TELECOM Digest OnLine - Sorted: Re: Judge Hits Vonage With Injuction; Stop Using

Re: Judge Hits Vonage With Injuction; Stop Using
2 Apr 2007 20:23:21 -0700

Scott Dorsey wrote:

> The difference between this situation and the current situation is
> that in 1957, the patent office had inspectors who were familiar
> with the technology, and who would reject attempts to patent devices
> that did not work, or which had become part of standard industry
> techniques decades beforehand.

I am not an expert on patent law. But I've read some things that
makes me question the above.

There are two excellent histories of IBM published by MIT Press,
"IBM's Early Computers" and "IBM's 360 and early 370 computers". I
recommend them.

Anyway, these books go into quite of bit of detail over patents, what
IBM could get, what it couldn't get, what it was forced to engineer
around, what it had pay through the nose for license rights, etc. All
these stories, covering not only computers, but components,
manufacturing, chemistry, and physics, seem to me to relate very well
to the situation of today.

Researchers filed for hundreds of patents, most of which would never
be of any value. But that's what researchers did. Even in WW II
secret research labs arranged for patents out of stuff that was
discovered (see Feynman "Surely you're joking").

As to patent examiners being familiar with the technology in 1957, I'm
not sure that was the case either. Technology was exploding in the
postwar era. Many big companies maintained research staffs and were
patenting things like crazy. Just handling the IBM, Bell Labs, RCA,
and other electronics patents alone was enormous. Everything related
to computers was brand new; how would examiners know what existed?
They were going from improved radio tubes to integrated circuit trips.
I can't help but wonder if the patent office was overwhelmed in the

Patents then were also quite controversial. Who held the rights to
core memory? Several inventors, big litigation. Who held the rights
to the first computer? Eckert-Mauchly had to fight it out with
Atansoff-Berry. Earlier, some television and FM radio patents were
disputed for years.

I think it's important to note that IBM and Bell Labs were under
consent decrees where they were obligated to license out their patents
for a reasonable sum. If we were still in the regulated era. Verizon
would be obligated to do likewise and this Vonage problem wouldn't
have come up at all because Vonage would be allowed to use Verizon
patents. My continuing point is that society chose to dump the
regulated era.

> Today, we have the additional issue that the patent office does not
> have enough inspectors with actual familiarity with software
> technology or with algorithms. This is how Microsoft can get away
> with patenting the ring buffer, a data structure used at least as
> early as the CDC 6000.

Why didn't CDC patent it? As mentioned, these companies had large
patent staffs and filed for whatever they could, even if it seemed
worthless or trivial at the time. Some old IBM materials research
patents turned out valuable years later for chip construction. Some
stuff IBM patented from the SSEC, which was obsolete the day it was
born, proved to be valuable later on as well.

> We currently have a situation where huge numbers of obviously
> invalid patents are being issued, and there is no way for the
> patents to be declared so without going to court. And once it comes
> time to go to court, sadly it tends to be a situation of the person
> with the most money winning.

I won't deny money helps a lot, but let's be clear Vonage is not a
single guy working out of his garage; it's a large ongoing concern
with plenty of resources. And let's not forget the huge AT&T lost in
court to pipsqueak MCI over cream skimming.

The other issue that troubles me greatly is the claim that lay juries
aren't capable to judge this stuff. Here's why I question that claim:

When I was in college, I had an excellent comp-sci teacher for
application design. When we wrote up a proposal, he mandated that (1)
absolutely no buzzwords were to be used, (2) that it'd be in plain
English, and (3) any claims of "improved" had to be carefully
quantified. We also had to provide for any troubles and how our
system would in the end be superior to whatever was being done now.
We found out it was a lot harder to do that than we expected. But it
made us much better designers. I wonder if others had that kind of

Any lawyer with half a brain engaged by a technology company, like
Vonage, should be able to explain technical stuff in layman's terms.
Everyday people know what a table and a directory are. We've all used
a telephone book, for example. If Verizon patented a certain kind of
directory structure (e.g. "using thumbcut indexes"), explain it.
(Oddly, in this discussion, no one has referred to the actual patent
text and bothered to explain it in simple English). Let's remember
that one of Franklin Roosevelt's successes was being able to explain
complex issues so that the common man could understand him. "Would
you haggle about loan terms if your neighbor needed your hose to put
out a fire?" FDR's big advantage over Herbert Hoover was FDR's great
communication skills and Hoover's lack thereof. (Hoover was spending
a lot of money to alleviate the Depression, but no one knew it.)

Like I said, I'm not a patent expert. There's a lot of things -- now
and in the past -- that were very trivial yet patened and lucrative
for the inventor. A colleague went to the patent site and just for
laughs looked up "athletic supporter". Turned out there were quite a
few modern patents on it. I don't know what for.

As to the issues in question here, why didn't whoever was the first to
develop them patent them? As I said, missing the boat on patents is
not anything new. IBM failed to patent or copyright some very
valuable developments in the 1950s and they lost out accordingly. If
IBM missed the boat, certainly Vonage could've also.

At the same time, supposedly patented IBM technology was easily
circumvented. IBM invested a heck of a lot of money into development
high speed disk packs and disk drives for its System/360 and other
companies, helped by ex-IBM employees, copied them and sold them,
undercutting IBM. That wa easy to do since they didn't have to cover
the R&D. RCA's Spectra was a clone of IBM's System/360. How the heck
did they get away with that? They obviously did.

Fred Goldstein wrote:

> The key here is that the patents should not have been granted,
> because they lacked the originality and non-obviousness that are
> both requirements of patents. The problem is that the Patent Office
> doesn't pay much attention to prior art other than patents or
> published journal articles. Common knowledge and usage doesn't
> count.

Well, that's your personal opinion, obviously the court didn't agree.

In my personal opinion, it was wrong for MCI to skim of the most
profitable toll service while leaving AT&T with mandated low rates for
high cost toll service. Obviously the court didn't agree. The courts
don't always do what we think they should.

> but you worship at the altar of infallible incumbent LECs.

The traditional Bell companies are certainly not infailable. But they
have a good track record. And yes, I most certainly do support them,
and here's why:

As a customer, I obviously want the most bang for the buck. I've got
enough gray hair to know there's no such thing as a free lunch, and
something too good to be true usually is.

I've seen many newcomers come into the marketplace with whiz-bang
products and services. Almost always they were over hyped and the
disadvantages carefully masked over. Some discount products were fine
(a la fast food) if you knew what you were getting and content with
that. But some consumer foods were rather unhealthy, thank goodness
the govt mandated "nutrition labels" on foods so we can see how much
added sugar and salt and other crap they threw in.

As to telecom, naturally I want to save money. I tried VOIP and it
sucked. I've tried other products, other services. If they work out
better, great (I like Panasonic equipment, for example). But so often
in telecom the claims were hollow. I couldn't get through to customer
service, the rates had some pretty nasty micro-fine print, etc. The
wireless industry pushed digital on us, and we customers learned later
it wasn't "better" for us, it was actually worse than analog. In long
distance there was lots of crap pulled, still being pulled. (I don't
know why Verizon pay phones in NYC offer 25c coin long distance but
elsewhere require a calling card and if you just dial 0+ the rates are

So, sure Verizon isn't perfect, but I'll take them over these other
fly-by-night outfits. They provide me good service at a fair price.

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