[lpf/articles/ams.amicus] This is a friend-of-the-court brief that the League for Programming Freedom filed on behalf of American Multi-Systems, a family business that was sued by Fortunet for patent infringement. Fortunet does not offer patent licenses for its patents; American Multi-Systems had been shut down completely by a preliminary injunction; this left it no way to pay the bills to defend the lawsuit. This brief may have helped to bring about the lifting of the injunction. Jack Larsen Otto & Blumenthal 3 South Prospect, Suite 206 Park Ridge, IL 60068 (708) 698-1160 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA FORTUNET, INC., ) Case Number 92-1752-IEG (LSP) ) Plaintiff ) BRIEF AMICUS CURIAE ) IN SUPPORT OF MOTION FOR v. ) RECONSIDERATION, SUMMARY ) JUDGMENT AMERICAN MULTI-SYSTEMS, and ) VERN BLANCHARD, ) SUBMITTED BY LEAGUE FOR ) PROGRAMMING FREEDOM, Defendants. ) ET AL ) AMERICAN MULTI-SYSTEMS, and ) VERN D. BLANCHARD, ) __________________________________ ) Counter-Claimants, ) ) v. ) ) FORTUNET, INC., ) ) Counter-Defendants. ) ) AMERICAN MULTI-SYSTEMS, and ) VERN D. BLANCHARD, ) ) Third Party Plaintiffs ) ) __________________________________ ) ) YURI ITKIS and MICHAEL ITKIS, ) ) Third Party Defendants ) ) ___________________________________) TABLE OF CONTENTS Purposes of the Brief . . . . . . . . . . . . . . . . . . . . . -2- What Framework Is Appropriate For Addressing the Patent Issues In a Dispute of This Sort? . . . . . . . . . . -3- Can Computer Programs Be Properly Regarded as Containing Statutory Elements? . . . . . . . . . . . . . . . . . -3- General Purpose Computers Cannot Infringe . . . . . . . . . . . -5- Different Means . . . . . . . . . . . . . . . . . . . . . . . . -5- Reverse Doctrine of Equivalents . . . . . . . . . . . . . . . . -8- Method Of Doing Business Doctrine . . . . . . . . . . . . . . . -8- Disclosure Requirements . . . . . . . . . . . . . . . . . . . . -9- Obviousness and Novelty . . . . . . . . . . . . . . . . . . . -10- Public Policy Concerns . . . . . . . . . . . . . . . . . . . -11- Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . -13- TABLE OF AUTHORITIES CASES Diamond v. Bradley, 450 U.S. 381, 209 USPQ 97 (1981) . . . . . . . . . . . . . . . -3- Diamond v. Diehr, 450 U.S. 175, 209 USPQ 1 (1981) . . . . . . . . . . . -2-, -3-, -8- Digitronics Corp. V. New York Racing Association, 187 USPQ 602 (E.D.N.Y. 1975) affd 553 F.2d 740 (2d Cir. 1977) . -5- Ex Parte Murray, 9 USPQ 1819 (Bd Pat App Int 1988) . . . . . . . . . . . . . . . -9- Fuller v. Berger et al., 120 Fed 274 (1903) . . . . . . . . . . . . . . . . . . . . . . -4- Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972) . . . . . . . . . . . . -3-, -4- Graver Tank v. Linde Air Products, 339 US 605 (1950) . . . . . . . . . . . . . . . . . . . . . . . -6- In Re Beattie, 24 USPQ 2d 1040 . . . . . . . . . . . . . . . . . . . . . . . -11- In re Grams, 888 F.2d. 835 (Fed. Cir. 1989) . . . . . . . . . . . . . . . . -4- In Re Herschler, 200 USPQ 711 (1979) . . . . . . . . . . . . . . . . . . . . . . -9- In re Johnson et al, 200 USPQ 199 (1978) . . . . . . . . . . . . . . . . . . . . . -8- In re Kaslow, 217 USPQ 1089 (1983) . . . . . . . . . . . . . . . . . . . . . -9- In re Walter 205 USPQ 397 (1980) . . . . . . . . . . . . . . . . . . . . . . -8- Mackay Radio Corp. & Telegraph Co. v. Radio Corp. of America, 306 U.S. 86, 40 USPQ 199 (1939) . . . . . . . . . . . . . . . -3- Pain, Webber, Jackson & Curtis v. Merrill Lynch, Pierce, Fenner & Smith, Inc. 564 F Supp 1358 218 USPQ 212 (D.Del 1983) . . . . . . . . . . -9- Parker v. Flook, 437 U.S. 584, 198 USPQ 193 (1978) . . . . . . . . . . -3-, -4-, -8- Pennwalt Corp. v. Durand-Wayland, Inc., 225 USPQ 558 (N.D.Ga. 1984), affd. 833 F.2d 931 (Fed. Cir. 1987) (en banc), cert. denied 108 S.Ct. 1226 (1988) . . . . . . . . . . . -6-, -8- Schultze v. Holtz et al, 82 Fed 448 (1897) . . . . . . . . . . . . . . . . . . . . . . . -4- Texas Instruments v. U.S. International Trade Commission, 805 F.2d 1558, 231 USPQ 833 (Fed Cir. 1986) pet. for rehearing denied 846 F.2d 1369 (Fed Cir. 1988) . -5-, -8- White Consolidated Industries v. Vega Servo-Control, 214 USPQ 796 (1982) . . . . . . . . . . . . . . . . . . . . . -10- STATUTES 35 U.S.C.  100(b) . . . . . . . . . . . . . . . . . . . . . . -5- 35 U.S.C.  101 . . . . . . . . . . . . . -3-, -4-, -8-, -9-, -11- 35 U.S.C.  102 . . . . . . . . . . . . . . . . . . . . . -9-, -10- 35 U.S.C.  103 . . . . . . . . . . . . . . . . . . -9-, -10-, -11- 