Research in Science

Some great comments on science policy by John P. Holdren, the President’s Science Advisor.   His comments beginning on page 2, about the role of basic research and the social sciences is particular pertinent.

Another kind of attack on science

A few months ago, I wrote about some of my concerns with anti-science behaviors and beliefs. I received several responses I did not approve for posting, from people who displayed the same ignorant biases I wrote about. I received only a few items in support. That may be a reflection of my readership, or it could be further evidence of the problem.

In the months since then we have had a number of things pop up that have reinforced my concerns. One example was the amendment  introduced by Senator Coburn to the Federal budget that curtailed some of the funding for the NSF in social sciences. Another is the recent indication that Representative Smith is trying to change the fundamental mechanisms of funding for NSF to exclude science he (or his political cronies) don’t understand or don’t like. Many other bloggers have written about the attacks on science, such as this one in Slate.

There is now news of a much more insidious attack, and one that represents both the increasing cultural hostility towards inquisitiveness and extreme paranoia about “terrorism.” See this article and this article for an overview of the details. In summary, a young woman tried an ad hoc chemistry experiment, based on something she viewed online. An older version of this would have been putting baking soda into vinegar; this version was some toilet cleanser and aluminum foil. It basically popped the container it was in. Some school administrator saw this and called the police. She was charged with felonies similar to what one might use against a terrorist, and expelled from school — all for something that most of us have done as children.

There is a petition open at change.org on this issue. I have signed it. I encourage you to consider also signing.

However, I went a step further and sent email to three of the decision makers in the process: the school principal (Ronald Pritchard), the school superintendent (John Stewart), and the Polk County Sheriff (Grady Judd). My letter is enclosed. You might wish to send your own letters. Or not.

[Update: the email address for Grady Judd does not appear to work any more.]

My letter:

To: Ronald.Pritchard@polk-fl.net, pio@polksheriff.org, john.stewart@polk-fl.net
From: Eugene H. Spafford <spaf@purdue.edu>
Date: May 2, 2013
Subject: What a terrible message you are sending….

Gentlemen, I am a senior faculty member at Purdue University. I hold patents and international awards for my research. I have been an advisor to the President of the US and testified before Congress.

As a child I was interested in science, particularly in chemistry. I conducted ad hoc experiments in my yard, and via my school. Those activities encouraged me to ask “why” and investigate further, leading to a career of science-based activities.

What you have shown, with your blind application of law and regulations to Mr. Kiera Wilmot, is not only a significant lack of common sense, but a lack of appreciation for curiosity and initiative. This was not a case of someone with a handgun shooting up the school, or creating an explosive device out of a pressure cooker. It was a young girl trying (perhaps unwisely) an experiment she found online. This is barely different from experimenting with combining baking soda and vinegar in a pill bottle — something you yourself may have done as children.

Ms. Wilmot’s curiosity suggests potential for a future in a STEM discipline — and our country (and the world) need more experts in these fields. Ms. Wilmot, as a minority female, is especially rare among my colleagues in the sciences. Your actions not only may quash her interests, but serve as a severe inhibitor of curiosity by any other young people in your area. Rather than being educators and promoting your community, you are serving to stamp out curiosity, ambition, and learning.

Your proper course of action would have been to explain to Ms.Wilmot the dangers of trying such experiments without permission (and presumably, without safety considerations, such as goggles), and then used the incident as a teaching opportunity for her and her peers. Not only would you have deflected other such ad hoc activities, but you would have been directly addressing your mission of education…if indeed that is the mission you see for Polk schools.

Simply stated, you have overreacted in the extreme and made yourselves the butt of pointed comments around the world. You have also hurt that young woman and her future, and initiated a ripple of damage to your community. Shame on you.

You still have an opportunity to make things right: rescind the expulsion order, drop all legal charges, and make an effort to encourage Ms. Wilmot’s interest in science, rather than to punish her for curiosity.

Sincerely,
Eugene H. Spafford, Ph.D., Sc.D
Professor and Executive Director
Fellow of the AAAS, ACM, IEEE, ISC^2, ISSA
http://about.me/spaf

Disclaimer: Purdue University is listed for identification purposes only. My opinions do not necessarily represent any official or public position of the university or any of its personnel other than myself.

Paranoia or Pattern Recognition?

Last year, I wrote this post about the increasing danger posed by fundamentalism in the U.S.A. — not Islamic fundamentalism, but so-called Christian fundamentalism, and its threat to science. (And here are some supporting thoughts published via Scientific American and the UK Guardian.)

