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)
- 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’…