WALLACE JUDD

MENTRIX CORPORATION

MR. JUDD:  Thank you.  My name is Wallace Judd, I am president of Mentrix
Corporation.  I am the holder of a patent that's not for software.  I am
also a programmer.  And even though our software company in Nevada City,
California, is very small, the testing and training that we provide impacts
over 800,000 people annually in the United States.  So even small software
companies have a fairly large impact.

I would like to ascertain, are all of you up there lawyers?

Yeah.  It's been interesting to me the dichotomy __

COMMISSIONER LEHMAN:  Sorry, we run the world, it's just __ I think about 90
percent of the presidents are, you know.

MR. JUDD:  Well, you know, but this is interesting. It's curious to me
because all the programmers __

COMMISSIONER LEHMAN:  Julius Caesar was a lawyer, you know.  The pharaoh was
a lawyer, you can't get away from that.

MR. JUDD:  Well, all the programmers seem to be opposed to patent for
software, and all the lawyers have testified in favor of it.  And I think
that bodes somewhat inauspicious for my plea to request that you not protect
__

COMMISSIONER LEHMAN:  I think we just heard from one that was in favor of
patent protection.

MR. JUDD:  Beg your pardon?

COMMISSIONER LEHMAN:  I think __

MR. JUDD:  Mr. Schlafly was in favor it, he was the only one.

COMMISSIONER LEHMAN:  There were a few others.

MR. JUDD:  He's in firmware.

Today, I am going to outline __

COMMISSIONER LEHMAN:  You make a point, though.  There is no question about
it that the lawyers seem to very much in favor of patent protection. 
Companies tend to be somewhat split, and programmers who've testified,
though not all, a majority of them have testified against it.

We have noticed that fact.

MR. JUDD:  Today I am going to continue to outline some procedural questions
with regard to software patents that I believe are essentially unanswerable. 
Then I am going to show some instances over the past several years in which
software patents simply did not work.  And finally, I will try to discuss
the disastrous impact of allowing software patents on software development.

The first, the issuance of a patent revolves around several salient points:
establishing the time of invention, documenting the invention, and
establishing the nonobviousness of the invention to a practitioner in the
field.

In the world of software we shall see that all of these I believe are
essentially unanswerable.  With the physical objects the time of invention
is the achievement of the working model, or the creation of a drawing of a
working model.  In software the time of invention is unknowable.  If it is
the writing of code exhibiting the claims, what if the code has bugs? Has
the invention been discovered?  How many bugs are allowable? How major can
the bugs be to disallow establishment of the claim? Does the code have to be
free of bugs?  If so, then DOS 6 wouldn't qualify, and certainly most of my
Windows software wouldn't qualify.

In essence, you've got an unanswerable question here; when has the claim
been established in software?

Suppose you develop a stark prototype, just the skeleton of a program that
demonstrates the claims, how robust must this prototype be?  Must it
demonstrate all features, the salient features?  I can see people rushing
down to your offices with two_page executing code sketches making exorbitant
claims for their little hack.

Documenting the invention is another issue.  What language would programs
have to be submitted in?  Does the Patent and Trademark Office have to
compile the code to execute it?  How can an examiner test the claims of the
patented code?  What if the code doesn't do what it claims to do?

To mount an acceptable challenge do I have to execute the patented code and
show it doesn't work?

What if I don't happen to have the compiler for that code?  What if the
language is unique?  What if the code exists only on a virtual machine?  How
can I then demonstrate that the code does or doesn't work?

Should the Patent and Trademark Office define acceptable languages in which
submissions should be made?  If so, that will guarantee that most
discoveries are years behind the times since many leading edge applications
are programmed in languages designed for a special purpose that don't have a
wide following.

What's obvious to a practitioner in the field, if I obtain a patent for a
software training program which monitors the user's every action, is it
obvious that simply by adding a scoring algorithm I have a test?  It's
obvious if you think about it and yet, patents have awarded independently
for testing and training programs.

What level of expertise is exhibited by a practitioner in the field?  The
degrees of modification to make the one I just suggested are obvious to a
computer 101 programmer, and yet the questions is would they be obvious to
an examiner?

The Commissioner this morning pointed out to Jerry Fiddler that there are no
patents on spreadsheets or word processing programs, and I think that was an
appropriate thing to point out.  However, in my field there are patents
being awarded for training programs, for testing programs, and for help
systems all of which are obvious and have been in practice for a number of
years.

In fact, apparently this field is getting patent protection where word
processors and spreadsheets did not get it. So there's a real problem,
there's a real issue here in my particular area.

COMMISSIONER LEHMAN:  I'd like to make a point about this, and I don't mean
this is critical of you, but we're obviously supplying this forum and we're
obviously getting the message from various people about frustrations they
have and unhappiness they have with the system.  But one thing I hope that
people will leave here with, those who are still in the room, is the notion
that we're not on Mars or someplace.  If people are unhappy with the system,
you know, we're never more than a letter away, and now even with Internet
we're an Internet message, an electronic mail message away.

So I think that if people in the business start to see things that they
don't like, like the issuance of patents in this area, even without having
to use the re_examination procedure, I'd like to think that people can write
a letter to the Commissioner of Patents.  And you can be certain that if
start getting lots of letters and we get complaints we'll start to look into
these things.  That as it is, you know, it seems like we sort of have to
read about things in the newspaper, or they have to really get disastrous
before we know about the problem.

So I just hope that one of the sort of teaching points that can come out of
this is that dialogue is a two_way street. We're going to try to have a more
open ear, but we encourage people to communicate with us too, when they
perceive that things are not going the way they'd like them to go.