This morning, as I finished my second gallon of coffee , this post set me off: Blind, severely disabled boy forced to take standardized test. That was on top of the news from yesterday that Senator Coburn had finally succeeded in getting one of his attacks against NSF included in a funding bill.

I can’t help but wonder if these kinds of things aren’t continuing salvos in a deeper agenda — one that not all of itds supporters may have even thought about. Then again, maybe I’m feeling especially paranoid and caffinated today, but….

First, think about the ideological attacks on public school teachers as moochers and incompetent (think: Wisconsin as a glaring example, and here’s a good explanation of the phenomenon). The thrust of these efforts is to drive their pay and benefits so low that the profession is completely unattractive to anyone with competence (let alone, excellence). Coupled with this are passage of laws that threaten their pensions and prevent them from using unions to resist.

More or less concurrently, the laws have been set up to penalize schools based on testing — forcing every student to take tests that they are set up to fail, thus depressing the scores to provide “proof” that public schools are “failing.” (As an aside, if only we had similar evaluation of the legislators passing these laws based on scores rather than financed, partisan elections…..)

Another step is to open up voucher programs and make them easy to get for parents who want to opt out of public schools. This further erodes the resources for public schooling. It also boosts the attendance at schools that teach crap creationist “science” and revisionist history (think: the fairy tales that Michele Bachmann and Sarah Palin spout). The adults educated as children in these schools will almost certainly tend to vote for the know-nothings who are engineering the destruction of real education, and will want their own children to attend these New World madrassas rather than be exposed to reality.

So goes the spiral as secular, scientific, reason-based education circles the drain.

Couple this with the mantra of “must eliminate the debt and big government” that are used as excuses to cut research (Senator Coburn’s vendetta against NSF is one example, and shuttering NASA programs another), cut early education and child support, continually reduce higher education support and scholarships, and block appointment of any Federal judges many of whom show evidence of understanding separation of church and state,… hmmm, what else? Concentrate the wealth and thus much of the political power in the hands of an elite that are largely separated from average people. Mix in the advocacy of increased military spending. Paint Islam and China as looming threats. Extrapolate from those data points, and many more you can add in.

Let’s see. Cut away at good secular education, deny advanced education for any but the dogmatic, undercut chances at economic freedom, the privileged are “more equal than others because they work harder,” promote an agenda of extreme ideals, and beat the drum for “vigilance” against heretical foes. What comes to mind? Orwell’s 1984, Nazi Germany, the early Soviet Union, North Korea… and the USA of 25-35 years from now? Foster ignorance, economic stagnation, and rabid ideology, and it is simple to move to totalitarian control.

All this is coming from one end of the US political spectrum, and one political party. Is it surprising to anyone if they might have delusions of the US as a sectarian military power dominating the world with their ideals? If not, ask yourself — what threatens that vision? What is “under attack” according to their rhetoric? How could they change the U.S. to be more suitable to their view of domination? And is that inconsistent with what has been happening?

Am I getting all that from 1 report of insane rules overapplied to a child in Florida? Nope. But I’ve seen so much of this in the last few years, and especially this week (the Coburn move against NSF being the most irritating) that, coupled with too much coffee, here’s my rant.

I can guess at some of the people who will read this far and who will denigrate everything about it. Sadly, those people are almost certainly aligned with the ones helping perpetrate the decline, perhaps even without thinking about where it all might lead. The most dogmatic are the ones who are most easily misled and who most quickly rise to their defense.

If we care, we need to push back. Push back against Senator Coburn, and Governor Scott Walker, and Reps. Paul Ryan and Michele Bachmann, and all the other demagogues who would happily push us into the world of The Handmaid’s Tale.

Even if I’m not paranoid it doesn’t mean that the know-nothings aren’t out to destroy all teaching of science and history they don’t like (which the rest of us can call “reality” for short). It doesn’t mean they won’t try to push their religious views on us. And it doesn’t mean they won’t seek to hobble — economically and politically — everyone who doesn’t agree with them.

All it takes for those ideals to win out is for the rest of us to allow those demagogues to keep getting elected and spouting their nonsense on radio and TV without correction (e.g., that “reality” stuff). Does it matter to you, or are @lolcats, “The Batchelor” and “Jersey Shore” all you really care about? Based on response from three different classes this week, less than 10% of even the best educated are bothering to keep up with the news — they didn’t know about the cyberattacks in South Korea, that the President was in Israel, that China had elected a new premier, the financial crisis in Cyprus…. but wow, several of them certainly knew about who was on “Dancing with the Stars” and which teams were in the NCAA basketball tournament. I’m beginning to wonder if the forces of ignorance have not already won.

