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Rackspace accused of patent infringement for hosting Github (scribd.com)
213 points by BummerCloud on Sept 18, 2012 | hide | past | web | favorite | 177 comments

11. Venue is proper in the Eastern District of Texas under 28 U.S.C. §§ 1391 and1400(b). PersonalWeb is a limited liability company incorporated in Smith County, Texaswith its principal place of business in Tyler, Texas. A substantial part of the events giving riseto the asserted claims occurred in this judicial district, Defendant transact business in this judicial district, and the patents were infringed in this judicial district

I think maybe its time for all technology companies everywhere to boycott a certain district in East Texas. Don't ship there. Geolock all services so they aren't useable there. Hell, if Hulu can keep the Canadians out, this should be easy.

If nothing else, it would send a message to the people living in that area that their local courts have been hijacked to do some very unfortunate things. It would send a pretty good message to other jurisdictions as well : "make a national nuisance of yourself, lose your interwebs."

Want to stay out of patent court? Don't mess with Texas.

Not a fan of net neutrality I take it?

As much as I hate patent trolling, I'd hate politics and ridiculous laws to restrict the free flow of information more instead of less.

Noonespecial is talking about private actors, not the state. This is essentially a call for a boycott, and I can't see this as a reflection on noonespecial's views on net neutrality one way or the other.

The whole point of net neutrality is preventing private actors from manipulating the flow of information.

Flow is not the same as supply. Noonespecial is talking about blocking things at source not by an intermediary.

Flow is not the same as supply

Its like a synthetic variation, not a logically novel form of argument. The flow is cutoff when the supply is witheld. The supply is withheld when the flow is cutoff. Etc.

Cutting off flow is not the same as withholding supply.

Functional equivalents, and often the Law will see through such transparency. Are you going to withould supply from [an ethnic group, or a protected class] for example?

I'm not sure we're talking about the same thing.

I was trying to say that noonespecial's suggestion for "technology companies everywhere to boycott a certain district in East Texas" isn't about net neutrality as schmichael objected because net neutrality is about intermediaries blocking or throttling access to services, whereas as the boycott noonespecial suggested would be by the providers of the service.

No, i do understand; but you are missing the point of the comment that you replied too -- which is that the purpose (public policy) of net neutrality is to prevent the collusion of private actors from acting against the common good. This type of collusion has issues associated with it that are far broader than what you are thinking of. And there are other laws/policy ideas beyond net neutrality to consider. This consideration isn't optional or arbitrary. [And this isn't an adversarial or snarky comment its just how the world works.]

But those private actors that the policy applies to must be middle men or acting on middle men in a network. Net neutrality as I understand it is about placing restrictions on network operators and regulators can do so that they cannot restrict access to content. So Wikipedia blocking access to it's own website would not be a network neutrality issue, but an ISP blocking access to it would.

And there are other laws/policy ideas beyond net neutrality to consider.

I was responding to a comment about network neutrality to say that it didn't apply. I wasn't discounting the possibility there could be other issues, although if Wikipedia decided to block access in Texas for a day (perhaps only allowing access to pages about patents, prior art etc.) I think that would be for the public good.

the collusion of private actors from acting against the common good

Net neutrality is not, per se the issue. it is one policy x of a set [X]. The argument/stratgem maybe far too narrow in scope to address the entire set [X], if for no other reason that its technical reference x not [X]. That was part of the larger point being made. There are alot of [laws] one may be breaking at the same time. If you are cute withrule Z an equally-hypertechnical look at law W might not be good. And if you try to undermine some of them (viz: a sythetic transaction) they are structured to see through to the end effect (don't care about the structure). So, if you are cutting off [insert name here] services to legally protected classes, for example, net neutrality might be the least of one's worries. And it might not matter the method. etc

Just something to think about. Also, this comment doesn't have anything to do with texas or whatever. Its just a general precaution. The issue is one of pre-texted market collusion, which being subject to abuse, is a dangerous precendent to allow.

Are you saying it doesn't matter if you are targeting legally protected classes specifically or if you are cutting off access to a wider group that includes them?

What is a sythetic transaction in this context? I tried googling it but couldn't find a good definition.

exactly that

If net neutrality applied to service providers, Wikipedia would have been "guilty" of violating the ethic of network neutrality just for its boycott action earlier this year on the Internet blackout day to drum up opposition to SOPA and PROTECT IP Act.

. . . and "net neutrality" attempts to solve a problem by treating the symptoms rather than the infection itself, anyway. The real problem is governmental enabling and encouragement of monopolistic service providers. The fact such organizations may "abuse" the monopoly powers created and defended for them by governmental support is a side-effect of much deeper socioeconomic pathologies.

The suggestion was for companies to forego doing business with certain people as a risk management tactic.

It's akin to Amazon pulling their affiliate program from California to avoid sales tax. I don't see how net neutrality factors in here.

The OP's suggestion has nothing to do with net neutrality.

Net neutrality is about the /network/ being neutral to what it carries. The network should deliver skype, or google, or HN, or whatever, and treat them all the same. The network operator shouldn't get to charge Google for the privilege of using its pipes, just because Google is a big company with lots of cash.

The OP was suggesting something entirely different: That tech companies (and, yes, websites), should boycott this district of Texas.

That's no different than AmazonFresh being available only in the Seattle area.

Apparently the win rates in EDT aren't that great any more. Someone posted a link to this effect a few lawsuits ago. The reason why people still file there is because the judges all now have good working knowledge of patent law and that makes trials fairly efficient. Dunno if this is actually true, but.

