Author: Richard A. Fowell (fowell@netcom.com)
Date: 21:59:55 09/25/98
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Paul Helmering applied for a U.S. patent on his "Chess Maps" software <http://www.chessmaps.com/index.htm> for displaying chess variations as trees. ( At http://www.chessmaps.com/cmhis.htm, it says: "A patent application was submitted in February 1996; the patent is pending.") This seems highly undesirable for us - any software sold (or even used) in the U.S. until the year 2016 that displayed variations as trees would require Paul's permission (and royalties) if it used any features claimed by his patent (the details of which are secret under U.S. law until it issues). We're already in a similar bind in the U.S. because of an autoboard patent - many people at CCC have already been hurt by that. As in the autoboard case, the fact that prior similar examples existed before the patent is not very comforting. Before a U.S. patent issues, the burden of proof, and fees, are on the applicant. Afterwards, however, any attempt to invalidate the patent requires expensive legal fees, and the burden of proof shifts from the patent applicant to his opponents. There is a strong presumption of validity in U.S. patents - the last statistics I saw, the patent holders were winning 2/3 of the infringement suits. Keep in mind, too, that the only cases that became suits were the one's where the alleged infringers thought their cases were strong enough to pay legal fees to fight rather than settle out of court. The only thing we can do for free is to file a protest before the examiner makes a ruling. This approach has its drawbacks - the protester only gets to send in one collection of documents and his arguments why they show that the invention existed beforehand. After that, the applicant gets to make his arguments without fear of rebuttal from the protester, who is barred from the subsequent proceedings. Patent lawyers claim it is more effective to wait until a patent issues, then sue to invalidate it. Their point is, the protester then gets to respond to the applicants arguments (or is it - they don't get any money the first way?). The problem is, that would require thousands of dollars, and it isn't worth that much to me. If one of you is willing to pay to sue after issuance, let me know, and I'll hold off - any references that the applicant successfully argues past the examiner are largely rendered impotent. Likewise, if someone else is better skilled at doing this - I'm no patent lawyer, though I've spent too much time around them. Otherwise, I'm going to give it my best shot (with some help from you folks in terms of references, and perhaps arguments) I'm working on filing a protest to let the patent examiner know about software that was described in print (anywhere in the world), or in public use in the United States, prior to February 1995, that displayed chess variations in tree form.) At the moment, my documentation is: a) The SmartChess Reader (which has tree visualization/manipulation features, albeit with a rather ugly, unmarked tree diagram), b) How Computers Play Chess" (Levy), Chapter 9 - many varieties of chess tree representation there. I'm only allowed to file a single protest, and if it gets to the U.S. patent office after the examiner has ruled on the application (which, alas, may have already happened), it won't be looked at. So, timely help would be appreciated!! You can post references here, or email me at fowell@netcom.com. I'm planning to go in to the UCLA research library tomorrow to search for any relevant papers/articles I can find. I also have Chess Life going back to 1970, if anyone remembers any references, or tree diagrams, there. Thanks! Richard A. Fowell (fowell@netcom.com)
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