Crossing the Bar

Today, I lost another part of my history. My aunt died at age 93. We knew it was coming, so it wasn’t a surprise. She was in a lot of pain towards the end, so some people call that “a blessing.” Perhaps. Life is a blessing, although we don’t always see it that way. If there is something that comes after this life, perhaps it is a blessing too, although we may not realize that now.

She wasn’t an aunt by blood, but by family. She outlived 3 husbands, and her second husband was my father’s twin brother.

Elsa lived in Rochester, NY for a while. She met Bob Jobe while in college, and they were married only 3 months when he was called up for service in the Army in WWII. Her new husband did not come home from the war. She would have been in her early-to-mid 20s then, probably in 1942 or 1943.

My paternal grandfather and grandmother lived in Rochester, NY. They moved there, from Canada almost directly across Lake Ontario, early in their lives. My grandfather worked at Kodak, and had met George Eastman. Markus and Ila had 3 sons: Norman (b. 1916), and fraternal twins Howard and Raymond (b 1918). Norman was the oldest, and Howard and Ray were fraternal twins. Norm went on to be a school teacher (and taught some of the first computer courses in high school in NY State!). My father was always good with math, and Ray with electrical things and radio.   My father went to the Miami University of Ohio, where he finished his degree in accounting and finance in 3 years. He then went to work at Rochester Products, as a quality control inspector.  My uncle Ray became an electrician at Kodak and was taking courses part-time, apparently at RIT. When WWII came along, both enlisted in the Army; my father had a deferment because he had a skilled position making parts for planes, but didn’t feel it was right because he saw married men being drafted.  Perhaps because he was color-blind, or maybe because he only had 3 years of college (even though he had his degree), he was given an enlisted position and sent to an anti-aircraft battalion in Europe. Meanwhile, Ray’s background and probably some good scores on the aptitude tests resulting in him being made a lieutenant in the Signal Corps. I know my father was deployed in various places throughout Europe, and his company participated in the liberation of one of the concentration camps (he did not talk about it with us until he was in his 70s). Ray was deployed (I believe) in Asia but I don’t think he saw any combat.

When WWII ended, my father came home and took a job in Rochester.  Ray left the Army in 1946 but stayed on for two years in Korea as an advisor to the Signal Corps there, leaving before that war started. He returned home, possibly because my grandfather died in 1948. (Tragically, he died on the day my mother and father were going to be married; they postponed the wedding a month). Ray then used his GI benefits to complete his education at Ohio State, getting a degree in electrical engineering and in business administration. He went back to Kodak, this time as a project engineer, and worked there for six years.

Before meeting my mother, my father had met Elsa and they dated a while. At some point, Elsa and Ray met, and apparently really hit it off. They were probably married around 1950?

My aunt Elsa was a remarkable woman. A child of the end of WWI, she grew up to be extremely independent. She read a lot and was quite intelligent. In another day she might have gone on for an advanced degree, but that wasn’t an option in the mid 1940s — not only because of WWII, but because that wasn’t something women did then. She ended up getting a job with Kodak, first as an executive secretary, then after moving to California she was a film tester with a great deal of autonomy. That was unusual for a woman in those times — she tested film and cameras for Kodak. They gave her test film and sent her all over to photograph things so they could see how the film behaved.

Ray and Elsa in California in 1966

In 1958, Ray and Elsa moved to live in California, in Portola Valley, to be near my uncle’s new job with Lockheed in Palo Alto (possibly at NASA Ames?). He worked on advanced (and at the time, secret) supersonic aircraft and even spacecraft in California. I wish I knew more about him, but he died too soon. And this was in the days before everyone put everything on Facebook. (It was even before the Internet.) When they moved to California and bought the land, there was no Silicon Valley. My uncle designed the house and built most of it. It still stands, on the top of a tall hill, not far from Stanford University. My aunt lived there for 50+ years, my uncle only for about 8.

While building the house, my uncle fell off the roof and fractured some vertebrae, but luckily didn’t damage his spinal cord. I remember him and my aunt coming to visit when I was around 8 years old. He had a back brace on. I don’t recall him ever without it. He brought me some puzzles, and (I think) a book on ciphers. I thought it was “The Codebreakers” (David Kahn) but the dates don’t match. I remember that something he gave me or told me about got me interested in cryptography at that early age, and it never left me. I remember talking with him about science and space exploration. How I wish he had lived longer so I could have talked to him about my career.

