Thursday, April 20, 2006

Model Railroading Patents Update

I wanted to update you on the ongoing battle between Bob Jacobsen, the author of open source model railroading software, and KAM Industries, who sent him an invoice for $203,000 because he allegedly infringed their patent by giving away his software. Jacobsen's lawyer has posted the following:
Folks,

I am Mr. Jacobsen’s attorney. I heard about these postings through the grapevine, and wanted to add some comment.

First, I want to clarify one thing. Mr. Katzer did not sue Mr. Jacobsen. Because of the dispute over the patent rights, I filed a declaratory judgment action on Mr. Jacobsen’s behalf in U.S. District Court for the Northern District of California on March 13, 2006. Case number is 06-1905, for those who are interested. You can read the filings on PACER, the court's electronic filing system.

The purpose of the declaratory judgment action is to resolve a dispute over the patent rights. Mr. Katzer claims that Mr. Jacobsen is infringing his patent. Mr. Jacobsen says he is not infringing any valid and enforceable patent right that Mr. Katzer holds. Because of the increased damages for willful infringement, Mr. Jacobsen needs to have a determination of rights and responsibilities as it relates to Mr. Katzer’s patent. There are other causes of action that Mr. Jacobsen is pursuing against Mr. Katzer – antitrust (attempted monopolization), unfair competition, cybersquatting (on a JMRI trademark) and libel. We will address these issues and the issues relating to the declaratory judgment action in due course.

Second, I realize that many of you are angry at Mr. Katzer, and his attorney, Mr. Russell, for the letters they have sent to Mr. Jacobsen, and other actions they have taken against Mr. Jacobsen. I want to ask you to NOT harass them through calls, letters, faxes, emails, etc. It does NOT advance the case in Mr. Jacobsen’s favor. Here’s what will: As we stated in the lawsuit, there are numerous examples of prior art and inequitable conduct which affect patent rights. If you have more evidence, we’ll take it. The key date is prior art existing before June 24, 1998, and more importantly, prior art existing before June 24, 1997. The prior art that we are looking for is:
- A patent or printed publication that described the invention. Source can be from anywhere in the world.
- Evidence of public use, offer for sale, or sale in the United States. (If it’s from outside the U.S., please make a note and send it so we can follow up.)
- Evidence of another person inventing the same thing in the U.S. – the invention must not have been suppressed, concealed or abandoned.
- If the evidence is not the exact invention, then any information (in addition to the evidence) suggesting that the evidence could be combined with something else to successfully make the invention.

My homepage is www.vkhall.com – you can get my address through the website and send it to me. Please send it via mail. My e-mail service provider is not particularly reliable.

Regards,

Victoria K. Hall

P.S. Mr. Jacobsen contacted me through EFF, so the folks there know about this matter.
Please take Ms. Hall's advice, and don't waste time harassing KAM.

If you do feel spurred to action by these events (and we hope you do), in addition to prior art searches in this particular case, you can, as always, write a letter to your Senators and Congressional Representatives, and let them know how you feel about this case and the type of abuse that the patent system encourages, and/or reforms that you think might be useful. Remember, KAM's behavior is exactly what the patent system currently incentivizes patent holders to do. Let your elected officials know that you don't agree with this, and that you want to see legislation enacted that will prevent this type of thing in the future.

And you could also pitch in a couple of bucks to join the EFF.

29 Comments:

Blogger David said...

Usenet thread from Feb 1992 Computer Control of Model Trains.

3:37 PM  
Anonymous Anonymous said...

Richard Stallman gave and excellent lecture on how how software patents harm innovation.

Audio and video are here

If you're turned off by RMS's usual evangelizing, it's still worth a listen. It's very well thought out, and largely undogmatic.

8:27 PM  
Anonymous Anonymous said...

Prior art: "The Enemy", a novel by Desmond Bagley, described using a computer to control a model train set. This book was published in 1977, according to Wikipedia.

