Write Free Software, Pay $203,000 to Patent Holder
Bob Jacobsen, a model railroad hobbyist, wrote a bunch of software to let you connect your computer to your model railroad and control trains with it. He chose to not only give the software away for free, but to make the source code available as well, so that the model railroading/hacker community could improve it and customize it to their liking.
And then KAM Industries, maker of commercial software that serves a similar role, tried asserting their 'patent rights' over doing just that.
When the author of the open source railroad controller asked for additional information about what claims were being infringed, KAM sent him an invoice for $203,000, claiming that the 7000 or so users of his software resulted in damages of at least $29/each.
KAM then sent a request to the author's academic sponsor (unrelated to his independent model railroad work), requesting copies of all his email and other correspondence. To most observers, these actions would seem to be nothing more than dirty tactics meant to rattle Jacobsen into compliance.
Several more threatening letters arrived. Finally, in January of this year, Jacobsen responded by pointing out that he didn't believe the KAM patent would withstand a challenge in court, noting that there was plenty of prior art, including his allegedly infringing software, which was available before KAM filed their patent application. He also pointed out that KAM's lawyers must have known this all along. In February, KAM's lawyers responded by claiming that they know of no invalidating prior art, and that they still viewed Jacobsen's work as infringing on their patent rights.
This is all still ongoing. It isn't clear that KAM will cease harassing Jacobsen, even with the knowledge that their patents are likely illegitimate.
But it is abundantly clear that patents like this hurt the efforts of those trying to make the world a better place by producing tools for others to use (for free in this case). It is equally as clear that even small companies can use their patents as bludgeons against individuals.
The continuing saga (as well as all correspondence to date) can be followed at Jacobsen's website. Let's hope Jacobsen's software doesn't get shuttered by patent interests like RProxy did.
There are a number of useful reforms that could make the patent system a bit less abusive. If you want to do something about this type of absurdity, you can certainly try writing a letter to your Senators and Congressional Representatives. As always, feel free to cut and paste anything from this website when you compose your letter (a letter focusing on your favorite reform is a useful strategy) -- everything at Right to Create is in the public domain.
And then KAM Industries, maker of commercial software that serves a similar role, tried asserting their 'patent rights' over doing just that.
When the author of the open source railroad controller asked for additional information about what claims were being infringed, KAM sent him an invoice for $203,000, claiming that the 7000 or so users of his software resulted in damages of at least $29/each.
KAM then sent a request to the author's academic sponsor (unrelated to his independent model railroad work), requesting copies of all his email and other correspondence. To most observers, these actions would seem to be nothing more than dirty tactics meant to rattle Jacobsen into compliance.
Several more threatening letters arrived. Finally, in January of this year, Jacobsen responded by pointing out that he didn't believe the KAM patent would withstand a challenge in court, noting that there was plenty of prior art, including his allegedly infringing software, which was available before KAM filed their patent application. He also pointed out that KAM's lawyers must have known this all along. In February, KAM's lawyers responded by claiming that they know of no invalidating prior art, and that they still viewed Jacobsen's work as infringing on their patent rights.
This is all still ongoing. It isn't clear that KAM will cease harassing Jacobsen, even with the knowledge that their patents are likely illegitimate.
But it is abundantly clear that patents like this hurt the efforts of those trying to make the world a better place by producing tools for others to use (for free in this case). It is equally as clear that even small companies can use their patents as bludgeons against individuals.
The continuing saga (as well as all correspondence to date) can be followed at Jacobsen's website. Let's hope Jacobsen's software doesn't get shuttered by patent interests like RProxy did.
There are a number of useful reforms that could make the patent system a bit less abusive. If you want to do something about this type of absurdity, you can certainly try writing a letter to your Senators and Congressional Representatives. As always, feel free to cut and paste anything from this website when you compose your letter (a letter focusing on your favorite reform is a useful strategy) -- everything at Right to Create is in the public domain.
posted by Jackson Lenford at 1:52 PM
102 Comments:
Outrageous! KAM is claiming he infringes because he used Java's RMI? That's ludicrous! So KAM has a patent on using RMI for any model railroad controlled by a computer?
Talk about patenting the obvious. Talk about patenting things with tons of prior art. Talk about assembling patents by taking existing technologies and gluing them together. Whew. This makes me sick.
I hope you can prove prior art or fair use or something like that. All the best man.. fight it out!