My sister, Ray, and me in 1966

He was ill then. He developed bladder cancer at some point, and was misdiagnosed. After they found it in 1962 or 1963, it spread despite surgery and radiation. He died 10 days before my 11th birthday, at the age of 48, in 1967; he was buried on my sister’s 9th birthday. That was not a good year for us, for many reasons. It was especially tough on my father although I don’t think I quite understood how wrenching it was, because he kept it all in. Losing a sibling must be difficult, but to lose a twin… My father was a child of his times and didn’t let his feelings show that often, as that “wasn’t something men do.” Someday I need to write some things about his life, because he had so many struggles.

Elsa, of course, was devastated by Uncle Ray’s death. My Uncle Ray had been the love of her life. I don’t know how long they were married but it might have been as much as 18 years. And he was the second husband who died prematurely.

Shortly thereafter, Elsa made a promise to my sister and myself, based on a conversation she had with my uncle before his death: she had put money aside in special accounts for us, to be used for our college expenses. So long as we made good progress and good grades, we would have all our books paid for. This kept up while my sister and I both completed undergrad, then masters, then Ph.D.s for each of us. That small amount was a great help because we really didn’t have much in the way of financial resources. And then, at some point after graduation, she gave us what was in the accounts — which looked like near the amount they had started with. She also gave us great moral support over the years, encouraging us to go out into the world and explore.

When I finished my BA and was going to go spend weeks in Europe with my sister, backpacking around, Elsa gave me a 35mm camera to take with me — an almost new Pentax automatic, very state of the art. Her only condition was that I had to use it, and she had to see the pictures some day. I still have boxes of great slides from those years with no projector, and I don’t think my daughter will ever want to see them….

While at Lockheed, Ray (and Elsa) met another person there with great stories to tell. John Roscoe was a widower or divorcee with a Ph.D. from the University of Maryland (his dissertation was published as a 6-volume set!), and was a former Colonel in the USMC. He had worked for Admiral Byrd in Antarctica — there are two geographic features there named for him: Roscoe Glacier and Roscoe Promontory. I found a short bio online, and it has quite a bit more on him.

When my Uncle Ray died, it was a big loss to all their local friends and colleagues. Apparently, John was a good friend who helped Elsa through the ordeal, and … they got married a little over a year later.

Elsa retired after several more years working at Kodak in California but kept active in the community, the Sierra Club, and spent a month every few summers in Polynesia as a helper at an archaeology dig. She volunteered for various other things too, including the U.S. Geological Survey Volunteers For Science. John had several heart attacks in the late 1990s, and his mobility greatly decreased, but he and Elsa continued to travel and follow their pursuits. John died in 2007 — Elsa’s third husband, gone, too.

The last few years were tough on Elsa, as the years advanced. She developed illnesses that sapped her strength and led to pain, but they didn’t really dim her cheer and curiosity until a short while ago.

I was able to visit her in October on one of my infrequent trips out to California. She was thin and frail and clearly not well, but she was wonderful to visit with. I spent the afternoon with her, but she was clearly fatigued by it. The times I called her in the months after that she sounded weaker, but was still so happy I had visited.

We heard a few days ago that she had taken a turn for the worse and was in hospice care. My sister and I spoke Sunday night about trying to connect with her on the phone one last time. But Monday morning we received word of her passing.

My last uncle — my father and Ray’s older brother — died last year, in August, at 96. My father died 6 years ago, at 89. My mother died earlier than she should have, in 1996, but my daughter bears her name, and has a little of her quick wit, so she is still with me. There is no one of my line before me still alive, and only a few cousins left from my parents’ generation. There is no male in any close branch of the family to keep the Spafford name — and the Y chromosome — going, although there are many distant cousins I have never met.

The death of my Aunt is a sad event, but not grievous. She was a wonderful woman with a full life, and I hope she had no regrets at the end. She will be missed by many people. But her passing is also another frosty gust of the winds of time, which I notice more each year. When I was young, my mortality was never even a brief thought. Now, I wonder how much more time I will have for a few of those things I want to try — or try again — and time to regret the things that didn’t quite work out? I joke about how people will remember me… if they do. I have no glacier named after me, or theorem, or building, or scholarship.

I think of Elsa. She was vital well into her 9th decade. She died without having children, yet, there are many who will remember her for some time to come. She made a difference. Perhaps that is the best thing to say about someone — they made a difference: the world was better they were here. That was true of Elsa.

I seem to recall that the Australian aborigines believe that uttering the name of people who have died, or showing their likenesses or anything they have made awakens their spirits and keeps them from the Dreaming — the time of peace after death. So, they erase all instances of the name and never utter it again, and sometimes destroy everything made by someone who dies. The quicker that person is forgotten, the sooner the spirit finds peace.

I’m sorry, Elsa, but we’re going to hold you in our hearts a little longer. Dreamtime will come, but for now, we remember you.

