The Virtualization Room

Jun 20 2007   10:31AM GMT

Why the eGenera Patent is Dangerous

Joseph Foran Profile: Joe Foran

Tags:, Gridtoday, the eGenera website, and a lot of other sources reported that eGenera has received a patent for an all-in-one N+1 tiered disaster recovery solution that combines grid technology and virtualization to provide a hardware-neutral Disaster Recovery product that takes your entire data center and encapsulates it. This is an awesome product because it can greatly improve DR and perhaps make DR more accessible to smaller businesses, but it’s not patent-worthy. It smacks of a way to stifle competition and generate revenue via patent suits over product sales. Or it may just be that patent itself is just pointless. I’m not sure which case is more true, honestly. It all depends on if it’s challenged, and how.

DISCLAIMER: I’m not a lawyer. In fact, I don’t ever even want to be a lawyer. I’m happy as an IT Director and SysAdmin, and don’t want to ever be a source of legal advice. The below is informed opinion, not legal advice. Tell it to the Judge. Under the recently-relaxed “Obviousness” rule that governs patents, a patent is useless if the idea behind it is only an obvious improvement over an existing idea. eGenera’s patent seems to fall squarely under that rule, from the language in their patent application. Just for kicks, I read it, and will quote it. Under the quotes I’ll comment on what this means, in my not-so-humble and not-so-attorney opinion.

It starts out with a SCREAMING cry of obviousness in section 1…

“A method of providing processing resources to respond to a fail-over condition in which a primary site includes a configuration of processing resources, comprising: generating a specification that describes a configuration of processing resources of the primary site; providing the specification to a fail-over site having a configurable processing platform capable of deploying processing area networks in response to software commands; using the specification to generate software commands to the configurable platform to deploy processing resources corresponding to the specification; wherein the processing resources at the primary site include a plurality of independent processing area networks and wherein the specification describes only a subset of the plurality of independent processing area networks. “

That, my friends, is commonly known in the IT field as a failover cluster.  The link even defines the N+1 method that eGenera is using in its product. The short of it – You have multiple boxes on a network that are mirrors of one another. One fails, another takes over its role. There’s usually hardware or software in-between that keeps things synchronized and detects the failure. This part of the patent is worded to be host-, network- and processor-inclusive, which would be obvious because most clusters are situated on networks, don’t necessarily need to run the same processors, and are hosts. The “big” improvement is in the use of the term “site” – where the product is meant to restore an entire data center’s configuration. In the press release, this means that if you have four data centers and one disaster site, if any one data center fails, the disaster site takes on the complete configuration of the failed site (i.e., all nodes, network configurations, etc.). This is a huge step forward in disaster recovery, but it’s not patent-worthy because there are a zillion ways to do this.

Here’s one – If you put 100% of your data center(s) onto VMware’s VI3 with shared storage, and had a huge WAN pipe between each site to cover the overhead, you would have this “network in a box” N+1 approach because ESX provides virtual network switching and virtual guest machines, without having to worry about the value of N except in scalability terms. The same is true of most Xen-based products, like Virtual Iron. I’ve been doing this for years on a much smaller scale. If my main data center drops off the face of the earth, I’ve got all of my critical systems in VMware, with snapshots and backups of the machines and the storage they’re on, as well as configuration of the virtual switches. If the worst happens and my data center goes down, my staff and I drive over to a remote office, restore, and have exactly what eGenera is talking about – a complete restoration of all configurations at a remote data center. The method – backing up virtualized systems. The process – recovery to virtualized systems. It’s not as slick as an automated system, but we’re getting to the point that eGenera talks about in its patent (thanks to an Open Source project called Openfiler and some extra bandwidth on our WAN to handle sending snapshots between sites rather than driving tapes around).

