About two years ago several people came upon this patent granted to Sun,
"EP1170667 - Software Package Verification"
http://gauss.ffii.org/PatentView/EP1170667
Its US equivalent is 7080357
http://www.google.com/patents?vid=USPAT7080357
There was some concern this might conflict with TAP and Test::Harness since on
the surface it looked awfully generic. Executive summary: It's not. Don't
worry.
I finally got an opportunity to sit down with a patent lawyer familiar with
software, John Anderton of patentforge.com. His reading was that it is very
specific to a particular process and contains very few "weasel words" that
might try to expand on it. The process is mostly having to do with
prioritizing tests and identifying those which are "active". Furthermore, the
patent specifies a very specific set of things which it's testing [0056]
without any wording like "this list is not exhaustive".
Furthermore, the patent was rejected several times by the patent office and
was extensively rewritten each time.
His opinion was that it's likely a purely defensive patent on the part of Sun
and that Sun has a very good track record with regard to not abusing patents.
Finally, should it turn out that it is in conflict with Test::Harness the
patent claim only goes back to 2000 while Test::Harness, under various names,
goes back to 1988. Busting the patent would not require a court case but a
simple appeal to the patent office.
One of the things he explained was that in order to infringe on a patent your
"device" must encompass *every* one of the qualities but only one of the claims.
As far as defending against future patent claims of this nature, one way to
deal with it is to publish techniques as "dated documented". This can take
many forms, shipping code is one. For the purposes of proving prior art to a
patent examiner, a simple human-readable document describing the technique is
best. A white paper, for example. Just write it and post it somewhere, on a
mailing list or even if it's just on a web page the Internet Archive will pick
it up. Documentation about techniques is good for all, patents or no.
More formal mechanisms include putting in your own patent claim. It doesn't
have to be accepted, but then it will be on file as prior art. This,
unfortunately, is expensive. There is a method where you can file your
invention publicly, but not patent it, however that costs in the order of
$500-$1000.
--
...they shared one last kiss that left a bitter yet sweet taste in her
mouth--kind of like throwing up after eating a junior mint.
-- Dishonorable Mention, 2005 Bulwer-Lytton Fiction Contest
by Tami Farmer
