Subject: [Asrg] Re: user-level blacklisting patented

From: Bruce Lilly <[email-masked]>
Date: Fri, 18 Mar 2005 17:45:36 -0500

>  Date: 2005-03-17 21:39
>  From: Claus Assmann <[email-masked]>

> On Thu, Mar 17, 2005, Peter Kay wrote:
> 
> > Our patent gives each end-user their own list that gets applied at the MTA.
> 
> That stuff has been done for sendmail 8.9 (released 1998) by Jan
> Krueger via custom rulesets ("check_local").

And has been in the sendmail code in the form of the
checkcompat() function since at least version 5.61, in the
early '90s.  That function takes sender and recipient information
and returns a binary result.  It's not a big secret: sendmail
source has been widely available for decades.

>  Date: 2005-03-17 21:20
>  From: "Peter Kay" <[email-masked]>

> Did you back in 2000 have a feature to maintain whitelists for individual
> users

The functionality was there a decade earlier.

> If this was so "obvious", then how many products have been created that
> employ our claims?

At least one.

> As of about a year ago, we couldn't find any.   

I guess you didn't look very hard...

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From: Troy Rollo <[email-masked]>
Date: Sat, 19 Mar 2005 10:46:48 +1100

> source has been widely available for decades.

...and has an equivalent ruleset to allow for configuration of this by the 
administrator. Of course check_compat was tested after the DATA command, but 
it is an obvious improvement to test it before the DATA command (and it is 
obvious within the meaning used by courts for patent law, which generally 
requires that a person skilled in the art could not possibly avoid knowing 
that the outcome and technique were useful).

Even if it weren't, it was possible to do the same thing in the check_rcpt 
rule set by reintroducing the envelope from value in a substitution rule 
there. Doing it in the check_rcpt rule set meant the error was sent in 
response to the RCPT command.

A person skilled in SMTP server configuration for the purpose of blocking 
could not have avoided knowing that this outcome and technique were both 
possible and useful. Skilled means more than just having pasted in a formula 
found on a web page - in the case of Sendmail it means being able to write a 
sendmail.cf rule set from scratch.

Of course in software patent defence litigation, having the right expert 
witness is key. It isn't enough for the expert to be a software expert - they 
also effectively have to be a lawyer. They need not only to be able to say 
something is obvious, they need to be able to convince the judge (or, where 
applicable, the jury - although that's easier than convincing a judge in most 
cases) of that fact. Among the things they have to convince the judge of is 
that they understand the concept of obviousness under patent law, then they 
have to be able to express the degree of obviousness so that it fits within 
that concept.

Reading through software patent cases can be quite discouraging for somebody 
who does have all the relevant pieces of knowledge, because this disconnect 
between the software experts and the judges is blindingly apparent. 

--
Troy Rollo
[email-masked]   Executive Director, iCAUCE