The free software came before the patented software. This is basically just harassment and libel.
Countersue and FUCK THEM IN THE ASSES
This is total bullshit fight them till the end, hell start a paypal donations fund for legal fees to help you get these assholes. I'm willing to bet a lot of people would donate to your cause.
contact the eff im sure theyll try to help
Ya they're from Oregon. Trust me the laws here are so Frakked up and people are so bastardly its no surprise that they tried to send him an invoice. Obviously illegal and against FDCP and the Fair Debt Collection Act since no Debt has been established.
Haha! I went to the website for KAM and noticed that the title of one of the articles was "Why I starterd KAM". Maybe he should start 3rd grade again...
evil, evil, evil! I'm going to post a link to this everywhere I can find that would be interested. We need to get this in the news.
fight fire with fire.
Send a letter to the American bar association ethics committee.
Send them a letter or even..
File a countersuit alleging harrasment.
http://www.abanet.org/cpr/disenf/home.html
You should post KAM's website.
settle out of court. offer them 1/2 of the profit you made on this. (zero).
i am sueing this website. i have a patent of delivering information using text. you have infringed my patent. please pay me $10 per letter, and $4.75 per grammar punctuation.
A check of Archive.org's wayback machine shows that the software predates the filing of the patent by well over six months.
Put KAM's website down. Commnity X Corporation. Who's strong?
LOL, here's KAM's site:
http://www.trainpriority.com/
And here's the "Why I Starterd KAM" page referenced a few comments up:
http://www.trainpriority.com/kamind/AboutKam.aspx
Bunch of tards... And about the case... this dude definitely needs to fight it!
So what, next they gonna patent the code for CTRL + ALT + DELETE
You've been Dugg.
I had a prof in 1991 who had taught courses at the University of Waterloo on controlling trains and switches as a regular course for years. I don't see anything in what KAM has done that is the least bit innovative or visionary.
Prior art has to be more than a year earlier than the patent application filing date before one can be sure that it invalidates the patent.
Matthew Katzer, KAM President - mkatzer@kamind.com
The email address of the president of KAMIND is posted on the corporate site. His name is Matthew Katzer. He is listed as the principal in an ICAA member filing: http://www.icca.org/member/memberpage.asp?id=2671
His email address is on one of the press releases: http://www.trainpriority.com/kamind/pressroom/pressPdf/20041205_KAM_Press_release_Classic_Panel.pdf
I suggest anyone with anything to say should contact him directly. Please digg this comment for others to view - Bob Jacobsen has only given us free code and people should bring it to corportate attention if they don't want to support companies involved in this sort of litigation.
How about telling them what you think? :)
Fire up your spambots, sign them up for the Bon Jovi Newsletter etc.
http://www.trainpriority.com/kamind/Contact.aspx
I understand how this not a good thing to do, but jamming their mailbox is nothing compared to what they've done to Jacobson. Fuck 'em.
fight to power - to the whakcave!
It is a tactic that they are using - if you pay any money what so every against their claim, that will show evidence that you admit fault. If you can show conclusively that your software existed before their patent, their patent becomes invalid, and they don't want that...
I think he should file a counter suit for one fucking dollar. So when he gets the verdict in his favor he can pull it out of wallet, wipe his ass with it and throw it in their faces.
I'm no lawyer but claims 10 to 13 are so weak and vague they capture many if not most apps that make use of a network. This patent should have been chucked back and rewritten to be more specific.
Now, as far as prior art goes, I seem to remeber a model railroad control program for the Macintosh a LONG time ago (back when a IIx was the top of the line).
Now if that is not prior art, I don't know what is.
It's quite clear why he is upset from his 'Why I started KAM Industries' page. This particular paragraph
'I wanted to develop a set of standards where software can be exchange between users, and to provide the industry with a common software standard to operate their model railroads. I wanted to create a set of software interface standards that reduces the software time to market, and allows innovation to flourish. I wanted to give those standards to the NMRA so all developers would have a common interface to build software.'
says it all. He obviously thinks he is the Bill Gates of Railroad software. I think it's blatantly obvious that his product isn't very good if he can't stand the though of freeware competition.
A very sad person indeed...
Not only will KAM's patents clearly be anulled in court, but should they pursue their claim to the fullest extent, the case should allow for a real debate regarding the flaws in the current IP system. A few small changes would ensure this apalling abuse of the system could not reoccur.
