back to article Forget the mobile patent wars – these web giants have patented your DATA CENTER

As the months go by, the world's tech giants again and again face off in court alleging patent infringement, usually to bag some extra cash and derail their rivals. In the last few years we've seen various landmark lawsuits in areas as diverse as the inner workings of the software within Android (Oracle v Google), and the …

  1. Mr_Pitiful

    Oh Dear

    I guess 'Cloud Storage' might have an end in sight!

    As for my servers they are all hosted internally :)

    All 40ish of them

    1. keithpeter Silver badge
      Windows

      Re: Oh Dear

      "I guess 'Cloud Storage' might have an end in sight in the USA!"

      @Mr_Pitiful: just added a bit to your phrase. I suspect none of this tat is patentable outside of Texas.

    2. Tom 7

      Re: Oh Dear

      "As for my servers they are all hosted internally "

      Dont they rattle when you walk?

  2. Destroy All Monsters Silver badge
    Mushroom

    Polonium sushi is too good for them.

    "It's really about misrepresenting human ingenuity and calling on the guns and badges of the state and allowing people to leech off that – it's been well recognized that the intellectual trades are the cancer of all of commerce"

    Because "Intellectual Property" is not property. It's a landgrab and it's all about monopoly.

    1. Anonymous Coward
      Anonymous Coward

      Re: Polonium sushi is too good for them.

      And most of it isn't exactly "Intellectual" either...

  3. elDog

    And once again Capitalism shows its stupid head

    All that you Corporations are doing is to force the real innovators into the black market.

    Putting too many legal and financial barriers in the way of the real "creators" (screw the US definition of "job creators") will make them go around these barriers. There is nothing harder to control than someone's will to "create", to find a better way.

    Software patents are totally stupid. I don't care if you embed them in silicon or in some microcode. Capitalize on your brilliant idea for as long as it can still be brilliant and then invent something new.

    Can I predict a whole new non-nationalized industry of black market inventors and angel/devil investors? Yup - and their tactics to control their world won't be any less blood-thirsty than the MPAA/USPTO or other mafias.

    1. Anonymous Coward
      Anonymous Coward

      Re: And once again Capitalism shows its stupid head

      That industry already exists.

      If you look at the most recent Vmware patent - the "IM conversation with your servers", that actually describes exactly what the successful Botnet writers have been doing for the many years. Invented many years ago, 100% blackmarket as far as products are concerned to this point, now "innovated" by Vmware.

    2. Preston Munchensonton

      Re: And once again Capitalism shows its stupid head

      "And once again Crony Capitalism shows its stupid head"

      There, I fixed it. Nothing about the Patent System could be confused for Capitalism. Ever.

  4. ~mico
    Holmes

    Non-obviousness

    A patent must provide a solution, that is

    1. working (solving a specific problem)

    2. innovative (this problem hasn't been solved this way before)

    3. non-obvious (not immediately applied by any specialist encountering this problem)

    Clearly, we've got multiple failures in the third point here, that causes most of the patent wars and grievances over the past years. It doesn't mean the system is totally broken, it means it's not supervised properly. Hint: hire better experts to work at patent offices. Reject obvious/overbroad patents.

    1. Keep Refrigerated

      Re: Non-obviousness

      I think the "non-obvious" part is what is causing this giant infested ass of a patent system.

      I work with datacenters on a regular basis and even I have trouble with deciphering the legalese in these patents, how can patent examiners do so who may not even specialise in the area?

      'Non-obvious', rather than a sanity check against tweaking an exiting invention in a way that most people might think to do, has pretty much become a by-word for "do I obviously understand what the wording in this patent means?"

      1. vagabondo

        Re: Non-obviousness

        I do not know much about the US system, but. I thought that patents were supposed to be written such that any competent practitioner could reproduce the invention. If patents were written clearly, without legalese obfuscation, then it would be harder to get a patent on general principles rather than genuine inventions, and any legal proceedings could be simpler, shorter, and less of a lawyers' gravy-train.

        Why don't the patent examiners just throw patents back to be redrafted if the are unintelligible to any competent engineer. And if the patent offices grant rubbish patents (because they have been privatised, and are paid to grant patents with examination as a cost to be avoided), then judges should apply the tests for a patent's competence before allowing any related action to proceed further.

        1. Anonymous Coward
          Anonymous Coward

          Re: Non-obviousness

          > And if the patent offices grant rubbish patents (because they have been privatised, and are paid to grant patents with examination as a cost to be avoided)

          Are you sure it is privatised? I thought it was now called the Intellectual Property Office and was part of the Department for Business, Innovation and Skills. I know they looked at privatising it in the early 1990s but I don't think they actually did it. It is one the few government departments (if it isn't privatised) that actually makes a profit and that is because they are not penalised if they get it wrong.

