Patent Law

Over the past few days I’ve read a bunch of misinformed blog posts regarding software patents and how they apply to the Freedom Scientific v. GW Micro case.  I hope, with this post to talk about the law and why it applies to this situation.


Note to readers:  I am not an attorney nor have I attended law school.  I have attended a number of seminars on software patents, user interface copyright and other IP law that surrounds the high technology industry.  Thus, I’m speaking from the view point of a well educated dilettante.  Also, way back in the eighties, I co-founded the League for Programming Freedom with my friend Richard Stallman.  Our purpose was to oppose user interface copyright (a case we won in a Supreme Court ruling in Lotus v. Borland) and software patents which a pair of Supreme Court decisions ended up with us losing that battle.


Judicial History on Software Patents


A long time ago, IBM filed a suit against the US Patent and Trademark Office.  They asserted that the work by Benoit Mandelbrot on fractal geometry and chaos theory should be granted a patent.  The court took the position offered by the PTO and ruled that all mathematics exist in nature and, therefore, can only be discovered and not invented.  Discoveries cannot be covered by patents.


Years later, AT&T filed a similar suit but, as evidence, brought the design for a bit of hardware that, while probably too complex to actually build, did describe a machine.  They claimed that software was merely an implementation of the machine and, therefore, covered by patent.  Our side (we filed an amicus brief signed by most of the most important contributors to computer science from Marvin Minsky to Rodney Brooks) used the IBM decision and added that all algorithms, all of software for that matter, could be expressed as a function of the lambda calculus, hence, it was an expression of mathematics and discovered rather than invented.  We didn’t believe this was an especially great argument but it was the best we had.


Thus, since the At&T case, software patents have been granted in abundance.


Freedom Scientific v. GW Micro


FS had a patent on placemarkers as a screen reading feature while using an Internet browser.  This patent was granted years before GW Micro decided to add the feature to Window-Eyes.


The GW Micro placemarker functionality contains a number of new and innovative features but, at its base, it starts by providing the same action as does the JAWS placemarker feature which, as one can find in a search of the USPTO  web site is pretty clearly described in the patent granted to Freedom Scientific that makes placemarkers in screen readers on the web their soul property for 17 years since the patent was issued.


Improvements to an invention covered by a patent held by FS or anyone else for that matter are called “derivative works” as they derive their basis from another invention.  So, in this case, it appears as though GW Micro (I say “appears” because I have not heard all of the evidence nor am I member of the jury) based its invention on the one in JAWS which probably means it is a derivative work and, therefore, is in violation of the FS patent.


In most industries, GW would file for a patent on its improvements and then try to negotiate a cross licensing agreement with FS so GW could use the base feature and FS could use the GW enhancements.  Unfortunately for GW, they published their beta before filing for a patent of any kind and, thus, created the published prior art for their own invention.


There are a number of arguments that GW can make in a court to defend themselves against FS but I cannot think of one that does not require removal of their placemarker feature from Window-Eyes.


Innovate, Don’t Litigate


By stating the above as clearly as I can, I must also say that I do not endorse Freedom Scientific’s behavior in this matter.  I agree with many of the other bloggers that the new Window-Eyes with its very cool scripting facility is a major step forward in screen reading technology. 


FS doesn’t advertise the patents it holds in JAWS anywhere in the product or package so GW could have unknowingly added the feature entirely without notice that FS had a patent on it.  In my opinion, FS should have sent a warning before filing a suit but I have not been on their executive staff for nearly four years so my opinions are meaningless regarding their strategy on all matters, including prosecution of patents.


But, as far as I can read it, FS has a very solid case and are well within their rights to protect their intellectual property.  Do I think this is ethical?  Well, as I helped organize the fight in the Supreme Court against AT&T, you can probably guess where my emotional side stands but emotions are worth caca in a patent dispute.


I hope this piece helps the community understand how this tricky bit of law works and why FS has a very legitimate claim – whether you and I like it or not.


— End


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By Gonz Blinko


Samhara and I started packing up the house boat more than a month after we would usually leave the Glades.  We had some unfinished business in the area and managed to withstand the heat, humidity and the mosquitoes the size of Volkswagens.  Boris had left after a couple days (I’m not sure we could have taken him much longer anyway) and was camping out with El Negro up in SouthBeach.  All of us were preparing for the Outlaw Biker Race from Miami to Boston and BC was sponsoring our team.


“Hey Sam,” I called, “You gotta read this article in Diner Access Journal.”


“What’s it about?”