[Edited 2/19/12 based on my sister's comments]

[Edited 2/20/13 based on info from Carrie S.]

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My Time in Delaware –or- Fun With Patent Litigation

I was recently involved in a major patent infringement case. Quite a few people knew I was involved and asked me questions I couldn’t answer until the case was finished. That happened recently — the jury returned a verdict on December 20 — and so I’m going to recount a little of the experience here (I still have to be somewhat circumspect and not reveal any confidential information). But first, I’ll provide a few comments about patents themselves, although the reader should understand this is not intended to be a formal or complete description; I’m not a lawyer, and I’m not trying to convey even what I know about patents here — simply provide enough detail to give context to my story.

A Little About Patents

Patents are an important part of research and commerce. They are one form of protection of inventions. Without patents, many inventions might be kept in secret with the potential that they might not be widely used; in the middle ages, many discoveries were kept within families or small guilds, and some were lost as a result of accident or disaster. Patents help ensure that discoveries are disclosed for the public good, but still allow the inventors some opportunity to profit from their hard work (or accidental good luck).

Very generally speaking, in the U.S., patents are granted to parties that file for them based on new, non-obvious inventions, processes, or formulations that they have developed/invented. Applications that are obvious or represent inventions already available in some other form are supposed to be rejected. The usual legal language when discussing a patent is that it “teaches” the claims made: the patent is supposed to enable others to build/practice the claimed item. Patents are supposed to be granted only for new and novel things, and granting the patent should “promote the progress of science and useful arts” (as stated in Article I.8 of the U.S. Constitution).

Patents are composed of a general description (“specification”) that usually includes drawings and references to related work, and a set of numbered claims. Each claim is a description of an item that may teach a particular aspect of the claimed invention. The applicant is supposed to disclose any relevant related references to the U. S. Patent Office at the time of application. The examiner at the Patent Office will look at references, look at other patents and materials, and make a determination of which (if any) of the claims will be granted. Sometimes there is a back-and-forth between the Patent Office and inventor to clarify issues, revise claim language, and change scope. A patent may take years to issue.

Claims have elements, which are identifiable parts, often expressed as comma-delimited clauses. Complex claims may have many elements. Claims may be independent, that is, standing on their own, or dependent, which means they are an extension of an independent claim. For instance, an independent claim might be for a table, and a dependent claim would be for that same table but with casters on the legs, and a different dependent claim could be for the table with a drawer in the side.

Where things get complicated in computing is patenting software. Those of us who work in computing know that a computer — anything from an FPGA to a general-purpose mainframe — may be programmed to do different things. When equipped with the right peripherals and software, the computer becomes a new “thing.” It is because of this general equivalence that software has been patentable for several decades. Most patents involving software have parallel claims for patenting a “system” and a “method” to be sure to cover the possible permutations.

There is a lot more about patents (and more precise legal info) that I won’t try to summarize. Instead, I will now expand a bit about infringement.

If the holder of an issued patent finds that someone else is “practicing” any of the invention patent claims, then that owner has the right to seek compensation or control over that use by the other party. That can include retroactive compensation, and it may include some kinds of prohibitions on the other party continuing to use the patented inventions. Typically, the patent holder would contact the other party to negotiate licensing terms. If such negotiations fail, or the other party disputes the infringement contentions, then the next step is often a lawsuit in Federal court. (Patents are granted under Federal law, and therefore trials take place in a Federal court.)

In an infringement lawsuit, the plaintiff (patent owner) will try to prove that some claims of the patent have been infringed (used). This may involve court-ordered discovery of documents, source code, equipment, and more, as well as sworn depositions by various people. To prove the infringement, every element of each asserted claim must be shown to be present in the alleged infringing product. This is typically a task that is performed by one or more domain experts.

The defendant(s) have two main kinds of defense when accused. The first is to try to show that the claims in the patent are invalid — that there was prior art or other patents that exactly matched the claims and were in public view before the claimed patent was filed. To do this, it is necessary to show that each and every element of a claim was present in some prior art in a fashion that would allow someone skilled in the art (familiar with the field and its literature) to reproduce it, or that some combination of items would make the claim obvious to that person. The second level of defense is to show that even if the claim is judged valid, the product doesn’t infringe because one or more elements of the claim are not present in the accused item. Invalidity and non-infringement presentations are also often argued by domain experts (such as me, in this case). (There is more to it all than this, but this is the gist of it.)

In the trial, if the patent is held as valid and infringing, then the two sides argue over what level of damages should be awarded to the plaintiff based on market share, value, and more.