Soon, the site backups will be automatically done over WAN links, meaning that when something fails, I switch over to the DR network and everything comes back online from the virtual machine snapshots / backups. It won’t be long after that until we automate that switchover, and have exactly what eGenera is describing. It’s been a long process because that deep a level of DR isn’t a critical requirement to the business, but it was obvious where we wanted to go, and obvious how we needed to get there – through the use of virtualized host and network environments.This brings me to the next few sections:

“2. The method of claim 1, wherein the act of using the specification to generate commands to deploy processing resources is in response to the receipt of a fail-over condition.

3. The method of claim 1, wherein the act of generating includes specifying data specific to device configuration at the primary site.

4. The method of claim 1, wherein the act of generating includes specifying management information relevant to the primary site. “

Summary – we’re patenting how we’re going to do what we claim, how we’re going to encode the configuration, and how we’re going to send notifications when it kicks off. All irrelevant if the concept of the patent is obvious. Also these are all in themselves obvious – any virtualized system has to have information on configuration of the underlying virtualized hardware. Any cluster sends notification on a failure of a node. Any mirrored port has awareness of the cache in its partner port. Outside of the patent office, and in the IT office, this stuff goes without saying.

Next up, section 5… this is identical to section 1, except the last few words: “wherein the specification describes all of the independent processing area networks.”. There’s no significant difference as to obviousness here – it’s just the parts of the patent which are different from each other that are referenced. This is a matter of scale – rather than a “subset of the plurality” (English: part of the whole) this is a “master file” of the entire environment being monitored. It adds grid technology into the mix, another obvious case for virtualization.

Section 6 changes the plurality part to “a minimum configuration of processing resources at the primary site”, which is just saying that the system will use the most efficient (i.e., minimal) configuration possible to get the job done. Duh. Do I have the same number of VMware hosts at my remote sites? No, I don’t. I don’t even always have the same builds or even the same versions! Do I have all of the same configurations? No. Can I really bring up 100% of my data center at a remote site? Sure. And eat a performance bullet on the servers.

So what would I do? I would bring up critical systems only – Active Directory, DNS, Email, mission-critical apps. My Jabber server would stay down. My dev environment would stay down. I would run the minimal configuration I need to get the business working. Can it get any more obvious than “if I don’t have the all the resources I need, I’ll get by with what I have, the best that I can”?

The seventh section tacks this part onto the end: “…wherein the primary site includes a configurable processing platform having a pool of processors and wherein the act of generating includes specifying information descriptive of how the processors are pooled at the primary site. “A pool of processors. Also known as a computing grid. And it goes on to describe having a documented system for how that grid works, and tying that to the application. This is truly obvious. If you have a system, you document it. If you have an automation system, it’s documented, and it uses documentation on how the system it automates functions. This sort of thing has been around forever.

On a non-grid level, Detroit has been outsourcing human labor to robots using this exact methodology for decades. On grids, this is how they work… regardless of distance. Each node is aware of each other node, and so the grid has an internal documentation of the pool of resources that are available.

Section 8: “The method of claim 7 wherein the act of generating includes specifying data to describe logical partitioning of processors and interconnectivity into logical processing networks. ” This is the virtualization component. In virtualized systems and virtualized DR products like VMware’s VMotion, this is a core component of how the systems work to provide fault tolerance. The service console knows what virtual machines are out there, and what host systems are out there. It has descriptive information about the resources, how they’re pooled, and how they’ll be moved in the event of failure. eGennera’s idea is obviously a small improvement to the process, applying it towards a virtualized grid concept, but it’s not a huge leap forward (again). Virtualized grids have already been in the works for some time. See here and here.

Section 9 states:

“A system of providing processing resources to respond to a fail-over condition in which a primary site includes a configuration of processing resources, comprising; a computer-readable specification that describes a configuration of processing resources of the primary site; a configurable processing platform capable of deploying processing area networks in response to software commands; logic to generate software commands to the configurable platform to deploy processing resources corresponding to the specification; wherein the processing resources at the primary site include a plurality of independent processing area networks and wherein the specification describes only a subset of the plurality of independent processing area networks. “

In other words, the systems to the methods described above.