“A patent lawsuit, more your department than mine.”


“What’s it about?”


“Waffle House has filed suit against Denny’s over the ingredients in a newly designed and quite novel omelet recipe.”


“Huh?” asked Sam who I heard walking toward me.  “A patent over an omelet recipe?”


“Well, it also says something about improved placemats but as I haven’t eaten in either joint in about four years, I can’t really comment on either invention.”


Sam started reading aloud, “Waffle House got a patent on a five egg banana omelet served on an oversized plate with a special placemat.”


And?” I asked.


“I remember that filing, I think the patent looks pretty solid except in cases where the user prefers their eggs runny,”  she continued.  “Here’s a link to Denny’s response written by Douglas Giraffe himself.”


“What’s it say?”


“Giraffe claims that the new Denny’s five egg banana omelet also contains Philadelphia Cream Cheese, jalapeno peppers and a secret sauce only previously known to exist in Indiana.”


“Neither sounds too appetizing,” I added.


“Douglas also asserts that his five egg omelet is served on a square plate with an oval placemat which means it is entirely a new invention.”


“I haven’t looked at patent law since the old LPF days but this one looks kind of sticky.”


“I think the only sticky part comes in if you order either omelet with the optional maple syrup,” answered Samhara.


“Has anyone else chimed in?”  I asked.


“All of the usual folks in the diner blogosphere.”


“what are they saying?”


Sam paused for a moment to read a couple of other posts from members of the NFD (National Federation of Diners), ACD (American Counsel of Diners) and the official Diner’s Club blog.


“The response is mixed,” she said ponderously.  “The types who know patent law pretty well seem to go with Waffle House, the more emotional ones go with Denny’s and, the political types are saying things like innovate, don’t litigate.”


“But this case actually seems to cover a pair of innovations,” I said, “the original five egg banana omelet on the over sized plate and the special placemat sounds pretty unique to me.  I can’t think of any published prior art.”


“I’m not sure,” stated Sam, “Us law is based in first to invent but international patents go to the first to file.  I’m certain that Waffle House was first to file and I can’t think of a diner anywhere that served their special combination of eggs, bananas on an oversized plate.”


“But what of all of the extras Denny’s added?”  I asked.


“They might count for something, maybe they have enough novelty to be considered a different invention altogether.”


“What is Waffle House saying about all of this?”


“Their CEO asserts that they spend a lot of money on research and development and need to protect their costly inventions.”


“Typical,” I said.


“Omelet House made a statement claiming that they had the first five egg omelet but said that Waffle House pays them royalties on them and they admit they do not use bananas,” explained my African lawyer.


“What does BC say?”


“He’s been preparing for the race, I don’t think he’s paying attention to any of this.”


“Smart man,” I said, “enormous egg dishes with bananas fly in the face of sanity and BC has always been a bit on the edges of permanently crossing over into weirdsville.”


“Let’s get back to work and get our sweaty asses out of this jungle,” insisted Sam.


I had no way to argue so I continued our packing for our voyage north to the place where we store the house boat until next summer.


— End

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Time For Cooperation

            Over the past week or so, I’ve seen two announcements proclaiming new technologies for community driven projects to label non-compliant web sites that work poorly with screen readers.  Adding these to C-Saw from Serotek which has been around for years makes three systems that total to superfluous and counterproductive sectarian standards that should be harmonized as quickly as possible to provide the entire community with a unified database standard so, no matter the AT they choose, all will enjoy similar results.


As I mentioned the other day, Mike Calvo, CEO of Serotek, has offered C-Saw as an open standard to any team that wants to incorporate it gratis.  Similar facilities by IBM and WebVisum  only came to my attention over the past few days.  I understand entirely why user agents to access the database of label information will differ as each needs to fit with the paradigm of the specific screen reader. 


WebVisum is a Firefox plug-in and needs to conform to Firefox plug-in standards; System Access is a Windows screen reader that works best with Internet Explorer and, consequently, needs to be compliant with the rules that govern such.  All I know about the IBM analogue is that it works with JAWS and, therefore, needs to (at some level) fit into that model.  Knowing the IBM accessibility people pretty well, though, I would guess that it is designed for portability and will be offered to other projects as well.  I would also assume that Orca and VoiceOver on GNU/Linux and Macintosh could, if they chose, add functionality to access the same database as well.


