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BetaNet Sues Everyone For Remote SW Activation 227

Posted by CmdrTaco
from the get-in-line dept.
eldavojohn writes "Not to be out patent trolled by Eolas, a mystery company named 'BetaNet, LLC' is suing: Adobe Systems, Inc, Apple, Inc., Arial Software, LLC, Autodesk, Inc.,, CARBONITE, INC., Corel Corp., Eastman Kodak Co., International Business Machines Corp., Intuit, Inc., Microsoft Corp., McAfee, Inc., Oracle Corp., Rockwell Automation, Inc., Rosetta Stone, Inc., SAP America, Inc., Siemens Corp. and Sony Creative Software, Inc. for infringement of their patent entitled Secure system for activating personal computer software at remote locations. And of course, this was filed in our favoritest of favorite places: Marshall, TX (Texas Eastern District Court)."
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BetaNet Sues Everyone For Remote SW Activation

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  • Marshall, TX (Score:5, Interesting)

    by mikael_j (106439) on Wednesday December 16, 2009 @08:56AM (#30456932)

    Surely at some point the judge/judges in that small corner of Texas should, if they're not idiots or in league with these trolls, realize that the reason they're getting so many patent lawsuits filed in their jurisdiction is because they're considered to be overly in favor of the people who are suing?

    But maybe I'm just living in some sort of dreamworld where judges aren't incompetent or evil..

    /Mikael

    • Re:Marshall, TX (Score:5, Insightful)

      by grasshoppa (657393) <skennedy.tpno-co@org> on Wednesday December 16, 2009 @09:06AM (#30457026) Homepage

      Judges do not make the laws, they simply settle disputes with laws already made. It would be a gross violation of their judicial power were they to legislate from the bench ( which many attempt anyway ).

      Regardless, if you want to know why this particular area houses so many of these types of disputes, follow the money. They wouldn't do it if they weren't benefiting financially somehow.

      • Re:Marshall, TX (Score:4, Insightful)

        by Anonymous Coward on Wednesday December 16, 2009 @09:20AM (#30457178)

        Judges do not make the laws, they simply settle disputes with laws already made. It would be a gross violation of their judicial power were they to legislate from the bench ( which many attempt anyway ).

        I agree, even though some (not saying you, but some) use the "legislating from the bench" argument when a judge rules contrary to their opinion even though the law can reasonably be interpreted that way. But that's a different thread...

        Still, it is awfully suspicious that patent trolls seem to be significantly more successful in East Texas compared to other District Courts. Patent issues are Constitutionally a Federal issue, so there's no legal reason for this one court to consistently rule contrary to the Federal standard for patent infringement. Perhaps a higher court should hear an appeal from one of this court's patent infringement cases and make precedent whether they are really following the law or simply "legislating from the bench."

        • Re:Marshall, TX (Score:5, Insightful)

          by Zordak (123132) on Wednesday December 16, 2009 @11:22AM (#30458928) Homepage Journal

          Still, it is awfully suspicious that patent trolls seem to be significantly more successful in East Texas compared to other District Courts. Patent issues are Constitutionally a Federal issue, so there's no legal reason for this one court to consistently rule contrary to the Federal standard for patent infringement. Perhaps a higher court should hear an appeal from one of this court's patent infringement cases and make precedent whether they are really following the law or simply "legislating from the bench."

          This paragraph does not make a lick of sense. The court in question is the Federal District Court for the Eastern District of Texas. It is a federal court hearing matters of federal patent law. And like all federal courts, its decisions are appealable to a Federal Court of Appeals. And since federal patent law is such a specialized area, Congress even gave us a special Court of Appeals for the Federal Circuit [uscourts.gov], which hears all patent appeals and sets precedent. The CAFC has heard LOTS of cases from the Eastern District of Texas, and has reversed when they felt it was necessary.

          Seriously, reading a patent thread on Slashdot is like watching a couple of MBAs argue heatedly about whether it's better to write Linux drivers in AJAX or SCSI.

          • by Tanktalus (794810)

            Seriously, reading a patent thread on Slashdot is like watching a couple of MBAs argue heatedly about whether it's better to write Linux drivers in AJAX or SCSI.