Quoting the founder of KAM from the KAM wehsite:
"My vision has driven me over the years to learn new skills, implement new ideas, build products and be open and exchange information with users as peers. I founded KAM with this principal,..."
Best case, this chap is a good guy who just needs a good bitch slapping to get him back on track!
KAM Industries attorney's are Chernoff, Vilhauer, McClung and Stenzel, LLP.
The attorney writing the letters in this case is Kevin L. Russell and his email is kevin@chernofflaw.com.
His profile with the law firm is here
I have a book from the late 70's early 80's that describes in detail how to wire up a train set, then how to build a simple computer to control it, and how to program that simple computer to control it.
I guess KAM will have to sue them also.
Do I read correctly on their site that they have 1068 registered 'command stations' and 1330 registered web site users. Trying to recoup 7000x$29 when all it looks like they have made is 1068x$29?
Sometimes the patent holder (even though arguably the patent should not exist in the first place) should just shut up and pull their heads in. I believe that this is one such case.
Dangeresque is angry today.
How can anyone ever build a better mousetrap if someone has a patent on a mousetrap?
Are patents intended to defeat competition?
Perhaps the MIT Tech Model Railroad Club could help establish prior art?
But it is abundantly clear that patents like this hurt the efforts of those trying to make the world a better place by producing tools for others to use (for free in this case). It is equally as clear that even small companies can use their patents as bludgeons against individuals.
The first sentence is inaccurate, the second is accurate. Patents serve a useful purpose. Abusing them does the opposite.
according the the bio of the lawyer, he is a candidate for a Master of Science degree in Electrical Engineering from Portland State University. I'd like to see his thesis and see how many infringement he has to account for.
6 months prior? Has anyone compared the software/code?
Just a thought.
Maybe KAM should talk to CSX who was running their railroad on a Univac I when I went to Case. Oh wait, ... that isn't a model railroad.
You may contact http://www.eff.org
actually in US patent law (and US law ONLY), it is NOT the filing date of the application for patent which sets the date of invention, it is the actual date of invention proven by notebooks or electronic means.
You can invent something (lets say in May 2000) not file until May 2001 and as long as your documentation is complete and undisputed, you will get a patent over someone with an identical filing in April 2000.
As long as they can prove their invention was prior to his software posting date, prior art cannot be claimed.
That said, this is still BS.
KAM is a pathetic company. If you visit their website at: http://www.trainpriority.com/ you can see that the right hand side is littered with AdSense. Looks like this is just a ploy to get people to visit their website and generate money out of AdSense. Hope they get countersued and lose like hell.
Let's hope that this case is going to kill their business - just to these some of these companies a lesson.
"The first thing we do, let's kill all the lawyers."
And accountants come next. Just because I hate accountants.
I'm not well versed in Patents, so I would like to know something. I would have thought, any prior art before the publication of the patent should invalidate it?
Speaking hypothetically, from the point of view of a similar hypothetical case.
How is it possible to demand/sue somebody like this, even though they never made any commercial advantage from it? How come, somebody like this is not restricted to demanding/suing only the down-loaders of the software? How does it work that somebody like this gets to demand/sue for the full cost? It would not be the same software, so the patent IP is only a fraction of the worth of that software? The amount demanded would also include all the plaintiff's overhead expenses, as well as profit? Should somebody like this just call it a 100 thousand dollars per download, as they are demanding more money than they would make themselves anyway?
I am stating the above, from the perspective of ideally how patent laws could be/interpreted, but I would still like to know if somebody like this has this right. It is funny that it would not seem to be restricted to the amount of direct commercial net profit that the infringer has made out of it? Maybe this should be the case, as it would be, hypothetically, far to unreasonable to expect the full amount the plaintiff would be paid in such a case.
Personal Patenting problem:
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I, myself, had been working on something innovatively spectacular for nearly 20 years. It could get well over hundred claims, but the cost structure to patent around the markets is unreasonable, the cost structure to defend is unreasonable, not to mention people that might have filed numerous patents that infringe on my prior art in the mean time. It is not worth patenting, it is not worth goign into business. Already the community has lost out in not getting the immense practically advantage and savings this could have produced. I have considered going Open Source instead, but if I am goign to get my pants sued off, the community will have to loose out big time.
At the moment I can't do many of my ideas, even write a game and be certain I wont run into a patent dispute that will have an open end hole to all the profits (without defending it).