35 U.S.C.  112 . . . . . . . . . . . . . . . . . . . . . -6-, -9- 1. Purposes of the Brief. This brief amicus curiae not only addresses the merits of the patent suit between Fortunet, Inc. ("Fortunet") and American Multi-Systems and Vern Blanchard ("American"), it also speaks to the nature of the patent inquiry that we, as professors, lawyers and experts in the field who teach and write about computers and computer patent law, think to be appropriate for addressing the issues presented by cases of this general type. We offer our views on this subject out of concern about the overbroad and conflicting tests used in assessing the patent issues of computer software, and its component parts. We regard the tests employed in some courts opinions to be inconsistent with the patent statutes, patent case law, and traditional principles of patent and copyright law. Their use not only has an adverse effect on software development and the software industry, they should not be employed in judging patent issues in the Fortunet v. American dispute. This brief aims to aid the court in constructing a more appropriate framework for resolving the patent issues presented in the Fortunet v. American case. Diamond v. Diehr held that some inventions which include computer programs contain aspects that can properly be patented. This necessarily exempts all pure computer programs as not containing the requisite statutory elements. Whether a particular invention, which also includes a computer program, has statutory components enough to be patented must be judged by traditional patent standards. We understand the court is currently considering American's motion for reconsideration of the courts ruling in favor of a preliminary injunction. We also understand that American will be bringing a motion for summary judgment. We have studied the arguments and declarations submitted by Fortunet in support of, and American in opposition to, the motion for preliminary injunction. We understand this Court has ruled that there is no infringement under U.S. Patent 4,455,025 ('025), so we will address our analysis specifically to U.S. Patent 4,624,462 ('462). By setting forth the kind of traditional patent inquiry that we think should be made in a case of this sort, we hope to alert the court to the possibility that it might need to make some factual inquiries in the Fortunet v. American case. 2. What Framework Is Appropriate For Addressing the Patent Issues In a Dispute of This Sort? The principle questions posed by a dispute such as that currently pending in the Fortunet v. American case are, first, whether the invention containing a computer program which has been granted a patent can be properly regarded as containing statutory elements, second, whether there has been an improper granting of the patent due to "novelty" or "obviousness" requirements, and third, what public policy concerns are involved. A. Can Computer Programs Be Properly Regarded as Containing Statutory Elements? 35 U.S.C.  101 states, "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title" The U.S. Supreme Court decisions in Diamond v. Diehr1, 450 - --------- 1In Diehr, supra, the Supreme Court found that the claims held statutory were not simply a method of calculating a number, but were clearly directed to an industrial process that included, inter alia, clear physical steps. We believe this Court is clearly incorrect in holding that the Fortunet claimed steps of "data processing means", "comparison means", and "responsive means" are physical steps when, in truth, they only involve mathematical and not physical operations. These steps are not supported by any physical structure or steps in the Fortunet specification other than a standard computer such as also found in all of the cases where non-statutory subject matter was found. - --------- U.S. 175, 209 USPQ 1 (1981) and Diamond v. Bradley, 450 U.S. 381, 209 USPQ 97 (1981) significantly affected patent analysis under 35 U.S.C.  101 for patents involving mathematical equations, mathematical algorithms and computer programs. The Supreme Court stated that certain categories of inventive activity should not be considered statutory subject matter. As set forth in Diamond v. Diehr, supra, excluded from the grant of a patent are laws of nature, physical phenomena, and abstract ideas, citing Parker v. Flook, 437 U.S. 584, 198 USPQ 193 (1978); Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972). A scientific truth, or the mathematical