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Patent Process for Multimedia Software Scrutinized

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San Jose, Calif.

The U.S. Commerce Department should temporarily stop granting patents for multimedia software products, many of which are aimed at the education market, until the patent process can be modernized, witnesses at a forum on software-related patents said.

Citing three controversial patents awarded to optical-disk-based products used in schools, witnesses said that unless the U.S. Patent and Trademark Office cultivates greater technical acumen and opens the confidential patent process to more public scrutiny, the office could foster disputes and discourage product development.

Because there is no public-notification requirement governing patents, classroom teachers could inadvertently find themselves violating patent laws every time they use a CD-ROM or videodisk, witnesses warned. And patent protection often is enforceable against the end-users, who, in the case of education software, usually are teachers.

The two-day hearing in Silicon Valley, held by Bruce A. Lehman, the Commerce Department's commissioner of patents and trademarks, gave critics the opportunity to explain why they believe the process is antiquated and inefficient.

But, as befits the sometimes iconoclastic and highly idiosyncratic software industry, some witnesses supported the existing patent process, while others called for abolishing it outright.

"Don't cut back on patent protections for software-related inventions simply because some invalid patents may have been issued,'' said Richard LeFaivre, who heads Apple Computer Inc.'s advanced-technology group.

"I'm arguing that software should not be allowed patent protection, not because it is difficult to do, but because it is wrong to do so,'' countered Douglas K. Brotz, the principal scientist for Adobe Systems Inc., a company that recently announced plans to donate millions of dollars in software to schools. "It grants a right to the patent holder to devastate innocent businesses.''

Public Scrutiny

In convening the meeting, Mr. Lehman said the Clinton Administration intends to introduce legislation to make the patent process more open to third-party scrutiny.

He also noted that the 160 patent examiners who review software handled 8,300 patent applications in 1993, up from 6,600 in 1991.

Still, many here questioned the competence of patent examiners, noting that patents were awarded to two education publishers for processes that critics argue are commonly used in the industry. (See Education Week, Jan. 12, 1994.)

Videodiscovery, a publisher of science-related videodisks, has taken its competitor, Optical Data Corporation, to court, claiming that Optical Data was erroneously awarded patents on an instructional method and a publishing process.

"A patent was called to my attention [by Optical Data] that literally could have driven me out of business,'' Joe Clark, the founder and chief executive officer of Videodiscovery, said at the hearing.

A federal judge in Seattle last month dismissed the Videodiscovery suit, though Mr. Clark said he was unaware of the development when he testified here.

Optical Data previously donated the patent on its instructional method to the public domain and has requested that the patent office re-examine the second award.

Mr. Clark called on Mr. Lehman to stop issuing patents to software developers until a peer-review panel of industry experts could be appointed to review applications.

He also said the patent process should be amended to require the publication of patent applications prior to the actual awards.

In the Classrooms

Although the dispute over patent rights appears to be an arcane debate among industry insiders, the issue could have important ramifications for educators.

For example, Compton's NewMedia, a San Diego-based company that publishes a compact-disk-based encyclopedia frequently used in schools, stunned the industry by announcing late last year that it had, in essence, patented the concept of "multimedia'' software.

Observers said that Compton would have difficulty asserting its rights under the patent to claim royalties from all multimedia products but were troubled by the award nonetheless.

In an unusual move, the patent office chose to re-examine the controversial award. The Optical Data patent, observers said, is more likely to affect schools and perhaps set a dangerous precedent.

Tom Lopez, the president of the Maryland-based Interactive Multimedia Association, noted that, "in this case, the direct infringers on the patent would have been the hundreds of thousands of teachers in classrooms.''

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