            Undoubtedly AJAX. I wouldn't want scuzzy drivers on my iPhone.

      • Re:Marshall, TX (Score:5, Insightful)

        by gad_zuki! (70830) on Wednesday December 16, 2009 @10:31AM (#30458134)

        >Judges do not make the laws, they simply settle disputes with laws already made.

        These are FEDERAL laws. They are the same everywhere in the US. There's no special federal law for Texas. In other words, the judges are legislating from the bench already by interpreting these laws as more favorable to the patent trolls under the guise of a pro-business conservative mentality. They are legislating from the bench with their local mentalities, local court rules, and quick and dirty fast trials.

        • Re: (Score:3, Insightful)

          Federal laws vary by circuit, across the US.

          The Acts of Congress, treaties, and other such primary sources of law are of course all the same. However, they aren't always clear (Congress is not enjoined to write only unambiguous laws, for example, and creative ambiguity is sometimes necessary to get a law passed), and in that case the interpretation is set by the Court. If a case goes to the Supreme Court, the precedent is binding anywhere in the US.

          However, if two Circuit Courts interpret an unclear

        • Re: (Score:3, Insightful)

          by DragonWriter (970822)

          These are FEDERAL laws. They are the same everywhere in the US. There's no special federal law for Texas. In other words, the judges are legislating from the bench already by interpreting these laws as more favorable to the patent trolls under the guise of a pro-business conservative mentality.

          There are several problems with this argument:
          (1) The fact that two judges would apply the same law differently even to cases with exactly identical fact patterns does not mean that one is "legislating from the bench"

      • Re: (Score:2, Insightful)

        by MrNaz (730548) *

        "Judges do not make the laws, they simply settle disputes with laws already made."

        In an idea world. In an ideal world, all would be equal before the law, regardless of financial power. In an ideal world, judges would be truly independent of the executive branch, as opposed to being cherry picked due to having a history of toeing the line. In an ideal world, the legal system would be transparent to everyone with or without a legal degree.

        In *this* world, however, judges serve the interests of the political p

      • by sjbe (173966) on Wednesday December 16, 2009 @11:26AM (#30458988)

        Judges do not make the laws, they simply settle disputes with laws already made.

        Judges don't make statutory laws [wikipedia.org] but they do make case law [wikipedia.org] which is just as important. Even the best statutory laws need interpretation. Our judicial system provides that interpretation. Occasionally judges (usually the State & Federal Supreme Courts) strike down laws that are incompatible with the existing legal system or interpret them in ways that change the legal system - hopefully for the better. With apologies to Martha Stewart, this is a Good Thing (tm).

        It would be a gross violation of their judicial power were they to legislate from the bench ( which many attempt anyway ).

        So you would prefer that Jim Crow laws had remained constitutional? Without judicial interpretation they would have remained the law of the land for much longer than they actually did. Laws are not always fair and the interpretation of them matters. Judges having the ability to interpret laws and occasionally striking them down is something you should be grateful to have - at least in the long run. Saying that judges shouldn't interpret laws belies an immense ignorance of how our legal system actually works. What you are really arguing for is a weak judiciary and a strong legislature. I prefer they be relatively balanced in power.

        Regardless, if you want to know why this particular area houses so many of these types of disputes, follow the money. They wouldn't do it if they weren't benefiting financially somehow.

        The cases are housed there because the US District Court [wikipedia.org] in that location have the judicial experience and infrastructure to handle these cases better than almost anywhere else except maybe Central California [wikipedia.org] and the Texas court has a reputation for plaintiff friendly juries and rules for fast trial proceedings.

    • by Dystopian Rebel (714995) * on Wednesday December 16, 2009 @09:06AM (#30457038) Journal

      maybe I'm just living in some sort of dreamworld where judges aren't incompetent or evil

      You take the blue pill - the story ends, you wake up in your bed and believe whatever you want to believe.

    • by SharpFang (651121)

      considering the standard programmer's logic, yes.
      That is if they were not idiots or in league with these trolls, they certainly would.

    • Re:Marshall, TX (Score:4, Insightful)

      by tverbeek (457094) on Wednesday December 16, 2009 @09:08AM (#30457050) Homepage

      More likely, the judges in question take their popularity as an indication that they're doing the right thing, and keep at it.