expression of it, is not a patentable invention, Mackay Radio Corp. & Telegraph Co. v. Radio Corp. of America, 306 U.S. 86, 40 USPQ 199 (1939). In Gottschalk v. Benson2, supra, the Court concluded that an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent. Similarly, the Court in Parker v. Flook3, held that an improved method for computing is unpatentable subject matter under 35 U.S.C.  101. If the claims of a patent are directed solely to one of the above judicially excluded areas of inventive activity, it is clear that the patent is not valid. We believe the Fortunet patents are invalid for this reason..4 - ------- 2In Benson, supra, the Supreme Court held that if a patent claim "wholly preempts" a mathematical formula used in a general purpose computer, then it is directed solely to mathematical algorithms (defined as a procedure for solving a particular mathematical problem) and is non-statutory. The Fortunet patents wholly preempt anyone from using a general purpose computer to play bingo, and as such, are non-statutory. 3In Flook, supra, the Supreme Court went further and held that even if the algorithm was not wholly preempted because of a specific use or post-solution activity (in that case the adjustment of an alarm limit), the claim would still be non-statutory if it was nothing more than an improved method of calculating. Like the claims in Flook, the Fortunet claims are nothing more than an improved method of calculating a "yes- no" decision about whether a bingo has been achieved. 4We also must point out to the court that gaming and gambling devices have historically also been exempt from the grant of a patent for want of any utility. The Fortunet system is used in gambling (bingo) halls exclusively, and as such lacks the requisite utility demanded by 35 U.S.C.  101. Schultze v. Holtz et al, 82 Fed 448 (1897), Fuller v. Berger et al., 120 Fed 274 (1903) - ------------ However, a claim is not unpatentable under 35 U.S.C.  101 merely because it includes a step(s) or element(s) directed to a law of nature, mathematical algorithm, formula or computer program so long as the claim as a whole is drawn to subject matter otherwise statutory5. Although we believe that software designed to run on "ordinary", general purpose computers is automatically disqualified by 35 U.S.C.  101 as not containing statutory elements, we have seen many patents granted mistakenly granted for various "means" claims which are nothing more than "ordinary", general purpose computers. (A good example of this is U.S. patent 4,624,462, the patent in dispute here. Claims for the various "means" describe an "ordinary", general purpose computer. A careful examination of the claims disclose that excepting the software portion which plays bingo, the claims detail any ordinary computer, mainframe, PC, calculator, some watches, etc. The single element in the claims that differs from any general purpose computer is that governed by the software.) General Purpose Computers Cannot Infringe. We are constrained to point out that software systems, such as American's, are solely algorithms and/or mathematical formulas, and as such, in our opinion are properly excluded from gaining a patent, and therefor, from any infringement issues. It follows that only statutory elements may infringe on statutory claims. Further, a general purpose computer programmed to perform the function of a - -------- 5In re Grams 888 F.2d. 835 (Fed. Cir. 1989) stated that data gathering steps such as converting analog signals to digital values (or "master data input means" or "player's input means" in the Fortunet v. American case) would not render a claim otherwise drawn to a series of mathematical algorithms statutory. Contrary to Fortunet's assertions, the Fortunet claims do not change one physical object, they merely calculate a number which is a digital representation of a comparison between many variables (called numbers vs. bingo patterns) in order to provide an "alarm" (i.e., yes or no bingo). The final output of the Fortunet process is just like the new alarm limit in Flook., supra. This output is not new, but is the same kind of output obtained from any computer solving any mathematical equation as found in all the cases holding claimed subject matter to be non-statutory. - --------- claimed invention does not include the same combination of means as a permanent machine. A machine patent cannot be infringed by a new use of a known machine under 35 U.S.C.  