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From: ivgate!inns!mike.riddle@uunet.uu.net (Mike Riddle)
Newsgroups: comp.dcom.modems
Subject: Re: hayes lawsuit
Message-ID: <1991May26.115728.12448@unlinfo.unl.edu>
Date: 26 May 91 11:57:28 GMT
References: <1991May26.044320.5542@clark.edu>
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In <1991May26.044320.5542@clark.edu> apollo@pro-hindugods.cts.com (Amrit Chauhan) writes:

>In-Reply-To: message from petrilli@geech.gnu.ai.mit.edu

>        Can someone please give a real quick overview of the lawsuit.  I
>just picked up this feed and don't know what it's about.

Hayes holds a patent which includes "escape guard time sequence" if I
remember it right.  This is part of a larger patent and is either a
software patent or is in the interstitial area where software and hardware
intersect.  From a public policy perspective, the difference is important.

The area of software patents is unsettled.  The question is necessary
because, arguably, copyright doesn't adequately protect the intellectual
property of the commercial software author.  If it did, then it might be
bad, since copyright protection lasts a /long/ time.

Patent protection, on the other hand, lasts only 17 years.  While that's
arguably still too long for an empheral area like software, it's better
than the lifetime or 75 years afforded by copyright.

Of course, both patent and copyright require some uniqueness and
originality.  What is original then may not seem original now, and whether
it was original enough then may be open to dispute.

In the Hayes case, apparently for commercial economic reasons, most modem
vendors seem to license the technology from Hayes rather than risk a
fight.  Hayes appears to grant a non-exclusive license for a commerically
reasonable fee.

Some vendors sued to invalidate the patent.  Hayes filed a response
supporting the patent and counter-sued for infringement.  The district
court threw out the vendors' suit, holding the patent was clearly legal
(or more likely that there was substantial evidence to support the
decision of the Patent and Trademark Office--this is speculation since
I've only seen reports of the decision, not the decision itself).  Then
the jury ruled for Hayes on the infringement, and the judge applied that
portion of the law allowing double damages as punitive damages.

The issue becomes controversial because we have no legal form of
protection for intellectual property that really seems suitable for
software, at least not from a policy perspective.  If you grant that Hayes
made an original contribution, you still can argue or agree that 17 years
(patent) is too long to grant exclusivity.  The contribution to the art,
given the rate of change in computer technology, seems to require a
shorter period.  

Since the Congress has not acted, the Courts have been creative in trying
to adapt the current statutory law to meet the perceived needs.  There is
a good discussion of the policy issues and the state of the U.S. law
concerning them and copyright/patent protection for software in Styrcula,
The Adequacy of Copyright Protection for Computer Software in the European
Community 1992: A critical Analysis of the EC's Draft Directive,
Jurimetrics Journal of Law, Science and Technology, Spring, 1991
(available at most law libraries).

Note that the Hayes decision is still subject to appeal, so many or most
of the principals will not comment.  Most of the discussion, including
this post, is based on bits and pieces accumulated from a variety of
sources and is subject to modification.  Most of the discussion is heavily
overlaid with personal feelings on the policy issue, and thus rarely
addresses the legal correctness of the current decision.

The one thing most commentators might agree on is that the law concerning
software protection is a mess, generates excessive profits for the
brotherhood of lawyers, and should be addressed by Congress.  As for me,
if they can't solve an easy problem like the national debt, how will they
ever understand or fix this one?

Please remember the standard disclaimer:  No one, including me, can claim
responsibility for what I say.  


--
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