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New law about to take effect raises the bar in patenting

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March 15, 2013

In case you didn't know, there's a new law that's about to take effect soon, and it sure raises the bar in the field of patenting. What makes it worse is that the burden falls entirely on small inventors and, most of the time, on startup companies with limited financial resources.

The full measure of the penalties for not adhering to the new patent laws, i.e., not promptly filing a patent application are the most dire-- no patent protection to begin with, and no future protections against copying either.

The most significant change to U.S. patent law since 1836 (or perhaps even 1790) is being implemented tomorrow, March 16, 2013. Part of the America Inventors Act of 2011, the new law concerns the doctrine of first-to-invent, laws concerning the protection of original inventors, regardless of whether they were the first to apply for a patent or not.

The new law awards inventorship under a first-inventor-to-file standard. The emphasis is now placed on inventors seeking immediate patent protections, preferably before any disclosures to any third parties and patent filings of others.

Under the soon-to-be old law, such disclosures were somewhat protected and true inventorship ascertained and rewarded. However, those protections have almost all been eliminated.

Now, there are greater hazards to inventors -- particularly small inventors -- which will possibly preempt them from obtaining a patent alltogether.

The so-called 'grace period' of one year from a public disclosure of an invention to patent filing under the old law is technically still there. But third-party patent filings during that grace period now trump the earlier inventor merely by reaching the Patent Office first.

This change in the law tries to objectify determination of a true inventor instead of engaging in procedural challenges called "interferences," which it eliminates.

Many view this substantive change as contrary to the philosophy of the U.S. patent system, which rewards true and original inventors, i.e., the first to invent.

The new law is patterned on that of foreign patent systems, which place much less emphasis on the individual in favor of corporations, which want more certainty in the patenting process.

Since some third-party patentees may derive their "inventions" from primary inventors who are second to file for patents, new proceedings determine inventorship under these circumstances.

These derivation proceedings are mini-trials to ascertain whether the earlier inventor was primary and whether the later filer gleaned the invention by theft or other illicit means.

The U.S. Patent & Trademark Office over the past year or so has been hiring and training hundreds of Patent Office judges for the purpose of hearing these proceedings and administrating many other new proceedings already implemented under the Act, e.g., various post-grant opposition actions to challenge newly issued and all other patents.

Although there are several ambiguities in the new law, there are some clear lessons for inventors. Like, "first to file" means just that, with the consequence of possible automatic curtailment of patent rights for many second filers.

For example, an individual inventor is typically unaware of the extremities of the patent laws with regard to deadlines.

Additionally, publication or dissemination of the invention prior to filing for patent already kills virtually all patent rights outside the United States. Often, these inventors are well into the grace period when they consult a patent attorney.

Now, those same inventors may have unwittingly destroyed their opportunity for patenting by delaying the filing. Fortunately, provisional or informal patent filing is available, which can preserve patent rights. Nevertheless, the first-to-file patent rule still applies.

Unfortunately, those rushing to file informal and often sketchy documents may find their patent descriptions challenged for insufficiency, i.e., the details may be so bare as to raise a question of whether the inventor was in possession of the invention claimed.

The most dire potential consequences of the new law is no patent -- no protection. Period. The countermeasure is education and consultation with a patent attorney early in the innovation process and definitely prior to third-party disclosures.

Great minds often think alike, and others are also addressing the same technological issues. But putting inventive thoughts to paper is often a difficult thing for some inventors.

Since a patent is a property right, its contours must be set forth in detail. For example, in land purchases, the delineations of the property line are critical. So too with patenting -- the patent claims carve out a portion of new technology, separate from what is known.

A patent attorney can help navigate this terrain and stake out a claim for particular technological knowledge. It's critical to be first to file a patent application under a post-March 16 first-inventor-to-file standard.

Sadly, the actual contours of this change in the law will not be known for many years -- that is, after the courts make pronouncements -- but in the United States, it is the new law, like it or not.