    • Re: (Score:2, Interesting)

      by mysidia (191772)

      I wonder... why is it that companies are allowed to cherrypick the court to hear their case anyways?

      I think it's an unfair advantage in favor of the prosecution that they somehow get to pick which court will be reviewing their case.

      They should have to prove that the "selected court" is the closest one to where their company was headquartered at the time of the alleged abuse.

      Or better yet... determine the court that is closest to an equal distance away from the place the defendant and the place the p

      • Re:Marshall, TX (Score:4, Informative)

        by lorenlal (164133) on Wednesday December 16, 2009 @09:57AM (#30457590)

        "You take them to court where they do business." At least, that's what my professor said... in the one business law class I took.

        So, all these businesses sell to people in Marchall (or at least can)... So they are certainly allowed to do this... Even if it sucks.

        • Re:Marshall, TX (Score:5, Interesting)

          by TheLink (130905) on Wednesday December 16, 2009 @10:39AM (#30458250) Journal
          So what happens if a company doesn't sell to Marshall, Texas? Sells to everywhere else in the USA, but not there :).
        • Re: (Score:3, Informative)

          by JWSmythe (446288)

          You forgot to mention, they change the venue for an advantage. If the court was a few miles from the defendant(s) offices, it would be easy for them to show up. Where they're displacing the hearings from the defendants, it adds a burden on them. It's more likely that they'll weigh the options of settling versus a prolonged legal process.

          That's all part of the patent troll game though. What's it worth to the defense to just settle? Is it cheaper to keep the lawyers fighting

      • by Zordak (123132)

        It's an age-old tradition in the law that the first person to court gets first crack at venue. But there are limits, like the court has to be able to exercise personal jurisdiction over the defendants, and even if it can, the defendant can try to get the case transferred if they can prove there is a better venue. The problem is that when you sue 20 defendants that are scattered all over the county and that sell their products in all 50 states, it's hard to identify one single place that would definitely b

    • Re:Marshall, TX (Score:5, Insightful)

      by eldavojohn (898314) * <eldavojohn@nOsPam.gmail.com> on Wednesday December 16, 2009 @09:14AM (#30457118) Journal

      Surely at some point the judge/judges in that small corner of Texas should, if they're not idiots or in league with these trolls, realize that the reason they're getting so many patent lawsuits filed in their jurisdiction is because they're considered to be overly in favor of the people who are suing?

      If I may opine my nonprofessional perspective from the software field, patents (and really the copyrighting/property concept applied to ideas in general) are a fuzzy field of law. Meaning that in most of the cases, the common sense rule doesn't work. I mean that if you approached a large number of citizens, their response could vary depending on their political direction, their previous personal experiences with companies or even how you present the case. You'll notice that I came out in this summary screaming--in a very nonprofessional way--that BetaNet is a patent troll. Makes it obvious who to side with, right? But given the letter of the law, it's not that simple. Given United States legal code, there are cases when patent litigation is the answer (in my opinion rarely if ever in software but that's another topic altogether).

      Now, if you can establish that it's a hazy field and outcomes are tied to differences in regions of the United States, you can also establish that there will always be a local maximum for percentages of cases awarded one way or the other. That's why Marshall, TX is so popular for the trolls. And if Marshall, TX had a mission statement tomorrow to shut down patent trolls from the get go then the next statistic maximum would be your preferred place of patent trolling.

      What disappoints me most about Eastern Texas' Courts is that they don't say, "What the hell is this doing in my courtroom? Neither of you claim offices here or even do business here so go back to where one of you operate." Sometimes this happens but really I think this needs to be done more often. In my opinion, the solution isn't to stop Marshall, TX; it's to fix the patent system.

      • Re:Marshall, TX (Score:5, Informative)

        by MozeeToby (1163751) on Wednesday December 16, 2009 @09:56AM (#30457578)

        ...that BetaNet is a patent troll... But given the letter of the law, it's not that simple.

        Being a patent troll isn't about the letter of the law, it's about taking advantage of the law in such a way that stifles innovation in order to maximize your profit. Specifically, it is about getting patents and never exercising them and, even more so, not suing when infringement becomes obvious but rather waiting until you can get the biggest payday possible. Basically it is being a tech company that profits through the legal system rather than through technology. It is the antithesis of what patent law is suposed to do, patent law is suposed to be a shield, not a sword.

