What Part Of A Software Patent Is Illegal?

[FoxPro]

A company has a patent that essentially derives a fingerprint (hash, certificate, digital signature) from files on a client computer. It then sends the fingerprint to a server to see if they already possess the file. If they do, they just indicate in a database that this computer client has this particular file, and sets a pointer to it. If not the file is then backed up over the LAN/Internet (really the same thing).

My question is, is this patentable? And if it is, does this mean the whole process is patented, or are all of its parts also patented.

In other words, is it now illegal to get a fingerprint from a file, search for the fingerprint on a remote computer, without doing so, in an attempt to back the file up? Is it illegal to search for a file fingerprint if the fingerprint is derived using a different version of file fingerprinting software? If it is illegal to do this, then is it illegal to search for, say, a file name, or a customer number on a remote computer?

Or is just the combination of fingerprinting, sending the fingerprint, and therefore deciding whether to send the file in illegal? How is this to be decided, without a million dollars worth of litigation?

Hit this link for a description of what is patentable: http://web.mit.edu/invent/www/handbook/chapter03.html

[Huusker]

Tons and tons of prior art. Even the web itself (the ETag header) See HTTP 1.1 specification.

Of course prior art often doesn't mean jack to those idiots at the USPTO.

[FoxPro]

Is there any written descriptions for this, in regards specifically to backup, prior to April 2000? If there is, it should render the patent null and void. Is this crazy, or what?

[discostu]

The first thing to remember is that just because something isn't patentable doesn't make it illegal. The two main reasons something can't be patented are: a - it's too similar to something already patented, b - it's not distinct enough to be able to tell the difference between it and some other way to do a similar task. If the reason it can't be patented is the first one then you could be facing legal issues (for infringement), if the later you're OK but should understand that you won't be have the infringement protection you get from holding a patent.

In general you want to patent software in bite sized chunks (byte sized?). You want to subdivide your product into the main processes (much like you've done in you're opening paragraph) and patent each one (don't forget the UI, you can patent how the user uses your program). That way if one part won't stick you've still got a chance with others (also the patent office in notorious for saying "no patent" to things they can't wrap their head around, they're good people, they do good work, but they have their limits).

When in doubt get yourself a patent lawyer; patenting is a long, hard, annoying process and a lawyer can really help you navigate it.

[Huusker]

Once a patent is issued you have to move heaven and earth to get the USPTO to repudiate it. Like any bureaucratic agency it will never voluntarily admit to a mistake. Basically you need to get threatened by the patent holder and then win the resulting lawsuit. Since it is ridicuously expensive, almost everybody just settles to make it go away.

[DB]

You need to organize a group that can hard document this processes that was in use before the application for patent.

Then you have to sue... The costs are reduced by getting as many as possible to join you in the cause.

The other way is to simply ignore the patent and proceed doing what you have always done. In the remote chance you are challenged by the patent holder you prove prior use using the same group.

[DB]

I should add that if you can prove that a product of yours was sold and is in the hands of customers that uses this same process prior to the patent holders application for patent then the patent holder should have no recourse.

[ffrancone]

Get the patent. Go to the section called claims. Look at each of the claims that do **not** start out with something like "13. The invention in claim 12 . . . " and then they add some other stuff to the claim 12 stuff. What you want are the independent claims--the one's that are not dependent on any other claims. Those are the most general claims allowed by the patent office for that patent.

Claim one is always an independent claim. But there are usually others scattered thru the claims.

The only thing protected by the patent are the items in the claims. Each claim stands on its own in the sense that you only have to infringe a single claim to infringe the patent. All of the elements of a claim must be included in the infringing software for there to be an infringement.

The specification (the part where the invention is described at length) is important for your purposes only insofar as it illuminates the meaning of the claims (gross oversimplification alert).