          1. Don Jefe

            Re: Non-obviousness

            The USPTO isn't privatized. That's for god damn certain. They're more insular, secretive and bureaucratic than the FBI or State Department.

            Cost is not a factor in the patent review process, read my post above. Stuff gets through because there's a limited amount of information available for reviewers to use in the patent granting process.

    2. Anonymous Coward
      Anonymous Coward

      Re: Non-obviousness

      > Hint: hire better experts to work at patent offices. Reject obvious/overbroad patents.

      Your an expert in some IT area. Are you going to:

      a) Work in your field of expertise, improving your skillset, keeping up with the latest developments, earning the money your expertise deserves;

      or

      b) Work for the patent office as a bureaucrat.

      You think you are an expert in some IT area. Are you going to:

      a) Work in the field you believe you are expert in, finding out you are out of your depth;

      or

      b) Work for the patent office as a bureaucrat.

      The people working for the patent office are bureaucrats who have to deal with thousands of patents across a multitude of disciplines so it is little wonder they can not identify the obvious.

      It is the patent system itself that needs to change since it no longer fulfils its objective (at least in the IT sector) which is to promote and protect innovation. Patents are being used to stifle the opposition and hinder new entrants into established fields. Perhaps they should consider reducing the length of time a patent is applicable to something like 5 years, that way the cost of getting patents for the obvious would outweigh the possible return and if what you are patenting is truly innovative then a 5 year advantage in a sector that changes so rapidly should be ample.

      1. chivo243 Silver badge

        Re: Non-obviousness

        The Patent systems are as fouled up as any government. My wife used to work at the European Patent Office, and we know a couple of Examiners. The way patents are examined are constantly changing, workflows streamlined. One friends job is drying up due to automation, the portion of the work he does is no longer being checked by a person. And this decision is financial, but not because they can’t afford it (ever applied for a patent? Ka-ching!!), but because they want to make/save more money... GREED! as long as greed is a driving power behind business, it will be present in all organizations including the supposed governing organizations. It’s all a very sad reality.

      2. Anonymous Coward
        Coat

        Re: Non-obviousness

        You think you are an expert in some IT area. Are you going to:

        a) Work in the field you believe you are expert in, finding out you are out of your depth;

        or

        b) Work for the patent office as a bureaucrat.

        or

        C) become a consultant.

    3. Don Jefe

      Re: Non-obviousness

      The non-obvious part and prior art are the two most misunderstood part of the US Patent system and they're quite interconnected.

      In your summary of 'non-obvious' you mention the 'specialist in the field', that specialist is really hard to find. That's because you and the USPTO have different ways of finding that specialist. When your patent application is being reviewed it is sent to a USPTO patent attorney who has knowledge of the field (knowledge usually gleaned through their undergrad studies before entering the law college. So 4+ years out of date once they start at USPTO). With their outdated knowledge they are then restricted to a set of officially sanctioned sources and the USPTP Prior Art database.

      That last bit is crucial for anyone interested in how the system actually works. For the purpose of granting a patent the reviewing attorney has a list of approved research materials (usually largely comprised of leading industry journals) and the Prior Art database. If no conflicts are found within that material and only that material the patent will be granted if everything else is in order.

      Tying this all together, for the purposes of granting a patent, Prior Art is only what is in the Prior Art database and the approved research materials list. That's it, no exceptions. Not in those places means it is not Prior Art.

      Furthermore, Prior Art does not mean that 'Widget-1' must be completely unique. It means that some aspect of 'Widget-1' must be substantially different from other 'Widgets' that reach the same ends/does the same thing. For example, I have a patent dealing with controlling the temperature of molds used in metal casting with a variety of high pressure gasses. That's obviously not a new idea, but my system uses the superheated gasses that have been through molds in process and sends them back to preheat 'cold' molds. Reduces energy costs for mold temperature control more than 20% over the traditional systems. It's the same system everybody else uses, mine 'just' has an extra leg.

      The bulk of my patent application was the Prior Art of others (which is the whole idea of Prior Art). I demonstrated what those other patented systems did and I demonstrated how mine was different. The existence of Prior Art makes it easier to get a patent if you are actually doing something unique. For the true inventor and innovator Prior Art is the best thing since sliced bread, as it has worked out kinks long before you came along.

