The most prominent prior art invalidating this patent is the RAID6 (one of the most commonly used Erasure Code) implementation of the linux kernel. In an article dated 2004 (i.e. ten years before the patent was granted to StreamScale) it is described to be optimized as follows : For additional speed improvements, it is desirable to use any integer vector instruction set that happens to be available on the machine, such as MMX or SSE-2 on x86, AltiVec on PowerPC, etc. Where SSE2 is the acronym of Streaming SIMD Extensions 2. The patent cites Anvin aticle’s but only to state the problem and does not acknowledge it also contains the solution.
In plain English: Take photos of a race, tag and sort by bib number and date, and search for photos based on that tag via the Internet. That’s it.
We’re having a hard time seeing how this patent “promotes the progress of the sciences and the useful arts” given that it seems to be a patent on numerical sorting and searching. Indeed, the Supreme Court recently ruled that claims that simply add “do it on a computer” to an abstract idea are not even eligible for patent protection. We think the patent clearly fails this test. (It’s also likely not infringed). But because it can take months (and even years) for the court to even consider those issues, they will likely never be decided. Patent litigation is expensive, so many small businesses can’t afford to fight back no matter how weak the patent. That’s part of the problem. Companies can get 20 year “monopolies” after an average of 19 hours of review by the Patent Office. And because the cost to get a patent can be orders of magnitude less than the cost to defend against it, there is an incentive for people to get patents in order to later force defendants into settlement.
The patent also contains a method claim, but it “recites a process of taking two data sets and combining them into a single data set,” the judges noted. “Without additional limitations, a process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible,” wrote the judges.
The language used seems like a fairly broad application of the new Section 101 law. If the logic is used by other appeals and district court judges, it suggests that the results from Alice v. CLS Bank could invalidate a wide range of software-based patents.
TQP has been arguing for years that using Secure Sockets Layer (SSL) or Transport Layer Security (TLS) combined with the RC4 encryption cipher infringes its patent. The company’s former owner, renowned “patent troll” Erich Spangenberg, acknowledged during a trial last year that he has made more than $45 million in settlements on the TQP patent. TQP is one of dozens of patent groups that he owns.
The evidence suggests that in the software industry, the patent system does more to hinder innovation than to reward it. Inventors spend more money defending themselves against patent lawsuits than they earn from patent royalties. More and more entrepreneurs are losing sleep about the risk that patent litigation will drive them into bankruptcies. And companies that traditionally haven’t had to worry about the patent system, like restaurants, grocery stores, and casinos, are facing demands from trolls over dubious patents, most of which involve software.
“Lumen’s motivation in this litigation was to extract a nuisance settlement from FTB on the theory that FTB would rather pay an unjustified license fee than bear the costs of the threatened expensive litigation,” Cote stated in the order she issued on Friday. “Lumen’s threats of ‘full-scale litigation,’ ‘protracted discovery,’ and a settlement demand escalator should FTB file responsive papers, were aimed at convincing FTB that a pay-off was the lesser injustice.”
“We felt really good the last couple of days,” said the tech lobbyist. “It was a good deal—one we could live with. Then the trial lawyers and pharma went to Senator Reid late this morning and said that’s it. Enough with the children playing in the playground—go kill it.”
The Supreme Court on Wednesday upheld the decision of the district court, stating that it holds that “when a licensee seeks a declaratory judgment against a patentee to establish that there is no infringement, the burden of proving infringement remains with the patentee.”
But Jones didn’t invent SSL; nor did he invent RC4, an algorithm invented in 1987, two years before the filing date of the Jones patent.
Whatever his invention is, it came before the World Wide Web, which was made available to everyone in 1993. Jones filed for his patent in 1989, and it uses some distinctively pre-Web vocabulary; describing encryption via modems and phone lines.
By claiming such common encryption, the TQP patent is essentially a “we-own-the-Internet” patent. Spangenberg declined to speak to Ars for this story, but in an August interview he said the TQP licensing campaign has reaped around $40 million in revenue.
Of course, today’s discussion draft is not perfect. Compared to the Shield Act, the attorney’s fees provision is watered down. (It does not include a bond requirement, for example.) And the customer suit provision is too weak. We need stronger reform to stop the disturbing trend of patent trolls picking on customers and end users. Finally, today’s discussion draft focuses on litigation system, rather than targeting the root cause of the problem: the flood of low-quality, over-broad software patents. Despite these reservations, we are encouraged to see so many good reforms in a single package.