JERRY FIDDLER

CEO/CHAIRMAN

WIND RIVER SYSTEMS

MR. FIDDLER:  Thank you.

I just dashed in the door.  Traffic was terrible.

I stand before you not as an expert in intellectual property law.
I'm  not  a lawyer.  Most people in this room know far more about
intellectual property law than I ever will.  Rather,  I  wish  to
speak  to  you as an expert software engineer and the founder and
CEO of a successful software company, Wind River Systems.

Wind River Systems is a 3O million dollar public company, with 4O
percent of our revenue from overseas.  We create software for em-
bedded systems, the  microprocessors  found  ipe  our  cars,  fax
machines,  telephones,  robots,  factories, consumer electronics.
According to Software Magazine, last year we were the 92nd  larg-
est software company in the US.

My perspective  on  software  patents  is  simple:  stop  issuing
software patents.  Software patents should not exist.  I say this
for a number of reasons.

First and foremost, I look at the reasons patents exist, which is
for the benefit of society.  Certainly there are fields where pa-
tents are essential because of the large investment involved  for
creation  of  technology and the ease of copying that technology.
In such situations, patents incent the major  investments  neces-
sary for those inventions which benefit society.

This doesn't apply to software.  Availability of  patent  protec-
tion  is  not necessary to incent creation of software. Copyright
and trade secret protection are entirely adequate  and  more  ap-
propriate.   Yes,  major  investments  are  necessary  to  create
software, but that investment is primarily  involved  in  quality
implementatitnd  support  of the software, not development of the
algorithms and ideas that might be patentable.  Therefore, unlike
a  drug,  for instance, it's not substantially cheaper or quicker
to copy a program's functionality than it is to develop the  ori-
ginal.

The deal society makes with the inventor,  "Tell  us  about  your
invention  and  you  can  have a monopoly for 17 years," is not a
fair deal today when it comes to software.  In a  field  changing
as fast as software is today, 17 years might as well be a millen-
nium.  The deal might as well be phrased, "Tell us about your in-
vention  and you can monopolize it forever," so the fact that we,
society, know about it is meaningless.

In fact, patenting of software is actively  harmful  to  society.
People don't need software monopolies.  They need software that's
open, compatible, and that  adheres  to  their  expectations  and
standards.   They  need  the  software equivalent of expectations
like "accelerator on the right, brake on the left". Patenting  of
software could only impede tx goals.

Furthermore, patenting of software will not accelerate its  crea-
tion  or  advancement.   Rather, it will impede that advancement,
which is far better driven by the free market than by monopoly.

Imagine where we would be today if patents had  been  granted  on
technology   or   concepts   critical   to   word  processors  or
spreadsheets.  Rather than the sophisticated and elegant tools we
now have available thanks to competition, we would still be using
something very much like the primitive first  versions  of  those
tools.   Worse  still,  we must remember that word processors and
spreadsheets have been largely responsible for spawning an indus-
try and making the personal computer a part of most of our lives.
The quality and advancement in those tools have created opportun-
ities  for  computer manufacturers and for other software vendors
who can sell to users who have computers primarily to  run  those
primary tools.

It's not too strong to say that if there had been  strong  patent
protection  for the first word processors a|preadsheets, the per-
sonal computer industry today might be five to ten  years  behind
where  it is.  As another example, if aspects of TCP/IP, the net-
work protocol, had received patent protection, today the Internet
might very well not exist.

Creation of software will also be impeded by  the  difficulty  of
writing  software that doesn't inadvertently trip across a patent
somewhere.  This is true in other fields where patenting is  less
controversial,  but  it's far worse in software. It's not unusual
for a program to be a million lines  long  and  consist  of  many
thousands  of subroutines and functions. Algorithms and ideas are
embodied in each of those components and in combinations of them.
Some  of  these  algorithms  may be studied in school or found in
books, but many are developed "on the  fly"  as  the  program  is
created.   Many  of  these subroutines and functions might be far
afield from the purpose of the program as a whole.

An operating system, for instance,  might  contain  routines  for
sorting  and  searching,  handliueues,  parsing text, controlling
hardware, testing memory, et cetera.  It will  be  impossible  to
know  which of these routines, algorithms and ideas violate a pa-
tent, because every programmer would  need  to  understand  every
software patent __ every software patent that's active.  Software
is simply too complex, composed of too many pieces which are  too
easy  to  create,  to  lend  itself  to  being  broken  down into
patent_sized chunks.

I can easily envision a world in which progress  in  software  is
totally  blocked  by  a  web  of patents owned by a very few very
large companies; not the best or the most creative companies  but
rather  those  with  the  most  lawyers.  In a world like that it
would be completely impossible to start and build a company  like
mine __ and this nightmare could come to pass very quickly.

To   date   there   has   been   little   litigation    regarding
software_related  patents.   God help us all when that litigation
does begin.  Judges and juries will be asked to rule on whether a
large  complicated program, potenly millions of lines long, writ-
ten in an obscure computer language, violates an  arcane  patent.
The  claimed  violation  will be built into the very fiber of the
program, hidden within the program's structure and data  in  com-
plex and subtle ways.  One expert will say one thing, another ex-
pert will say the opposite, neither judge nor jury will  be  com-
petent  to  understand the nature or veracity of the patent, much
less which expert is closer to the truth.  The patent  will  have
been  issued  by  an  examiner  who is not expert in the specific
software field and might not understand the concepts essential to
operating  systems,  fuzzy  logic, or whatever the specific field
is, much less the prior art.  The chances of a fair and  informed
decision will be vanishingly small.

