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Implications of the lawsuit could stretch far and wide across IT industry

FOSS Patents blog reports that a Texas jury has ruled against Google in a patent infringement case that will cost the company at least $5 million in damages.

The jury ruled in favor of Bedrock Computer Technologies LLC, a company run by former patent reformer David Garrod, on April 20. Garrod is now a patent troll who targets small companies that operate in the notoriously patent troll-friendly jurisdiction of the Eastern District of Texas along with larger companies just to have the case brought to trial in that jurisdiction.

Bedrock -- which filed the suit in June 2009 against Softlayer Technologies, CitiWare Technology Solutions, Google, Yahoo!, MySpace, Amazon.com, PayPal, Match.com, AOL, and the CME Group --  alleged that a Linux kernel infringes on a 1997 patent relating to "methods and apparatus for information storage and retrieval using a hashing technique with external chaining and on-the-fly removal of expired data."

As Ars Technica wrote about the lawsuit when it was first filed in 2009: "It's a textbook example of patent trolling: a lawsuit over a relatively broad and dubious patent executed by a company that makes nothing itself against a random assortment of deep-pocketed industry leaders."

It's also interesting that the CitiWare Technology Solutions is a company based in the Eastern District of Texas that has no products, no employees, and no longer exists.

But the Linux kernel that the jury ruled infringes on the patent is at the heart of Google's server farm. The allegations against Google were the first to go to trial, and Google's attempts to invalidate the patent failed.

In addition to the $5 million owed by Google, the implications of the case stretch far and wide across the IT industry, particularly for Linux and Google's Linux-based Android mobile OS, FOSS Patents reports. The money owed by Google is just for past damages. Companies who continue to use the Linux kernel will have to pay royalties.

In relation to Android, Google will most likely be forced to change the Linux kernel it distributes with Android to remove the infringing code.

The decision also doesn't bode well for the 40-some other patent infringement cases related to Android that Google is currently dealing with. "If Google can't defend itself successfully against one patent held by a little non-practicing entity from Texas, what does this mean for Oracle's lawsuit over seven virtual machine patents?" Florian Mueller writes in the FOSS Patents blog. "This shows that having deep pockets to afford the best lawyers isn't enough." 

Google will likely appeal the verdict.



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Jury in Eastern Texas?
By ICBM on 4/22/2011 8:59:40 PM , Rating: 2
Two questions:

1. Isn't Linux open source?

2. How is a jury in East Texas(or anywhere for that matter) supposed to understand anything about programing code?




RE: Jury in Eastern Texas?
By sprockkets on 4/22/2011 9:58:15 PM , Rating: 2
1. Yes, more specifically, GPL. Which means those morons can only sue those who use the infringing tech, not who made it, since there is no one person who made it.

Our patent system sucks.

2. They probably had "experts" come in and present their case to the jury, like anything else. And each of them probably never heard of a "patent troll."


RE: Jury in Eastern Texas?
By Azethoth on 4/23/2011 12:29:23 AM , Rating: 3
1) Open Source does not mean you can just shove anything in there and it magically becomes patent proof. Patents are on ideas & methods, open source code can infringe as easily as something Apple, Google or MS puts out.

2) The jury in East Texas is likely quite expert on patents because their local court is known for being patent holder friendly. It is a tiny little place and their economy is based on ripping off corporations this way. Well, that and probably growing cows. For more on Marshall Texas and their sordid bs heres some concise dirt: http://www.techdirt.com/articles/20060203/0332207....


RE: Jury in Eastern Texas?
By Solandri on 4/23/2011 4:58:08 AM , Rating: 3
quote:
1) Open Source does not mean you can just shove anything in there and it magically becomes patent proof. Patents are on ideas & methods, open source code can infringe as easily as something Apple, Google or MS puts out.

The real problem here is that this was ever awarded as a patent by the USPTO. Basically, the patent covers garbage collection while you're traversing a linked list for any reason other than garbage collection. It's one of those "so obvious nobody else tried to patent it before" patents. The analogy someone gave on Slashdot was, while you're digging through your fridge looking for something to eat, you notice the ketchup is expired so you throw it away.

quote:
2) The jury in East Texas is likely quite expert on patents because their local court is known for being patent holder friendly.

