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Subject: READ THIS!! If you want your software to display variation trees!

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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