      • Re: (Score:3, Interesting)

        by gad_zuki! (70830)

        >What disappoints me most about Eastern Texas' Courts is that they don't say, "What the hell is this doing in my courtroom?

        Err, these judges know exactly why they are there and the judges are happy to push their pro-business conservative mentality by legislating from the bench. Its pretty obvious that this district is proudly pro-IP law to the point of absurdity. To a lot of people, strong IP is an ideology that trumps common sense, especially in GOP heavy conservative districts (Hello Texas!). Everyth

      • Re: (Score:3, Informative)

        by notaspy (457709)

        The CAFC (Court of Appeals for the Federal Circuit) is apparantly getting a bit fed up with the EDTX Court. In In Re Hoffman-Laroche (http://www.cafc.uscourts.gov/opinions/09-M911.pdf), they slapped them around for not transferring the case to a District (EDNC) which actually had a "meaningful local interest" in the dispute. Here's a quote which hints at their annoyance (plus the fact that it's kind of a slap in the face to highlight a spelling/grammar error when quoting from a lower Court's opinion).

        The E

      • Re: (Score:3, Informative)

        by fiendo (217830)
        The judges will respond to motions from the defendants to transfer, but in this district Judges Everingham and Ward default to favoring the plaintiff's choice and have consistenly applied a stringent test to those requests. Only if the defendants can show by predefined factors that their proposed venue is "clearly more convenient" than the venue chosen by the plaintiff will they allow a transfer (here's a blog that tracks the court's activity) [blogs.com]. The judges don't seem to mind the extra load. In fact they pri
    • by tg123 (1409503)

      UUCP is prior art.

      UUCP (unix to unix copy protocol ) has been doing this since at least the 1980's.

      Admittedly its usually used to transfer files but uucp can still log in to a shell and remotely activate software.
      ( you usually have a script prepared to do this for you.)

      • Whoops did not read the whole article.

        However this is prior art this company has filed a patient for what is a common practice at software companies.

    • by couchslug (175151)

      They should be investigated to see if they are on the take.

      Just the pressure alone could have a chilling effect, and all is fair in war.

    • by Mishotaki (957104)

      Or maybe they just are threatened by all those patent trolls... and they do kill them if they don't listen, just look at the list of judges for that district! only 2 of them have ever retired! one was reappointed and one... we have no idea what happened to him...

      So, in Texas, you either judge people or die judging...

    • by Jawn98685 (687784)

      Surely at some point the judge/judges in that small corner of Texas should, if they're not idiots or in league with these trolls, realize that the reason they're getting so many patent lawsuits filed in their jurisdiction is because they're considered to be overly in favor of the people who are suing?

      But maybe I'm just living in some sort of dreamworld where judges aren't incompetent or evil..

      /Mikael

      Not a dream world, my friend, just the real world where the two highlighted phrases above aren't mutually exclusive, as they are in most parts of East Texas. Don't get me wrong, there's corruption aplenty there too, but (yes, I am making a rather sweeping generalization) that neighborhood isn't exactly known for a high average IQ. In your dream (real) world, judges are typically very well educated and possessed of a keen sense of right and wrong. One or the other is clearly missing here.

    • by sorak (246725)

      Surely at some point the judge/judges in that small corner of Texas should, if they're not idiots or in league with these trolls, realize that the reason they're getting so many patent lawsuits filed in their jurisdiction is because they're considered to be overly in favor of the people who are suing?

      But maybe I'm just living in some sort of dreamworld where judges aren't incompetent or evil..

      Or maybe they do not consider politics. I cannot say either way whether these judges are right or wrong on any case, but, if a judge were to just wake up one morning and say "too many people are suing for x...From now on, I'm going to make it much harder to win for x", I'd want the guy disbarred. The law simply doesn't work that way.

    • Re: (Score:2, Interesting)

      by greensoap (566467)
      My understanding is that the favorable juries are why plaintiffs tend to sue in the E.D. of Tex. The relatively high value of property rights (just look at the laws for using deadly force to protect property in Texas) and the lower average education level of the jurors leads to higher percentages of verdicts in favor of the plaintiffs and much higher damages calculations.