Section 10 is similar, switching plurality for totality like sections 1 and 5 did. So they’re going to build a computer system to do what DR specialists and Virtualization specialists have been doing for some time now, only under a commercial brand. Seems obvious to me.

The next sections reference art that I won’t reprint or link to here, as they’re not very original. In fact, the art is as obvious as the concept for this patent. I won’t need the art to describe the obviousness of some of what is printed in the text. Here’s my favorite example so far:

“To date, a considerable body of expertise has been developed in addressing disaster recovery with specific emphasis on replicating the data. Processor-side issues have not received adequate attention. To date, processor-side aspects of disaster recovery have largely been handled by requiring processing resources on the secondary site to be identical to those of the first site and to wait in standby mode.”

Processors have not received adequate attention because in virtualized environments, they are largely irrelevant as long as you’re not mixing widely different types (such as AMD and Intel). You do not need to maintain identical processors, or quantities of processors, or anything like this. I can restore the virtual machines running on my Intel dual core Xeon servers on my Intel single core Xeon machines with a great deal of flexibility amongst processor family types. Does it matter if one is 2.8GHz and another is 1.6GHz? Not really. The processors at my remote sites aren’t sitting in standby mode, either. They’re running apps on the local servers. They are live, running, and chugging along. They’re ready to load up more virtual machines and take over the load at any time.

So, considering the giant logical fallacy presented here, I’m left wondering if there’s even a need for this patent. I could get REALLY brave and open up a huge pipe to the remote sites and run shared storage and VI3 over my WAN… assuming I had unlimited funds for a 1+gig WAN pipe, and then I could get away with having no other process beyond VMware’s built-in recovery with VMotion, CB, and HA.

And yes, I recognize that not everything can be virtualized, but in all honesty, what eGenera proposes is no less disruptive and impactful to a data center than that of virtualization. The rest of the document gets into specifics and details that are very patent-sounding, detailed diagrams, how the parts of the product will work, a definition of PAN (processor area network, as opposed to personal area network), how control nodes manage the environment, etc.

Here’s the summary: We’re going to build a set of interconnected boxes that will virtualized your environment down to the tiniest level. Then when something fails, we’ll load up resources at a remote site and make it all come back online.

Can it get any more obvious than this? It seems like eGenera is using patents to block competition. It strikes me that the folks as eGenera collectively went “Oh, I have an idea to improve this and this and this. It seems kind of logical, but we should patent it so nobody else with the same idea can compete with us without licensing from us”. It’s a great product, but it uses existing technology and existing ideas about how to use technology to provide a product that is already out there, just not in a commercial pacakage. I personally don’t think the patent will stand up to challenge, given the recent changes to patent law.

2  Comments on this Post

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  • Joe Foran
    Two Corrections I should not about my post: eGenera is incorrect... it's Egenera. In the i- and e- crazy world of ours, I occasionally forget who's put the e in the correct case. Egenera's patent may be a whole lot of obviousness, but at least they aren't following a needs-to-go-away trend. Also, when I mentioned VMotion in terms of DR, my intent was to mention it along with the other two components that make up the Holy Trinity of VMware DR - High Availability and Dynamic Resource Scheduler (DRS). That's what you get for posting something long enough to give yourself writer's cramp... or typer's cramp as it may be.
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  • Gillian Farquhar
    Joe - while this is a (very) late reply, I'd like to see if we can open up a dialogue, as clearly how we're different and why this patent is valuable and justified is unclear from our filing alone. I can assure you however, that Egenera is in the business of innovation and driving customer value - not in the business of defending patents or as you say, "stifling competition" (we have plenty!). When we apply for and are granted a patent, it is because our approach, processes, methods and root technologies are unique. Please contact me if you're interested in a discussion. At the very least, we can open the communication channels in a more positive way.
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