And since the new standard is draconian, it warns us all to educate ourselves as to this imminent change in the patent laws.

In other Linux news

Red Hat said earlier this morning that it is assuming the leadership role of the OpenJDK 6 community, just a few days after Oracle said it would issue the final patch for version 6 of its commercial Java SE 6 Development Kit.

To be sure, Oracle posted JDK 6's update 43 on Monday as an emergency patch for the latest in a series of severe security vulnerabilities that have plagued the Java browser plugin for several months already.

Although Oracle is investigating other similar security flaws, it also said that this would be the last set of public fixes for the Java SE 6 platform.

"Oracle recommends that users and developers migrate to JDK 7 in order to continue receiving public updates and security patches," the database giant added in the update's formal release notes.

As a matter of fact, users got more useful life out of JDK 6 than they had any reason to expect. Oracle originally set the end-of-life date for JDK 6 for July 2012, but it pushed back the kill date twice to give users extra time to upgrade to the new software.

But yesterday, Red Hat said it would continue to maintain JDK 6, even now that Oracle has ceased supporting it, in the form of OpenJDK 6, the open source reference implementation of the Java platform.

"Red Hat has transitioned into a leadership role for the OpenJDK 6 project, effectively extending support for the technology and its users," the company said this morning.

Although primarily known as the leading enterprise Linux vendor, Red Hat has also been a major presence in the Java community, ever since its $350 million acquisition of open source middleware maker JBoss in 2006.

Since then, Red Hat has been one of the most active participants in the OpenJDK community, along with the likes of Google, IBM, and well, Oracle itself.

Red Hat added that its decision to take on the leadership of the OpenJDK 6 project reinforces its commitment to the broader Java community and to driving the future of the platform.

"Red Hat's vision includes better overall performance and manageability while enabling greater functionality around dynamic scalability and cloud computing," the company said.

Red Hat didn't outline any specific plans for OpenJDK 6 under its current leadership, but given that the Java 6 specification is frozen for now, it's safe to assume that its main focus will be on fixing bugs and closing security flaws as they are discovered.

According to the OpenJDK 6 project website, "bug fixes in JDK 7 that do not involve specification changes have presumptive validity for OpenJDK 6. That is, by default, such fixes are assumed to be applicable to OpenJDK 6, especially if having 'soaked' in JDK 7 for a time without incident."

That simply means that any new fixes Oracle makes to JDK 7 should also be applicable to OpenJDK 6. What's needed is someone to do the work, and that's where Red Hat is stepping in.

Of course, there is one other option available to JDK 6 users who don't want to switch to OpenJDK, and that's Oracle's premium Java SE Support. Oracle will continue to provide updates to JDK 6 for another two years or more, but for a fee or course.

Maybe you can thank Red Hat for offering what's essentially the same thing but for free. We will keep you posted on this and on other stories as they develop.

In other Linux and open source news

Jonathan Corbet, a senior Linux kernel developer (pictured at the left) has underlined an instance of what he calls a lax approach to security in the Linux operating system.

Corbet is citing the case of a serious vulnerability that is now more than a month old and is yet to be addressed and solved in a timely manner.

Corbet described in an article how a security hole in the kernel, which was initially discussed on a private mailing list, had been made public with a posting by another kernel developer named Oleg Nesterov.

According to Corbet and Nesterov, the vulnerability in question would permit the running of arbitrary code in Linux's kernel mode.

"It seems to me that the Linux implementation of the ptrace() system call contains a race condition-- a traced process' registers can be changed in a manner that causes the kernel to restore that process' stack contents to an arbitrary location," wrote Corbet.

He raised the issue in the context of a discussion of other kernel vulnerabilities and criticism, by a security-oriented firm of the way these were handled. TrustWare, the security firm, claimed that it took nearly three years to patch two flaws, claims which Corbet contested.

But in the case of the vulnerability that he himself cited, Corbet added that the security flaw was known to be a serious one from the outset and that one of the developers who reported it had also created exploit code to demonstrate its severity at the time.