100(b) Digitronics Corp. V. New York Racing Association, 187 USPQ 602 (E.D.N.Y. 1975) affd 553 F.2d 740 (2d Cir. 1977) If the Court upholds the '025 or '462 patents, it would permit Fortunet to preempt the use of a known mathematical algorithm, represented only by a computer program on a disk and run on a standard, run of the mill, computer. It is undisputed that the American system is merely a software program that runs on standard IBM clone computers. As such, the American system cannot infringe on either of Fortunet patents. Different Means. We must also make analysis of American's system under Texas Instruments v. U.S. International Trade Commission, 805 F.2d 1558, 231 USPQ 833 (Fed Cir. 1986) pet. for rehearing denied 846 F.2d 1369 (Fed Cir. 1988) which states that "Though every function of the claimed combination was performed in the accused devices, the structures performing those functions were not equivalents of the structures disclosed in the patent" (846 F.2d at 1371) The Court, in Texas Instruments, supra, refused to read T.I.'s portable electronic calculator patent claims on the accused calculators which used more modern components (e.g. MOS in place of bipolar transistors), even though the calculators performed identical functions. The chart below discloses the differences between the older and newer technologies. We have reviewed the analysis of the claims by Dr. Harry L. Tredennick and agree with his conclusion that one of ordinary skill in the art would not consider the means disclosed in the '462 patent equivalent to the American system. Further, even if only one of the means disclosed in the patent is absent in the American device, there can be no infringement, even under the Doctrine of Equivalents. Pennwalt Corp. v. Durand-Wayland, Inc., 225 USPQ 558 (N.D.Ga. 1984), affd. 833 F.2d 931 (Fed. Cir. 1987) (en banc), cert. denied 108 S.Ct. 1226 (1988)6 Moreover, in order to infringe, the accused device/process must perform substantially the same function as the claimed invention in substantially the same way to achieve substantially the same result. Graver Tank v. Linde Air Products, 339 US 605 (1950). Again, since most of the technology used by the American system does not meet this test (moreover, most of the technology wasn't even available at the time the patent was filed), there can be no infringement. Device Fortunet American A Game Network - --- FSK Modem, antenna,RS232-C Interface ('462 patent figure 12, col 3 lines 10-16) No modem, antenna, or RS232-C. - --- Uses high speed industry standard ethernet protocol (Tredennick decl. 19, Blanchard decl.  9, 1st Danner decl.  5(b)(2)) Master Data Input Means - --- Twelve key membrane keyboard embedded into the top face surface of the board ('462 patent col 2 lines 60- 66 ) - --- Touch screen (Tredennick decl.  18, 1st Danner decl.  4(a), 4(b) 6, and 10 Master Data Processing Means - --- Undisclosed type of embedded microprocessor ('462 patent col 1 lines 25- 27 ) - --- Intel 80486, which was not available at the time of patent application (Blanchard decl.  9, 1st Danner Decl  4(b)) Master Data Output Means - --- Dot matrix liquid crystal display ('462 patent col 3 3,4) - --- Cathode Ray Tube standard VGA monitor (Blanchard decl.  10, 1st Danner decl.  4(c)) Player's Data Input Means - --- Twelve key membrane keyboard embedded into the top face surface of the board ('462 patent col 8 lines 16- 17 ) - --- Light pen (Tredennick decl.  20, 1st Danner Decl.  5- 8 and 10. Player's Data Processing Means - --- Undisclosed type of embedded microprocessor ('462 patent col 1 lines 25- 27) - --- Intel 80386, which was not available at the time of patent application (Blanchard decl.  10, 1st Danner decl.  5(b)) Player's Data Output Means - --- Dot matrix liquid crystal display ('462 patent col 3 3,4) - --- Cathode Ray Tube standard VGA monitor (Blanchard decl.  10, 1st Danner decl.  5(c)) - ------- 6In all of the claims of the Fortunet patents, each element is expressed as a "means plus function". They are deceptive because they include words that sound like structure. In accordance with 35 U.S.C.  112, these claim elements are to be construed to cover the "corresponding structure, material or acts described in the specification or equivalents thereof" and are not intended to cover all "means" for accomplishing the stated function. Pennwalt, supra. The fact is that for each claim element of the Fortunet patents, the only "corresponding structure material or acts" in the