Editor: Spike R. MacPhee (email@example.com)
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Memorandum to: Members of the X Consortium September 24, 1991
From: MIT Lab for Computer Science
Subject: U. S. Patent No. 4,555,775 (Pike), Issued to AT&T on Nov. 26, 1985 for "DYNAMIC GENERATION AND OVERLAYING OF GRAPHIC WINDOWS"
In February 1991, AT&T sent letters to MIT and to members of the X Consortium, notifying the community that the "backing store" functionality available in the X Window System is an implementation of a patented AT&T invention, and that consequently, companies or institutions commercially marketing or internally developing products based on an X Window System implementation will need a license from AT&T. Since MIT developed the X Window System and distributes it widely, we were deeply concerned by AT&T's action, and we conducted a thorough technical analysis of the patent and similar window system technology. MIT also retained counsel to provide us with an expert legal opinion. Both our technical analysis and the legal opinion conclude that AT&T's claim with respect to the X Window System cannot be sustained.
Patent #4,555,775 was applied for in 1982 by Robert Pike and issued in 1985 to his employer, Bell Laboratories. It describes a variation of graphics drawing algorithms that enables a single display screen to support overlapping windows, in which several programs can be active simultaneously. It is our opinion that this same capability was present in window systems that predated the Bell Laboratories' work.
The Bell Laboratories' work, the X Window System, and previous window systems all use different variants of the same basic methodology (storing obscured regions of windows as off-screen bit maps). Both our legal and technical analyses agree that each of the patent's claims is either so broad as to have been anticipated by prior art, or so narrow as to apply only to the `775 patent's specific algorithm and not to the X Window System.
AT&T has requested the Patent Office to open the `775 patent for reexamination, which will give AT&T an opportunity to clarify the patent's claims. We hope that AT&T will seek there to recognize the contribution of the work on which it is based while not casting its claims beyond the specific methodology involved. MIT is very willing to work with AT&T toward reaching this goal and is exploring ways in which this can be done.
From a broader perspective, the confusion over the `775 patent illustrates the difficulties raised by the increasing number of patents issued on software technology. We would welcome the opportunity to join with AT&T, other companies, and the university community to explore ways to alleviate these problems. Software is an area in which prior art is often difficult to identify and in which obviousness differs significantly from one perspective to another. The recent proliferation of software patents is creating pressure on software developers to seek patent protection for straightforward ideas, and increasing pressure to claim broad applicability of software patents, well beyond the scope of any original invention. These practices introduce a chilling effect on university research, and they undermine our ability to pursue ideas in a free and open climate. In as much as these practices attack the university's central goals and its obligation to disseminate information, they are a matter of utmost seriousness to MIT.
Of the approximately 80 people present at the talk, about 50 carried protest signs. The protestors did not try to interfere with the seminar. They simply raised their signs as Pike began to speak. This accomplished the purpose of making their ire known.
Before I joined up there was some very interesting discussion about LPF on a mailing list I'm on. The consensus opinion agreed pretty closely with the preliminary material I got before I joined. I'm in complete support of the philosophy as stated, my consulting practice depends on my being able to produce unencumbered software tools.
Once the mailing lists started up the discussions started sounding like the things I was interested in but quickly deteriorated into stereotypical usenet style chatter. It's pretty difficult to enforce decorum when the transport is a reflector, but I find that the contributors enforce the decorum if they are sober and professional about what they're trying to talk about. I'm too old for the kinds of things that the newbies and wannabes are talking about and I've got (at least I think so) more to lose. My sole source of income is my solo consulting practice and I take it very seriously.
I don't think that you can defeat the [business] suits with demonstrations and tee shirts. I think that you do it kind of like you defeat the problems of discrimination in the workplace. Discrimination is bad for business and it doesn't make two hoots which side of the issue you're on. Discrimination has been around since the Old Testament but it's still bad for business. I think that the expropriation of software techniques and the attendant extortion is bad for business too. Businesses learn what's bad for business through education and observation, seldom through legislation and never from demonstrations and tee shirts...