The jury hears evidence of all this, and then deliberates on the questions — are the claims valid, are they infringed, and if the answer to both is yes, then how much should be awarded? If the jury finds the patent invalid, it’s all over and the patent claims can’t be asserted against anyone else, either. (Leaving out issues of appeals courts.)

The Case In Question

In July of 2010, a company named Finjan sued 5 other security companies over alleged infringement of many claims in two patents held by Finjan governing protection against malicious software (in the vernacular, “viruses”). Those companies were Symantec, McAfee, Websense, Webroot, and Sophos. The suit was filed in Delaware. (Why Delaware? I’m not certain of the exact reasons in this case, but many companies incorporate in Delaware, or have a presence there, so it is a likely venue for such disputes.) The patents at issue were 6,092,194 and 6,480,962. They were effectively filed in late 1996/early 1997. They described methods and systems for gateway and host (respectively) protection against malware. Finjan had won a different infringement trial against another company (Secure Computing) a few years prior on one of these patents, and got a significant judgment. Thus, the assertion of two patents against these five defendants — including arguably the 2 or 3 of the largest in the antivirus industry — was a Big Deal.

I have been doing occasional legal consulting for over 20 years through a small consulting firm where I am a principal (CSSCS, LLC). I’ve testified several times, and done work including rendering invalidity and non-infringement opinions on patents. As someone with degrees, work experience, publications, and peer recognition, it is straight-forward to be recognized by the court as an expert in computing generally, and issues of cyber security more specifically.

I was approached in late 2011 by lawyers representing Symantec about serving as an expert to provide an opinion regarding the validity of the asserted claims in the patents. I was, in many senses, the best choice: I was primary author of the first book in the US about computer viruses and malware (in 1989), had done research in the field early on (1987 onwards), taught classes in the subject, was on related editorial boards, wrote research articles in the area, and attended many of the professional conferences. Additionally, I have a good reputation, present well, and have nifty bow ties. There really isn’t anyone else with quite the background and qualifications that I have. Additionally, I had worked as an expert before for both Symantec and McAfee, but currently had no connection with any party to the trial. I was retained, with the understanding that I would analyze and provide an independent opinion on the asserted claims of the two patents for several of the defendants (the same argument works for all); each would have their own non-infringement experts, however. I had worked with some of the firms and people before, and respected them for their professional behavior, so I agreed.

Over the course of 2012, I re-read a number of references from years past and read some I had not seen before. I ran experiments with software from the time (some of which I had been using and testing back in 1989-1995) on period computers. I pored over source code. I read the patents and their history. Finally, I whittled my list down to about a dozen instances of prior art; I was thoroughly convinced by then that the patents were invalid because all the ideas in them were present in the public for some time before the patents were filed — including some going back to the late 1980s.

Following this effort, I supervised the preparation of my final report. It was quite long because of the element-by-element matching against prior art from different places. Because of the dependent claims, and parallelism of elements in independent claims, a lot of material was duplicated from claim to claim, but each instance adjusted to directly address the specific claims. The result was a document that, including all the appendices, was many hundreds of pages long. This was then delivered to the plaintiff.

The next step in the process for me was a deposition. A lawyer for Finjan had a day to ask questions about my report and opinions. Think of it as a day-long thesis defense, under oath, on camera, surrounded by lawyers, with high stakes. Every word is recorded, transcribed, and examined for hidden meaning. Precise answers are required.

And here I’ll note one of the important things about being an expert witness that is sometimes overlooked: the expert should be candid and not seek to be an advocate for whoever is paying his/her fees — advocacy is the job of the attorneys. If the expert believes the truth of the matter is against his/her client, and is truthful about it, then it probably never even reaches this stage (i.e., no report is submitted). This is not simply an issue of the deposition being under oath. I have found in these situations, as in most of life, being honest is the simplest way forward. One doesn’t have to volunteer information beyond what is asked, but answering what is asked truthfully and directly is decidedly less stressful. After all, as the expert in the case, I’ll get paid for my time no matter how it turns out (experts should not get paid differently based on win/lose — it creates an obvious conflict of interest). Experts are retained to present the facts.

Most lawsuits on patents such as this end up settling without going to trial. Usually, the defendant would rather pay a small settlement than take the risk of losing big at trial as well as paying all the legal costs. Meanwhile, the plaintiff is often willing to settle for a smaller amount rather than run up the legal bills and risk losing in court. Thus, the chances of the case going to trial were not certain. (In fact, two of the defendants — McAfee and Webroot — were dismissed from the case before the trial.) So, I had some hope this would be as far as it went.