      The other factor, is that the judges tend to fast track the patent dockets so from start to finish the average time spend on trial is
    • by Shotgun (30919)

      If they do realize that, what they see from their end is called "precedent". That is, the best they can do is look at it and say, "Oops! We screwed up. Oh well, to late now. We've already stated how the law is supposed to be interpreted, and it looks bad when we change our minds."

      It will stay that way until it is overturned by a higher court. Then it isn't "we changed our minds", it's "we were told we were wrong." Somehow, the legal profession prefers the former.

  • Not the same thing. (Score:4, Informative)

    by tjstork (137384) <todd.bandrowsky@gm a i l.com> on Wednesday December 16, 2009 @08:58AM (#30456946) Homepage Journal

    The registration process that was patented involves transferring over new features to the registered user. Most shareware programs simply ship the whole shebang and the registration is just entered in as data. Conditional checks in the application then handle the data.

    This patent isn't even relevant.

    • Re: (Score:3, Interesting)

      by Amouth (879122)

      Yea i noticed that too in the abstract

      " a tamperproof overlay program is constructed at the registration computer and transferred to the personal computer. The tamperproof overlay includes critical portions of the main program, without which the main program would not operate and also contains licensee identification and license control data."

      while someone could say that the activation code COULD be the tamper proof critical portion - the fact that they broke that out into an overlay of the mail program and

      • by radtea (464814)

        Yea i noticed that too in the abstract

        Well, it says in one of the Harry Potter books that the choices we make are more important than the talents we have, and that's as relevant to the patent as what's in the abstract, so why are you quoting what's in the abstract rather than J.K. Rowling?

        Seriously: the claims are what matter, although in this case the claims do happen to be reflected in the abstract, which is true about half the time. The other half of the time the abstract appears to have been written b

        • by Amouth (879122)

          to be honest the reason i trusted the abstract was if you look the filing date is in 1991.. and to be honest it has been my experience when reading and dealing with patents that the older ones are written better in that they are more precise and accurate to what they where doing.

          I agree that the abstract vs. claims is important to check but it's just and age/quality thing for me.

    • This was patented in 1993. Presumably the patent was filed for earlier. While innovative in that time period I seem to recall that there were many licesnce servers back then. So I don't think it will stand up.

      • There might have been some license servers, but there won't have been many. It takes 2-3 years typically between granting and allocating a patent. It was probably filed before the first commercial connection to the Internet, if not then within a few months of it. License servers would have run on proprietary BBSs, including things like CompuServe, or on private dial-up servers. The former is not ideal because there were a lot of competing systems and you might have selected CompuServe, but your customer
  • by WetCat (558132) on Wednesday December 16, 2009 @08:59AM (#30456970)

    You know, free software doesn't need any "activations". So it'll hurt a bit some proprietary makers...

  • countersuit (Score:5, Funny)

    by tverbeek (457094) on Wednesday December 16, 2009 @09:06AM (#30457034) Homepage

    I think any software company that wasn't named in this suit should sue for defamation. Since this is a "Who's Who" of software developers, being left out implies that they aren't important.

  • by PolygamousRanchKid (1290638) on Wednesday December 16, 2009 @09:08AM (#30457058)

    . . . they have a mighty frighteningly patent portfolio. If someone crops up, and slaps a ten page patent on their desk, claiming infringement . . . IBM slams a stack of patents the size of 50 Manhattan telephone books on their heads, and says, "Well, let's take a look at YOUR infringements."

    It's all part of the patent game that corporations play today. Patent trolls can shake down small companies, but not the big ones.

    • by Overzeetop (214511) on Wednesday December 16, 2009 @09:15AM (#30457134) Journal

      Ahhh, but these patent trolls don't actually produce anything. They can't be violating anyone else's patents, unless a business method patent for patent trolling has been granted by the USPTO. They have nothing to lose but the time of their (presumably on-staff) lawyers. It's a speculative cash generation business for lawyers, and nothing more. They buy a few patents (or as many as they can for the capitol they raise from their investors), then turn around and sue everyone they can find. The payouts are so large that they need only hit once every few years to make a profit. There is no down side, except to come up completely empty and lose the investor's money. That's fairly unlikely when you take a shotgun approach, especially if you can hit small companies first with enough to pay back your initial investment.