The problem is, that big companies and money, get an unreasonably/counterproductive cheap/free ride from this, while the majority get an very expensive one way trip to complete poverty (not to mention how much it unreasonably stifles innovation and profits to majority of innovators).
I think, one of the problems with the patent system, is what can be patented, the type, and laxed amount of restriction. Another is what can be claimed in compensation, and the laxed amount of restriction.
Patent alternative idea, help?:
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I have rudimentary knowledge of the in and outs of the patent system, and cases like this grind my teeth. Because of the deficiencies, I have written up a very good alternative to the patent system. Simple, more straightforward, efficient, allowing more cost effective way of making profit while maximising productivity and freedom to innovate. Where should I go to get it moving, what sort of channels and groups can I go through to get it moving?
Please forgive the errors, I am in a rush to get out of here.
Look, guys, I know it is easy to be upset with KAM, especially when you see how they are dealing with Jacobsen.
But harassing KAM is a fruitless activity. It is very unlikely that it will change how they behave in any positive way. It would be much better if you applied yourselves to backing patent reform, by writing a letter to your federal elected officials, joining the EFF or IPAC, or any number of other useful activities.
Sure, it's a little more work than spitting out a vitriolic emails to KAM's president or lawyers, but if you are serious about fixing what's broke, you'll take the time.
The problem is not ethics -- ethics are useless in the business world. Sadly, what is legal is ethical, and KAM, AFAIK, hasn't yet broken any laws. THIS IS THE PROBLEM: the law is set up to not only allow -- but to encourage -- patent holders to act just as KAM is now acting. I'm not saying KAM is innocent here, just pointing out that what they are doing is what MANY, MANY other companies, patent holding firms, and individual patent holders do every single day: harass true innovators.
Write your letters. Links to Congressional Reps and Senators are at the bottom of the article.
Just my two cents.
Have you tried contacting the electronic frontier foundation?
http://www.eff.org
They're like the ACLU of technology. Maybe they'll be able to help.
Good luck!
No, CSX is a *model* railroad: With regard to SIZE, it's scale factor happens to be 1:1. With regard to FUNCTION, it "models" a number of very interesting technical as well as economic and other societal ISSUES: 1-"Real Time Control" of equipment using shared resources, 2-Distribution Network Management, 3-Government regulation of commerce, 4-Migrating New Technology into existing "Old Technology" installations, etc., etc.
When "Model Railroading" (wonderfully portrayed by Sam Posey in his recent book "Playing with Trains") crosses the line into "commerce", it also crosses the line into the "reality" it models. Patent fights over "Model Railroading" issues only demonstrate the gaping holes of the US Patent System that allowed the fierce competition of "real life" railroading and the legal struggles it produced, both present and past.
The common factor is not "railroading" (prototype OR model), but rather the "broke" status of the US Patent System that offers "tradition" rather than "effectiveness to an inspiring purpose", which, after all, is its charter. After 200+ years with v1.0, then v1.0+, then v1.99999+, it's long been obvious that a full re-write is long overdue.
Just as an interesting datum, the address in KAM's press release is:
2373 NW 185th Ave suite 416, Hillsboro, OR 97124
Looking at the satelite view of that address in google maps, why that's the McDonalds I frequently ate lunch at when worked out there, and that address seems to point to the mailboxes etc across the street...
BEFORE YOU COMMENT HERE, READ THE UPDATE:
http://righttocreate.blogspot.com/2006/04/model-railroading-patents-update.html
Apparently some of you don't know who SCO is. They have been suing IBM for years over the same misguided reasoning that they own copyrights and patents over code. They maintain that IBM has stolen that code and put in to Linux. The sad part is that they cannot even produced enough evidence in court for this to be anything but a farce, and yet it continues. The trial is set for 2007 though. :)
If the patent was valid, it would be normal for KAM to sue the developper.
However, the patent here seems invalid so what they're doing is unacceptable.
Please respect the right to REAL inventors to patent their stuff. They are just doing their job.
But KAM is definitely not a real inventor... what a shame...
Free open source coding!!! Go down patents!
Prior Art:
Try the TMRC - Tech Model Railroad Club at MIT in the 1960s. That should be early enough for you.
hrena lysogo, OpenSource forever
Welcome to life under Fascism: government based upon a partnership between government bums and big business, with the sole purpose of bleeding the people to death for their profit.
