[comp.sys.ibm.pc] Another surreal lawsuit

bob@imsvax.UUCP (Bob Burch) (02/18/88)

 
 
               From my  old buddy  Ted Holden at HT Enterprises.  The views
          expressed herein are not necessarily mine and in no way represent
          the policy of IMS.
 
          ........................................................
 
               Think some  of the  look-and-feel lawsuits we've been seeing
          are ridiculous or mean-spirited?  Page 121 of the Feb  9 88 issue
          of PC  Week contains  an article of potential concern to everyone
          who uses  micro-computers.    A  small  Rockville  Md. consortium
          <Berkeley Limited  Partnership> is  suing IBM,  claiming that the
          BIOS of all PC/AT/PS2 computers as well as of IBM word-processing
          software violates  a patent  which it holds on the use of keys to
          represent commands rather than  text.    This  would  include the
          (BIOS level) Ctrl-Alt-Del which all PCs use for rebooting as well
          as such WordStarish things as Alt-U,  Alt-C etc.  which virtually
          all  PC  software  uses  to  some  extent or other at the present
          point.  Should Berkeley by some odd chance  win his  suit against
          IBM, he  would be  in a  position to  extort money from virtually
          every manufacturer of micro-computer hardware and every developer
          of micro-computer software.
 
               Arnold  D.  Berkeley  purchased  the patent in question at a
          1971 bankruptcy sale from his former employer, Computer Retrieval
          Systems Inc.   of Rockville Md. for about $40,000.  He apparently
          was engaged in negotiations with IBM  for two  years before these
          negotiations broke  down in 1987 and he sued, the trial now being
          scheduled  for  September  at  the  federal   district  court  in
          Baltimore.   IBM has  counter sued,  charging Berkeley Associates
          with racketeering and attempted  extortion.    In  my estimation,
          Berkeley  should  have  said  something  in  the  late  70's when
          WordStar etc. first came out.  Making the  claim he  does at THIS
          point in  time brands  him as  a bandito,  pure and simple, whose
          obvious intent is to extort money from the entire world.
 
               With any luck, the case will be thrown  out of  court and we
          will never  have to  worry about  it.  The real question is, "Why
          was IBM willing to even talk  to these  desperados for  two whole
          years?".    Remember,  IBM's  legal  staff  totally  defeated and
          humiliated the United States Department of Justice during the 12-
          year battle  begun in  1969.   By comparison,  taking care of Mr.
          Berkeley should be a very simple  exercise  for  them.    I don't
          claim to have the answer to this one, but I do have a theory.
 
               To  begin  with,  there  seem  to be a number of old patents
          around which cover things which  amount  to  the  natural  way of
          doing  a  certain  thing,  bound  to  be  discovered (or the same
          functionality devised) by anybody who sets out in  a certain path
          of  development  or  investigation.    These  would  include  the
          Berkeley patent as well as the CA patent for dynamic memory-usage
          setup etc.  In my estimation, the patent office simply should not
          grant patents in such cases.    In  the  particular  case  of the
          computer industry,  an idea such as function keys would have been
          irrelevant to the 1971  world  of  batch-processing  and  yet was
          bound to  come into  widespread use  from day  one of micros with
          their direct interaction and high-bandwidth I/O.   I  see villain
          number one  here as the U.S. Patent office, villain number two as
          Berkeley.
 
               And then, there's villain number three.   IBM  developed the
          dynamic memory  setup scheme for the PS2 in-house and only after-
          the-fact did their lawyers  discover the  CA patent.   I  have no
          doubt  that  IBM  could  have  gotten by with simply ignoring the
          entire business and not  informing  CA  or  anybody  else  of the
          possible patent  infringement.  I believe, however, that it suits
          the purposes of IBM to pay these people under such circumstances.
          If the  case is  halfway believable  to begin  with, IBM's paying
          them lends even more credence to the notion  that everyone should
          pay them, thereby making life just one bit harder on all the poor
          suckers trying to clone PS2's. IBM doesn't sweat an extra  ten to
          thirty  dollars  per  machine  and  neither  do their Fortune-500
          clients.  Two purposes are being  served here:   upping  the ante
          for  ALL  would-be  micro  manufacturers,  and  providing further
          legalistic footing for IBM's own legal  games (  "after all, your
          Honor, We pay royalties to CA and Tom and Dick and Jane and Harry
          over there, why shouldn't  WE  collect  on  all  of  OUR bullshit
          patents?") 
 
               In the  case of the Berkeley patent, I believe IBM spent two
          years trying to get  the  price  right  and,  at  the  same time,
          attempting to determine the validity of the claim and the odds of
          their being able to force all  PC/AT/PS2 clone  manufacturers and
          all software  vendors (not  just PS2  cloners) to pay.  Mind you,
          IBM would  look  damned  silly  were  they  to  pay  someone like
          Berkeley his extortion money and then have Compaq, Acer, Samsung,
          WordPerfect (and the rest of the world) blow  Berkeley away  in a
          courtroom.    IBM's  stockholders,  at  a  minimum,  would not be
          amused.  Apparently, IBM's  lawyers  must  have  finally realized
          that  this  one  simply  wasn't  going  to  fly  (i.e.  that they
          unfortunately couldn't use THIS  particular bandito  to their own
          ends) and so informed the big boss.
 
