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Patrick Mueller elsewhere: muellerware.org, twitter.com/pmuellr

Friday, February 26, 2010

prior art

A few caveats before starting:

  • I am not a lawyer, just an old country programmer, currently working at IBM.
  • This blog post is my own and does not necessarily represent IBM’s positions, strategies or opinions.
  • The patent infringement suit I mention below does not involve IBM as a litigant. It does involve me as a fact witness.
  • No need to go into details on the patent infringement suit, as they are irrelevant to this blog post.

Tim Bray recently wrote a blog post, "Giving Up On Patents", providing his opinion on the state of patents and linking to a number of interesting patent-related texts on the web. My thoughts are currently roughly aligned with Tim's, so there's no need to restate them.

Since I was recently involved as a fact witness in a patent infringement suit, I thought I'd provide some tips if the following are true for you:

  • You believe that there are a lot of patents granted for which there already exists prior art, and so those patents really shouldn't be granted in the first place.

  • You make things.

The tips:

  • Document the crap out of the things that you make.

  • Put your documentation on the web, and make sure search engines can find it 20 years from now.

For the suit I was involved with, an attorney of one of the defendants did a Google search on a term relevant to the suit, and found a paper I had written 13 years ago, on my personal web site. The paper they found lead them to believe I had information relevant to the suit; they thought I had evidence of prior art. Eventually, a lot more documentation was excavated from various people and places.

I found it interesting that a couple of movies were added to the pile of evidence I was asked about during my deposition, all of which appeared to be digitized versions of tape. They were all also around 13 years old. I suspect video will become even more popular as evidence in the future, given the ease in creating and disseminating it, and the amount of information it provides. Lawyers love information. Think screencasts, or perhaps ASCIIcasts are more relevant for the thing you made.

In case you're morbidly curious, I don't believe the statements I provided during my deposition actually helped the defendant in any way. Based on the questions I was asked, I have my guesses as to whether I helped anyone, but I have no way of knowing. I didn't study the patent in question, so I don't know what claims the plaintiff is making, nor do I know how the defense is planning to defend against those claims. All that is irrelevant for a fact witness; I was there to objectively answer questions that were asked of me. Just the facts, ma'am.

A couple of slightly humorous notes:

  • During the deposition, the court's Windows machine could not be coaxed to play the videos (missing codecs). One of the younger attorneys saved the day with his MacBook.

  • Making some small talk (heh) with my counsel during a break, I mentioned that I might claim "software patents are against my religion" if I was ever asked to do something I really didn't want to do. He had a good laugh, and said he'd never heard that before. Note taken.

  • The paper that the attorney found on the web had a self-referential link in it. I always do that, never know what might happen to an HTML file. The link, however, was to a web site long since gone, which today renders as a parked 404 page somewhere. Of course, the paper had moved somewhere else, and of course, Google knew where it was. But it was still funny to see that old link.

  • Being a fact witness doesn't pay well. I received a $55 check for my time; the deposition was an all-day event.