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 / decwrl \ | hplabs | -| oliveb |- !intelca!mipos3!cadev4!dbraun | amd | \ qantel /
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.