specification is a mathematical algorithm loaded into a general purpose computer and there are no limitations imposed that would permit the public desiring to use the mathematical algorithm to design around the patent. All uses of the algorithm for the stated purpose in any computer are thus preempted. It is curious to note Fortunet's answer to a charge of patent infringement brought by Bingo Card Minder Corporation (Bingo Card Minder Corp. v. Fortunet, CVN 91-590-ECR, District of Nevada, answer 36), in which Fortunet states, "Bingo Card, through its patent misuse, is attempting to monopolize, and combining with others to monopolize, the electronic bingo system market. Bingo Card's over broad and baseless interpretation of its claims renders it virtually impossible for Fortunet to sell any electronic bingo gaming system without a charge of infringement by Bingo Card." (emphasis added) We must agree with Fortunet's assessment of the patent laws in that case. - ------- Assuming arguendo that the court disagreed with our analysis as to the physical elements of a general purpose computer system, further examination is necessary. The claims must be considered as a whole. A claim containing a mathematical formula implementing or applying that formula in a structure or process, when considered as a whole, must be performing a function which is patentable. (e.g. transforming or reducing an article to a different state or thing) . A claim which recites a mathematical formula and is seeking a patent for that formula, again, it would be non-statutory under 35 U.S.C.  101. A mathematical formula as such is not accorded patent exclusionary rights under our patent laws. This principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment. Similarly, insignificant post solution activity will not transform an unpatentable principle into a patentable process. Diamond v. Diehr, supra. When a claim as in Parker v. Flook, 198 USPQ 193, is drawn to a method of computing simply a number, the claim is non- statutory under 35 U.S.C.  101 because Flook sought to patent a formula for computing this number. Further, if the end-product of a claimed invention is a pure number, the invention is non- statutory regardless of any post solution activity which makes it available for use by a person or machine for other purposes. In re Walter 205 USPQ 397 (1980) The entire game of bingo can be reduced to a simple true/false equation...Is there a Bingo? Reverse Doctrine of Equivalents. Although we believe there to be no literal or equivalent infringement, the Reverse Doctrine of Equivalents is applicable here as well. This doctrine avoids infringement of very broad claims that read on devices or methods which do not embody the "essence" or "spirit" of the patented invention. Thus, the doctrine has been used for accused devices that, though literally covered by the claims, were not really "the same invention". Texas Instruments at 1371, Pennwalt, supra. It is clear that the invention contemplated by the '462 patent was a hand held bingo aid using physical overlay templates, not a general purpose computer network whose individual computers are programmed to play bingo. Method Of Doing Business Doctrine. In analyzing computer program related claims, it is essential to recognize that computer implemented processes are encompassed within 35 U.S.C.  101 under the same principles as other machine implemented processes, subject to judicially determined exceptions, inter alia, mathematical formulas, methods of calculation, and mere ideas. In re Johnson et al, 200 USPQ 199 (1978). Certain computer program related claims may be non-statutory under 35 U.S.C.  101 as falling within judicially determined exceptions outside the mathematics area. For example, consider the following claims: (1) a computer program comprising the steps of: a) associating treatment rendered to a patient with a fee, and b) billing said patient in accordance with the fee. Here, the computer program is claimed, not in terms of a specific instruction sequence, but alternatively as a series of steps broadly defining what the program is designed to accomplish. Such a claim is non-statutory under 35 U.S.C.  101 as reciting a method of doing business. Pain, Webber, Jackson & Curtis v. Merrill Lynch, Pierce, Fenner & Smith, Inc. 564 F Supp 1358 218 USPQ 212 (D.Del 1983), Ex Parte Murray, 9 USPQ 1819 (Bd Pat App Int 1988) This Method of Doing Business Doctrine is clearly applicable here. We are compelled