It really doesn't matter what the "win rate" is when it costs 1.5 Million and takes 3 years to win. The trolls have their offices there and they appear before the same judges every day. I have no doubt this makes trials fairly efficient for them.

A little fear in a court that if they start hearing a bunch of bogus patent cases and generally being troll friendly might make half the internet become inaccessible from their jurisdiction might not be a bad thing. Yes, that's pretty unfair to a lot of people, but unfair seems to be the currency of trade these days.

That ignores the selection effects. Once word of their reputation got out, people started settling the weaker cases rather than litigating in East Texas.

They also have helpful local rules, like the one that lets people file a cover sheet with the clerk a day early, getting a case number and priority. So even if you anticipate the lawsuit, you can't get out of EDT, as Cisco found out once upon a time.

Sounds like a great idea to me. Political activism that may actually work!

But is it legal? I know it is not legal to refuse serving based on e.g. skin color, race or gender. And it's legal for a US company to refuse business with Canadians.

But is it legal for e.g. a California company to refuse to treat East Texas, or the whole of Texas, equal to North Carolina?

Race is a protected class, as is gender. I don't believe Texanism (Texanity?) is. :-)

See: http://en.wikipedia.org/wiki/Protected_class

Given that the Republic of Texas voluntarily joined the United States, there might be an interesting argument regarding national origin (which is a protected class). There are at least a few diplomatic conventions that stem from this, such as flying the Texas flag at the same height as the US flag, instead of lower.

I was thinking that it could be covered by the commerce clause. But no, that prevents California as a state passing laws forbidding companies from doing business with Texas.

I don't think there are any federal laws demanding equal treatment of different polities by private (rather than state) actors.

Would it actually be that simple? I can't imagine their lawyers would be lacking enough technically not to show the judge a phone or use a proxy.

Its not to keep from being sued there. Most of the people I asked that know these things agree that it would provide a thin defense in that regard. Its to send a message. If all of Tyler woke up one morning unable to watch Netflix, search on Google or order from Amazon, a few people might start to wonder WTF is going on.

I can't view the link because it's expired, so I'll just post my rant here.

The entire point of patents, as delineated in the U.S. Constitution, is "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." So patents are a means, of securing an end, which is "the progress of science and useful arts". Is anyone actually arguing at this point that our current patent regime is accomplishing this end? Would the world be a better place if git and github did not exist, and the only entity that could use the technologies in these patents were the patent holders?

> Is anyone actually arguing at this point that our current patent regime is accomplishing this end?

All through history patents have always hindered innovation and progress, and there is plenty of research to back this up:


I think it should be obvious by now for anyone that we are well past the point where the system is fixable, the only solution is to abolish it or it will again become captured by trolls, oligopolies and lawyers and used to crush anyone doing anything innovative and useful.

Nice sentiment. I share it. It's also a waste of breath.

> trolls, oligopolies and lawyers

Every member of that group is well funded, highly connected, and very aggressive.

They are ready to devote untold resources to crush your sentiment and should that fail, to redirect your reform efforts into a more palatable outcome.

Every piece of legislation is a compromise between competing interests and their competing interest guarantees that the system will never be abolished.

A far more successful strategy would be to chip away at the fringes. Add restrictions and more bureaucracy until the system becomes cumbersome for even the most resourceful player to use. Bit by bit, piece by piece. Add complexity until it collapses on its own.

Apple -a beloved public fetish - and its patent wins have paved the way for the attack of the patent empires and rogue states, in broader public opinion. Forget abolishing patents, I would expect more litigations and monetization attempts from software patent holders and a more proprietary, closed world for a decade or so; till the heritage of the "new Apple" erodes.

++@betterth Because Apple is more positively perceived by media, lawmakers and general public in comparison to unnamed companies which are quickly named as "trolls", Apple's patent wins created more sympathy towards patents. By "paved the way" I just mean that, in public opinion, patents are justified, because people think "Apple deserves to sue others, so patents must be good".

BS. Patent trolls have been around for a very long time, and companies like IBM represent the lionshare of patent applications.

Apple themselves files one of the lowest numbers of offensive patent lawsuits -- it's just a confirmation bias mixed with the massive publicity that Apple gets.

Just because you hear about EVERY one of Apple's lawsuits doesn't mean that Apple is "paving the way"!

I hate the knee-jerk "blame Apple" nonsense that is so pervasive! What is Apple doing that is so groundbreaking to patents?

I argue that the weaponization of patents, something APPLE TAKES NO PART IN, is a far worse problem. Google buying up Motorola for their patent portfolio and loaning them out to partners like dirty nukes... and APPLE is the leader of patent nonsense?

Is there any current IBM litigation that hurts the average consumer as much as Apple's actions against HTC and Samsung?

I hate the knee-jerk "blame Apple" nonsense that is so pervasive! What is Apple doing that is so groundbreaking to patents?

You know, I've looked all through the Constitution, and while there's some stuff about promoting the progress of science and the useful arts, I don't see anything about starting thermonuclear wars against competitors. Can you help me out?

>I don't see anything about starting thermonuclear wars against competitors. Can you help me out?

Do you see anything about pots calling the kettle black?

I never said that Apple was blameless, but rather I am arguing that they are not "leading the way".

Remember, Apple sued Samsung with patents made in house with Steve Jobs name on it.

Samsung sues with standards essential patents and patents it's bought like warheads for the sole purpose of using in court.

And you want me to believe that Apple is the cancer?

