Software Patent

The Trial

Mid 2004 to February 2005

My Goals for you

• You will hesitate to ever send another e-mail (or tweet, or...)
• You will hesitate to ever name another variable (or function, or...)
• You may never read another software patent
• You may consider a career as an Expert Witness

Background

• Trend Micro (them) vs. Fortinet (us)
• U.S. Patent 5,623,600: Virus detection and removal apparatus for computer networks (April 22, 1997)
• I worked directly on the (allegedly) infringing software: transparent proxies for SMTP and FTP, as well as an anti-virus scanning engine.

They call it Discovery

• All e-mails and any other documentation that was potentially relevant was zipped up and sent to opposing side
• Yes: quoted during deposition and trial (more on that later)

Deposition

• Fall 2004
• San Francisco (free trip!)
• Instructional video from 1980s to prepare us for trap questions (eg. When did you stop cooking the books?)

Deposition

• Parts of e-mails I wrote months/years earlier quoted and minutely parsed
• Recorded on video and transcribed (I have a copy of my transcript)
• Never ever ever ever talk to opposing counsel during breaks

Expert Witnesses

• We had an expert witness, and so did they
• Someone with domain knowledge who is relatively impartial

• But agrees with your interpretation of the facts

• BTW you are paying them money

Expert Witnesses

• One of my tasks was to help our expert witness learn the relevant parts of our source code
• Another trip to San Francisco!
• Leon had lots of cool stories

• Hid in a small meeting room all day and snuck to the bathroom when the coast was clear to avoid alerting opposing lawyers to my presence

ITC Court

• Washington, DC
• Another free trip!
• February 2005 (just after the Presidential Inauguration)

ITC Court

• Three sets of lawyers:
  • Our lawyers
  • Their lawyers
  • ITC Court lawyers
• Cross examination gets complicated

ITC Court

• Source code projected on large screen
• Questions about variable names (seriously!!)
• Questions about particular word usage in documentation I wrote (eg. firewall)
• Questions about patent awareness (if you've read the patent then you're knowingly infringing and that is worse)

Also "hilariously" existential questions

• Does the code scan a copy of the e-mail attachment or does it scan the attachment itself?

• If an anti-virus engine checks a file against a set of signatures but finds no matches, has it in fact actually done no work at all? (My suggestion: it has matched the Null Set of Signatures)

• If I draw a dashed line on a piece of paper, is it now two pieces of paper? (my question)

Something that annoyed me

• Words in patent claims are not given precise definitions

• So a word can be interpreted to mean one thing in one claim...

• And then (with a straight face) interpreted to mean something else in another claim...

• And the court can find that you violate both claims

Code Workarounds

• Renaming variables (seriously: file data. attachment data. I hope you like variables named data)

• Larger code changes (fun: prototyping in Perl with design input from lawyers then later porting changes into C code base)

• Not writing anything down (If you don't write it down it is not Discoverable!)

Fun Facts

• Trial judge was around 80 years old (he'd been a patent examiner in the 1950s)
• Doorman at Willard Hotel in Washington DC was an amateur cryptozoolist (I talked to him about Ogopogo a lot)

Conclusion

• Expert Witness seems like a pretty nice gig.

• But: As a programmer you might not be paranoid enough

• Don't read software patents

• When naming a variable, class, or file, consider: How will this name look in court when I'm being cross-examined about it?

• When writing documentation, consider: How can this be manipulated in court when I'm being cross-examined about it?

Happy Coding!

Andrew Gray

andrew.gray@hootsuite.com | @uhAndrew