HP is trying to patent Continuous Delivery – here is how you can help block this madness

Summary: Hewlett-Packard (HP) has filed several patents covering standard Continuous Delivery (CD) practices. You can help to have these patents revoked by providing ‘prior art’ examples on Stack Exchange.

On 1st March 2015 I discovered that in 2012 HP had filed a patent (WO2014027990) with the USPO for ‘Performance tests in a continuous deployment pipeline‘ (the patent was granted published in 2014). The exact search I used was https://www.google.co.uk/webhp?q=performance+testing++in+a+pipeline and the patent grabbed my attention almost immediately as it was around the 5th result (as I write this, it still is):

Search results for performance testing in a pipeline

I immediately tweeted and @-mentioned Jez Humble (@jezhumble) and Dave Farley (@davefarley77), co-authors of the foundational book Continuous Delivery, to alert them (their book was published in 2010, two years before the HP patents were filed).

My friend and colleague Steve Smith (@agilestevesmith) quickly created a ‘prior art’ request on the Ask Patents Stack Exchange site to coordinate the collection of references to prior art, so that we have a coordinated place to document the many existing examples of running performance tests in a deployment pipeline prior to the patent being filed. This will help us to refute this patent (WO2014027990). As of today (6th March 2015) the Ask Patents page and various Twitter threads had contributions from several early proponents of CD including Chris Read, Dan North, Jez Humble, Dave Farley, Pat Kua, Andreas Grabner, Erik Doernenburg, and Martin Fowler (amongst others).

The plot thickens

As the “WTF?!” spread on Twitter, Marco Abis (@capotribu) pointed out that not only were the authors almost literally unknown anywhere else on the internet, but that the same HP authors had filed patents for many more standard CD practices:

Here is a screenshot of the search results as of 6th March:

Patents by Inbar SHANI

For the record, here are the patent reference identifiers for these HP patents covering basic CD practices (alternate references given, and hyperlinks to the Ask Patents pages – I will update this page with links to new Ask Patent pages as they appear):

There may of course be other patents filed by HP covering standard CD practices (see below, Okay, what can I do to help?)

WT-actual-F is HP doing?!

There are two explanations I can think of for what HP is doing here. Either the authors of these patents – collectively Adam SPEKTOR, Inbar SHANI, Yaron Burg, Amichai Nitsan, Sigal MAON, Ilan Shufer, Eli Mordechai, and Lior Manor, all of Hewlett-Packard Development Company, L.P. – have been locked away in a cupboard for the last 10 years and have independently invented terms like ‘deployment pipeline’ and are filing what they believe to be genuine applications for true innovations (in which case, I kind of get it, as I think that deployment pipelines are awesome), or (the more likely explanation in my view) HP is patent trolling in a frankly stupid and disrespectful way.

So what’s the problem?

The ‘inventions’ in the HP patents have been practiced, implemented, and documented by advocates of Continuous Integration and Continuous Delivery for many years prior to 2012, particularly by people at ThoughtWorks but also by people from Atlassian, The Guardian, Dynatrace and many others (details in the Ask Patents page for WO2014027990A1).

For instance, here is extract from an article in Dr. Dobb’s (sadly now moribund) from February 2008 by Steve Haines called Continuous Integration and Performance Testing (examples use the first CI server, CruiseControl):

Now you can add performance tests into the continuous integration process. The most straightforward method is to create a new virtual project in CruiseControl, one that uses the same build script but executes a performance unit-testing target. The following shows the key changes you could make to a copy of Listing One’s project definition:

<project name=”ant-junit-performance-unit-tests”>…<schedule interval=”600″><ant anthome=”apache-ant-1.6.5″buildfile=”projects/${project.name}/build.xml”target=”performance-unit-tests.execute” /></schedule><publishers>

<onsuccess>

<artifactspublisher dest=”artifacts/${project.name}”

dir=”projects/ant-junit/profiling-reports”/>

</onsuccess>

In this case, CruiseControl is configured to check for source updates every five minutes—because performance tests take longer to run, they cannot and should not be run as frequently. In a real-world application, checking hourly is more reasonable.

Not only does the article describe the concept of running performance tests as part of CI, but it also shows how; we are also shown how to collect the results, using JMeter:

Once integrated, you define a JMeter Ant task by adding the following to the Ant script:

 <taskdef name=”jmeter”classname=”org.programmerplanet.ant.taskdefs.jmeter.JMeterTask”/>

This is a clear example of prior art. For nearly 40 years Dr. Dobb’s Journal was one of the foremost software magazines in the world (I remember in the late 1990s tentatively reading my first Dr. Dobb’s articles on sorting algorithms and mutexes, and realising how relevant Dr. Dobb’s seemed). There is no excuse for the HP people for missing this kind of prior art when it was so readily available.