Apple carries blame but this is just like Foxconn -- Everyone uses them, only Apple gets the blame.

A far more successful strategy would be to chip away at the fringes

Why would that be so? Wouldn't all the groups continually fix what you chip away and then some?

Bit by bit, piece by piece. Add complexity until it collapses on its own.

Do you have a more detailed description of how to break the patent system by adding more regulations to it, such that the special interests do not, or can not remove them to continue the system?

> Wouldn't all the groups continually fix what you chip away and then some?

Ah. Divide and conquer. Lawyers love rules/regulations/complexity because it usually means more $$$ for compliance efforts. You exploit a conflict of interest between the patent holder and their legal representation.

They will be fighting each other, while you weigh in for the most onerous changes.

> Do you have a more detailed description of how to break the patent system by adding more regulations to it

The problem with the patent system is that it works. You apply for a patent, you get a patent, you bash somebody's head in with the patent.

What you need is to insert many, many pain points along the way. Enough pain points and complexity that the system as whole, no longer functions.

The path to that is to find allies for each particular pain point. There will always be some group that will benefit through additional regulation. If that weren't the case, there would never be any regulations. All regulations are meant to make somebody's life better.

For example, the regulation for seatbelts in cars made seatbelt manufacturers happy. Etc, etc. Somebody always gets a cut, somebody always benefits.

So you systematically support and push regulation and promote the benefactors of said regulation. Your only challenge would be to come up with some beneficial reasoning for said regulation, to cover up the naked interest of the particular benefiting party.

Essentially, you just regulate it to death.

I agree, historically, big 180 shifts in legislation didn't happen because one interest group had a more.compelling argument. Change happens when the economics shift, such that there is now a stronger economic and political (or sometimes military) power in favor of change.

Forexample, slavery didn't end because one side convinced the other. Slavery ended because capitalism changed the economic power balance such that there was more money siding with the end of slavery.

The same will happen to IP. Patents will only end when there's a clear stronger economic power more interested in the end of patents.

re: the abolition of slavery and your economic argument - do you believe this to be the case in all instances where slavery was abolished? or just in the US? Spain abolished slavery circa 1550. Great Britain abolished slave trade circa 1810. Did the US just lag these economies (and GB lag Spain) a lot at this point?

Unfortunately, restrictions and bureaucracy tend to just favor lawyers who can charge higher to dig through it.

Things are already complex enough to the point where even a very good lawyer barely grasps how things work. The latest example is the Redhat scenario. They hit Redhat, Redhat swings pack with a GPL violation. I guarantee you that the GPL never came up in conversation when they were considering suing Redhat.

We just need to make things even more complex until lawyers absolutely cannot predict the outcome of litigation. At that point enforcing patents can become a dangerous proposition.

Complexity is an advantage for the existing elite. The more complex you make patent law, the harder it will be to defend against if you're a small fish with limited resources.

IMO complexity through abstraction enables most of the evil in the world.

> Complexity is an advantage for the existing elite.

This is true, but until a point. Eventually if a system becomes complex enough, it must collapse. The elite are still human and they still have limitations. Even now, no lawyer is capable of committing the entire body of law responsible for the patent system to memory, nevermind actually grasping all of it.

> The more complex you make patent law, the harder it will be to defend against

The more complex the system, the more contradictions it contains. The more contradictions for you to exploit.

On the contrary, if we had an extremely simplistic system, the small fish would just be told NO with no recourse. Today, they can find reason after reason to counter-sue, appeal, file forms, etc.

Mind you, I'm only a fan of bureaucracy when I'm trying to destroy a particular system.

Step one: variable patent lengths.

Or an automatic re-examination on litigation.

The results of the re-exam would always be litigated, every time.

That's still an improvement.

On what basis would the length be determined?

Here's the Amazon link, just for fun:


The author - or one of them, at least - Michele Boldrin is a very bright guy, who also does a lot of writing in Italian here:


And has a hand in starting a political movement in Italy, here:


He also happens to be from Padova, my home away from home in Italy, although I've never had the occasion to meet him, as he lives and works in the US.

Worth noting though, that the book itself does not appear to be available under a free license...

I read Tim Wu's The Master Switch, and even there patents are often used as a weapon to monopolize or terrorize competitors.

Patents cover areas of technology where developing a solution that can be commercialized at scale is much, much more expensive than software. Without patents, how is a pharma company expected to pay the enormous cost of research, development, and FDA approval of new drugs? Let's not let obvious flaws in software IP protection condemn the concept of patents in general.

Most pharma research is already done by universities and other government subsidized organizations.

Most of the drug development costs come from the byzantine approval and regulatory process.

And for the government to pay for it by going around granting monopolies to private institutions is a very inefficient and plain insidious way of doing things, as can be seen with how new drugs are just old drugs with the smallest possible change to grant a new patent which come out exactly when the old patent expires, and many other ways big pharma exploits the system to create a oligopoly.

And this is not any grand conspiracy, is the natural result of regulatory capture and the incentives created by the patent system.

Pharmaceuticals definitely seem to be an exception, since the time + cost of developing a drug (years + billions of dollars) is so staggeringly large compared to the cost of manufacturing / copying. So maybe there needs to be a special type of patent that only applies to drugs and treatments for medical conditions.

Going up one level though - how much has society truly benefitted from the billions (trillions?) of dollars that have been spent on developing new drugs? This is admittedly a field I know very little about, but to what extent are improvements in quality of life / life expectancy in the U.S. in the past 40 years due to new drugs, vs better diet, exercise, reductions in smoking, better emergency medicine, occupational safety regulations, safer cars, etc?