      Now, move to defending yourself against accusations of infringement and everything above changes. If you can demonstrate you were doing (whatever) long before your accuser came along or demonstrate that someone else was doing so and it was documented knowledge then you've got a real defense. Mention in pay for publication journals or websites not considered emblematic of the art in question won't do, but if it's real information that meets some fairly low standards then you've got a real chance of having the patent overthrown and getting PITA compensation from your accuser.

      Yes, there is a lot fucked up in the patent system, a whole lot, but there's a lot of misunderstandng among the general public about how it all actually works and what terms mean to the USPTO and what they mean to you. The process of getting a patent and defending against an accuser are wholly, 100% separated processes and if you try to amalgamate them you'll just leave more confused than when you came in.

      The entire system is not broken, the system is being abused by entities that are destabilizing things for legitimate inventors and innovators. Software has no place in the current patent system. I don't know if software needs its own protection system or should be kept a trade secret if you don't want to share, I really don't know. But I'm absolutely certain it shouldn't be included in the patent system that does actually work pretty well if not abused.

      1. keithpeter Silver badge
        Windows

        Re: Non-obviousness

        "[...] my system uses the superheated gasses that have been through molds in process and sends them back to preheat 'cold' molds. Reduces energy costs for mold temperature control more than 20% over the traditional systems. It's the same system everybody else uses, mine 'just' has an extra leg."

        @Don Jefe: and your invention would be patentable (I think) in the UK and most other countries. Should you decide to patent your invention in the UK, and should the patent be granted, and should someone infringe, you would have the option of taking action here in the County Patents Court (low damages) or in the Patents Court in Chancery (minimum 100K type costs, high claims). Your case would be heard by a judge who is a qualified patent lawyer. Comprehensive pre-trial documentation in highly structured formats. Requirement to agree *facts* with defendant.

        Perhaps it is the idea that you can just pop down the local District court and run a complex technical case past the duty Judge and a local jury that is part of the problem?

        PS: do you run molding facility yourself and use this for competitive advantage or do you licence widely to molding facilities? Just interested.

        1. Graham Marsden

          @keithpeter - Re: Non-obviousness

          > @Don Jefe: and your invention would be patentable (I think) in the UK and most other countries.

          Regrettably, now that he's made the information public in a form which is visible in the UK, IIRC it is no longer patentable.

          1. Don Jefe

            Re: @keithpeter - Non-obviousness

            No, it's still patentable in the UK. The information I provided isn't sufficient for someone else to actually replicate what I've done. Your point ties in very well with the 'obvious' component in this discussion. Transferring heat through a pressurized system has been obvious since some incredibly bright spark invented distilled beverages. In my earlier comment I said my process is 'just' an extra leg in a system lots of people use, but the magic is in that 'just'. Actually making it work took years of research and several million dollars. It's a system of superheated gasses plumbed through molds containing molten metal, so it's actually very complicated.

            Had I not already had the patent and had described the actual working details on an industry site it might have caused trouble. But simple public disclosure isn't enough to prevent someone else from receiving a patent. But since I already have the patent the information is publicly available, others just can't use it without a license or the patent protection period expires.

            The previous sentence ties in with the other persons comment (I forgot your username, apologies). For competitive advantage purposes I generally don't patent the idea. Those things stay in house as trade secrets. If someone came at me with infringement claims on our secrets I have little doubt I would be able to get the suit tossed out (that a whole different ball of wax though).

            The things I do seek patents on generally meet some pretty specific criteria. Firstly, I want those things to be applicable across large swaths of my industry. I want confidence that a majority of the industry will want to use the technology through licensing. I also want it to directly, or indirectly, drive customers to me for our primary mission which is the design, engineering and manufacture of bespoke manufacturing equipment. Licensing the technology should create new opportunities for the licensee and they'll come to us for equipment to realize those opportunities. It should also be suitable for licensing. If it doesn't do those things I probably won't seek patent protection for it. I'll just keep it internal.

            But those things are a business decision that works for me. It's certainly not the only way to do things.

    4. Christian Berger

      Re: Non-obviousness

      Well, there are patent lawyers. And they just continue to nag the patent clerks until the patent goes through and the lawyer goes away.

      For a patent conforming to your rules, you don't actually need a lawyer, it just goes through after the patent clerk kindly pointed out the errors you have been making.

    5. Hargrove

      Re: Non-obviousness

      The erosion of the scientific integrity of the US patent process and a broken tort system have opened the doors to litigation that has chilling--potentially killing--effects on creativity and innovation.