to point out the obvious, that the American and Fortunet systems merely mimic the processes of playing bingo, which have been in the public domain for over 300 years! A bare set of computer instructions does not set forth a sequence of steps which could be viewed as a statutory process. Such a computer language listing of such instructions, when not associated with a computing machine to accomplish a specific, statutory purpose, would not constitute a machine implemented process, but would constitute non-statutory subject matter as the mere idea or abstract intellectual concept of a programmer, or as a collection of printed matter. Again, we remind the court that the American system is software, which duplicates the human process of playing bingo. In addition to 35 U.S.C.  101 issues in accordance with the above analytical approach, it should be emphasized to the court that it must also carefully examine mathematical algorithm or computer programming related claims to insure that they comply with the disclosure requirements of 35 U.S.C.  112 as well as the novelty an unobviousness requirements of 35 U.S.C.  102 and 35 U.S.C.  103 (which we discuss below) Disclosure Requirements The function of the description requirement is to ensure that the inventor had possession of, as of the filing date of the application relied upon, the specific subject matter later claimed by him or her; how the specification accomplishes this is not material. In Re Herschler, 200 USPQ 711 (1979), In re Kaslow, 217 USPQ 1089 (1983). Further, the inventor must disclose in a sufficiently detailed manner, any program so that one skilled in the art can generate such a program with no more than routine experimentation. In programming applications whose software disclosure only includes a flowchart, as the complexity of functions and the generality of the individual components of the flowchart increases, the basis for challenging the sufficiency of such a flowchart becomes more reasonable because the likelihood of more than routine experimentation being required to generate a working program from such a flowchart also increases. White Consolidated Industries v. Vega Servo-Control,214 USPQ 796 (1982) A review of the disclosure of the '462 patent reveals that the flowchart described, and the disclosure in general is quite vague, requiring one skilled in the art substantial experimentation to duplicate the invention, rendering the '462 patent invalid due to lack of disclosure requirements. B. Obviousness and Novelty 35 U.S.C.  103 states "A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." 35 U.S.C.  102 requires the invention to be novel, not known or used by any other person. The patent system should not grant or uphold patents that are judged to be obvious. To be valid, a patent must be novel or unique. There is one uncontrovertible fact in this case, BINGO IS A VERY SIMPLE GAME! Young children have played bingo. Notwithstanding all the bells and whistles in both the Fortunet and American systems, both are merely workmanlike compilations of basic computer programming techniques which have been taught to novice computer programmers since the beginning of the computer age. There is nothing novel or unique about either the Fortunet or American systems. Further, a patent is valid only if it is not anticipated by prior art, and is not obvious to one skilled in the pertinent art, in view of any prior art. We submit to the court that playing bingo by computer was inevitable. In view of the "computer age", where everything done by hand has been automated to some degree or another, it would have been obvious not only to those skilled in the computer arts, but to society as a whole, that bingo would become computerized. Games, including bingo, have been played on computers since the 1970's. (the Plato, and OSI systems described in American's opposition papers substantiate this). Additionally, there have been similar rudimentary games, such as bingo, played on a variety of computers prior to Fortunet's patents, such as CPM, Commodore, Amiga, Atari, etc. We also note the existing prior art submitted by American. The combining of prior art is equivalent to obviousness under 35 U.S.C.  103, I Re Beattie, 24 USPQ 2d 1040. It is our opinion that the state of the prior art existing before either the '025 or '462 patent renders both patents invalid due to obviousness. C. Public Policy Concerns. Software patents threaten to devastate America's computer industry. Patents