    • Yes, IBM is certainly a beast that you do not want to wake up.
      IBM doesn't tend to stir up trouble,
      but if you go looking for it the dragon will definitely bite your a**
    • by ben_white (639603)
      NO, this is exactly why the patent trolls can get away with this. You are correct about the patent game between "real" companies. But the patent troll companies aren't real. They don't produce anything except for lawsuits, so IBM can't counter-sue them!
    • This does not work with patent trolls, because they do nothing, so even IBM has nothing to throw at them.

    • by geekmux (1040042)

      "...IBM slams a stack of patents the size of 50 Manhattan telephone books on their heads, and says, "Well, let's take a look at YOUR infringements."

      IF we ever get real patent reform in place that may happen to include proving the actual USE of patents you own, corporations like IBM would likely lose 99.999% of their patent portfolio.

      Sorry, I just have issues with corps. like IBM filing 1,000 patents a month for the last 20 years for nothing more than a tax writeoff and "because we can" bullshit. Prove you USE the patents you own to avoid monopolistic empires in the patent world.

  • by kimvette (919543) on Wednesday December 16, 2009 @09:16AM (#30457140) Homepage Journal

    Filed in Nov., 1990, and they're just noticing these alleged "infringements" now, 19 years later? So, they waited until just before 20 years were up in order to submarine this and collect big. This is the kind of douchebag move is exactly why the laches defense exists. The execs of BetaNet deserve to have their collective asses handed to them.

    • Of course (Score:3, Interesting)

      by Sycraft-fu (314770)

      That's always what goes on with these kinds of patents, and it is how you know they are bullshit.

      Personally I think a "Use it or lose it," provision needs to be added to the patent system, and would fix a large number of the problems we have. Basically I'd have it work as such:

      If you have a patent, and a product comes out on to the market that uses its technology, you have one year from the time you should reasonably be aware it is for sale (more or less meaning when it is on the mass market) to contact the

      • Re: (Score:2, Interesting)

        by Hognoxious (631665)

        How would you stop the Dutch auction problem? That's to say that if potential licensees know there's a deadline at which they can get it for nothing, they can simply wait out the patent holder.

    • Filed in Nov., 1990, and they're just noticing these alleged "infringements" now, 19 years later? So, they waited until just before 20 years were up in order to submarine this and collect big. This is the kind of douchebag move is exactly why the laches defense exists. The execs of BetaNet deserve to have their collective asses handed to them.

      You're off by six months. Prior to 1995, patent terms were 17 years from issue. This issued in June, 1993, so it's up in June, 2010. Not a big change, however.

      Also, no, the laches defense requires an affirmative action on the patent owner's part - I send you a notice of infringement, you reply back with a request for a license, and I... disappear. If I never put you on notice, I haven't started the clock ticking.

      • by dkf (304284)

        Also, no, the laches defense requires an affirmative action on the patent owner's part - I send you a notice of infringement, you reply back with a request for a license, and I... disappear. If I never put you on notice, I haven't started the clock ticking.

        On the other hand, if you have a patent and don't make any attempt to prevent infringement for many years even if notified of such activity, it does reduce the level of damages that you can claim. Courts don't mollycoddle lazy dumbasses.

      • by chfriley (160627)

        My understanding of laches is NOT that it requires an affirmative action on the patent owners part. It could be a different defense in patent law, but if so I am not aware of it.
        And IAAA (I am an attorney) who took a number of IP law classes but does not practice in that area. My understanding is that in US Federal Courts submarine patents may have a good laches defense. As I said though, this is not an area of expertise.

  • by Anonymous Coward on Wednesday December 16, 2009 @09:18AM (#30457160)

    The patent specifically mentions that the registration server has to create and send down a customized app that contains "critical portions" of the software that's being registered - presumably, so that without registration, it's impossible to crack the protection scheme as vital parts of the code are simply missing. Most software today doesn't use activation in this manner. We have trial periods, even with MS Windows, so all critical portions of the software must be present for these full-featured trials to work. Even when the trials are functionally limited, in most cases the extra functionality is still there, but locked out until the software considers itself to be registered.