The kinds of things that LPF should be doing is educating and persuading. We don't have a federal, state, or local government that knows beans about the technological realities and we're not going to teach them or make them understand as long as the Robert Morris' and Len Roses are their only viewport into the world where we live and work...
If I author a book my copyright is limited to the content of the book but not the size of paper or method of binding. I'm perfectly free to make reasonable citations from other intellectual property without infringing on another copyright. When you deal with machines that can only count to one there aren't a whole lot of things as unique as a book, play, song, poem, or other authored work. Moreover, the real creativity is in the composite fabric of the work since its components are pretty well understood and pretty ordinary. I vigorously object to any person or organization claiming copyright to something pretty well understood and pretty ordinary. When the system fails and such a copyright is claimed then it is up to the legislature and courts to remind the claimant their copyright is poppycock.
We can't depend on our courts or legislatures to do that today because they are too ignorant. They can't get any better or smarter unless/until someone can overcome their ignorance...That's where I thought LPF came in. This is supposed to be a group of professionals who _do_ understand the curvy and twisted passages and should be able to explain it so that the suits have no place to hide. When the suits have no place to hide and realize what they are doing is bad for business they'll actually *help* us finish the education of the courts and legislatures. This is how I perceive LPF's purpose and responsibility but what I read is a lot of nit picking and bickering. There's a lot of roaring and groaning about things that are 100% peripheral to the things that affect my livelihood (and theirs too, but they don't seem to feel it's as crucial as I do)...
The problems will not get solved with righteous indignation or fist shaking. So what's the grey-beard master-old-hacker going to do about it? I'm going to pretty much proceed as I have been. When a particularly stupid piece of legislation is or is about to be introduced I'll write my legislator. It's a simple curbstone English description of what the bill is as contrasted with what someone thought they understood when they wrote it. When someone infringes on my copyright intellectual property I try to explain what they are doing and why they shouldn't. The explanation isn't always as moderate when it ends as it was when it started but that depends on how ignorant, stubborn, or dishonest they are. I've made enough out of one settlement to break me even on the others I've won (at a net loss) but my former adversaries are better educated and less likely to infringe again. Did this intellectual property contain components and concepts that weren't 100% original? Of course they did, but my copyright is on the composite work and that is a very narrow and easily defined effort. The creative combination of proven techniques is the copyright, not the techniques themselves.
...If my creative effort produces something that I consider to be of value then I feel free to protect it to the extent I feel matches its perceived value. If nobody agrees with me, then they don't use it and don't pay for it; I had a mistaken idea of its value, but it's my right to protect it. I've contributed my fair share into the public domain and will continue to do so. I've also retained copyrights to other material and will continue to do so. If some suit thinks that he can intimidate me with a gold seal on a ribbon saying he "owns" the binary search technique, he's crazy. If someone says I should let anyone, willy nilly use my work, he's crazy too. I'm not really concerned about the latter but the former has my undivided attention.
You see, that's what I thought you guys were doing. It may very well be that it really *IS* what LPF is doing but I can't see it for the smoke or hear it for the noise.
internet bill@ssbn.WLK.COM or ssbn!bill@attmail.COM
The Editor's reply: Bill, you have to remember that league-tactics is an all-purpose discussion mailing list for all aspects of software patents and look-and-feel lawsuits, as well as members' suggestions for activities. It is, as you pointed out, an unmoderated list for everyone, not just software consultants, so we're not surprised that it isn't focused enough on your specific concerns. It doesn't report on what the LPF is doing - that's what this newsletter is for.
We *are* trying to educate and persuade: a new position paper is coming out in a future Dr. Dobbs Journal; the Fall '91 Issues in Science and Technology has six pages on "Why Patents Are Bad for Software" by Garfinkel, Stallman, & Kapor, and we had a significent presence at Fall Comdex.
We are also trying to reach the public. Demonstrations will get 10 seconds of broadcast time because of their visual nature, while position papers never will.