To me the patents filed by HP feel like a ‘land grab’ by a company that is struggling to be relevant in the world of Continuous Delivery, with old-skool application release automation (ARA) tools simply rebranded as ‘Continuous Delivery’ (incidentally, may the gods help anyone who pays for these soul-destroying HP tools).

Okay, so what can I do to help?

For each of the patents above we need examples of prior art before 2012: articles, blog posts, conference talks, book chapters, etc. If a patent does not have an Ask Patent page, please create an Ask Patents page (the easiest way to do this is via Google – search for the patent code). Then post the relevant details on the Ask Patents page for the specific patent.

You can also search for other patents from HP relating to CD – perhaps using a different author name (the patents above all relate to Inbar Shani only).

Together let us get the patents overturned through decent prior art details and stop this madness. From the start Continuous Delivery has been a practitioner- and community-led endeavour (with generous guidance from ThoughtWorks). CD is not the place for large behemoth corporations like HP to muscle in and take ownership. As Dan North puts it:

“Identification of a failed code change” in a build pipeline. As a patent. Really @HP? #getoffmylawn

Footnote

Thanks to everyone who helped to spread the word about this, in particular Steve Smith, Dan North, Marco Abis, Pushpak Singh, and all who have added prior art details to the Ask Patents page and contributed to the Twitter WTF stream.

Updates

  1. Corrected ‘granted’ to ‘published’ in first main paragraph. (2015-03-08)

45 thoughts on “HP is trying to patent Continuous Delivery – here is how you can help block this madness

  1. Let me simplify it for you here. Some guys have trouble on getting up the corporate foodchain, and yeah having a patent is a massive boost.

    Doesn’t matter if the patent cost more money to HP (due to loss in litigation for a ‘duh’ patent), but that’s not how the game works.

  2. So, not sure which patent(s) it might be pertinent to but Jason Huggins of Sauce Labs spoke at Jenkins User Conference in October of 2011 siting (without naming the airline) the work my team was doing on massive parallelization of automated, functional testing in our CI systems (I was a contractor in charge of all automated builds at that airline at the time). Video and slides available here: https://www.cloudbees.com/event/topic/extreme-testing-selenium-and-jenkins

  3. Matthew – you have pointed to an application – not a patent. The “patent” has *not* been granted – it was published in 2014. If you read the written description they are obviously treating continuous delivery and integration as known techniques upon which they claim to be innovating. The only thing that matters in a patent is the claims. If they provide broad technical background (as they do) to explain the context of what they believe is their invention it is pointless to cite broad technical prior art against their background to show that their patent is ridiculous. You need to look at the claims. Maybe they are claiming something that was well known or obvious. Maybe not. I think you are freaking out without any basis.

    1. @bill, thanks for the comment. I have corrected ‘granted’ to ‘published’, although I still think that the alarm is justified. Have you read the actual claims for WO2014027990A1? If you are familiar with performance testing in CI/CD deployment pipelines, I think you’ll agree that the claims cover standard, existing practices.

      1. Matthew – I have read the claims and I don’t disagree with you. I have not looked at the file history of the prosecution at the PTO which would indicate the negotiations between HP and the PTO. I will say that it is common for a first set of claims to be overly broad – basically the inventors trying to “get luck” and grab unwarranted land – and then the PTO to reject them and the dance continues until they are narrowed significantly. From my experience the level of alarm this should raise occurs in the vast vast majority of claims filed in the initial application. And the vast vast majority of those get shot down by the PTO in regular practice.

  4. Who cares?

    This is how the patent system is supposed to work. Those patents will be lost the second anyone tries to leverage them.

    The issuing of a patent is not a big deal. It’s when the patent is first successfully defended that you’re supposed to care.

    The patent office’s job is *NOT* to produce patents vetted for prior art. Their job is to verify that the patent request makes sense, is complete, and fits the structure of a patent.

    1. You are technically correct but practically wrong. These patents will be used offensively in a Cold War situation. Bullying people into out of court deals. Not actually ever even tried in court; because nobody wants to pay the legal fees.

      1. “Offensively in a cold war”? Really? By HP? No, they won’t. That has never happened and will not. HP cannot make any profit from that approach that interests them at all. They could sell the patents to some low life scum – but HP would never do that. And HP, from the best of my recollection, does not sell its patents. The number of organizations that operate the way you are scared of can be counted on two hands – maybe one.

    2. I missed this comment earlier. John, it is the PTO’s job to look for prior art and they do in every case. Your characterization of their role and efforts is just flat wrong. The first action from the PTO, called an office action, is most often to reject the submitted claims in the face of prior art that the examiner found.

      “Who cares?

      This is how the patent system is supposed to work. Those patents will be lost the second anyone tries to leverage them.

      The issuing of a patent is not a big deal. It’s when the patent is first successfully defended that you’re supposed to care.

      The patent office’s job is *NOT* to produce patents vetted for prior art. Their job is to verify that the patent request makes sense, is complete, and fits the structure of a patent.”

