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Re: development snapshot


From: Jaroslav Hajek
Subject: Re: development snapshot
Date: Tue, 8 Sep 2009 11:09:57 +0200

On Tue, Sep 8, 2009 at 3:41 AM, Judd Storrs<address@hidden> wrote:
> On Mon, Sep 7, 2009 at 7:23 PM, Robert T. Short
> <address@hidden> wrote:
>>
>> I don't think there is any question that claim 1 and possibly other
>> claims would be rejected if a validity lawsuit was brought against the
>> Mathworks.
>
> What I would caution is to not be so confident in the strength of the case
> against the overall validity of the patent (I think you understand this).
> Making a case against the broadest possible interpretation of the patent is
> insufficient. Courts don't throw patents out unless they have to and in this
> case they have the option of limiting the scope of the patent to the narrow
> interpretation. I think its likely that the best that can be done is to get
> the interpretation of the patent limited to the narrow reading.
>
> You are correct that there is a very strong case against the broad reading
> (including the Mathworks' own use of the word "impossible" within the patent
> itself). However, I find our case against the narrow reading is weak yet.
> I've looked for prior art (including python) to the narrow reading, and have
> failed to find anything except Matlab.
>
> I anticipate that if this went to trial the Mathworks could make a very
> strong case that the patent addresses a problem that is specific to the
> Matlab language and that upholding the narrow reading would only harm those
> seeking to duplicate Matlab. I think it is far more likely that the court
> could easily decide to limit the claims to the narrow reading instead of
> rejecting all the entire claim outright.
>

Yes, I think the patent addresses a problem that is, to my knowledge,
specific to the Matlab language. I don't think there was, prior to
this patent, another language with both the class-based overloading
and closures. Octave infringes the patent because it implements the
Matlab language. The point is that it is actually an idea, not
implementation, that is patented here, and a relatively simple one,
even though MathWorks came up first with it.

>
> So, the question is what is octave's strategic goal here?
>
> If the goal is to take on Mathworks in court and to destroy the patent then
> the correct tactical move is to implement the claims exactly as described
> under the narrow reading so that the courts don't have the option of
> limiting the scope of the patent.
>
> If the goal is to avoid a legal confrontation, my instinct is that directly
> implementing the narrow reading of the claims is a tactical blunder because
> it gives the Mathworks their strongest case. Mathworks is more likely to
> avoid court against octave if it is likely that their patents could be
> limited by the courts or invalidated. Some degree of incompatibility between
> octave's implementation and Matlab's could be a tactical advantage--it
> strengthens our case if it is possible to provide code that works under the
> narrow reading (i.e. Matlab's implementation) but fails under octave's (and
> vice-versa).
>

If by Octave's strategy you mean the community; I don't think we have
any strategic goal. The community is no legal entity and is spread
over the world with differing legal systems.
This problem is limited to USA due to its
over-permissive->over-restrictive patent system, so the decision
should be on US users. The position of mine and others not threatened
by the patent is worth little. Of course, I will try to help the
Octavers from US if needed.

If, as a result, Octave needs to be crippled, I shall probably fork a
separate patent-threat-free version. Not just to allow myself to
continue using the functionality, but also because doing so may
prevent MathWorks from re-filing the patent in EU if EU ever falls to
lobbying and allows software patents.

PS.
Seeing all this, I think it's amazing that so much good free software
is still being written in the USA. How do the other free software
developers in USA cope with the patent threats? Do they ignore them,
or spend hours studying patent claims, in order to find workarounds?
Gosh, it really feels so funny. In our country, United States have
been a symbol of freedom for decades. Now I talk to people from USA
about how to deal with the restrictions in their country. Kind of like
the Voice of America reversed :) OK, it's nothing like a serious
issue; but still, it's a bit weird.

best regards

-- 
RNDr. Jaroslav Hajek
computing expert & GNU Octave developer
Aeronautical Research and Test Institute (VZLU)
Prague, Czech Republic
url: www.highegg.matfyz.cz


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