Some reports claim the pharmaceutical industry spends almost twice as much on marketing and promotion as it does on research and development.


Without patents, how is a pharma company expected to pay the enormous cost of research, development, and FDA approval of new drugs?

Well the obvious answer would be through some form of tax based scheme that then plows the money into research primarily based on clinical need, which funnily enough is how a hell of a lot of the drugs that are actually useful get developed currently. But expanding these kind of solutions is very unpopular in the states from what I gather, apart from in the case of weaponry, so how about some form of kickstarter for medical research? People throw loads of money at products that don't and may never exist on there, so you should be able to get tonnes of cash by just repeating the word "cancer" a lot.

[edit] I went off and found some figures on this:

"In 1999 the National Cancer Policy Board conducted a survey of federal and nonfederal sources of cancer research funding [ 11]. The board found, for the fiscal year 1996/1997, that the total amount spent on cancer research funding was US$5.165 billion. The three major contributors were (1) federal funding, US$3.060 billion (almost entirely from National Cancer Institute); (2) industry funding, US$1.6 billion; and (3) funding by nonprofit organisations (e.g., Howard Hughes Medical Institute, American Cancer Society, Komen Foundation), US$305 million."


So, for cancer at least, government and charity funding combined, dwarfs the amount spent by the pharmaceutical industry on research in the US.

A lot of these arguments skip the obvious fact that the FDA could provide its own form of commercial exclusivity without needing patents at all.

You can't sell medication without FDA approval. Right now patents don't factor in to it, but if patents were eliminated the FDA could implement a similar scheme exclusively for medication.

I also suspect that the high cost of FDA approval is not treated as a negative by many in the medical industry, as it provides a nice high barrier to entry which helps reduce competition. This seems to be especially true of some of the producers of medical devices.

While this is a valid issue, it does demonstrate how strict a gate-keeper the FDA is. You can't sell anything with a purely medical purpose to anyone without the right certifications. I'm sure there's a lock on something as simple as tongue-depressors that can't be broken because getting your product certified is non-trivial. There isn't even an invention involved here.

>Without patents, how is a pharma company expected to pay the enormous cost of research, development, and FDA approval of new drugs?

How about taxes? Drugs that are useful for millions of people can be subsidized --internationally even.

It will make the system even less commercialized (i.e prone to go for quick bucks and BS drugs instead of proper medicine).

Most of the more expensive drugs are of marginal utility anyway. Basic sanitation, running water, staple vaccination and such have much more to do with the general health and long living than even much touted breakthroughs like "heart surgery".

Not to mention that billions have been spent for BS like Viagra and ADD (non)drugs, while 60% of the world's population doesn't even have basic food and vaccines.

This is exactly right. The problem with the "patents foster innovation" argument is that they don't direct the research money into the areas where they're most needed. Then, because patents initiate a race to recoup research costs before the patent expires, a tremendous amount of money that could be going to research for new drugs instead gets poured into marketing.

That last fact is particularly disturbing when you consider that many doctor end up learning most of what they know about new drugs entering the market from the marketing literature sent to them by pharmaceutical companies. That literature is regulated, and in most cases accurate, but it is also biased.

You are essentially arguing for a central planning approach, and we have ample evidence from the 20th century that this does not produce better outcomes than a market-based approach.

>You are essentially arguing for a central planning approach, and we have ample evidence from the 20th century that this does not produce better outcomes than a market-based approach.

What "ample evidence"? The USSR? For one, they had a mighty fine space program.

Second, one example of central planning, that also carried other kinds of rubbish with it (cutthroat politics at the top level, being enforced on a backwards, non adequately industrialized country, dogmatic ideology, and having to fight a foreign superpower) does not "ample evidence" constitute.

Central planning != 20th century communism. We have much better examples of central planning, successful ones, in the western world.

I don't think software patents in the US will be abolished any time soon. The affected parties that have the most clout with the lawmakers (large software companies) chose to hoard up billions in patent portfolios for themselves, instead of lobbying for a patent reform. I can't imagine them writing off those huge assets; it's a deadlock now.

Well they could simply stop issuing new (software) patents, and within 20 years (I believe) there would be no more (software) patents.

Would the world be a better place if git and github did not exist

No, but certain people think they would be richer. Unfortunately the idea of increasing general wealth through the expansion of the commons is one that also makes the same people scared shitless, even if they themselves benefit. If you view the economy as a zero sum game, which might hold true, but only if you include the entire universe in your economic model, then you can only do better if others do worse. So those who hold that as a principle cannot even conceive of the idea that things like git being available might just be better for everyone as they genuinely believe that a gain by the majority is a loss to themselves.

> If you view the economy as a zero sum game, which might hold true, but only if you include the entire universe in your economic model

This is the best way of putting this point I have ever seen.

Thank you. :) Was from thinking what "any non-zero-sum game for n players can be reduced to a zero-sum game for n + 1 players" actually meant, when applied to the physical world.

The titles of the patents:

5978791: Data Processing System Using Substantially Unique Identifiers to Identify Data Items, Whereby Data Items Have the Same Identifiers.

6415280: Identifying and Requesting Data in Network Using Identifiers Which Are Based On Contents of Data.

6928442: Enforcement and Policing of Licensed Content Using Content-based Identifiers.

7802310: Controlling Access to Data in a Data Processing System.