               Berkeley's suit,  of course,  is no MORE ridiculous than the
          stunt which APPLE pulled on DRI.  The  class of  intended victims
          is simply far larger and better armed, the chances of him pulling
          it off far less.
 
               In the fairy tales  which we  learn as  children, issues are
          decided in  confrontations between good and evil, Prince Charming
          vs the dragon.  In real life, as often as not, it is evil vs evil
          vs evil,  the evilest  s.o.b. usually prevailing.  I can actually
          cheer for IBM in  this one,  in fact,  about as  much as medieval
          people  must  have  cheered  as  Prince  Hulagu  exterminated the
          Ismiaelians, and  I  hope  that  representatives  of  the various
          micro-industry heavyweights  will be there as well.  If I were to
          have to start forking over money  to banditos  like Berkeley, I'd
          be very tempted to forget about computers forever.

dbraun@cadev4.intel.com (Doug Braun ~) (02/19/88)

In article <787@imsvax.UUCP> bob@imsvax.UUCP (Bob Burch) writes:
> To  begin  with,  there  seem  to be a number of old patents
  .
  .
  .
> These  would  include  the
> Berkeley patent as well as the CA patent for dynamic memory-usage
> setup etc. 

Could you give us more details about this?

Doug Braun				Intel Corp CAD
					408 496-5939

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johnl@ima.ISC.COM (John R. Levine) (02/19/88)

In article <787@imsvax.UUCP> bob@imsvax.UUCP (Bob Burch) writes:
> [about a ridiculous lawsuit from someone who claims to have invented and
> patented the idea of function keys in 1971.]

The patent claim is of course absurd, function keys having been in common
use in the 1960's.  It's quite possible that IBM was negotiating just because
it might have been cheaper to pay the guy off with a worthless license than
to fight a long dragged out patent fight.  Since they've since filed a
variety of nasty countersuits, it suggests the guy wasn't interested in any
reasonable license fee.

> And then, there's villain number three. IBM developed the dynamic memory
> setup scheme for the PS2 in-house and only after-the-fact did their lawyers
> discover the CA patent. I have no doubt that IBM could have gotten by with
> simply ignoring the entire business and not informing CA or anybody else of
> the possible patent infringement. ...

On the contrary, IBM would have been insane to make an umpteen hundred million
dollar investment in microchannel machines if there were a possibility that CA
could have gotten an injunction against them for patent infringement. More
likely IBM went to them and said, "We'd like a reasonable patent license, and
if you don't give us one, we'll redesign our machines to avoid your patent."
They may even have already had existing cross-license agreements, which have
been common in the computer industry since the original Eckert-Mauchly patents
in the late 40's.

The suggestion that it suits IBM's purposes to uphold dubious patents is an
interesting one, particularly considering the hoo-hah about Soderblom's token
ring patent (IBM negotiated a fixed fee of several million dollars, but he
wanted a large per-machine royalty from all others until the IEEE stated
they'd never standardize it until he came up with a more reasonable
arrangement.)

True facts about the IBM-CA patent license would be interesting.
-- 
John R. Levine, IECC, PO Box 349, Cambridge MA 02238-0349, +1 617 492 3869
{ ihnp4 | decvax | cbosgd | harvard | yale }!ima!johnl, Levine@YALE.something
Rome fell, Babylon fell, Scarsdale will have its turn.  -G. B. Shaw

phil@sci.UUCP (Phil Kaufman) (02/20/88)

The author of this article makes some reasonable points about a
patent that would seem to cover the vary obvious idea of using 
key combinations to execute commands rather than just enter characters.
Not having seen the patent, though, it is hard to interpret just what
may be claimed and its validity. However, the author roars on to
discredit the concept of patents and one in particular, the CA patent
on memory allocation and bus interfaces. Now I happen to know this 
particular patent very well - I wrote it! At the time it was written
there was no system that eliminated the need for configuration switches
on plugin boards or the need for specific hard wired slots to configure
a system. That is what the patent covers, it was implemented in the early
'70s, it worked well, and it is clearly a patentable concept and technique.
Should everyone who uses something similar have to pay royalties? - YOU BET!
(By the way I get not a cent since the patent was assigned to my employer
at the time.)

The concept of patents is clearly to encourage people to put their ideas
into public view so that others can go forward developing newer ideas based
upon this knowledge. In exchange for this the inventor is entitled to
royalties for the use of ideas that he first used - regardless of whether
or not someone else developed the same idea independantly at a later date.

I have no idea if IBM Microchannel actually is covered by the claims of my 
patent since I have never seen the Microchannel specs. But, if they do
anything that is covered by a patent claim then everyone has to pay.
This patent and most others do not have anything to do with the Look and Feel
nonsense going on today. It is one thing, in my view, to develop and patent
a technique to solve a problem and something quite different to say that
my box is pink so if your box is pink it has the look and feel of mine.
The idea of patents is the disclosure in a patent application of
techniques that otherwise would be kept confidential and slow the
development of technology overall. Obviously look and feel is not
quite the same since look and feel is out in the open at all times. At
best it is a topic for copyrights, certainly not patents.

When you all debate issues of patents, please don't lump all patent issues
into the same naive box. Lets not move the talk about patents into the
same moral-less arena as the discussions about ripping off software being
ok because it is economic to do and why should some guy make a fortune
on software I need just because he wrote it.