Using a computer to control model trains is as old as the hills... atleast early 80s.
Our real-time course (EE469?) at UOM Ann Arbo, MI, had a train lab with a computer controlling trains. The OS was appropriately nameed OSWIT (OS WIth Trains)
To all the posters saying that patents are ok, it's just this one that's bad, think again. Patents are bad, period. They're worst, of course, with the recent extensions into software and 'business methods' and the apparent abandonment of the old rules about how you had to describe your invention thoroughly and clearly so anyone else could read the patent and implement it, but they're honestly bad from start to finish. And under the rules as they stand today, you have all the negative effects that have always been implied with a patent system, and none of the compensatory effects that system once had.
This is an outrage that a company like this using patent to sue free software developers. Do you mean to tell me that the commerical software like this can't even match the free software? The company might as well fire all their software developers and hire him instead of suing him !! This also tells the company need to buck up as they are not putting enough effort in developing their software....that is the reason why people are downloading his software. Moreover...people loves free stuff, even if the free software don't exisit, out of the 7000 maybe less than 10 or so would buy it !! Its true...!!!
The following are only my opinions, so keep the legal dogs at bey!
I actually tried reviewing KAM's patents. In reviewing them I see no new technologies, merely an attempt to put restrictive covenants on generally available computing technologies, in some cases properties of others that are not being acknowledged.
To whit:
A command station is simply a computer with some peripherals. This has been tried before - a PDP versus a Computer - didn't fly! A command station is no different than a PLC. Hey, let's call it a Model Train Controlling Processor instead. Actually it is an adaptation of a simple PLC.
Priority queuing has been around for more than 40 years.
NetWorking in its various incarnations is also generally available technology, and has been for longer than the patent.
Also, in reviewing the Patent, it appears simply to be an encapsulation of pre-existing NMRA standard in a derivation of computing terminology called pseudo-code. This might be a copyright if it weren't NMRA proprety, but it's hardly a patent for a new technology.
IMHO the persons in the Patent office who reviewed and approved this were hardly aware of what they were doing as this whole situation is DAFT. The alternative as I see it is to produce a stupid peripheral for a general purpose computer and do away with anything called a "Command Station".
He should sue them for malicious prosecution.
That is just unbelievable. Please sue the KAM out of business!
Welcome to the US patent and trademark fiasco.
As far as prior art goes, in 1977 one of my co-workers was using a PDP-8 to control his garage sized HO gage layout with, obviously, home written software.
When will the patent maddness end?
I am not old enough to have participated, but am old enough to remember. The original computer elite - programmers/hackers - were at MIT in the MODEL RAILROADERS CLUB. They got started trying to synchronize multiple controllers that were manually operated. If that is not PRIOR art by decades I don't know what is.
I had always assumed that a patent for software meant that the programming could not simply be cut and pasted. But reviewing the patent and it's rather flimsy if not fraudulent grievances I have come to the conclusion that patents do not cover the process but instead the end result. If the end rather than the means is patented then I fear what happens when someone finds and patents the cure for all known diseases. I can see it now... For a hefty fee you can come in for five treatments in a large machine that bombards you with dangerous and unstable radiations that will kill you if they don't cure you. But then 3 years later using entirely different methodology someone comes up with a quick, cheap, convienient, mutation and side-effect free cure in pill form. Since the desired end is patented, (curing all diseases,) rather than the machine used to do it the pill is doomed and the manufacterer is sued for more money than they could raise in six lifetimes. Then they get cancer and die because they can't afford the treatment with all their suit payments.
Ever heard of Jerome Lemelson? He was a major abuser of patents some years ago. He would monitor other people's development of technology, then obtain patents on that technology and then sue the inventors for infringing his patents. And he succeeded in accumulating a fortune of around $2 billion doing so. Some of his patents were recently invalidated for that or similar reason, around two years after he died.
If done right, patents can be invalidated. You might want to contact pubpat.org and see if they can help you.
Go for it!
Hi me again, about patent reform:
Are EFF, IPAC and PUBPAT the only organisations I should consider? I'm in Australia.
Patents, the situation is much worse, and much more degraded then most realise. Even things that are against Patenting law are done because of the cost of getting enforcement, and the lack of government enforcement.
The process does need to be streamlined in cost, and alternatives developed that better suit the inventors.