Putting the obviously platform and technology specific user agents, in this case, any screen reader or web accessibility tool, which necessarily will have variations ranging from OS to browser to user interface paradigm, aside, we can now explore a harmonized database off in the cloud that shares all of the label information.  This will give everyone the head start of the more than 4000 web sites already labeled by the users of the screen reader formerly known as Freedom Box coupled with the new systems provided by IBM and WebVisum.  If the new systems don’t drop easily into other screen access utilities (Window-Eyes, HAL, NVDA, Thunder, etc.)  I doubt it will be too great a technological challenge to add the user agent side. 


If the people from WebVisum, IBM and Serotek can get together to discuss and ultimately create a common database standard, the data can sit off in the cloud not caring whether it’s a Mac running VoiceOver, a Windows box running NVDA or a Symbian handheld running Mobile Speak and all of the users will be able to contribute labels to pages that have none and enjoy the labels others have put in before them.


As, at the very least, the current WebVisum and probably the IBM systems are at least somewhat user agent agnostic, building a universal database and populating it with five years of Serotek data as a starting point can really start a fire.  Having four thousand pre-labeled sites will provide volunteers with immediate positive feedback that a community based system has been at least partially proven to work.  This added layer of usability will, in my opinion, provide added motivation and tear down some artificial boundaries between users of different screen reading technologies.


As, for all intents and purposes, the WebVisum Firefox plug-in works with the other AT out there, if it could harmonize its database with the one Serotek uses, the history of community involvement in labeling pages will be preserved and five (or more) years of Serotek users and volunteers won’t be lost.  I will assume the IBM system is similar and encourage them to join trilateral talks on bringing all three projects together.


A long time ago, I published an article to this blog about cooperation being the key to innovation, you can search for it in the box above, which proposed the hypothesis that, as regards underlying technology, AT vendors waste a ton of cycles reinventing the core technologies that occur in all such programs.  One reason JAWS has an enormous worldwide market share is not because it has a better off screen model or virtual buffer than the others but because it exposes a user interface to far more mainstream and obscure proprietary applications than do the others.   


If all screen readers and web access utilities start using a web labeling technology that shares a common database, those who provide the most comfortable user experience or invent a special way of delivering this content in a manner I cannot imagine at the moment, will win but all screen reader users, from those who cannot afford anything besides the no-cost and free solutions all the way up to the Ferrari programs can, as a single community, share a unified database. 


BC, as small a voice as we are, encourages Serotek, WebVisum and IBM to put their collective heads together (they all have some really smart people), perhaps invite people from NVDA, Apple and Sun and bang out a common database format for a set of labeling facilities, work together and take at least one step toward ending some of the counter-productive sectarianism that often causes people in this biz to reinvent the wheel.  I also want to emphasize that all parties to this discussion come with an open mind and be willing to make changes to their technology rather than letting their egos get the best of them – all of us are very proud of the work we do but, to build a community, we will occasionally need to put our pride aside and work toward the greater good.


— End

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Sleeping Giants

This past week, many of we so-called “AT experts received a terse email from a group we had never heard from before.  The contents of the email had so few facts and seemed so ambiguous that a bunch of us immediately thought it was some sort of spam/fishing scheme.  Then again, we wondered who would go through the trouble of finding top AT experts with widely read blogs just to hit us with some form of malware.  Sy T Greenbacks is a character I invented so he never does anything without me knowing about it in advance so I am aware of his evilocity well before he takes any such action.


Thus, after asking about it to some friends, I was pointed to Marco Zehe’s Accessibility Blog.  Marco is another FS refugee now with Mozilla and an undisputed expert in the field. 


The top article on Marco’s blog, entitled, “WebVisum Firefox extension” describes this new suite of tools by some visionary hackers.  I recommend that everyone interested in BC bookmark Marco’s blog as he publishes some of the best information in the biz.


Quoting directly from Marco’s blog, “was posted to the newsgroup. The things talked about in this post and on the WebVisum homepage almost sound too good to be true. Among the features are:


  • Ability to tag graphics, form fields, links, and other page elements. While some or all of these features have been available in some screen readers already, this feature is unique in that it works across platforms. It also sends the data back to the WebVisum web service so other members of the community can benefit from the labels someone provided.

  • Optical Character Recognition (OCR) to try and identify those images that absolutely won’t tell us through their SRC what they’re all about.

  • Visual page enhancements such as a high-contrast profile.

  • Suppression of automatic page refreshes or Flash content

  • And most astonishingly: CAPTCHA solving!”