    • by canajin56 (660655)
      Look, the East Texas District always finds in favor of the patent holder, always, without exception. This case is unusual in that they're actually suing over something even 1% related to the patents. File the suit, pay the judge, $100 billion verdict in your favor.
  • To be allowed to do most of the things in this world, you have to meet some qualifications. How come that people can sit on Jury which sometimes deal with multi $100Ms verdicts without understanding anything about problems involved? Most of patent cases are based on "prior art" or luck of it. You have to be able to understand a LOT of things to be able to see that something was (or was not) prior art. I am sure that Marshal, TX is wonderful city, but I have serious doubts that it has many citizens who a
    • Re: (Score:3, Insightful)

      by Theaetetus (590071)

      To be allowed to do most of the things in this world, you have to meet some qualifications. How come that people can sit on Jury which sometimes deal with multi $100Ms verdicts without understanding anything about problems involved? Most of patent cases are based on "prior art" or luck of it. You have to be able to understand a LOT of things to be able to see that something was (or was not) prior art. I am sure that Marshal, TX is wonderful city, but I have serious doubts that it has many citizens who are up to speed with all modern technologies to be able to serve efficiently on Jury bench in all these patent cases

      Because the Constitution doesn't require a jury of skilled experts. In criminal cases, do we require everyone on the jury to have a conviction on their record?

      • by Nemyst (1383049)
        Just about everyone that's sane and with basic common sense can understand and be jury on a murder case. There are a lot of variables, but it's usually possible to comprehend as it's rooted in reality and it's something we can, to a point, relate to.

        Abstract software patents about very precise methods that have no meaning outside of the software development community are entirely alien to the majority of the population. They cannot begin to understand what it is all about without proper technical backgrou
        • Abstract software patents about very precise methods that have no meaning outside of the software development community are entirely alien to the majority of the population. They cannot begin to understand what it is all about without proper technical background. There's a huge gap between "did the guy murder the other guy or no?" and "did these companies infringe a patent about remote software activation?". The very concept of "patent" is fuzzy for many.

          Spoken like someone who finds the concept of "criminal defense" fuzzy. There's a lot more to a murder trial than just "did the guy murder the other guy or no?" For one, you need a legal definition of murder.

          So, I think your own post succinctly refutes your point.

      • by Dan Ost (415913)

        I believe that the constitutional requirements only apply to criminal cases. Patent suits are civil suits.

      • Because the Constitution doesn't require a jury of skilled experts.

        However, one of the basic principles of the law is "the right to a trial with a jury of your peers". If you sue a corporation over software patents then the jury should be made up of people who understand software, patents and all the complexities. Those are the "peers".

  • I say we... (Score:4, Insightful)

    by Duradin (1261418) on Wednesday December 16, 2009 @09:44AM (#30457420)

    Nuke the site from orbit. It's the only way to be sure.

    Or we give Texas back to Mexico with a no backsies clause.

    • by haruchai (17472)

      If we could find a way to force patent troll proceedings to be held in uncooled courtrooms in August, that would be punishment
      enough - Marshall gets HOT.

      I believe the current weather record is 112 F / 44 C.

  • RTFP (Score:5, Interesting)

    by Tom (822) on Wednesday December 16, 2009 @09:47AM (#30457466) Homepage Journal

    (read the fucking patent)

    Actually, it's not that straightforward, and I'm not certain there will be much prior art. The patent doesn't just say "call here to verify your registration number".
    First, it's from 1991. Remember that year? That's 4 years before win95 came to the market without a TCP/IP stack. A network-based software activation was certainly a couple years ahead.
    Two, it isn't your "set a flag in config.ini" type of activation, either. The patent speaks about the construction of a tamperproof overlay program containing core parts of the actual application. In other words, you actually bought a car without a steering wheel and activation not only gives you a wheel, but also in a way that you can't mess around with it and they can take it away again after, say, your subscription period ends.

    That's pretty advanced for 1991, "software as a service" didn't become a buzzword until 10 years later.

    Disclaimer: Doesn't mean I like software patents. I don't. But some are more obviously trivial nonsense than others.

