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D. Murali

What's smoking? A patent row over Microsoft's TCP Chimney software. Read on for the full argument.

ON April 12, a US district court granted Alacritech's motion for preliminary injunction. Microsoft was the other party to the dispute.

Judge Jeffrey S. White gave both the companies 21 days to `confer and submit a joint status report' on their intentions regarding any appeal of the order and so forth. White's order runs to 13 pages and makes interesting reading for the tech-inclined. A cerebral read, though; just a forewarning!

The `background' of the case, for starters, is that Alacritech sought to prevent Microsoft from infringing its patent (No. 6,697,868 or the `868 patent) relating to network interface software. More specifically, as claim 1 of the patent puts it: "A set of instructions executable on a processor, the set of instructions being for performing steps comprising: establishing a TCP connection, the TCP connection being at least in part identified by a TCP source port, TCP destination port, IP source address, and IP destination address; and offloading the TCP connection from the processor to an intelligent TCP offload mechanism."

Alacritech said that Microsoft's yet-to-be-launched TCP Chimney or Longhorn software infringed `868 patent.

Microsoft pointed out that the claim didn't use the word `means' and sought to apply `means-plus-function' as in 35 USC {frac14}112 ¶ 6 (that is, Paragraph 6 of Section 112 of the US Patent Act, found in Title 35 of the United States Code). Under this, a patentee may express a claim limitation functionally, without reciting a structure for performing the claimed function; however, as the order explains, when a claim term does not use the word `means,' there is a rebuttable presumption that this does not apply. To rebut, as Microsoft tried in this case, it is necessary to demonstrate that the "the claim term fails to recite sufficiently definite structure or recites function without reciting sufficient structure for performing that function."

Therefore, it became necessary for the court to first see if claim term recites sufficient structure to avoid application of {frac14}112 ¶ 6, for which, as the order observes, it was sufficient "if the claim term is used in common parlance or by persons of skill in the pertinent art to designate structure, even if the term covers a broad class of structures and even if the term identifies structures by their function." As held in the Lighting World case that White cites, "What is important is whether the term is one that is understood to describe structure, as opposed to a term that is simply a nonce word or a verbal construct that is not recognised as the name of structure and is simply a substitute for the term `means for.'"

In the Lighting World decision, the court had rejected "the contention that the term `connector assembly' insufficiently identified a structure because dictionary definitions disclosed that the term `connector' had a reasonably well-understood meaning as a name for structure, even though structure was defined in terms of the function it performed." Also, "The fact that more than one structure may be described by the term "connector," did not make the term `connector assembly' any less a name for structure."

Another case that White cited was Reiffin vs Microsoft Corp, "the court found that `a thread of instructions executable by the microcomputer' sufficiently described the associated structure." In the current case, Microsoft was relying on a different decision, Altiris, Inc vs Symantec Corp, but White pointed out that there the word `means' had been used in the claim, and therefore said, "Because Altiris construed the claim language under a different standard, it does not support Microsoft's position that the term `instructions' is so broad that it fails to sufficiently disclose structure."

Thus, according to the judge, the phrase "a set of instructions executable on a processor", as in Alacritech's patent claim sufficiently disclosed the structure as software.

Both Alacritech and Microsoft agreed "that TCP should be construed as `Transmission Control Protocol': A host-to-host protocol for reliable communication in internetwork environments." However, they wanted the court to construe these phrases used in Alacritech's claim: `TCP connection', `establishing a TCP connection', `offloading the TCP connection from the processor', and `an intelligent TCP offload mechanism.'

On each of these, the court devoted attention, but without burdening you with that, let me offload you at this point, though I'm only at the beginning of page 5 of the order. But don't forget to visit www.groklaw.net and catch up with the comment on Microsoft `probably wanting to tweak the patent system'.

Cases@TheHindu.co.in

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