7945539: Distributing and Accessing Data in a Data Processing System.

7945544: Similarity-Based Access Control of Data in a Data Processing System.

7949662: De-duplication of Data in a Data Processing System.

8001096: Computer File System Using Content-Dependent File Identifiers.

8099420: Accessing Data in a Data Processing System.

It would appear, based on many incidents underway at the moment, that the software patent apocalypse is beginning.

All software infringes something, so it should get interesting. Hopefully the absurdity will stink so badly that even the U.S. congress will do something.

And you think that a Congress that lets the economy slide towards depression in favor of the rich at the expense of the rest of us really gives a damn about patent reform. Except for what their handlers want.

Apologies. This comment is not worthy of a HN regular, but I am feeling really cranky these days.

Many people in large technology companies are threatened by software patentes, and spend lots of time and money defending and preparing to defend against them. Were these people (who are among the richest in the world) left out of the controlling congress conspiracy club?

Yes. Congress is made up mostly of lawyers, who get rich off such nonsense.

It's also largely controlled by old money and Eastern money, not nuevo riche California tech money.

Your congresspeople know this is a critical issue for you. They will be happy to take your campaign contribution. They're studying this issue closely. Study results expected in March 2057.

Seriously, beginning? Patent-a-geddon has been on-going for a couple of years now. Its like a forest fire though, the more stuff burns the vortex effect sucks in more fuel and causes even more burning.

I am hopeful about what happens N years after the patentocalypse, when everything has been broadly patented a million times over and then all of those patents expire, and it is no longer to patent anything again.

1. Prior art doesn't stop the patent office from issuing patents, so that's not going to help.

2. Patentocalypse is a great way to kill off startups that actually succeed and open source projects, so big business campaign contributors will keep congresscritters from doing anything about it.

3. This won't really hurt the big public corporations too much, once the dust settles a little, because they'll just reach detente to avoid mutually assured destruction.

If something changes things for the better, it will almost certainly be the general public ultimately reaching a point where everyone ignores patent law altogether, thus making it irrelevant.

Won't there just be new broad patents? It seems the patent office doesn't really consider prior art.

My current mental model for how the software patent issue is likely to progress is roughly along the same lines as the Kessler syndrome, but with legal action taking the place of orbital debris.


Sample complaint against Google re: 5978791



On November 2, 1999, United States Patent No. 5,978,791 (the “’791 patent”)was duly and legally issued for an invention entitled “Data Processing System Using Substantially Unique Identifiers to Identify Data Items, Whereby Identical Data Items Have theSame Identifiers.” PersonalWeb was assigned the ’791 patent and continues to hold all rightsand interest in the ’791 patent. A true and correct copy of the ’791 patent is attached hereto asExhibit A.13.

Google has infringed and continues to infringe the ’791 patent by its manufacture, use, sale, importation, and/or offer for sale of its products and services utilizing Google’s Query-Serving System and Google’s File System and its contributing to and inducement of others to manufacture, use, sell, import, and/or offer for sale infringing products. Google is liable for its infringement of the ’791 patent pursuant to 35 U.S.C. § 271.14.


My wild guess is that 90% of the software systems ever developed are infringing those patents.

What else left to patent? "Method and apparatus to read a bit"?

From having a read through the claims of - 6415280: Identifying and Requesting Data in Network Using Identifiers Which Are Based On Contents of Data. - It appears they have patented using hashes as identifiers for the data that is hashed. Which is a bit like patenting the use of a shovel for digging.

I would not be surprised if the patent office itself used this method for filing patent information in various DBs.

Every filesystem in the world probably uses this method. The identity function (i.e. storing an item under its own name) seems to be a special case.

No, the patent claims the identifier is derived from the data, and only the data, which a file name is not. It also have several other constraints and steps. (i.e. a patent describes a a system as a whole - the fact that individual parts of a patent is in wide use elsewhere doesn't necessarily mean those systems infringe or invalidate this patent)

One file system that comes to mind using the approach described in the patent is Venti though: http://www.stanford.edu/class/cs240/readings/venti-fast.pdf

Wait. This isn't true. Most filesystems don't have an algorithmic identifier for the data being stored. They do often have checksums, but that's different.

You could argue that most book titles fall under this as well, at least conceptually. And the Dewey decimal system.

In fact, before the growth of the internet, Identifying and Requesting Data in Network Using Identifiers Which Are Based On Contents of Data would sound almost exactly like a long winded academic description of finding a book through the public library inter-lending network.

Perhaps someone should file a patent for assigning values to a variable!

You think someone hasn't done this already?

If someone had done it, that someone would be pretty damn rich right now!

It would be fun to include it, and license it as free to use for anyone who gave a dollar to Unicef or something.

And then, the next time this shit happens, the patent defenders would all go “How would these children get their basic needs met if it weren't for patents? Why do you hate children?”

It would be glorious.

>>> Access to data items uses names based on the data in the data items;


None of these patents were original at the time they were adopted -- they all have obvious prior art.

Someone should take away Level 3's patent card. And PersonalWeb really ought to be liable for abuse of process.

I'd recommend that no one ever click on patents to read them. If you do your company, if found guilty in court of infringement, faces 3x higher damages (at least in the US). When I worked at SAP, the only sites blocked by our proxy were patent sites.

8099420: Accessing Data in a Data Processing System. That sounds more like a joke. Does it really pretend to have invented the IDs?

"All your data processing codes are belong to us." Unfortunately, this is not as funny as it should be.