I agree with a number of sentiments for change expressed here. Laws should be based on some good ethic, and many things that are done the law should make illegal. Approving of it does not help, changing the law, and enforcing (that is one big problem) is the issue.
Patenting is there to give some profit to the inventor, not unlimited profit.
Also, it should be illegal to sue somebody like this that made no profit, even if he knew that the patent predated. It is not reasonable for somebody with no resources, from the enterprise, to be able to verify the condition on all patent conflicts either. If you want to argue ethics, then consider this: with patents on business, and other nebulous patents concepts, it is not worth being in business, because you are bound to violate something innocently, with some potential cost bigger than your business, and even innocently violate one or many daily (very anti competitive). The people getting the benefit are the people downloading and owning it. But in any case, it should be limited to the amount of profit it has generated. As it is, patents were not meant for unlimited profits.
Yes it is about ethical issues, and they should be applied in law, so people don't get taken advantage of, or are required to pay for free service.
Invalidating a patent is a very costly and expensive process, it can take many years. Even companies pay rather than go through the expense. But I do not want to put anybody off going through the process, especially if it's so clear cut.
Even I, in a research job application to a leading government institution, mentioned a idea for a technique that could be applied to the area. Latter I found they had applied for a big commercial patent on technology matching the technique (and no I didn't hear from them for an interview). Pity for them, I am sitting on the biggest techniques in their field, and do you think they are going to get anything out of me.
Reading of Patent madness:
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Somebody recently patented the wheel in Australia. I think somewhere, sitting in front of a computer a few years ago.
The register, or inquirer, sometimes publish new items about these quirky patent problems.
http://www.theinquirer.net/
or
http://www.theregister.co.uk/
1
As a software engineer, the author/owner of a software patent that's been successfully defended in court, amodel railroader for 38 years, a JMRI user, and someone who's met Bob (not Ben, as some media have somehow misconstrued) and other SillyCon Valley JMRI principals, I completely agree that the KAM patent is a sham, much less the lawsuit. Getting a patent these days seems to only involve paying the fee and waiting for upwards of four years for it to eventually be awarded. However, that's only the top one percent of the iceberg - successfully defending it in court (including the inevitable appeals process) is the real challenge, which most patents awarded in the last decade or so don't survive past the discovery phase of lawsuits (I've seen some judges get mighty perturbed when some shyster lawyer appears in their court to defend the likes of the KAM patent, as they show up without a leg to stand on, and then proceed to chop to pieces the table that's the only thing left holding them up). One of the original requirements for award of a patent is a prototype or model that someone "skilled in a trade" can build/implement without reference to any information outside the patent (but, including any referenced existing prior art). In the software community, that generally means a reference implementation of any algorithms and/or APIs for which claims are made in the patent (which can include pseudo-code, but it must cover every detail of the algorithms/APIs such that implementation in an actual programming language would require no additional effort beyond proper syntax). I don't see anything even remotely resembling that level of detail in the patent. While high-level block diagrams can be helpful in providing an overview of the intended process, they are by no means sufficient for the purpose of describing the algorithms and how they could be implemented. Defending a patent with no working implementation against actual operating software developed without any knowledge of the details of the patented work (behind a so-called "Chinese Wall") is impossible (not nearly, almost, or close to, but just flat-out impossible, no matter how good your lawyers are).
As for the prior art issue, the idea of controlling a model railroad via any kind of electronic device (whether you call it a digital or analog computer, controller, command station, etc.) is so generic and has been implemented so many times for so many decades preceding the KAM patent filing (much less the award) that I wouldn't be surprised if the patent examiner at the U.S. Patent and Trademark Office (USPTO) who awarded this patent doesn't get a letter of reprimand for such a sloppy job (unless s/he has influential political family/friend connections). By the time that unlikely event could happen, though, they will have most probably already landed themselves a cushy job at a patent law firm defending the very patents that they awarded during their ticket-punching stint at the USPTO (the normal progression is law school, USPTO examiner, and wait to get picked up by a firm such as Shyster, Raper, Pillager, Plunderer and Raper (like the ne'er-do-well in "Blazing Saddles", they like rape).