    • Re:RTFP (Score:4, Informative)

      by pleappleappleap (1182301) on Wednesday December 16, 2009 @10:04AM (#30457696) Homepage

      That's 4 years before win95 came to the market without a TCP/IP stack. A network-based software activation was certainly a couple years ahead.

      Just because Windows is backwards, doesn't mean various UNIXes didn't already have this feature.

      • by haruchai (17472) on Wednesday December 16, 2009 @10:16AM (#30457872)

        Thank you for pointing out that computers and software existed before "dub-dub-dub" became a household word.
        It seems to be forgotten a lot and not only on Slashdot.

      • by DaveV1.0 (203135)

        Really? Then, you should have no problem listing them. Go!

      • Re: (Score:3, Informative)

        by TheRaven64 (641858)
        The networking release of BSD, including the first release of the TC/IP stack and the Berkeley Socket API was out in 1988. However, 1991 was the first year in which commercial networks were allowed to be connected to the Internet. Prior to that it was just for academic and government sites. There was little point in a TCP/IP stack in a consumer OS before then, because there was no Internet for them to be connected to. Windows for Workgroups, in 1992, did include a networking stack and WinSock (a port of
    • by kimvette (919543)

      That's 4 years before win95 came to the market without a TCP/IP stack

      When Windows 95 was in very early Beta I was on the phone with Microsoft tech support trying to get SLIP to work with a proprietary system - with Microsoft's TCP/IP stack. I don't remember having had to install anything extra to get it.

    • by Nadaka (224565)

      tamperproof? Ha! Does this not invalidate the claim as most activation schemes can be bypassed by a sufficiently determined hacker (or anyone who can follow directions of said hacker)?

    • Re:RTFP (Score:4, Informative)

      by radtea (464814) on Wednesday December 16, 2009 @10:29AM (#30458092)

      (read the fucking patent)

      I did. There are two independent claims (1 and 9) both dealing with the generation of an "overlay" (shades of RT-11) that contains the actual program code based on information the user provides through a "shell" program that they run initially.

      On my reading, this is irrelevant to any activation system that deals solely with the data segment, so almost all conventional licence management systems are not covered. Some stuff MS does might be, but I've never used a license manger that does anything remotely similar to what's described in this patent: these days we deliver the full program, and unlock it based on data, whereas the patent covers delivering a partial program and generating a new program based on user-supplied data. That's unrelated to software-as-service implementations because there is no new "overlay"--whatever that might be construed to mean in this context--being generated by the delivery process: when I run something in my browser it isn't a custom copy newly compiled from source incorporating information I've provided. It's a bog-standard copy that may have restricted functionality based on data that is downloaded with it, a totally different thing.

      So yeah, there's not that much prior art, but there's not that much "posterior art", either.

      Some idiot on the bench in Marshal, Texas may of course disagree with this view, but that's based on how corrupt they are, not on how the patent reads.

    • by dissy (172727)

      In other words, you actually bought a car without a steering wheel and activation not only gives you a wheel, but also in a way that you can't mess around with it and they can take it away again after, say, your subscription period ends.

      And I haven't seen many products that still use that method of activation.
      Certainly no products from any companies in their list, except IBM.

      These days you get the entire car with a lock on your steering wheel, and the activation code removes the lock for the feature that was already there.
      No need to obtain a steering wheel during activation like this patent covers, so (other than maybe IBM) none of those companies are violating it.

      And IBM even was doing this with mainframes decades before 1990.

    • by LWATCDR (28044)

      Actually I wonder if Lap-Link could be sited as pior art for this.
      And early version of Lap-Link had the user a way for the user to copy from the serial port to a file so lap-link could send the lap-link program to the target PC over the serial cable.
      That would seem to send the "overlay" over the network to activate the software.
      It wasn't used for security which may not make it valid in this case.

    • by canajin56 (660655)

      All good points, but they're suing people for doing the straight forward flag in config.ini stuff, too. Adobe Photoshop doesn't have an overlay that Adobe sends you, you just enter a fucking key. Windows activates over the network, but there's no overlay program, you enter a key, it handshakes with the servers and makes sure that key isn't in use/marked as pirated, and then it sets a flag somewhere marking it as registered. I bet most of the plantiffs WISH they had a system that works like the one descr

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