Trial

Yes, there was a trial. After all the reports, depositions, hearings, claims, counterclaims, and more, the trial was scheduled for Dec 3-19. The judge allocated a fixed amount of time for each legal team (1 plaintiff, 3 defendants) to present cases and rebuttal. I was tentatively scheduled to go to the stand to testify on December 7. I was asked to show up in Wilmington on November 29 to prepare. Luckily, I wasn’t teaching this semester, so it didn’t present a significant scheduling problem.

So, November 28th, I hopped in my car and drove to Wilmington — a 12-hour, 750-mile trip. Why drive? Well, I wanted to take extra clothes and reading materials, and I had room in my car. And it was a new car that was fun to drive. I also thought I’d have many free evenings and weekends so I could use the car to go out to eat, shop, maybe see a movie or two. Ha!

Symantec’s legal team had taken over a whole floor of a building with offices, meeting rooms, and kitchen. They had a graphic arts team in place, and all sorts of staff support. The whole group, plus the outside experts (including me) were housed in the classic Hotel DuPont, a block away. It is a beautiful older hotel that I recommend to anyone staying in the area. It has much more character than a chain hotel.

I never got to see those movies or head out to shop. Instead, I ended up working long hours every day I was there, preparing to testify. That included, among other things, supervising the preparation of slides for use during my testimony, and reviewing the voluminous materials relevant to my testimony: I wanted to be ready for anything! All three meals were brought in each day for all the staff and witnesses — I was far from the only one working long hours. Basically, the scenery for me was the walk between the hotel and office building, and some trips down to the courthouse to sit in on some parts of the trial. Although the hotel was beautiful, and almost everyone associated with the effort in the “war room” was quite pleasant, it really got to be wearing after a short while.

Zero Hour…or Day

Finally, on Wednesday the 12th, I was called to the stand a little before 11 am. My direct testimony to the 6 jurors took slightly over two hours. (I was on the stand at 12:12:12 of 12/12/12 . I was a little tense at first as I described my background so as to be certified as an expert, but felt right at home after I started describing the code and the patent language. At 1, my direct testimony ended and we broke for lunch. I was not allowed to talk to anyone about anything relating to the case. Luckily, I could order my sandwich as it was unrelated to the patents or trial!

A little after 2pm, I was back on the stand for cross exam by the plaintiff’s attorney. It was the same person who questioned me during the deposition, and I was comfortable responding to all of the questions he asked. When that was done, I was then asked more questions by Symantec’s counsel as redirect. All of that didn’t seem to be 2 hours, but with an afternoon break, I seem to recall I was the last witness of the day and the jury broke around 4:15.

I was all set to drive back home, but we had scheduled a thesis proposal presentation by one of my Ph.D. students for Thursday afternoon. So, I slept late on Thursday, then dialed in via Skype to participate in the presentation (his dissertation proposal was approved, so now the hard part for him begins). I drove back to Indiana on Friday (12 hours), and spent the weekend in a haze trying to get caught up on sleep and email.

The trial continued, with other experts being called on non-infringement, various legal motions, and then the rebuttal witnesses and presentations for Finjan, along with their cross-examinations. In my view, the defendants’ non-infringement cases were really solid, with source code to back them up. Finally, the jury got their instructions from the judge on Wednesday, December 19. He explained the nuances of the law and the jury’s charge. They were to begin deliberation on the next day. And everyone else held their breath waiting.

They didn’t have to hold their breathing long. I was told that after only 4 hours of deliberation, the jury returned its verdict: all asserted claims of both patents were invalid! All the preparation and effort had paid off — the jury was able to see how all the claims were old ideas that had been out in public for some time prior to the patent filings.

That said, in my view, no one really wins in these cases, at least in the general sense. For example, while the plaintiffs lost the patents and undoubtedly paid some significant legal fees of their own, prior to the verdict, they had licensed the patents to others. As for the defendants, well, they won and didn’t. They won a moral victory, certainly. However, the expense must be huge. At least 5 law firms have been involved with all sorts of staff and multiple senior partners. A bunch of experts, many of whom don’t work cheaply were involved. Company personnel, many senior, had to miss work for depositions and testimony. All the expenses for travel, lodging, copying and document duplication, food (and more food plus lots of coffee and Red Bull), court costs, and more. Moreover, I’m told they have to fend off several lawsuits like this each year — it’s a hazard of being leaders in the marketplace. That’s one reason why so often these cases settle out of court: to short-circuit the expense. Ultimately, it is the consumers who pay extra to cover these costs. But there is no clear alternative that would also protect the rights of a single inventor or small firm with a justified claim against a big company (which does happen: see the movie Flash of Genius).