LPF is still small; we want programmers to tell other programmers to join and tell other [iterate]... so that we can get large enough to affect legislative efforts, etc. We haven't filed amicus curae briefs because these are usually used on appeal, and none of the look-and-feel cases has reached that stage.
We believe that your letter, from a soon-to-be former LPF member, will generate a productive discussion, both in and out of the organization, as to what the LPF is, and what it should be doing to affect the laws on software.
During a three week visit to family in the Pacific Northwest in August, I set aside 4 days to speak on programming freedom issues. I spoke seven times in three cities: Corvallis & Portland, OR and Seattle, WA. Audiences included user groups, companies, and a technical book store seminar series.
I solicited sponsors and dates by e-mailing to people in OR/WA and asking them to put me in touch with likely sites. These people included friends, LPF members (ask firstname.lastname@example.org) and GNU volunteers (ask email@example.com). A local sponsor handled publicity based on an abstract of the talk I provided. Methods used included postings to company mailing lists and regional USENET newsgroups, flyers, articles in company and store newsletters, and newspaper announcements and ads.
I prepared a 40 minute talk on both LPF issues from our newsletters and two position papers, which left plenty of time for questions (which were often answerable from material in the position papers that I didn't have time to cover).
When I do this next time, I'll vacation in a different month. Many colleges are between terms at the end of August and the academic crowds were a bit thin.
I'd like to thank all my hosts and audiences, and in particular my lady's parents.
I urge more of you to try speaking about our issues. It's a fun, interesting and easy way to help our cause.
Then he went to Italy, France, and England for eight more talks and for meetings with members of Parliament in Italy and France. With luck, LPF organizations in Italy and France will be started by this trip.
Besides editing this newsletter, I also serve as LPF coordinator, in which capacity I run the speaker bureau. Richard M. Stallman and Len Tower have done the bulk of our speaking engagements to date, but cannot be everywhere at once. Our cloning attempts, despite Richard's views on copying, have not yet succeeded. We would like more volunteers, with or without previous experience, to speak to people around the world and inform them about the software look-and-feel and patent issues. Anyone who would like to speak about the LPF's positions, or who wants an LPF person to speak to their group, please contact me at: firstname.lastname@example.org.
For instance, our President, Jack Larsen, can be reached at 708-698-1160, FAX at 708-698-6221 (Park Ridge, IL), or email at email@example.com. He would be happy to explain the legal issues and status of court cases and treaties to groups in the region. "I will go anywhere if travel expenses are provided. If not, I can cover "Chicagoland", 12 million people from Milwaukee WI to Gary IN."
Spike R. MacPhee
This is the third consecutive year that Gordon Schantz and I have worked the Fall COMDEX show for the LPF and easily the single most successful.
In previous years the reactions to "Hi, I'm Chris Hofstader, officer, director and cofounder of the League for Programming Freedom..." were:
Thanks to our ten volunteers, an organization as small as the LPF had terrific visibility. Even the hostess at the Las Vegas Hilton coffee shop was distributing our buttons. More seriously, I was invited to many private parties and had access to many people who lead the industrial side of this business. The response was very positive. We will see more League publicity and corporate support as a result.
We are told that we are living in a "new world order". In 1992 the European Community will be one trading entity, and a real factor for Americans who would trade abroad. Multinational companies welcome the reduction in legal formalities regarding patents, trade marks and copy rights. What is not so obvious is that the proliferation of trade treaties has a direct impact on our internal law.
The battle for programming freedom has been elevated from the U.S. District Court in Boston to the world stage; meanwhile Borland, the U.S. Copyright Office, and ten prominent professors of copyright law have asked the District Court to reconsider its Paperback decision of last year.