      There is a patent on what amounts to Kirchoff's Laws (1845), whose claims I believe a sharp lawyer could construe as covering stacking D-cells in a flashlight. There is another for radar, essentially as the Brits invented it before WWII. Both, in my opinion, failing the test of "obviousness."

      At the other end of the spectrum, the USTPO has issued a patent for a scalable system capable of extracting unlimited amounts of power from "any point in the universe." Similarly, I recall a patent for a "nanomaterial" comprised of any solid, liquid, gas or combination thereof. The claims struck me as capable of an astounding range of hypothetical functions. The patent had no figures, and if memory serves, 55 claims.

      The USTPO is failing on all points. US federal law passed in 1986 makes it practically impossible for anyone to effectively challenge the validity patent. The practice of trolling (acquiring patents like the ones described above and then seeking injunctions preventing people who are actually being productive) has become ubiquitous.

      Welcome to the wild west (where the Chinese look like the fastest guns).

  5. T. F. M. Reader
    Mushroom

    The 21st century version

    of MAD (http://en.wikipedia.org/wiki/Mutual_assured_destruction). Maybe not such a bad idea - after all, the world is still here...

    [Choosing the most appropriate icon from the list.]

    1. FrankAlphaXII

      Re: The 21st century version

      Patent Law isnt really like MAD. Deterrence though, yes.

      The consequences for deterrence failing in patent law are a fuck of a lot smaller than under a Mutually Assured Destruction nuclear doctrine. Interestingly enough, noone's ever really used that doctrine. You don't have bunkers and civil defense organizations if you truly adhere to MAD, because there should be nothing left if there's an attack.

      The very concept of survivability contradicts the orthodox Mutually Assured Destruction ideal, which is unrealistic. People will survive. We're a pain in the ass to kill off. Civilization's basically done, but the species will continue unless the survivors don't breed.

      1. Primus Secundus Tertius

        Re: The 21st century version

        @FrankAlpha

        "...the species will continue..."

        Quite right. Look at Germany, 1945. The economy was destroyed, but the population survived.

  6. maximillianwyse.wordpress.com

    "On the other hand, some companies may simply be filing patents because some of their engineers are genuinely proud of the things they have worked on.

    "It's really about recognizing human ingenuity and rewarding that and allowing people to capitalize on that..."

    Great. Wouldn't it be cheaper to give engineers money than tie up the world in monopolies and lawsuits? Or would that set a bad precedent?

  7. Anonymous Coward
    Anonymous Coward

    A lot of prior art in this article

    The original massive data centres were mostly in the telecoms sector (I've been in some rather large, mostly empty rooms, thanks to the decreasing footprint of many of these systems); they've pretty much seen it all, heard it all and done it all.

    Load balancers? Nothing new. I have one customer who who uses intelligent load balancers to ensure a smooth, site to site fail-over in under 5 minutes (100s of servers, potentially in response to the loss of one or more key heartbeats). We did the implementation, but they were quite proud of their design (and in spite of being European, I suspect they have a patent :-)).

    Where Google, Amazon and Microsoft do have scope for real innovation, is authentication and authorisation to use resources. While theirs nothing new about massive farms of servers, the scale and the fact they will rent resources out to pretty much anyone, is interesting.

  8. Roo
    Windows

    "Great. Wouldn't it be cheaper to give engineers money than tie up the world in monopolies and lawsuits? Or would that set a bad precedent?"

    It would put lots of people who went to the right schools out of work, so I think that counts as a "bad precedent". Besides, here in the West the majority of production has been shipped off elsewhere and the carcasses left behind have been asset stripped, so all that's left is IP and the paperwork associated with it. This may explain why the authorities are working so hard to implement mass surveillance, aggressive IP law enforcement and mandatory filtering, because without all that stuff in place its practically impossible to maintain a monopoly on an idea.

  9. Anonymous Coward
    Anonymous Coward

    self perpetuating beast

    The USPTO is a self perpetuating beast. It just keeps spitting out patents and in doing so keeps as many employed as possible, while many of those employees don't need any specific knowledge of the work they grant patents on.

    As someone above said, this helps keep people who went to the right schools employed while enabling the off shoring of the real work.

  10. msknight
    Coat

    To quote an article about James Watt

    ... "In 1785 Watt and Boulton became fellows of the Royal Society. Watt's condenser was patented, but in preventing others from experimenting with its design, it is said that he delayed the introduction of high pressure steam in stationary engines for many years."

    *sigh* - that is all.

    1. Anonymous Coward
      Anonymous Coward

      Re: To quote an article about James Watt

      Also Fox Talbot's Calotype process held up photography for years.