My only minor disagreement with Marco’s article is about the feature people can use to label and share information to give useful definition to the gibberish that causes such annoying noise on many web pages.  Serotek’s System Access (the screen reader formerly known as Freedom Box System access – is it a coincidence that Serotek and Prince are both based in Minneapolis?) has had its C-Saw feature that performs exactly this function by giving the users a tool to label these annoying elements and share the information with other users on the System Access Mobile Network.  Serotek has had this feature since they were just a tiny piece of the market but, over five years ago, Mike Calvo called me at my desk at FS to discuss opening this up as a standard that all AT could share – all of the established companies refused his offer which I believe still stands.  I think it would be an excellent step forward if Serotek and the WebVisum people could work together to harmonize their efforts as Serotek already has something like 4,000 sites labeled which will make for a great jumping off point.


I’ll skip over most of the other features as they are covered nicely in Marco’s article and move directly onto the plug-in’s ability to solve CAPTCHA (often called visual verification) which has been one of the greatest boundaries to Internet accessibility for a long time.


In my own testing and reports I’ve received in emails, users have been able to get beyond CAPTCHA on a panoply of sites.  These guys really nailed this feature; meanwhile, for a number of years now, the better established AT companies have ignored CAPTCHA as an unsolvable problem.  How then a handful of faceless hackers somewhere in the world (I couldn’t find geographical coordinates on their web site anywhere) beat all of the big dollar screen readers with one of the most important features added this century.  Simply put, the major players ignored the CAPCHA problem, told their users that it was impossible and the blind followed like sheep.


I have also felt a bit discouraged reading the blog posts by AT experts with vision impairment lately.  Simply reprinting an AT companies press release without any sort of analysis is something AT companies should buy as advertising from us blinks rather than expecting to get it for free.


Some of the well established screen readers have done some quite innovative things of late, not as cool as solving CAPTCHA but definitely worth mentioning.


The new model for distributing System Access at no cost via the virtualized web-based SATOGO program and on USB keys for students K-12 at no cost is beyond innovative and downright radical.  This remodeling of the AT pricing scenarios will bring AT to many people who couldn’t otherwise afford it.  Readers should check out the Serotek web site for details on these programs but as SA has matured into a real contender in the Windows screen reader market, using the no-cost web based version can replace the higher cost programs in many cases.


The other great development that has come out recently is the Window-Eyes scripting facility that uses COM and offers programmers a variety of languages in which they can extend WE.  This was not an easy task and as WE has, for years, advertised that no scripting was necessary, it demonstrated a level of courage by GW’s leaders to make the change.


Returning to CAPTCHA, though, why couldn’t the collective wisdom of the commercial AT companies come up with a solution that some guys with no background in the field managed to solve?  I’m not suggesting that the problem was easy but, paraphrasing Jack Kennedy, “we do not endeavor on these projects because they are easy, we do so because they are hard!”


Now I’m really looking forward to hearing what Darrell “Captain CAPTCHA” Shandrow has to say on the matter.  For years, he has been the most outspoken leader in our community regarding these road blocks to people with vision impairment effectively using the web.  I’m not sure that this new utility will be a silver bullet but it is certainly the greatest innovation this market has seen in a very, very long time.


— End


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Independence Day 7-4-2008

Forty eight years ago today, I entered the world in mid-afternoon, completely ruining my mother’s obstratrician’s holiday party somewhere in New Jersey.  I picture my slippery, sloppy infant self shooting out into a catcher’s mitt held by Yogi Berra who kept my mother, the doctor and nurses amused with his constant jawing about whatever entered the great ballplayer/philosopher’s mind.  With a puff of dirt as I hit the mitt, I, in my tiny way, had declared my own independence.


Today, the 232nd anniversary of our founding fathers declaring the independence of Maine, Massachusetts, New Hampshire, Vermont, New York, Connecticut, Delaware, Pennsylvania, Maryland, Virginia, North and South Carolina and Georgia, I sit in what was then a territory still owned by the Spanish who never tried to settle the place but, rather, exploit its natural resources,, torment and kill as many of its indigenous people as possible and, from time to time, head off on a mission to find the fountain of youth which would certainly be located in a place where the heat and humidity and bugs and dangerous animals ruled and people acted as bit players.  Sometime after actually gaining independence from England, the nation would purchase this god forsaken sandbar from Spain and send Andrew Jackson and his gang of genocidal maniacs into the territory to kill as many of the native people as possible because they were known to harbor escaped African slaves, a group to whom the independence from King George did not apply.


Women, white, black, native or European also got excluded by the independence movement and even incredible autodidacts like Abigail Adams and Dolly Madison who could counsel their husbands, presidents  of the nation on complex affairs but not vote to select their successors. 