Corbet said that, although the public discussion of this flaw was nearly a month old at the time of writing, his article appeared on February 19 and had been discussed for a while before that privately, and that no Linux vendor had taken a step to issue a fix.

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Nesterov works for Red Hat and Corbet quoted another kernel developer as asking why this company had not handled the issue as it should have been.

"Linux OS distributors knew about the issue and had enough time to respond to it but that response didn't happen in a timely manner," Corbet concluded.

"The ptrace() issue will certainly be straightened out in less than three years, but that still may not be a reason for pride. Linux users should not be left wondering what the situation is (at least) one month after distributors know about a serious security vulnerability," Corbet added.

In other Linux news

HP says that it just launched its new public Cloud partner program initiative and offered a few updates on its OpenStack performance and HP Cloud System sales.

The news surfaced at HP Global Partner Conference 2013 in Las Vegas yesterday. HP CloudSystem is now running in more than 120 cloud data centers worldwide, according to vice president Dave Donatelli.

He mentioned that CloudSystem now has more than 900 customers, and sales of the solution are growing more than 100 percent year over year.

The CloudSystem has two partner opportunities:

  • CloudBuilder opportunity is for resellers and systems integrators
  • CloudAgile program for service providers
  • Cloud Reseller Partner Program
  • Meanwhile, HP is also launching new partner program components for its public cloud. Dan Baigent, senior director of business development, HP Cloud Services, said the HP Cloud Builder Program gains public cloud capabilities. This allows partners to refer and resell HP Public Cloud services to enterprise customers.

    Global systems integrators can also get training while ramping up consulting services for customers. He didn't mention specific margin opportunities, however.

    Baigent said that the cloud reseller partner progam will come out in three stages. Referal program where HP manages end-customer billing. Later this year, reseller programs where partners can manage end-customer billing. And then some future add-ons that allow partners to manage end-customer provisioning.

    Additionally, there are new HP Cloud Load Balancing, Monitoring as a Service and DNS as a service offerings for partners and customers.

    HP Public Cloud is OpenStack, an open source cloud platform that some critics say it needs more time to develop and mature.

    But Baigent pointed out to OpenStack's progress and HP's leadership: "We are the ones who have moved the needle forward in terms of reliability and stabililty when it comes to the Cloud. But it's an ecosystem. We believe that's what makes the community robust-- multiple contributors to push this forward. We wouldn't have launched our service and offered an SLA if OpenStack wasn't ready."

    Al Chien, vice president, sales and marketing, said he has an installed base of customers that are asking about moving workloads between private, hybrid and public clouds. He plans to leverage the HP relationship as those opportunities come along.

    Cloud Agile partners basically build their cloud solutions on top of HP hardware. Axcient, for instance, runs its cloud storage and business continuity atop HP's hardware. Both Axcient and Latisys have their own partner programs. Simac does not have a partner program but is getting inquiries and listening to feedback about that potential path.

    In other Linux and open source news

    Kent Overstreet, a Google software engineer working on the Linux operating system for the past ten years, has reworked the kernel's DIO (Direct I/O) code so that it's vastly simpler while also being faster for some test runs done in the last week.

    On February 11 was the original work in progress patch to improve the DIO code in Linux. As Overstreet wrote then, "The end result is vastly simpler-- direct-io.c is now less than 700 lines of code, vs. the more than 1300 previously. dio_submit is almost gone. I'm now down to four things left in it. It relies heavily on my block layer patches for efficient bio splitting, and making generic make request() take arbitrary size bios."

    "It also gets rid of the various differences between async and sync requests. Previously, for async reads it marked pages dirty before submitting the io (in process context), then on completion punts to worqueue to redirty the pages if any need to be. This now happens for sync reads as well," he added.

    Not only does it yield a net reduction in the number of lines of code for the Linux DIO code, but it's also yielding performance improvements with the most recent patch.

    Source: USNPL.

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