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.
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).
But I realize both that I'm not able to implement any of this and that my opinion is cheap.
--judd