Who cares if they're an expert on patents? To judge the validity of a patent, you have to be an expert on the subject matter of the patent. Not patent law itself.


RE: Jury in Eastern Texas?
By wordsworm on 4/23/2011 9:13:21 AM , Rating: 1
I don't think you caught his attempt at sarcasm.

That aside, anyone with basic reading comprehension can be made to understand the issues at the heart of the lawsuit. This isn't rocket science. However, since it's in Texas... Additionally, if you're an expert on the subject, there's a good chance that you're going to be jaded before going into the court. That's why experts go up as witnesses rather than sit in as jury members.


RE: Jury in Eastern Texas?
By semiconshawn on 4/23/2011 4:17:56 PM , Rating: 1
quote:
This isn't rocket science. However, since it's in Texas...


You are aware of the space center in Houston full of rocket scientists right? Idiot. Did you catch that attempt at sarcasm?


RE: Jury in Eastern Texas?
By ICBM on 4/23/2011 7:46:56 PM , Rating: 1
Basic reading comprehension is a rare thing. Especially in East Texas!


RE: Jury in Eastern Texas?
By semiconshawn on 4/24/11, Rating: 0
RE: Jury in Eastern Texas?
By wordsworm on 4/24/2011 4:12:45 AM , Rating: 3
Maybe that ought to be a criteria for those who become jury members... reading and listening tests...


RE: Jury in Eastern Texas?
By semiconshawn on 4/24/2011 4:21:45 AM , Rating: 1
Then you would have to make that a criteria to graduate high school. ;-)


RE: Jury in Eastern Texas?
By wordsworm on 4/25/2011 2:03:06 AM , Rating: 2
Isn't there already a problem with percentages of young people dropping out? Hell, I used to edit for engineering grad papers. The professor told me that their biggest challenge was in writing a basic essay. They could easily get As or better, but fail the basic English requirement. However, I believe that's a fault of the establishment: they don't allow science students to take arts for credit. That helps explain why a lot of scientists and engineers cannot read or write well.


RE: Jury in Eastern Texas?
By drycrust3 on 4/23/2011 1:46:40 PM , Rating: 2
quote:
It's one of those "so obvious nobody else tried to patent it before" patents.

So does this affect just Linux distributions or all operating systems?


RE: Jury in Eastern Texas?
By niva on 4/25/2011 12:41:22 PM , Rating: 2
It's in the linux kernel and clearly still in use across all linux distributions/flavors. Definitely some patent trolling going on with these guys though. I guess it's one way to make money.

This one case though is a strike against OSS. Perhaps MS is using the same technology but since their source is closed it's probably impossible for those companies to go after them. Linux source does give them a definite ability to do this. Unfortunately there's no good outcome for linux since this patent is so all encompassing removing the offensive functionality from the code would be a serious setback for all of linux.


RE: Jury in Eastern Texas?
By augiem on 4/23/2011 6:23:50 PM , Rating: 2
This provides a pretty good negative argument for any company looking to adopt open-source code as the basis for their products. It's IMPOSSIBLE to create anything these days, be it code or otherwise, without infringing on probably hundreds of idiotic, broad stroke, obscure patents. With as complex as software is, a company is much better of just keeping the lid on their code base and infringing away. They'll likely never get caught. And without the average programmer knowing (or caring) anything about patent law, nobody on the inside will likely ever know there's anything infringing going on anyway to squeel about. Open-source opens up the floodgates to the greedy companies and lawyers to pick the flesh from the bones.


RE: Jury in Eastern Texas?
By tecknurd on 4/24/2011 7:13:52 AM , Rating: 2
It is not impossible to create anything. You just have to be more imaginative these days for some something new to develop. Great things about software is there is infinite ways to write a program that can read and write the same output that the original program outputs to.

You could take a game like Angry Birds and copy it, but make a different variation.

The law suite puts a damper on things, but the open source community will find a way to create their own hash. Probably it will be better than the companies' own hash algorithm.