12:27 AM  
Anonymous Anonymous said...

http://www.gahler.de/
look at "Wir über uns" on the left side.
This systems at least dates back to 1988.
The title means "control of a model railroad by a computer".

4:49 AM  
Blogger featherston said...

Hopefully, prior art will help this person in his effort.

It seems to me that a lot of software patents could be contested based on the prior art argument.

5:25 AM  
Anonymous Anonymous said...

Prior art may help in an individual case, but in general, accepting that what you have to do to counter a software patent claim is to find prior art is to accept that software is patentable.
This might be the case in the US, but in Europe software are explicitly excluded from patentability and the many issued software patents are illegal.

7:05 AM  
Anonymous Atul Chitnis said...

Translation from German to English of the http://www.gahler.de page above

8:45 AM  
Anonymous Anonymous said...

From what is written it seems to imply if you made it and used it extensively in your home, or in private gatherings, or at friends places, somebody else could patent it and make you liable. Is that right? The law needs to change so that more original inventors can still freely use.

1

12:39 PM  
Anonymous Anonymous said...

Sorry, I meant independently re-invent it and patent it.

12:40 PM  
Blogger Michael B. said...

When I was in Japan in 1993 or 94 I saw an elaborate model railroad with switching and speed done by a PC. I may have a picture of it somewhere.

2:16 PM  
Anonymous Anonymous said...

It must be publicly disclosed otherwise companies would sit on patents untill someone else was using them, and then show evidence. Also patents help progress. Billions of dollars are put into R&D every year patents insure that the company recieves some reward. Also the entire patent system was designed to foster creativity. Nothings better than seeing exactly how a company made something. When we know this we can improve it, or do it a better way.

2:29 PM  
Blogger Dave said...

Jeez, I remember old articles on computer controlled railroads back in the late 1970s and early 1980s, in magazines like Byte, Kilobyte, and Creative Computing. Don't know if Reader's Guide indexed those magazines, but some larger libraries might have them in their archives.

2:33 PM  
Blogger FARfetched said...

An early issue (1970-something) of Byte magazine had an article about model railroad control. In fact, it "made the cover." I'll dig through my old stack and see if I can find the issue in question this weekend.

2:34 PM  
Anonymous Khyber said...

This type of control via computer mechanism all started with TMRC back in the '50s at MIT. Once Stephen Levy and his pals got ahold of the new computer in the university - that was when contrl of trains through a computer became possible. The easiest example of computer-controlled I can recall was my dad's home-built Altair system that controlled all three of his train sets, with schedules, track signal timing, the works. And that was done back in 1985. Prior art exists since the early 60's at most.

2:35 PM  
Anonymous Anonymous said...

Back about 1988 or 1987 I was in a class at Carnegie Mellon (I think it was real time systems) that had a project we were given to control two model trains.

The two trains were on separate tracks with two intersections and we had to write code to control the speed of the two trains (by modulating the motors on and off) or stop them entirely to keep them from colliding.

3:23 PM  
Anonymous Anonymous said...

I think you may be missing the point here. It's not about computer control of a train, it's about multiplexing multiple commands into one controller through a 'middle man'. Here's the letter that was sent by KAM.

For example, if you let separate programs (whether different programs or multiple instances of the same program) A, B, and C send commands to some intermediate thing X (they use the term "interface" so that it covers either a program or piece of hardware) and X then forwards the commands to some "digital command station" Y, you have infringed the patent.

It seems to me that this describes practically ANYTHING electronic that has ever used multiplexing. IBM's MQSeries messaging server (they may have changed the name) is an excellent example. It queues "commands" from as many clients as you like and forwards them to one or more processes that have registered to recieve those "commands" from that queue.

I can't see how they can claim that applying multiplexing to train control is patentable. I would think that this falls under the category of "obvious".

3:25 PM  
Anonymous Anonymous said...

How can we help if we don't know what the patent number of the alleged infringed patent is?