... depend on all of the data in the data items and only on the data in the data item ... WUUUUT?

An md5sum

git uses SHA1

Well . . . use a salt and it seems this patent is trivially bypassed. Voila!

Or use the contents of the files AND Linus's email. Then it's not just the contents of the files!

Yet more proof, as if were needed, that software patents are BS.

Looks like most of these patents can be killed by prior art. The first one is hashing, for instance.

As mentioned elsewhere, a patent describes a system as a whole, and just because individual steps in a patent is/was in wide use elsewhere doesn't necessarily mean anything.

Saying that this patent is invalid because it uses hashing would be similar to invalidating every patent describing a device made of iron because iron was invented before.

Basically anyone likely to be able to afford to pay up.

My google-fu is failing me, how did the round 1 end?

Using PACER it appears all of the 2011 cases are still active and are in discovery. They are all set for trial in November of 2014.

I'm pretty fed up with this kind of stuff so I decided to join the EFF today.

The patents were issued and the law must be enforced. You might not like it -- so change it! Reminds me of when Teddy Roosevelt vigorously enforced prohibition to the point that is really pissed people off. The point that I gleaned from this was that he wanted people to stand up and change the law.

I hope that patent trolls raise a stink and enforce their rights because it will hopefully lead to change.

UPDATE: see comments below.. I was incorrect in that he enforced prohibition. It was liquor sales on Sunday that he was enforcing as police commissioner in new york.

Wrong Roosevelt. Teddy was President from 1901 to 1909, and died in January 19. The Prohibition amendment was ratified 10 days after he died, and took effect one year later.

The Presidents who were in office during Prohibition where Woodrow Wilson, Warren G. Harding, Calvin Coolidge, Herbert Hoover, and Franklin D. Roosevelt.

Franklin Roosevelt assumed office on March 4, 1933, when the effort to repeal it was already well under way. On March 22, weak bears and wines were legalized, and in December of that year Prohibition was repealed. I don't think there was ever any vigorous enforcement under Roosevelt. You must be thinking of someone else.

Pragmatism prevailed once it was discovered how much wine it actually takes to weaken a bear.

My bear history is a bit shaky. I thought that weak bears were against the US constitution, as bears have a right to be armed as a defence against presidents who want to turn them into stuffed toys. Have I got that right?

My memory is a little hazy but after the comments I went and look it up. Teddy was the police commissioner for New York city and liquor sales were banned on Sunday (this is where my thought of prohibition came from). I guess the goal was to sober people up for Monday's workweek. Anyways, he vigorous enforced this law.. playing into my original observation that he wanted this law rolled back.

> I guess the goal was to sober people up for Monday's workweek.



Still enforced where I live, in Bergen County, NJ. A suburb of NYC. All retail outlets (other than groceries and restaurants) must be closed on Sunday. Definitely no alcohol sales.

> Anyways, he vigorous enforced this law.. playing into my original observation that he wanted this law rolled back.

The laws are still vigorously enforced and I don't think they're doing it because they want it repealed. Although they're enforcing them for entirely different reasons.

Yea, right, just look how well that has worked to end the insanely counterproductive and vicious drug prohibition we have to endure now.

Do you mean FRANKLIN Roosevelt? http://en.wikipedia.org/wiki/Eighteenth_Amendment_to_the_Uni...

Prohibition took effect after Teddy Roosevelt died - during the Woodrow Wilson administration. It was repealed in the first few months of the Franklin D. Roosevelt administration in 1933.

Or move to Europe.

Yeah, but the law also says that it is up to the court to decide if the patent is enforceable. Just because a patent has been issued doesn't necessarily make it valid.

How many of these ridiculous lawsuits will it take before lawmakers realize how bad software patents are?

This will waste a lot of time and money for something that shouldn't even exist.

The more lawsuits the better for the lawmakers, who get campaign cash from both sides of the issue. Frivolous patents is somewhat a campaign finance problem.

The question you have asked is equivalent to another: "How many of these ridiculous wars will it take before arms manufacturers realize how bad violence is?"

the more "ridiculous" lawsuits there are, the higher the incentive for lawmakers to keep those laws (since working in the state legislature is probably not their only source of income and law students probably compose by far the largest group in washington and in state parliaments)

Some of these seem really questionable at first glance (note that I haven't read the entire patents yet)

> United States Patent No. 6,415,280 "Identifying and Requesting Data in Network Using Identifiers Which Are Based On Contents of Data."

This sounds alot like hashing the contents of a file to get and identifier for it. If anything it sounds like maybe Git itself violates this, but I thought that Git hashed the difference between all the changes of a commit to get the hash. Some of the others sounds equally obvious at first glance.

I don't really understand why they are suing Rackspace for the Github service other than the fact that it is hosted by Rackspace and it seems they are an easy target since they are based in Texas along with the plantiff putting them in the same jurisdiction.

It seems like some of the more generic patents related to "Controlling Access to Data in a Data Processing System," "Distributing and Accessing Data in a Data Processing System," and "Accessing Data in a Data Processing System" could apply to lots of other services and cloud providers anyway. Why not go after Amazon or someone else that does Git hosting?

Git doesn't violate this in any way. Read the claims. They're talking about distributing data throughout a network of servers, using an hash as a key to know from which servers to request the data. It's more similar to database sharding.

> They're talking about distributing data throughout a network of servers

Hmm... We used that to shard the MySQL databases for our WordPress setup too...

So Memcached then...