The International Agenda is marked by a number of developments which are approaching international agreement. The first is an extensive amendment of the heretofore innocuous Treaty of Paris which is intended to "harmonize" the patent systems of the world. This treaty and the Berne Convention on Copyright are both administered by the World Intellectual Property Organization (WIPO). This treaty has been under consideration for several years. A first session of the Diplomatic Conference was concluded in June, and a second session is to be scheduled after conclusion of the Uruguay Round trade talks in the GATT. The General Agreement on Tariffs and Trade, and the trade agreements thereunder are the second major development. The U.S. Congress has approved a "fast track" process to expedite approval for agreements in the Uruguay involving patents.
New Trade agreements call for stringent reciprocal enforcement of intellectual property "protection". Recent negotiations with China became stalled by the U.S. insistence on criminal penalties for software copying. This may be the rationale behind inclusion in the "Violent Crimes Act" passed by the Senate of long jail terms for copying software.
Thirdly, the U.S. Commissioner of Patents and Trademarks has appointed an Advisory Commission on Patent Law Reform the purpose of which according to Commissioner Manbeck is to help "consensus forming" for the treaty.
In the first session of the Diplomatic Conference the United States was alone to oppose the first-to-file rule of Article 9 of the Treaty. Article 10 which provided that "Patent protection shall be available for inventions, whether they concern products or processes in all fields of technology." was not supported, and remains for resolution in the second session. This raises the hope that computer programs may be excluded from patent protection. All in all Commissioner Manbeck did not encourage the delegates to expect the United States to make fundamental changes in its laws, "unless others can likewise agree to satisfy our needs."
An American delegate reporting on the meeting concluded: "It is apparent that the likelihood of concluding a treaty in this area which, in its totality, would be acceptable to the United States will require the United States to embrace a first-to-file system of awarding patents". It has always been under stood that the language of the Constitutional Grant bars the adoption of a first-to-file system. If the Advisory Commission can help the Commissioner convince the public that the gains from the treaty will outweigh the damage to the Constitution, the treaty will make it all possible...
...Until the new world order, our commercial treaties did not challenge settled constitutional rights...
...Congress itself was moved to create a special new kind of monopoly...the Semiconductor Chip Protection Act of 1984, creating a new kind of intellectual property not authorized by the copyright and patent clauses of the Constitution,
The new Act provides for registration with the Copyright Office and provides a term of protection limited to ten years. This law aimed at the emerging semiconductor giants of the Pacific Rim was clearly to be international in scope, and intended that in any challenge to the constitutionality of the law, there would be a treaty to support the creation of the new monopolies...The Diplomatic Conference convened by the World Intellectual Property Organization (WIPO) in May 1989, adopted a "Treaty on Intellectual Property in respect of integrated circuits". This new treaty was approved by the votes of 49 nations. However, the United States and Japan voted against the text finally approved. Both countries would not approve the draft provisions for the requirement of "non-voluntary licenses" under certain circumstances of National import. The U.S. and Japan control around 90 percent of the world production and trade in semiconductors.
The treaty is available to the United States if it is ever needed. It has importance for several reasons. First, it is an example of the internationalization of the creation of a new kind of monopoly. Secondly the Treaty was prepared in a very short time, even before most countries legislated on the matter.
Thirdly, while apparently of very narrow scope the negotiations were led by the United States establishing precedents for other areas of intellectual property and giving a new role in the field to GATT. Fourth, it contains rules for the settlement of disputes applicable to GATT and other intellectual property contexts, and finally developing nations took an active role in the negotiations. This treaty provided a laboratory for the drafting of a new and wide-ranging treaty purporting to harmonize patent laws between nations. It shows the way to create new monopolies ,,,covering whatever line of manufacture, trade or business which may be wrapped in a treaty package.
A New WIPO treaty was the subject of a "Diplomatic Conference begun June 3, 1991 at The Hague, and now adjourned. While seemingly technical, and not commanding the attention of policy makers outside of the core of "experts", patent attorneys, multinational corporations, and patent office bureaucrats, this new Treaty has a potential for reversing fundamental principles of American Patent law.