5:19 PM  
Anonymous Anonymous said...

Ok this is what he is allegedly violating:
1. A method of operating a digitally controlled model railroad comprising the steps of:

(a) transmitting a first command from a first program to an interface;

(b) transmitting a second command from a second program to said interface; and

(c) sending third and fourth commands from said interface representative of said first and second commands, respectively, to a digital command station.

What if he merged all his code into one java program? Then he wouldn't have a first program and a second program. In addition, what if one were to interpret the interface as a serial port? It would seem like the programmable legos that have been around forever would read on this. Heck this even happens when commands are sent from your computer to a printer or other peripheral. I'd say this would qualify as obvious and is not valid.

5:31 PM  
Anonymous Anonymous said...

"Also patents help progress."

Do they? I would love to hear the proof of this.

"Billions of dollars are put into R&D every year patents insure that the company recieves some reward."

This sentence mixes up a lot of concepts. R&D spending equated with product quality, relevance, popularity, profit.
R&D spending mixed up with legal spending. Obtaining patents mixed up with defending patents. In my experience, patents are tools used mainly by large corporations, with lots of money for lawyers, for positioning and possible warfare with other large corporations. The small fry who generate a lot of the best ideas either get squashed like bugs or eaten like krill.

"Also the entire patent system was designed to foster creativity."

Was it? To me that sounds more like the marketing spin for having the system. The reality is somewhat different. If a group of large companies was to lobby for a mechanism to help protect against the one thing they could not already manipulate - namely, someone else giving the consumer what they would not - they could not have got much better than the patent system.

"Nothings better than seeing exactly how a company made something. When we know this we can improve it, or do it a better way."

But you don't see how they do it, because patents are carefully written so that they claim as much as possible while revealing as little as possible. Great effort is taken to protect key ideas by keeping them secret, but writing the patent in a way so that if someone did end up reinventing the secret part, it would fall under the claims. Net result is that the patent holder gets the benefits of a patent while dodging the biggest drawback.

Small fry with no money should skip patents and just build the product and sell it. If they have a good product and focus on ramping to meet demand, they should be able to stay ahead of copycats. If they can't do that, the patent was not really going to help anyway.

5:52 PM  
Anonymous Anonymous said...

Simtel file ( www.simtel.net ) : rlw304us.zip
---------------------------------------
RAILWAYS v3.0.4 - Documentation

October 1996

A model railroad design software
with digital control module
(for PC 80286 or above)

Distributed as Freeware

-----------------------------------
Developed by (c) Sebastien MARCHANT
Toulouse - France, 1993-1996

----------------------------------------------------------------------------
you should also contact the person at http://membres.lycos.fr/catrain/ and see when they started programming their product
---------------------------------------

5:56 PM  
Anonymous Anonymous said...

The comment 2 above says that patents are tools of big companies to stifle smaller ones. This is true - it does happen.

But it also goes the other way. It allows small innovative companies to take on the big guys.

I work for a company with 20 employees that has taken on major multinationals in a niche market and won because our technology is better . The patents have given us the time to develop the technology, and allow us to license to others at a reasonable rate so we can make a living.

Without this protection, we would be unable to compete with the major corporations ability to make cheaper in larger volumes.

Used as originally intended, patents do allow David to take on Goliath.

But as the previous writer said, it is a shame that so much of what we hear about patents now is in a negative context.

8:53 PM  
Anonymous Anonymous said...

I must say, I do like the smell of justice and the general public working together.

12:12 AM  
Anonymous Anonymous said...

"Without this protection, we would be unable to compete with the major corporations ability to make cheaper in larger volumes."

Big companies will often ignore patents and bully smaller companies who are then forced to spend large amounts to defend their patent. This can be a tactic to force the small company out of business, or as a bargaining tool during a buyout, etc.

"Used as originally intended, patents do allow David to take on Goliath."