> This sounds alot like hashing the contents of a file to get and identifier for it

Oops... I think the image asset deduplication method I used at the portal I worked for infringes on that. It's a Brazilian company, so, good luck for them.

Yep... They still use it:


Document and image management systems have been doing this sort of thing for decades. Form a unique identifier for an image by hashing, split the bytes out into a path name by hex converting, and you have a file system path.

I'd say that this particular troll is going to get stepped on pretty hard, and all of these patents are going to be invalidated.

I never claimed I invented it ;-) It just seemed like the obvious way to prevent duplication when someone would rather update the same file again than search for a previously existing version.

In the end, when a dupe was uploaded for the second time, the uploader would be rewarded by not having to edit any metadata - as they would be redirected to the original asset page.

If someone ever uploads a second, valid, JPEG that collides in md5-space with a previously uploaded one, the sysadmins in the app group will receive an e-mail commemorating the fact someone defeated our deduper.

Does it know from which of a pool of servers should it get the data, based on that identifier? If not, it doesn't violate the patent.

Isn't it pretty obvious that they would avoid suing a larger company like Amazon because they would be able to afford a good defense. A startup, on the other hand, is much more likely to settle to avoid spending a lot of money, even when it may seem that eventually they would win.

Rackspace is no startup. They had more than a billion in revenue last year and they've been around since 1998.

I doubt jurisdiction was a deciding factor in who to sue. But I hated Civil Procedure so I could be wrong...

Jurisdiction is a huge factor when filing suits. IP lawyers do their best to move cases into Tyler, TX (or other backwoods cities) where the judges don't understand technology whatsoever. A popular tactic is to shake down porn companies for money using nuisance patent suits.

Do you really think it is because they supposedly don't understand technology? I've read that they are simply particularly "sympathetic" to patents over there, which is why there are a host of patent trolls / NPEs that have their mail address over there. This American Life had a good episode about it.

Another popular tactic: Suing porn companies to be granted standing (all the conservative judges in the South will gladly hear cases that cost porn companies money), then add defendants that you want to shake down. In the past, patent trolls have done this with Google/Microsoft/etc, but apparently these large companies have been fighting back or (more commonly) lobbying to get patent troll applications violated, so the nuisance patent trolls tend to stick to small companies they can easily shake down for a $20,000 "licensing fee."

A close friend of mine defends major smartphone companies as well as other tech companies. He's told me the average presiding judge has no idea how to connect to the Internet, much less understand JPG compression (an actual case my friend worked on).

It's probably both.

I don't think the judges over there are substantially more ignorant about technology than the average judge in Kentucky or Montana, etc. They can call in experts to advise on technical questions. I'm afraid technical knowledge wouldn't help much, they have this cottage industry of patent lawsuits and they'd probably prefer things to stay as they are.

I've head from lawyers that East Texas became the place to patent lawsuits mostly because the War on Drugs. It was much easier to get the courts' time for civil trials or motions before they were overloaded with constant criminal prosecution. East Texas happened to have a lower load at the beginning or some townships spotted an opportunity to bring in some more business by making themselves attractive to litigators. Either way, the reasoning things are filed in East Texas has more to do with it being the Silicon Valley of patent trolling than any kind of venue shopping.

And you think that jurisdiction is the reason they chose to sue rackspace instead of github?

> If anything it sounds like maybe Git itself violates this, but I thought that Git hashed the difference between all the changes of a commit to get the hash. Some of the others sounds equally obvious at first glance.

Git creates hashed objects for individual file revisions, as well as tree objects referencing many individual file objects and commit objects which reference those tree objects.

Interesting that Level3 - yes, that Level3 - is a 50% owner of the patents.

It would seem that Level3 has a chance to be a hero by licensing these patents to whomever for a nominal fee.

Edit: replying to the comments. Licensing for a nominal fee isnt pure, but it is practical. It would certainly discourage the trolls. I dont think you can put something in the public domain if you are only a partial owner.

They could be a hero by placing them in the public domain. Licensing them for even a nominal fee would be extortion. $1 for something that should be $0 is an infinity too large, besides it would still require you to get that license.

If someone were to charge me 'right of way' tomorrow to leave my house and the cost would only be $1 I wouldn't pay up, I'd shove them out of the way. There is not 'right' price for extortion.

That wouldn't be being a hero. Being a hero in this instance would be dropping the whole thing and asking the patent office to kindly revoke the patents as you have just realised that they are rubbish and that you are destroying your own industry for short term gain.

Licencing them for a nominal fee is still reserving the right to change your mind. Is a bit like saying that you aren't going to use the nukes, but you want to keep them around just in case you feel like obliterating anyone in the future.


Apparently it's not a better link, since it just shows XML garbage.

How about the press release:


Or a scribd document of the court filing:


They're not even trying to hide the fact that they're patent trolls:

"We are located in East Texas, and we are developing innovative technologies and products. We have a team who is responsible for some of the web’s most popular software and applications, and we own some really amazing patents."

"Access denied", what is going on? S3 is messed up or they pulled the page?

Wait, Level3 is a patent troll now?

Neither. If you look at the S3 URL, they are URLs with expiry times after which they stop serving the content. The cryptographic signature makes it... let's call it "infeasible" to manipulate the URL to change the expiry time.

Access is denied. any mirrors?

Luckily I own the patent on the business model of suing for infringing overly broad software patents.

I want 10 billion from the folks suing Rackspace for patent infringement, for infringing my patent, of suing for patent infringement.

Old Slashdot joke. Sorry.

Damn. Prior art.