Software is, perhaps, more analogous to literature and music than
it  is to mechanical invention.  It would be silly to think about
patenting the first_person novel or the sonata  form,  yet  there
are  software  patents already that to a software engineer arst as
absurd.

As a software company CEO, I  am  perfectly  content  to  compete
based on the quality of the software we create and the support we
provide for it.  I am fully satisfied  with  copyright,  contract
and  trade_secret  protection  for the software we write. We have
begun to work on some patent applications because I think we  may
need  them  for  defensive  purposes,  but  I would far rather we
didn't need to do so.

If software patents become prevalent, it will seriously interfere
with our ability to continue improving our products and our abil-
ity to continue developing new ones.  It will also interfere with
our  ability  to provide openness and compatibility to our custo-
mers __ a key part of the value we provide to them.

The best possible result of these hearings for us, for our custo-
mers  and  for society would be for software patents to simply go
away.

COMMISSIONER LEHMAN:  Thank you very much, Mr. Fiddler.  I  would
just make an observation and ask a question.

You indicate where  would  we  be  if  we  had  had  pat  on  the
spreadsheets,  and  so on and so forth, and I think that suggests
that I think it's one of the reasons why we may not have  patents
on spreadsheets and the idea of a word processing program, and so
on, is because those particular items were not  patentable,  they
didn't meet the test of patentability.

And I think herein lies  a  lot  of  the  problem  when  you  say
software  shouldn't  be  patentable.   Well,  it well may be that
there's a lot of confusion as to where that threshold  is  drawn,
and  that  indeed some software_related inventions could and, you
know, are very appropriately patentable, but there seems to be  a
lot  of confusion about where the test, where the threshold, what
kind of innovation meets the test of novelty  and  unobviousness,
where that's drawn.

And how would you feel about a more vigorous examination of where
that line of nonobviousness is drawn?

MR. FIDDLER:  You know, obviously, to the extent  patents  exist,
I'd  like  them  to be as narrow and as well_defined as possible.
Clearly, that's inrybody's benefit.

But I think that, yes, it's true that probably the concept  of  a
word  processor  is not a patentable concept, but there certainly
are key components of those that very well may have passed patent
law,  particularly  as patents seem to be being issued, you know,
very recently.

There are, I think, that even if the Patent  Office  is  perfect,
even if it issues only patents that are entirely appropriate, are
entirely correct, are novel and  nonobviousness,  and  so  forth,
which  is I think a very unlikely place to get to, but even if we
can assume that the PTO is perfect in  those  respects,  I  still
think  that  it  will  have  __ it makes it far more difficult to
create software.

If I sit here, I mean you can set for me a problem and say please
write  a program that does something, and, depending on the prob-
lem, in somewhere between five minutes and a couple hours  I  may
be  able  to  do  that.   Is  what I have done patentable? Maybe.
Maybe there's an idea in there that is, maybe there isn't.

To find out if t is, it will take me far longer to find that out,
and  there's no way in the world I can be familiar with it and it
will be very difficult for me to find it.  It may be in  a  field
far  away from the one in which I'm working.  It will multiply my
work not by 1O or 2O or 5O percent, but potentially by  thousands
of percent.

COMMISSIONER LEHMAN:  How is that any different, really, from  an
engineer  that's  working in electronic components of aircraft in
__

MR. FIDDLER:  I think it's different __

COMMISSIONER LEHMAN:  __ in Seattle where there's obviously a lot
of innovation and they're constantly asked to design all kinds of
gizmos and do things and yet that's an area clearly where there's
been patentability for a long period of time and they aren't, you
know, suggesting that somehow or other  engineers  can't  make  a
move  and  put  pen to paper or turn on their workstation without
consulting the legal department?

MR. FIDDLER:  I think it's different in a couple  ways.  For  one
thing, copyright doesn't work for them it works fine for us.  For
another thing, it's far easier to create software  ideas  and  to
make them work.

When I start and write a program, I may write however many  lines
of  code  it is, I may start with a design and do that, and I may
actually have it debugged within a very few minutes.  I can  make
changes  to it by saying, "Change this line of code."  I can make
it work in a very few minutes.   That's  very  different  than  a
hardware  concept  or  building  something in hardware, where the
turnaround time is much longer, the number of  concepts  probably
embodied  __  certainly  the number of novel concepts embodied in
any specific project are probably much smaller.

As I said, a very small number of programmers, two  or  three  or
five programmers, can certainly write a million_line program with
many thousands of ideas that may potentially be patentable.  Have
they  been  patented?   Have  they not been?  Is there prior art?
Isn't there?  It's almost a question of luck and almost  impossi-
ble  to  find  out and it will make xtremely difficult to work to
create these kinds of programs.

COMMISSIONER LEHMAN:  Thank you very much.

MR. FIDDLER:  Thank you.

COMMISSIONER LEHMAN:  Gerry?  I wanted  to  have  Gerry  Goldberg
stand  up,  the  Director of Group 23O.  He's an important person
for all of you to know.  He'll probably be  back  here,  I  would
guess,  following up on some of the aspects that will come out of
these hearings to try to improve our procedures.

So Gerry is our point man on software.  I hope  you  all  get  to
know him, if you don't already.

Next I'd like to ask Jim Warren of Autodesk to step forward.

Oh, I think we think you're  the  person  who  got  the  Internet
legislation for the California legislation passed __

MR. WARREN:  That's correct.

COMMISSIONER LEHMAN:  __ passed in three weeks?

MR. WARREN:  It's been online.

COMMISSIONER LEHMAN:  We've got a couple of job openings  at  the
Patent and Trademark Office, so I mentioned that yesterday, maybe
we ought to __

(Laughter)

MR. WARREN:  We're going after the campaign d  osure  information
now.

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