It does not represent mature thought on such problems as software patents, the patentability of life forms, the standards of invention and novelty and the duration of the monopo lies. The planned WIPO patent harmonization treaty will cause serious problems for software developers in the United States and wherever it is adopted. The treaty would both aggravate the problem (by making patents last longer) and withdraw presently available remedies, not the least of which is an appeal to the Supreme Court. That Court has held many computer programs to be unpatentable as following outside of the "useful arts"; but the treaty would include "all fields of technology". Another provision of the treaty would make matters worse, by making patents last longer, extending the life of a patent to 20 years or more. In an age when the rapid advance of technology makes most technology obsolete much more quickly than in the past, it would make more sense (in most fields) to shorten the duration of patents.
The proposed treaty would make patents easier to acquire, easier to enforce, and broader in coverage. For example the patent on a method would carry with it the product of that process, whether already known, or produced by a non-infringing process, and may permit and require patenting subject matter beyond the present constitutional power of the United States.
Software patents are a new experiment which is working out badly. The United States should not make the experiment permanent before the results are known. And the Executive Branch should not use the "FAST TRACK" ratification process to withdraw the issue from the realm of public debate. Properly, the patent system is not just to encourage inventors, not just to enrich entrepreneurs, not just to keep lawyers busy, its purpose is to "promote science and the useful arts" for all of us by the teaching of the inventions and discoveries. As the time for signing this treaty approaches, it is well past time for the general bar, and the citizenry to be made aware of what is afoot...
"Strict constructionists" and "original intent diviners" offer the gadgeteers no more hope. As Justice O'Connor points out: "Today's patent statute is remarkably similar to the law as known to Jefferson in 1793". The original intent of the signatory states is to be found in the patent laws of the colonies, which illuminate what is penumbra in the Constitution's patent clauses. The founding fathers were gentry in an agricultural country. Well aware of the burden of Crown imposed monopolies, Congress required in the very first patent act that the invention be "sufficiently useful and important" to merit the 14 year right of exclusion under that act. After the Court examined the premises in Bonito Boats, it is clear that it will not repeal 200 years of the American patent system, which for much of that time led the world. But the pressure by the peddlers of gadgets and the titans of industry for new, cheaper, and more broadly applied monopolies is unrelenting. For them a better way has been found. A way that takes the Supreme Court, and the House of Representatives out of the loop. The revision of the Treaty of Paris, to be considered by WIPO in the Second Half of the Diplomatic Conference begun this year at The Hague, and adjourned to a time next year and place yet to be announced. The treaty would impose an increased minimum term for patents, highly inappropriate in view of the accelerated pace of science and technology. It would grant patents to the first-to-file, rather than the first inventor, thus diverting into a race to the Patent Office, energy which better may be devoted to science.
The delegates to the several meetings of "Experts" leading up to this Conference, with few exceptions have been patent professionals, wholly unprepared to appreciate the economic and social impact of the patent system, concerned only with the cost and efficiency of extracting the monopolies from the governments. With the new Budget bill, our Patent and Trademark Office is to be funded by "user fees". The Patent Offices of the World, by this proposed treaty, would be combined by the special patent tribunals of the world joined in this device "to get a broader, looser conception of patents than the Constitution contemplates", again to rephrase Mr. Justice Douglas.
The indirect cost of patent monopolies, like the cost of the Savings and Loan mess is "off budget" but it should not be ignored. The indiscriminate creation of exclusive privileges through cheap and easy patents, in the words of Justice Bradley a century ago: "creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the hones pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith."
In no area of technology has this scheming been more blatant than in the proliferation of so-called "inventions" and patent applications involving computer programs. Already the practical difficulty experienced by the Patent and Trademark Office in the "examination" of such applications has resulted in a de facto repeal of the Constitutionally mandated Section 103 of the law. In the new world order those schemers will more likely be living and working in Bombay, Bangkok, or Beijing, than in Canton, Cleveland, or Cincinnati.
...Yet the treaty loop hole threatens our fundamental structure. The greater iniquity is that a Treaty, unlike a statute or even the Constitution cannot be amended, or its burdens ameliorated by the actions of our People or our Congress. We will be held to the least-common-denominator of the world community.