The patent system is at fault spreading to software domain. Patent should be for hardware and license should be for software. License makes it easier to understand how the software can be used while patent just shuts everybody up and lets the creator decide on their own terms how their creation is used. Any company or individual patenting software are basically patent trolls.


RE: Jury in Eastern Texas?
By augiem on 4/27/2011 9:50:44 PM , Rating: 2
I agree with you. Did you know even colors have been patented? But I guess my point really was, how can you possibly even know if you're infringing on patents when there are millions of them and they're ludicrously broad. Even if you're just joe teenager programming a game in your spare time, you're very likely to accidentally reinvent something that's been granted a patent. Having your source code be open just opens the doors to the patent trolls. They're not going to bother you until you're uber successful. But even so, if it were not open, they'd likely never find out.


RE: Jury in Eastern Texas?
By Theoz on 4/24/2011 8:28:00 PM , Rating: 2
ED Texas juries don't know anything more or less than juries in any other jurisdiction. ED Texas is known as a "rocket docket" where cases are brought to trial quickly. For instance, for a case filed in 2009 to be finally disposed of in 2011 is quite fast.

Because of the speed to trial, ED Texas isn't just favored by small companies and patent trolls. Many large companies also prefer filing in ED Texas.


We're going all the way back to 2010, Marty!
By The Raven on 4/23/2011 1:55:43 AM , Rating: 2
quote:
The accused infringement relates to the Linux kernel itself, which is at the core of Google's server farm. The complaint named a long list of allegedly infringing Linux versions, starting with the 2.4.22.x tree all the way to version "2.6.31.x, or versions beyond 2.6.31.x."

So this doesn't sound that bad if this is the case. 2.4 was mid 2010 or so right? I'm just going off of memory, I don't know how to look that history up, so please correct me if I'm wrong.




RE: We're going all the way back to 2010, Marty!
By amanojaku on 4/23/2011 2:17:53 AM , Rating: 2
Linux kernel 2.4 came out in 2001, and should be EOL in September 2011. It has been replaced by 2.6, which has been available since 2003.

http://www.kernel.org/pub/linux/kernel/v2.4/
http://www.kernel.org/pub/linux/kernel/v2.6/

That's pretty much any working Linux system today, assuming admins have been diligent about patching and upgrading.


By mindless1 on 4/24/2011 5:02:48 PM , Rating: 2
You are overlooking something. If a box is sufficiently hardened and does the required job, there is no need to update it.

Think of an OS like the firmware for a VCR, do you keep updating that if it plays tapes ok? We are at the end of the era where people think you need to be a slave to a machine constantly babysitting it!


By melgross on 4/23/2011 12:01:06 PM , Rating: 2
But as you can see for yourself, he's suing for all versions after as well, so it's pretty serious.

And unlike what some people may think here, it's not always so easy to remove code and replace it. This could be difficult, and consume some time. Google should have done this already, just in case. I don't know what their thinking on this is, but they've proven to be arrogant, so possibly they've done nothing.


And in other news
By Reclaimer77 on 4/22/2011 8:18:45 PM , Rating: 2
Google found 10 million between two of it's toes. Film at 11.




RE: And in other news
By PhatoseAlpha on 4/22/2011 11:33:13 PM , Rating: 2
It's not about google. Any company using the linux kernel is on the hook for royalties after this. That hurts - all the free as in speech talk in the world pales in comparison to the free as in beer.

Presumably they'll remove the offending code, and find a workaround while badmouthing the patent system the whole time.


RE: And in other news
By surt on 4/23/2011 2:46:52 PM , Rating: 2
That's not true, they can take it to trial just like Google did. Just because you can find one incompetent defendant for a lawsuit doesn't mean that everyone else automatically loses.


Incompetent Patent Office
By rdawise on 4/25/2011 8:03:54 PM , Rating: 2
quote:
methods and apparatus for information storage and retrieval using a hashing technique with external chaining and on-the-fly removal of expired data


So any operating system that has a search indexer and automatic garbage collection? You really can patent this? Come this is blatant BS.




Open Source
By Ilfirin on 4/25/11, Rating: 0
"There's no chance that the iPhone is going to get any significant market share. No chance." -- Microsoft CEO Steve Ballmer











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