If only it didn't cost 10's of thousands to have patents re-examined by the Patent Office -- we could put a lot of trolls out of business and destroy a lot of nonsense patents.

In an interesting addition it looks like Personal Web Technologies was recently involved in an acquisition that resulted in these patents changing hands.


Part I found most interesting:

"PersonalWeb has been working closely with the University of Texas at Tyler and other community participants to develop products in the search, social network and content filtering technologies.

BDE CEO Kevin Bermeister said, “We are excited by this next phase in the business and are looking forward to working with PersonalWeb to pursue development, licensing and participation in businesses that use our patents for content addressable storage, cloud computing, search, social networking and other important developing technologies in the rapidly growing distributed computing category.”

Could anyone translate the legalese into plain English for us lay-men.

The language is very plain, you just have to skip to the sections which list the claimed infringements. One is for assigning unique identifiers to files (UUIDs, such as SHA1 sums in case of git), and another is about addressing files using those IDs. Basically they're attacking essential elements of git itself but because github is a company they sue them instead hoping to extract money.

There are more infringements but they all seem pretty trivial and variations of each other. They're related to data duplication and access permissions.

Sure, it isn't really that bad - mostly the same boilerplate repeated _ad nauseum_. They are being sued by two patent troll LLC's in the Eastern District of Texas. The patents (9) are very generic sounding:

* Data Processing System Using Substantially Unique Identifiers to Identify Data Items, Whereby Data Items Have the Same Identifiers.

* Identifying and Requesting Data in Network Using Identifiers Which Are Based On Contents of Data.

* Enforcement and Policing of Licensed Content Using Content-based Identifiers.

* Controlling Access to Data in a Data Processing System.

* Distributing and Accessing Data in a Data Processing System.

* Similarity-Based Access Control of Data in a Data Processing System.

* De-duplication of Data in a Data Processing System.

* Computer File System Using Content- Dependent File Identifiers.

* Accessing Data in a Data Processing System.

The rest of the document (linked above) just says that they want reparations for damages incurred from these 'patent infringements'.

After thoroughly reading patent 1, I must conclude that this patent is invalid as are all of the others as they're obvious applications of the first (some are even described within the first, in totality).

There was merit in the concept of file deduplication, especially in distributed file systems, as I'm unsure if this existed as prior art since I can't find any reasonable literature before 2000. I'm pretty sure someone had created a file deduplication script in UNIX at least 20-30 years prior, but I can't find references to that work, so I'll assume none exists and give this patent the benefit of the doubt. Though the 'uniq' command in UNIX could be trivially used to implement this if you consider the use of MD for file uniqueness checks, so even that credibility is questionable. For example, fill a file with contents such as:

<md hash> <filename>\n

For all files in the filesystem, then uniq on the first N characters where N is the length of the md hash, and use -d to display duplicates, then remove those files. This can also be used as the mechanism for "attaching a substantially unique id to a file" as well as half of the claims in the first patent, which to me makes a strong argument that it was obvious.

However, everything else about it describes an obvious application and implementation of a hash table using a "substantially unique" hashing method, which could easily be described by MD5 which was published in 1992. For that reason, at least half of the claims in this patent are covered by prior art, and so the patent is, IMO, far too broad to be considered valid.

The gist (ha) is that Github and Rackspace themselves use some techniques that are described in those patents. Because of that they're now being sued for patent infringement.

It's an 'obvious' patent troll, I doubt these patents would even hold up in court but 'till then...

How is it really possible that there are companies that just holds patents and are allowed to sue others who does things. No shame. What a world we are living at... This seems to be company who is suing Github and Rackspace. http://investing.businessweek.com/research/stocks/private/sn...

I think it's perfectly legitimate for a company to just hold patents and sue others based on those patents (or, more likely, license them). That's a core aspect of the patent system.

The problem here isn't patent protections. It's bad patents. We're still going to see submarine patents for the next ~16 years, and I'm sure patent trolls will exist beyond that (unless there is reform), but the patent system isn't the problem here. It's just that so many bad patents get through.

> I think it's perfectly legitimate for a company to just hold patents and sue others based on those patents (or, more likely, license them). That's a core aspect of the patent system.

I could understand "inevitable consequence", but I can't see where you get "core aspect". Explain?

The patent system is meant to reward inventors, including inventors who don't have the capital for commercial manufacture of their invention (i.e. by licensing it to someone who does).

Applying for a patent is a costly and tedious process, so it's not strange the there are companies ready to take the work from individual inventor's hands. If that weren't allowed, large companies would have an advantage since they have a legal department. In any case, making a law against patent trolls would be difficult because if you require a minimum amount of non-patent work from them, they would simply meet that amount and keep on trolling. I think the solution is not to make rules against them specifically, but to change the incentives. First make sure patent applications are non-trivial. Second place the initial burden of evidence on the plaintiff to prove that their patent is actually being infringed.

But you're right, these people have no shame. But it's just not the patent troll, it's also a host of lawyers and judges who have interest in this stuff going on.

Last time I knew, examiners were graded on the number of patents granted, not rejected. Removing perverse incentives would help a lot.

(Found this article online)[http://www.m-cam.com/patently-obvious/you-re-pirate-mr-grinc...] about PersonalWeb Technologies. I assume these suits are still going, anyone know anything about it?

For a moment, based on the backtrack (amazonaws.com), I thought Amazon was suing Rackspace. It'd be nice to get that fixed.

One question, how much would it cost to buy EVERY software patent? Millions, billions?

Not a link.


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