I'm sorry to interrupt you, you can have the rest of your time back.

MR. JUDD:  That's all right.

Robert Greene Sterne earlier testified that it is the functionality that is
the invention when testifying with regard to the distinction between
software and hardware, and the fact that there was no essential distinction
between the two.  And yet, I would like to make an argument for the opposite
case.

In fact, if you invented a unique way of trapping mice, you get revenues for
17 years, but you can't protect the notion of trapping mice.  If somebody
comes along with a better mousetrap, you can't prevent them from trapping
mice and licensing their trap if it doesn't violate your method. Copyright
protection for software and for circuit designs is adequate.  You just don't
want somebody to steal your code or your circuit design.  Stealing the goal,
the objective, the function of the patent is as old as patent itself.

You trap a mouse with a string, I'm going to drown those little suckers,
voila, I've got a patent.  Okay?  You cannot patent the notion of trapping a
mouse.  And I think the same thing is true here.  We don't have a problem
with the distinction between hardware and software.  That in fact, if you
copyright a circuit design, that is effective protection for that particular
idea.

Since I have only read reviews of the Compton's patent, please understand
that my next remarks are based on hearsay not close analysis of the patent
itself.  Nonetheless, I believe the issues I raise are germane, whether or
not the details of the patent as I present them.

The problem with the Compton's patent is that there claims are so broad as
to virtually disallow any other method of index access to a CD ROM. 
Essentially, they want to patent the idea of trapping mice, not their
particular mousetrap.

But as any basic database programer knows, there are dozens of ways to
create indexed access to data, whether the data is on a CD ROM, a hard disk,
in random access memory or stored in magnetic donuts, the principles are
identical.

The fact that the Patent Office would grant a patent on access to a CD Rom
simply shows that the examiner doesn't understand the generality of random
access storage devices.

Another famous or infamous patent software case is the Apple Microsoft
litigation with regard to Windows and the Macintosh Look and Feel.  The case
I felt was truly ridiculous since the Look and Feel of the Macintosh were
established at Xerox Park years before the Macintosh was invented.  Yet the
litigation sucked up millions of dollars, tens of millions of dollars worth
of legal fees per year for a number of years.  All you had to do was drive
up Pagemill Road, run the old Park examples and you would see a Macintosh
system.  And yet, apparently nobody did that.

Now, how do I know this?  The answer is, I worked at Xerox Park in 1979 and
'80, then was hired by Apple to work on the Lisa system, which was the
precursor to the Macintosh.  At Park, I worked on teaching the Star
interface to users, so I am particularly qualified to comment on that
particular issue.

At Apple our implicit charter was to emulate the Xerox system.  Any
programmer with two eyes and an index finger, would have looked at the Star
System in the Macintosh and thrown the case out of court, yet it consumed
millions of dollars in litigation.

UNMIKED VOICE:  Here, here.

MR. JUDD:  Although, over a hundred million dollars were spent or will be
spent on these cases, our society is no better off as a result of this
litigation.

Increased cost, if patent law is the standard form of protection awarded
software there will be clearly a dramatic increase in defending a software
product from infringement claims.  Today at lunch, as a matter of fact, I
was privy to find out that we are infringing a patent issued in 1992 for a
help system.  Now, this is a computer_assisted learning support system filed
in Tokyo, Japan __ of course, the system that we're infringing it with was
invented in 1985, and incidentally had the examiners been familiar with the
prior art back to 1981, the help system for Lotus 1_2_3, version 1.0, was a
perfect example of this very patent and the series of claims contained
therein.  So in essence, what's going to happen is a small software company
such as I is going to have to hopefully be able to notify the Commissioner,
or at the worst case, spend $2,000 having this claim re_examined.

The sheer number of potentially patentable aspects of a computer program
would make it prohibitively expensive to research them all.  While a
computer chip or a tire or a drug may have several different arenas of
patent law to research, the number of arenas impacting software are
exponentially more. Assuring that your software is free of infringements
would require research into database maintenance, disk access, user
interface, memory managers, interrupt handling, queueing theory, and
literally dozens of other programming issues.  Writing a few lines of code
would require days of research to see whose code you might have infringed.

Another impact will be in marketing delays caused by a year of uncertainty
until everyone comes out of the woodwork who might have invented something
remotely related to your program. Suppose software is patentable.  What's
the optimal low finance strategy for a person such as myself?  Obviously
it's to sandbag it.  File patents 360 days after I've documented a program;
then if my claims are allowed, I can sue all the folks who have big
marketing bucks in similar programs.  It's not an enhancement for society. 
If you manage to establish priority, you've got their marketing investment
already engaged behind your license program.

To summarize, I've shown elements critical for establishing a patent are
indeterminate.  I've illustrated the problem with patent enforcement, using
the Compton's and Apple vs. Microsoft cases, and I've shown several
disastrous impacts that can be predicted from widespread use of software
patents. As a software developer, I beg you, keep patent law out of
software.  Don't let legal entanglements destroy the software industry as
they did the private airplane industry.  Clarify that the protection
available to software developers is copyright, not patent.

COMMISSIONER LEHMAN:  Our next witness __ we're getting near the end of the
day here __ is Russell Brand, Senior Computer Scientist & Product with
Reasonings Systems, Incorporated.

Mr. Brand, if you'll bear with me a little bit, I'm going to leave the room
for about three minutes and I'll be right back, and if there is any chairing
work that needs to be done, hopefully my colleague, Commissioner Goffney,
will take that over.  So I'll be right back and I hope you'll forgive me for
missing your opening part of your remarks.  Thanks.

Why don't you proceed.


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