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From: doc@cxsea.UUCP (Documentation )
Newsgroups: net.music.synth,net.legal
Subject: Re: Re: Marble Madness & FM Music Synthesis
Message-ID: <399@cxsea.UUCP>
Date: Tue, 24-Sep-85 13:39:25 EDT
Article-I.D.: cxsea.399
Posted: Tue Sep 24 13:39:25 1985
Date-Received: Fri, 27-Sep-85 03:42:49 EDT
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> >Patenting FM synthesis is a lot like patenting the color blue to my mind.

> This seems to be a good example of a type of incident that one hears
> about now and then and which usually leaves me with a profound sinking
> feeling....
> The conclusion that forces itself upon me -- and it's a rather unsettling
> one -- is that Yamaha is successfully using this highly questionable
> patent to prevent Atari (and probably others) from fairly and
> legitimately competing in this marketplace, by this simple ploy.  That
> is, Yamaha can't (or doesn't wish to) sell the product at a price that
> will effectively undercut all the competition, so the patent is raised
> as an impediment to those who would compete, since although they might
> easily beat Yamaha's price in an even match, they can't if they have
> to shell out the cash and take the schedule ``hit'' that challenging the
> silly patent would necessitate.  Now this technique, more generally
> applied, could lead to some interesting scenarios.  Let's set the clock
> back a little and imagine John DeLorean, still in the automotive
> business, but starting to flounder big-time.  Let's suppose he gets
> this bright idea: ``Hmmmmm.  I wonder who owns the patent on the
> windshield?''  Checking around, he finds that there is none.  So he
> gets the sharpest lawyer he can find (he's going to need one, anyway,
> right?) and goes right to the Patent Office and obtains a patent on the
> windshield.  Now, everyone in Detroit (everyone who makes cars, that is)
> has to make a choice: either pay an outrageous royalty to DeLorean for
> the privilege of making windshields (assuming he permits that option)
> or buy windshields from him.  Now it turns out that windshields from
> DeLorean cost just a little more than it used to cost Ford to make them.
> So what's Ford going to do?  (Cocaine?  What's that?)
> 
> Now if I have made a grave mistake in fact, then I sincerely apologize
> to anyone whom I may have offended.  But the way I see it, this (the
> outrageous DeLorean scenario) is exactly what Yamaha is doing.  I can't
> really deny that such a claim seems pretty far-fetched at first glance.
> But I keep hearing reports of things that somehow render it increasingly
> plausible.
> 
> To me, this practice more than casually resembles restraint of trade,
> and since it was accomplished with the indispensable aid of a legal
> proceeding (granting of a patent), it may constitute abuse of process,
> as well.  If my perception is correct, then what I want to know is, why
> aren't we doing anything about it?  Maybe this case is just a grain of
> sand in a vast dessert; we have to start somewhere.  Maybe Atari alone
> can't afford to fight the bullies, but surely some kind of consortium
> could.
> 
> Am I the only person in the world who sees it this way?  Am I totally
> off the wall?  What is happening, anyway?

To begin with, Jim, an FM synthesizer is a little more esoteric than a
windshield. I'm sure that, to a bright young genius like yourself, every
little detail of an FM synthesizer is perfectly "obvious", at least as much
as a windshield is "obvious". However, patent law has to make a
determination as to when something is or is not "obvious" and, well,
frankly, the courts just don't have time to poll to every hot young genius
in the country to get their opinion on the obviousness of something.

Before flaming about "Yet Another Insidious Invasion of Our Sacred Rights",
or whatever, why don't you sit down and READ the actual patent? You might be
surprised to discover that it isn't so much concerned with the "idea" of an
FM synthesizer, but several minute design details that make the chip
economically viable to produce, or something. Patents usually focus on the
minute details of a design, not the grand concept.

And yes, if someone wanted to challenge the patent's validity, the odds of
prevailing are in their favor. (about 75% of patent challenges are
successful). That does not mean, however, that 1) the patent office is
staffed by incompetents, 2) obtaining such a patent in the first place is
"abuse of process", or 3) the patent attorney who wrote the original claim
and secured the patent is an unsrupulous slime-ball. The patent office is
woefully understaffed (we already have too many of those over-paid gummint
workers, you know, feeding at the public trough in these proto-libertarian
times), for one thing. If a company sinks a lot of money into developing a
product, why shouldn't they obtain a patent on it to protect their
investment? Why is this unscrupulous? Your DeLorean example is patently
(you'll excuse the pun) absurd, as even an overworked patent examiner could
probably figure out that a windshield is nothing new. An FM synthesizer chip
is a different matter, so the patent office relies on the industry itself to
do part of the "obviousness" determination by challenging a patent once its
granted. Atari isn't stupid; if the FM synthesizer is obvious to a CS
student, it would probably be obvious to Atari's engineers sufficiently
enough to warrant a challenge. That Atari prefers to pay the royalty
indicates that the cost of the challenge is greater than the long-term cost
of the royalty (which is probably pretty low), or that Atari feels the
patent is valid. In either case, I see no evidence of dirty-dealing by the
patent office, patent lawyers, or by Yamaha. If the patent is so absurd, let
Atari challenge it. If it's so obvious to someone like yourself who hasn't
even read the terms of the patent that it's a sham, I'm sure Atari would
have an easy time of demolishing it in court.


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