The Practical Mac

BIAX vs. Apple, Part 1

- 2001.10.02

The Practical Mac changes course a bit this week and next. Apple was recently sued by a previously unknown company named BIAX, alleging patent infringement. I am neither a patent attorney nor an electrical engineer, and I believe one would need to be trained as both to adequately understand these patents and discuss them coherently. Perhaps this is why there has been such a dearth of in-depth reporting on this lawsuit. However, since I am an attorney and an IT Director, our editor believes that these qualifications are "close enough for government work," so I shall endeavor to shed some light on this case.

This week, I will make a few observations about the case and offer an analysis of the legal aspects of the case. Next week I will take a closer look at how the case applies to Apple and its products.

Here is an excerpt from the Reuters story in which the filing was initially reported:

Apple Computer Inc. was sued on Thursday [Sept. 6, 2001] for alleged infringement of two computer patents owned by BIAX Corp.

According to papers filed in the U.S. District Court in Delaware by BIAX, the three Colorado-based inventors of the 1996 patents assigned their rights to BIAX.

There is no telephone listing for BIAX Corp. at the Boulder, Colorado address listed in the lawsuit, or anywhere else in the U.S., according to the telephone company.

But BIAX attorney Jack Slobodin, reached at the Walnut Creek offices of Fish and Richardson PC told Reuters that BIAX is a small Colorado company owned by a father and son who live in Florida and Colorado, respectively.

According to Slobodin, 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.

The lawsuit alleges that Apple makes and sells computers that are covered by the patents. BIAX seeks a court order against further alleged infringement and an award of unspecified damages.

Calls to Apple's Cupertino, California offices were not returned. Slobodin, who said BIAX has held no discussions with Apple, said BIAX is considering filing similar lawsuits against other unnamed computer manufacturers.

There are two patents in question, the first filed on June 6, 1994 and the second on June 7, 1995. Each of these patents (like most patents) is interminably long (dozens and dozens of typewritten pages) and mind-numbingly boring. However, following is a summary of each patent, taken directly from the U.S. Patent and Trademark Office web site. In case anyone would like to read the full text of the patent applications, I have included a link after each summary.

June 6, 1994: Computer with instructions that use an address field to select among multiple condition code registers

The invention features a computer with a condition code register file (the condition code register file is distinct from the computer's general purpose register file). The condition code register file has a plurality of addressable condition code registers. The computer executes condition-setting instructions that each produce a condition code value for storage in one of the condition code registers, and conditional branch instructions that branch to a target based on analysis of a condition code value from one of the condition code registers. The condition code registers are directly addressable by condition code address fields of the instructions. The invention finds primary expression in one of two embodiments (or in both simultaneously): either (a) at least some of the condition-setting instructions contain a direct address field that selects one, from among the plurality of the condition code registers into which the condition code value is to be stored, or (b) at least some of the conditional branch instructions contain a direct address field that selects one, from among the plurality of the condition code registers from which a condition code value is to be selected for analysis.

June 7, 1995: Parallel processor system for processing natural concurrencies and method therefor

A computer processing system containing a plurality of identical processor elements each of which does not retain execution state information from prior operations. The plurality of identical processor elements operate on a statically compiled program which, based upon detected natural concurrencies in the basic blocks of the programs, provide logical processor numbers and an instruction firing time to each instruction in each basic block. Each processor element is capable of executing instructions on a per instruction basis such that dependent instructions can execute on the same or different processor elements. A given processor element is capable of executing an instruction from one context followed by an instruction from another context through use of shared storage resources.

This case was filed on Sept. 6, 2001. After filing, the Defendant must be officially "served" with a copy of the complaint (the lawsuit) and a "summons." The summons is merely the document which tells the Defendant when and where to file their "answer" (response) to the complaint. I think it is safe to assume that Apple was served shortly after filing. The only reason service is ordinarily delayed is in a case where the plaintiff may have difficulty tracking down the defendant. Cupertino is not that big, and Apple has been in the same spot for a long time, so there was probably no irregularity here.

Once served, the Defendant (Apple) has 20 days to file a written response to the complaint. They must file a copy with the court and deliver a copy to the Plaintiff. The Defendant is generally entitled to a 20-day extension just for the asking, and they usually ask. The Defendant may be granted additional extensions in the discretion of the court, depending upon the complexities of the case. If this case is not sufficiently complex to warrant an additional extension, I have a hard time envisioning one that ever would be. More than likely Apple has received an extension of time to file an answer and has not yet made any substantive court filings.

The Plaintiff is not required to plead his case with great detail, just with "sufficient specificity" as to give the Defendant reasonable notice of exactly what behavior by the Defendant the Plaintiff is complaining of. Translation: In this case, BIAX did not allege in the complaint exactly what Apple did that infringed upon their patent claim.

When and how does Apple find out what they allegedly did to infringe this patent claim? When is after filing an answer to the complaint, in which they will presumably deny all allegations. How is either by an oral deposition of one of the BIAX corporate officers or, more likely, through submitting a list of written interrogatories to the Plaintiff. Written interrogatories are merely questions which the Plaintiff must answer in writing and return to the Defendant - and possibly file with the Court. Among other things, the Apple attorneys will probably ask, "List all products manufactured or sold by Defendant which Plaintiff alleges violate Plaintiff's patent claims and describe the manner of alleged infringement." These also have deadlines which are subject to extension. Bottom line: It could be Christmas or later before we even find out exactly what BIAX alleges Apple did to infringe upon BIAX's patent claim.

You will notice that I have been referring to BIAX's patent "claim." At this point, that is exactly what it is, a claim. A piece of paper issued by the PTO is nothing more than a license to sue. It does not grant to the holder any inalienable rights. It creates a presumption of a patent, but that presumption is most definitely rebuttable.

The most common way of invalidating a patent is by showing that the patent should not have been granted in the first place. This happens more frequently than you might imagine, especially in the world of high-tech patents. Each patent application received by the PTO is personally studied by a PTO staffer. As you might imagine, there is a chronic shortage of individuals qualified to judge technology patents. Narrow that list to "qualified" and willing to work for what the government pays, and an incredibly short list just got significantly shorter.

The most common way to demonstrate that a patent should not have been granted is by showing what is referred to as "prior art." Contrary to popular belief, you cannot steal someone else's idea just by being the first to the Patent Office. If you can demonstrate that the invention covered in the patent already existed prior to the patent application, the patent will be overturned.

The legal framework has been laid. Next week we will take a look at how (or if) Apple's products fit into this framework. 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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