Although I agree that David sometimes wins against Goliath, that is not the intention of the patent system. In the casino, the house does not need to win every hand to have the edge.

Even the concept of the "little guy" needs to be questioned. Many so-called startup companies follow a model where they get venture capital followed by a buyout or IPO. Even though they start smallish, they do not usually run a profit, so they are financed by establishment money and not by the business operation. The management and board are populated by corporate insiders, they employ established law firms, the burn rate and staffing is often similar to a larger business, minus the profit. They are aiming to cash in from the stock market. Are there really any little guys in that scenario?

All this energy and effort revolving around the concept that ideas can be owned. Most of the people who should know better, like the engineers, are bribed to play along by the idea of cashing in on stock options, even though most never hit the jackpot. The idea of a 25 year old programmer retiring for life off a program that was written in 9 months should be met with scornful laughter, but often it is not.

Because of problems over IP concepts we see now with the RIAA, MPAA, and friends, because of the fact that small patent holders get steamrollered all the time while big corps use patents as a weapon, because of the wasteful and cynical means in which patents and copyrights are pursued and employed, and because it's always the "powers that be" that benefit from each new protection (like DMCA), I really think that the IP concept benefits the fat cats way more than the pip squeaks, and therefore represents a business edge to them, and that is no accident.

12:20 AM  
Anonymous Anonymous said...

So many software patents are totally obvious, and any programmer met with the same requirements would come up with a very similar implementation. When I worked for a very large software company, we were *strongly* encouraged to find things to patent. We got a USD 5000 bonus for each patent. Needless to say there were some very trival and obvious things patented.

1:17 AM  
Anonymous Anonymous said...

I graduated engineering from the University of Waterloo in '88. One of the well known labs in on our controls course was called "trains" in which students had to run multiple trains for several minutes without crashing.

5:07 AM  
Blogger Carnage said...

1. A method of operating a digitally controlled model railroad comprising the steps of:

(a) transmitting a first command from a first program to an interface;

(b) transmitting a second command from a second program to said interface; and

(c) sending third and fourth commands from said interface representative of said first and second commands, respectively, to a digital command station.

--oops i accidentilly opened two copies of my program... looks like it violated the patent.

6:08 PM  
Blogger Steve said...

The Byte Magazine mentioned in a an earlier comment is July 1977 Volume 2, Number 7. The cover features the "BYTE RAILROAD" chugging along a printed circuit board.

It includes an article How to Computerize Your Model Railroad by David C. Brown of Havertown PA.

Not clear whether this relates to any of the patents, but Page 20 lists psuedocode for four routines needed to control the railroad.

1) Marker Interrupt Processing Routine
2) Block Processing Routine
3) Switch Command Routine
4) Reverse Direction Command Routine

All four of these routines would send commands to control the railroad.

Steve

11:38 PM  
Anonymous Anonymous said...

There is one way you can attack KAM legally, honestly and above board while also fighting this case. Write to the NMRA and ask them to take action. KAM are acting in a way that should be sufficiently obnoxious to allow the NMRA to throw them out and to get involved in the interest of the hobby itself.

So if you are an NMRA member write to the NMRA board and ask them to throw the KAM owner out and to take action.

Also on the prior art front don't forget Estoppel. KAM tried to create an 'NMRA standard API' and that means they have probably waived any claims they could otherwise make that would be covered by the concepts in this API (since to offer an interface design then sue people for using it is not considered acceptable in law)

Finally you might want to ask any model railway website that links to KAM to look at this story and consider removing their links/advertising.

3:40 AM  
Anonymous Anonymous said...

Title: Build Your Own Universal Computer Interface
Author: by Bruce Chubb
Publisher: Tab Books
Date Published: 1989
ISBN: 0830631224
Alibris ID: 8651763383


I got tired of explaining how to build computer interfaces & started referring people to this book in '90. Many of the book's hardware/software examples are for controlling model trains...

10:44 PM  

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