The Practical Mac

BIAX vs. Apple, Part 2

- 2001.10.09

Apple was recently sued by a previously unknown company named BIAX, alleging patent infringement. In last week's article, we took a look at the legal framework of the case. This week, we conclude our two-part series by looking at how, or if, any Apple products might infringe on these patents.

At issue are two patents filed by the Plaintiff (BIAX): June 6, 1994: "Computer with instructions that use an address field to select among multiple condition code registers," and June 7, 1995: "Parallel processor system for processing natural concurrencies and method therefor." As an opening observation, let me say that as best I can ascertain from reading these two patents, their primary focus is on the processor. To date, the only named Defendant in this lawsuit is Apple Computer, Inc. As many times as I have been to Cupertino, I have never seen the Apple chip fabrication facility. Where is Steve Jobs cranking out all those PowerPC G3 and G4 processors? In the basement somewhere? Initially, at least, it seems this Plaintiff has the wrong Defendant.

Here is a quote from the original Reuters article reporting the filing of the lawsuit: "According to Slobodin [the Plaintiff's attorney], the patents in question improve the efficiency and speed of parallel processing of a computer's central processing unit (CPU)." "Parallel processing allows the CPU to perform many simultaneous tasks," Slobodin said.

This lawsuit alleges that Apple "makes and sells computers that are covered by the patents." Let's examine the logic of this allegation. If these patents apply to the PowerPC processors at all, they probably apply to most RISC-based processors. That being the case, doesn't Sun also "make and sell computers that are covered by the patents?" What about IBM and their higher-end servers? Most Hewlett-Packard laser printers use a RISC processor.

The second patent may apply to most, if not all, multiprocessor systems. If I go down to the local computer store and buy the right parts, I can also "make and sell computers that are covered by the patents." Where does it end?

It is generally the company which manufactures the allegedly infringing part that must be sued. If it is the CPU which violates the patent(s), that company is not Apple; it is IBM and Motorola that make the processors.

Why has Apple been singled out? I can't begin to speculate what may be going through the minds of those in power at this company (BIAX), but it certainly looks like some coincidence that this lawsuit was filed at a time when Apple is perhaps more flush with cash than they have ever been in their history.

The BIAX attorney has said that they are considering filing similar lawsuits against "other unnamed computer manufacturers." It will be very interesting to follow this case and see if any other manufacturers are named. This may give us insight as to exactly what the alleged infringements are.

Technical considerations aside, it is entirely possible - even likely - that there may be no legal infringement upon the patents in question at all. As I noted last week, one cannot go out and patent an invention which has already been brought to market if the individual seeking the patent did not in fact invent the product. The PowerPC processor predates even the earliest of these patents by over two years. In fact, Apple's release of its first computer featuring the PowerPC chip also predates the earliest patent by three months. Certainly multiprocessor RISC systems from other manufacturers predate both patents as well. It is important here to clarify that the G3 and G4 are merely different models of the PowerPC processor, just as the 601, 603ev, 604(e), etc.

It is the existence of this "prior art" which may hold the key to this lawsuit. Apple, as well as any other companies which may be subsequently sued, must prove that the "inventions" described in these patents already existed at the time the patent applications were filed, and that the party who filed the applications had nothing to do with their invention. If that can be proved, the USPTO will invalidate the patents.

Will this happen? This case is in much too early a stage to venture a prediction with any certainty. It will be analyzed by electrical engineers who are so intimately familiar with CPUs that they could build one in their sleep. After a cursory analysis by a layperson, I would have to say the call is, "Advantage Apple." However, only after an in-depth analysis by these engineers will we be able to make a real judgment as to the likely outcome.

We will continue to follow this case and keep our readers informed as the events unfold. LEM

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Steve Watkins is the Vice President for Information Technology for a mid-sized bank, an attorney, and an Army Reserve JAG on extended active duty. He has been a Mac user for about 12 years. He has owned some PCs along the way - but always came back to the Mac. If you find his articles helpful, please consider making a donation to his tip jar.

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