Thus, Independence Day, for me, meant that I could survive as a being apart from my mother but it would take nearly 90 years to free the slaves and over a century after signing the document that suggested that all were created equal to permit women to vote.  The genocide of the native people continued into the twentieth century and some would contest that the poverty on the reservations and the ethnic cleansing they represent remains as a continued reminder if not an actual form of genocide.  Sure, the Seminole nation owns the Hard Rock casino chain but how does that compare to owning all of Florida, including all of that pricey waterfront real estate?


Someone I heard speak or read something by (probably Studds Terkel I think) made the assertion that, given the history of government from the ancients to today, the absolute rarity of a ruling body doing anything actually good for the population it dominates or any external people for that matter makes such events truly exceptional.  Thus, while the American style of representative republic has done many tragic things it has also taken a number of good actions which, for the most part, set it in its own category as, it has actually taken numerous actions in the name of a greater good than most, if any, governments in history.  Of this, we white Americans of European ancestry can be proud of our immigrant forefathers who elected governments that invented public education and, after a while, universal suffrage and even some degree of civil rights protections.  Some nations have done more but most have done far less so, even with the black eyes on our national integrity, we can claim a lot of good in our history.


For me, I am now 48 years old.  It’s been 30 years since high school graduation and twenty-five years since the death of the cool – the end of the hardcore punk years and the start of my long journey into blindness, software development, access technology and all of the fun I’ve had doing all of that.


I will never be cool again.  Then again, how many people can really claim any part of the cool much after their twenties have ended?  Surely, Samuel L. Jackson, Frank Sinatra, Miles Davis  and others of the “mega cool” can carry it for the rest of their lives and beyond; we mere mortals need to pass the baton to the next generation, move gradually into middle age, grey hair, pot bellies and memories of when we made the scene and, now and then, if we retain any morsel of the cool, listen to new music and perhaps actually go out to a club or larger performance space to hear a band that is not on a reunion tour or hasn’t simply continued into their geriatric years becoming less relevant with each boring new album and greatest hits tour.


Recently, I heard an interview with Winton suggesting that the whole world should have a funeral acknowledging the death of the cool as defined by Miles and the “Birth of the Cool” album released in the early fifties.  That album and attitude embodied by Miles, Monk, Trane and so many others of the era who acted with the nonchalance of an ice cube and, in attitude if nothing else, passed the behavior along into the hip of the sixties, the punk of the seventies, the grunge, alternative, hip-hop, rap, indie, you name it that has come since.  Winton suggested a funeral for the cool, a return to the chalance and permission to publicly show emotion, admiration and even joy and sadness in a public forum once again.


Thus, those of us who barely turned our heads when Lou Reed walked into a club where punks hung out, maybe tipped our beer in his direction might actually say that we admired his work, the Velvets and his influence on the New York scene that today can still be heard in the poetry of the Williamsburg hip-hop kids.  We can actually admit that Dylan, Springsteen and Motorhead made our blood rush with excitement rather than hanging in the back, leaning against the bar and saying, “they’re alright.” While inside feeling the rush of a great performance.  Those guys, the heavily influential acts, Iggy Pop, MC5, The Fugs, The Kinks, Rolling Stones, George Clinton and the P-Funk All Stars deserved wild audiences but, alas, the cool got between us and our emotions. 


I suppose Lou Reed may have noticed that the early punks at least all did our best to dress like him – we had the biker jacket, the Ray ban Wayfarer sunglasses, the white t-shirt, the jeans with a hole in the knees and the Chuck Taylor high tops.  We were too cool to approach Lou to tell him we loved a particular performance but we turned into kinetic sculptures of the man, phenomena of which he must have been aware.  Notably, The Ramones, the first true break away punk band also donned this look.  Digging a little deeper, this was more or less what Springsteen wore.  Yes, we were highly informed by the previous generation but we punks wouldn’t admit it even if tortured.


So, I find myself agreeing with Winton.  It’s time to bury the cool and move into some sort of twentieth first century non-nonchalance.  Will this be the post-post modernism the academics have been searching for?  Will we end up with a hyper generation of hero and ancestor worshipers digging through stacks of MP3 on their favorite download sites just so they can admire Blue Oyster Cult and Scorpions like we did?  Conversely, is trying to find an appropriate philosophical metaphor for pop culture a waste of useful brain power and that we should let it progress without social criticism or theory?  If I only had the answers to these weird questions about the peculiar things about which I think.


n  End


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