  5. All this article does is show that the author has absolutely no idea how the patent system works. This is a PCT Application, not a granted patent (I haven’t checked if it’s been examined at all anywhere) but it is no different to any other patent filed by any company in any sector: overly broad so the applicant can get the examining offices to find as much prior art for them as possible. I didn’t see any mention of you reading the claims at all, and it seems you’ve made your judgements based on the titles alone (though I did stop reading once it became very clear you had no idea how the system worked and we’re getting worked up over nothing at all). All your article does is fan the flames of the generally wrong ‘the patent system is broken, it must be fixed or abolished!’ meme, because of your ignorance, not HP’s or anyone else’s.

    1. I am certainly not a lawyer and have little experience of patents. What is your point, exactly? This issue is more important than just ‘some patents got filed’ – I suggest you step back and look at the bigger picture. This is about a large corporation trying to ‘own’ practices that have been in the public domain for many years, practices that were developed outside that corporation. In your view, should we simply let companies file patents on whatever they like?

      Also, do you seriously think I did not read the claims? I might not grok the legal system but I can and do read English.

      1. I was a patent examiner for two years, so I do understand the law, and it became clear almost immediately that you had no idea what you were talking about it wasn’t really worth reading and deeper than a visors skim.

        Yes, people should absolutely be able to file patents for anything at all. That doesn’t make it valid, and is the reason patent offices exist. These patents have claimed broadly so that the patent office cans find out for them (indirectly) exactly what is inventive in their application this is literally how absolutely every patent looks before being examined, this is not news, and your article does not deserve any of the attention it’s getting; this is my point.

      2. Your assertion “you had no idea what you were talking about” is rather too strong. I have little experience of patents, but I think I have a pretty good idea of what I am talking about in terms of Continuous Delivery and the practices we use. You appear to be unable to step back from your direct experience in patents and view the wider picture in the context of a specific set of practices in a specific industry. It is a very poor approach from HP to file these patents when the CI/CD innovation has been so practitioner- and enthusiast-led, with almost none of the leadership coming from HP. Perhaps this *is* a storm in a teacup but for those of us inside the software industry building actual software systems for a living, it feels wrong.

      3. To @axman6 comment ‘I didn’t see any mention of you reading the claims at all’ – it is quite straightforward: nowhere in the post did you address the actual claims in the patent. I saw that on the AskPatents page, kingfisher has made a better job of addressing these (and I might add, pointed out the irrelevance of most of your ‘prior art’): http://patents.stackexchange.com/questions/12307/prior-art-request-for-wo2014027990-performance-tests-in-a-continuous-deployment/12357#12357.

      1. Seems. Can’t reply to your other comment, so I’ll also note here that i’m currently a software developer and am we’ll aware of CI and CDS practices, but it’s somewhat irrelevant. Start passing judgement once the application is actually examined and HP start to file amendments; that’s when you’ll actually start to find out what they really believe is novel and inventive.

      2. Okay, thanks for this – it’s a useful timeline. I suppose what we’re doing now is collecting the information we would need to collect anyhow after the patent is examined. Sometimes ‘just in time’ is in practice ‘too little, too late’, and collecting details now gives chance for a wider discussion.

  6. As a build manager working on similar concept since 2010, I am very shocked that a company even tries to create patents over such an obvious process. Continuous Integration/Delivery is the natural evolution of software creation, it is like patenting the fact to write readable code with ASCII characters that can be compiled in machine code.

  7. Sound like bunch of four year old girls with pink dresses winning “they ate my food” and “they drink my soda”.
    Get over it man…

      1. Thats the way to respond to such a post. Or ignore it. I support either one for whatever thats worth!

  8. If I have a cron job find recently touched source files, and run make which includes sections for unit tests, etc, does that count as prior art circa 1980-ish?

  9. I think the patent process is broken. The process described by the “experts” in the comments above is essentially a cracking algorithm. How can we crack the system to get a patent? It’s a selfish system antithetical to the open source communities and others in the industry who worked hard to produce quality processes, tools and literature. Apple sets a terrible standard for the industry, using patents to fight Samsung in hugely expensive legal battles with typically lackluster results (once a “stolen” patented technology is out there in wide use, it’s been ruled as practically impossible to reel it back in). Steve Jobs’ name used to be on every Apple patent. It’s just too often an egoistic and selfish and exploitative process. It exploits the ignorance of non-specialists in the patent office and the sheer difficulty and scope of analyzing and researching every claim made in every patent.

    1. You are bang on the buck. The patent economy is patently unfair. It was intended to protect, but invariably has been used to prey. The people filing the patent had nothing to do with the invention, and to my knowledge have only been involved in the adoption or application of the philosophy.

  10. One problem they are going to have is that they have actually published a book about how they adopted ‘Continuous Delivery’ in their organisation, and it references the original instigators of Continuous Delivery, and it is definitely not themselves…

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