granted in the past decade are now being used to attack developers for selling programs that they have independently developed. Soon new companies will be barred from the software arena---most major programs will require licenses for dozens of patents, and this will make them infeasible. This problem has only one solution: software patents must be eliminated. We direct the court to the attached position paper "Against Software Patents", which is attached hereto as exhibit "A". Publication of this paper in a software magazine resulted in a flood of letters to the Congressional intellectual property subcommittees, opposing software patents - more letters than they had received on any other issue since the creation of those subcommittees. It clearly states our belief that irrespective of any particular case, there are compelling public policy concerns which would require all software patents to be eliminated. Although we won't address the issue here, there are also first amendment questions which are applicable to computer programming. Further, the concept of Free Enterprise and competition, principles on which this country was founded, must take precedence over software patents. It is in the best public policy to foster free competition in developing software products. The public benefits by receiving better, cheaper, more innovative and compatible products. The software programmers can concentrate on productivity and innovation, rather than litigation. If the techniques used in early word processing programs had been patented, we would not now have Word Perfect, Microsoft Word, Ami Pro, or dozens of other highly productive tools at our disposal. The same applies to any other genre of software (Lotus 123/Quattro Pro/Excel are spreadsheet examples) Software is unique among fields of engineering in the size of the systems that are built. Software is pure idea, pure abstraction--carried to an extreme degree of detail. Software design need not deal with the quirks and complexities of material objects which other kinds of engineering must contend with, and this makes it much easier than other kinds of engineering. It is therefore much easier and cheaper to design a software system of any given size than to design an electrical or mechanical system (not to mention a chemical system!) of like size. The consequences are these: * It is easier for a system to be obvious in software than it would be in any other field--since everything in software is easier. * There are a large number of programmers, because the facilities necessary to design, test, and manufacture complex software systems are far simpler than those needed to design, test, and manufacture (i.e. duplicate) complex systems of other kinds. * Therefore, a software technique that is sufficiently unobvious that only the most intelligent 5% of skilled programmers are likely to find it, will still be found so frequently that society can only harm itself by patenting the technique. * The large number of programmers also implies that programmers engaged in designing systems will find, and disclose, new techniques at a rate so high that there is little need for artificial schemes to increase the rate. * Therefore, the main job of software development is not the development of individual techniques (that might be patented), but rather the design of systems combining large numbers of techniques, to perform a wide variety of tasks. * Software systems of a given degree of difficulty to design are much larger (and combine a larger number of techniques) than electrical, mechanical or chemical systems of an equal degree of difficulty. * The typical software system that a single engineer can design will infringe more patents on the average than the typical system a single electrical, mechanical or chemical engineer can design. * Therefore, programmers engaged in designing systems will infringe patents frequently and be obstructed from useful work that constitutes progress. * The overall effect of having patents in the software field is thus to tie developers in knots, to create an uncertain climate for business, and to obstruct progress. Conclusion. Software patents, and specifically the '462 and '025 patents, must be eliminated and declared invalid. In the alternative, even if the '462 and '025 are adjudged valid, that the American system does not infringe on either patent. Respectfully Submitted, ______________________________ On behalf of : League For Programming Freedom, et al