sir, he is the only one marching IN step’…

Steve

Posted in Cloud, Imported

3 Responses to Come in Texas East District Court, your time is up

Vincent McBurney says:

September 16, 2009 at 3:13 am

Part of the problem is that the judge needs to explain a patent to a jury in terms the jury will understand, so the patent gets dumbed down. A script (which any IT expert knows to be a set of text commands) becomes anything that runs. Once dumbed down it can be used far more widely than was intended by the patent board. There does not seem to be common ground between how the patent board evaluates the uniqueness of a patent and how the courts apply it.
The only thing preventing millions of software patent trials from entering the system is the prohibitive cost of being a plaintiff and the uncertainty of success.
There are plenty of examples of patent trials outside of Texas are worse – Texas tends to have the fastest cases and fastest appeals process and no nonsense judges. In other states a patent case can drag on for many years with blunders that forces the appeals court to call for a retrial.
Steve Craggs says:

September 16, 2009 at 7:42 am

Vincent,
Sorry, but the dumbing down point doesn’t wash in my view. It is quite easy to dumb down the concept of a script – most people are familiar with sat-nav or route planners from the web that are a script of actions. This could be contrasted to having a chauffer who you can tell where you want to go and who does the route planning in his (or her) head.
I think you hit the nail on the head, though, with the mismatch between patent board and court interpretation. This seems to open up a chasm where a patent is approved based on one understanding of a definition, but the court then chooses another which would have resulted in the patent being rejected if it had been used originally.
Lastly, are you suggesting that because East Texas is the ditrict where patent trials and the appeals process are fastest, then it is the best? Best for who? Best for the plaintiff? Certainly – might as well find out quick if you are going to make your billions or not. But best for justice? Do you really feel that this court is the only one ‘in step’?
I know the wheels of justice can seem pathetically slow, but sacrificing justice at the expense of expediency is something to be resisted strenuously.
Jeff Darcy says:

December 7, 2009 at 2:40 pm

The important thing to remember about patents is that they’re all about the claims. While the bulk of the document is often taken up with long descriptions of obvious things, that’s largely irrelevant. If the claims cover only some non-obvious combination of those things, then the patent can still be considered valid (to the extent that software patents are ever valid).

None of that applies in this case, though. As I’ve written about on my own site (see http://pl.atyp.us/wordpress/?p=2572), the ideas in Prust’s patents were at the very least obvious and might even have been present in publicly available implementations – all at the time of filing, not just when the patents were granted. I’m practically certain that there’s abundant prior art to invalidate all three, if only somebody would track down the people from now-failed dot-com companies that were involved.