Final Thoughts

This whole experience was trying, and I don’t mean that as a pun. I put in a lot of time on this. Yes, I was compensated well, but it added stress because I don’t have a lot of free time as it is once I get the most pressing of my university work done. There were some weeks where I wondered if I was even going to sleep at night. And some of the self-induced stress was significant (I try to do everything really well, and that takes extra effort).

On the plus side, I helped kill two patents that really shouldn’t have been granted. I learned more about some nuances of patent law that — if I can remember them — will be useful in some of my teaching. I got to visit Delaware and see more of Pennsylvania in transit than I really wanted. I met some interesting people who were other witnesses for the defense, and some great people at the law firms involved. I expect that I may get some other calls for work as a result of this, too, and that is probably a plus (although not without some downside if I say “yes” too often).

The whole experience plus observation of the case reinforced my understanding of being an expert in these types of cases. I’ll share a few thoughts here for those who might (want to) be in a similar position:

1. Be certain you have the expertise needed. Don’t take on a case that is outside your areas or experience and expertise, because you can’t make up for the lack of knowledge. As attractive as something may be, the best thing for all parties may be to decline to take the case. Getting caught being ignorant (or wrong!) about something basic is really embarrassing and hurts the client’s case and your own professional credibility.
2. Tell the truth, simply and directly. If you don’t know, say so. Don’t try to anticipate where opposing counsel’s questions are going — because so long as you tell the truth, it doesn’t matter. The attorneys, the jury and the judge can get a sense of whether you are being evasive, and that matters at least as much as the answers themselves.
3. As an expert, you are not presenting a case for either side — you are presenting your view of the facts of the matter. The lawyers are the advocates for their clients, while the experts are the advocates of the truth. The judge is the arbiter of the law. The jury is the final say in the facts at issue. Knowing the limits on one’s role is critical.
4. If you are going to be an expert, you should be sure there are no conflicts of interest that could mar your credibility or limit your ability to consider all the facts. Most professional organizations have a COI clause in their codes of ethics for a reason. As attractive or lucrative as something may be, sometimes the best thing for all parties may be to decline to take the case. (Cf, 1.3 and 2.5 of the ACM Code of Ethics, and item 2 of the IEEE Code of Ethics.)
5. Working with a professional, experienced legal team can make you look even better than you may be. They’ll really make you think and work hard, but it is worth it. Lawyer jokes aside, the vast majority of attorneys I have worked with, over time and in this case in particular, are dedicated, pleasant professionals.
6. Present to the jury. They are the ones deciding the case, even if a lawyer is asking the questions. Engage them. Look at them. Talk to them. If nothing else, you might help keep them awake.
7. Bow ties rule.

Keeping My 2012 New Years Resolutions

Only 48 hours more to go and I will have kept ALL of my 2012 New Years resolutions. This may only be the 2nd or 3rd year I can claim that.

How do I manage to keep all my resolutions? By setting reasonable goals that I believe I can keep, and by encouraging my friends and family to help me along the way.

Here were this year’s resolutions:

1. Keep up my 50+ year streak of not contracting typhoid
2. Do not take up playing the tuba for a hobby
3. Don’t become senile
4. Eat moderately and drink with restraint on every weekday whose name does not end in “y”
5. Remember to wear pants to work at least 85% of the time
6. Don’t ride a unicycle around Botswana and solicit people to donate to a charity for the pet rescued baby seals of crippled neoplastic orphans in foreclosure in “support” of my journey
7. If the Mayan Apocalypse occurs, bring marshmallows and sticks on which to toast them
8. In the men’s room, this year remember to unzip first
9. Despite his wonderful record, do not cast a write-in vote for Calvin Coolidge on election day. Again.
10. Don’t become senile
11. Remember the Maine
12. Avoid being irresistible to women. And vicuñas. And salamanders.
13. Close cover before striking.
14. Always put “i” before “e” except when sounding like “a” as in neighbor and weigh. And weird. And neither. And ageism. And counterfeit. And foreign. And atheist. And caffeine. And deceit…. OK, forget that one.
15. Do not allow myself to be abducted by aliens in UFOs more than 4 times this year. Unless Adriana Lima and Alessandra Ambrosio are actually aliens, in which case don’t stop at 4 times.
16. Do not volunteer to be a sacrifice for Cthulhu or any of the Elder Gods
17. Don’t become senile.

Odd, I thought I only had 15 resolutions….

I have only a couple of days left for resolutions for 2013. I welcome your suggestions, but keep in mind I have two principles to apply to resolutions:

• When consumed with a terrible struggle to resist some temptation — give in: voila, no more struggle!
• “When choosing between two evils, I always like to try the one I’ve never tried before.” (Mae West)

Best wishes for a great 2013!