      The argument against patents is that they enable the few to become enormously rich, rather than spread wealth around. Would R&D stop if there were no patents? Only for things that are easy to replicate. You might know in theory how to build a float glass plant or a jet engine, but good luck with just copying an existing design. There is a lot more to any complex industrial process than blueprints.

  11. btrower

    We don't have to honor invalid patents

    Re:"the US Patent Office has assigned patents to Google, Microsoft, Amazon"

    At some point, and I think we have passed it, the patent offices render themselves useless by making everything the subject of a patent without respect to actually meeting the necessary criteria.

    The U.S. federal government has no legitimate power that is not granted by the U.S. constitution. The relevant text governing patents reads as follows:

    "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."

    If you look at the circumstances surrounding the creation of the constitution, this clause barely made it. It says "To promote the progress of Science and useful Arts". It also says "for limited times". In the case of software patents, neither are true and hence the patent laws as applied there should have no legal force. The founders were very, very, very explicit that:

    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

    Granting effectively unlimited terms (computer tech moves very quickly) that demonstrably inhibit progress cannot have legal force. The congress is *NOT* at liberty to pass any rule it pleases. The POTUS is not at liberty to pass or enforce any edict he pleases. The supreme court is not at liberty to interpret law in such a way that it is in conflict with the constitution. Law enforcement personnel are not at liberty to break the law as they please.

    It was ever thus that the rules were stretched and broken by the powerful. However, the rise of technology has made this phenomenon increasingly dangerous and irreversible. I genuinely worry for our future. We are poised on the brink of abundance and freedom, but currently choosing by default to live in impoverished slavery.

    I have a suspicion that stuff like the TPP is intended to end-run the U.S. Constitution because people responsible know that none of this junk would pass a *fair* test against the law of the land.

    People in power have shredded constitutions everywhere. In the United States, nearly every substantive provision of the Bill of Rights has been violated.

    The United States federal government has become a rogue regime. The administration of patents is not the worst of it, by a long shot. The people of the United States have not just the right to oppose it and put things back in order. They have the duty to do so; every one of them.

    1. Don Jefe

      Re: We don't have to honor invalid patents

      The Supreme Court determines if something is Constitutional or not. They can't rule in a way that's unconstitutional simply because they decide what's Constitutional.

      1. Hargrove

        Re: We don't have to honor invalid patents

        Also ref @btrower

        I agreed with the substance of both posts (Don Jefe and btrower). The complication I see is that the Constitution and Bill of Rights do not explicitly provide protection against idiocy. Congress can (as congress has) craft laws to the effect that issuance of a patent is de facto proof that the invention is practicable and its claims valid. Congress can also (as congress has) pass legislation that severely constrains the bases for challenging the validity of a patent. (The fact that it is patent nonsense that violates every known or suspected principle of science and engineering is not among them.)

        The Constitution would not seem to come into play. I'm not a lawyer and I may be missing something, but if the Constitution is silent, then it falls to the People to protect themselves. While I agree wholeheartedly with btrowers sentiments, on the specifics I'm afraid we are stuck with honoring patent nonsense and living with litigation unless and until we change the laws. After a fair amount of study I've concluded: (1) It will happen. The center cannot hold as things are, and (2) Because of the arcane and convoluted mass of laws now extant, it will take at least three generations of American voters for significant change to occur.

        Any interest in setting up a thread in Café Vulture to pursue this general discussion?

  12. Tom 7

    I'm going to use patents to paralyse the west

    and patent being an arsehole. Should shut down most things.

    1. Mk4

      Re: I'm going to use patents to paralyse the west

      You just made me laugh out loud in the middle of the library where I should be working :-)

  13. Mitoo Bobsworth

    "The motivation for filing these patents are likely varied"

    Yes, monopolisation & monetisation.

  14. Mikel

    No worries

    The US supreme court is about to hold that software is not patentable subject matter. That will solve this whole problem.

  15. ecofeco Silver badge

    As I've said before, the biggest patent trolls are...

    ...the large corporations.

  16. I. Aproveofitspendingonspecificprojects

    >Authentication mechanisms are vital cogs... it's likely that any large cloud provider has implemented systems covered by the patents.

    But:

    >Patent applications take anywhere from four to ten years to filter through the system... so these designs reflect the wave of invention that has spread through large cloud data centers in the past decade.

    So if the patents are still being applied for, or are pending trial by bribed, fat, wax-faced wonker in women's clothing (not sure if long, flowing vestments, ugly wigs and patent leather, silver plated buckled shoes are de rigueur in Texas) then all their base are belong us. Or words to that effect, si?

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