U.S. patent law doesn't really need any tweaking, the USPTO and courts just need to follow what Jefferson and other founders, who had a profound respect for the true inventors and innovators, set down in law. There are two fundamental parts to patent, trademark and copyright law. The first is protection of valid intellectual property (which the KAM patent is definitely not, IMNSHO) for a reasonable period of time such that the inventor can enjoy rewards for his efforts (17 years for patents, plus an additional 17 year extension, if applied for and approved, IIRC). The second part of patent, trademark and copyright law that seems to have been forgotten in the "unconstrained marketplace" melee that has been taking place over the last decade or so, and was just as important to the founders, if not moreso, was the benefit that would accrue to the Common Good. The reason for the (now lengthy) review process and award time limits was so that, after an inventor enjoyed the fruits (e.g., sales and/or royalty income) of protection of their invention for a reasonable amount of time, the inventions (and, likewise, trademarks and copyrights) would revert to the public domain at the end of the protection period, precisely so that anyone could attempt to create additional marketplace opportunities, i.e., sales and profits (which result in collection of additional taxes, BTW - aye, there's the rub - those founders weren't completely naive! :)
However, patent, trademark and copyright law was also meant to protect any intellectual property that an inventor wanted to give away, and that's where KAM is falling on its own sword, big-time, even moreso than their pathetic lack of acknowledgement of prior art going back decades. It is completely legal for anyone to implement their own version of anything that is patented, so long as they do not derive any benefit from it beyond its inherent functionality. This is specifically protected not only in terms of intellectual property, but as a form of speech, which is also protected by other laws. Now, that doesn't mean you can just publish the code that someone else has developed, because that's protected by copyright, but copyright does not in any way prevent someone from publishing their own version of something that is functionally the same, so long as they did not have access to code which is protected (i.e., they are separated by a "Chinese wall"). It doesn't appear that Bob had access to anything that KAM developed in pursuit of their patent, but the same is certainly not true in the other direction - KAM had the opportunity (and apparently took full advantage of it, and a whole lot more) to not only see what Bob and other JMRI contributors provided, but all of the implementation code, too. No judge is going to be sympathetic to KAM in this regard, and it's clear from their communications (and those of their lawyer) that their intent is to try to squeeze income, that hasn't even been earned, from someone with few resources and who is unlikely to countersue anytime soon, precisely for that lack of resources.
It's time that the courts start doing their jobs and not only denying a finding of infringement in cases like this one, but exercise their considerable power to punish such actions that are so obviously counter to the notion of Public Good that the founders sought to encourage and protect at least as much as intellectual property that is meant for sale.
So, what does the EFF have to say about this, anyway? It's not clear from the JMRI site what's been going on beyond the exchange of letters between Bob, KAM, and the lawyer. The fact that they haven't filed for a restraining order to block further distribution of JMRI tells me just how weak their case is, and filing the Freedom of Information Act request for Bob's government and private e-mail, IM, Skype and other communications is an obvious fishing expedition that even a blind, deaf, retired, and maybe even dead judge could see through instantaneously.
I need to buy Bob lunch the next time I see him, and find out what, if any, legal advice he's received (although my understanding through others is that he's in "no comment" mode as long as legal action is pending, which is probably wise counsel). It will be entertaining to see KAM and their lawyers yelping on their way back to Upper Slobovia, when all is said and done, though.
All the Best,
Joe Blow
What, do we live in communist Russia now? Sounds to me like KAM is doing what they need to do to protect their intellectual property. If you liberals and open sores commies don't like that, you can go take a flying leap. In this country, corporations are protected when they spend valuable money investing in products and services and that includes software.
I went and read the patent. They do not claim to have invented digital train control. What it claims is having a single interface that relays commands such that the interface can recieve commands from multiple software clients without each one having to wait for the command to be executed before getting acknowledged. i.e. a central 'server' type dispatcher that serves multiple 'clients'.
So the prior art that is needed to invaliddate the patent is a system wherein there is a central piece of software that talks to the layout and recieves commands from separate pieces of client software.
I am sure there are many similar types of software (perhaps not used for model train control) that emply the same structure, and would thus be prior art, that a resonably skilled person could also apply to model railroad control. In fact the Märklin company marketed infrared train control devices and I am sure one could use more than one of these 'clients' to control the digtral trains via the central unit. This would be a concrete example of multiple clients communicating with a central unit...
Why don't you counterattack ?
If I were you I would say KAM that I will not sue them provided they give me a satisfactory compensation in cash.
Don't try to "improve" patent system, just remove software and business method from the patent field.
Software have NOT to be patentable. Reforming a complitely wrong law is a non-sense. Why big software business is trying to introduce software patents in Europe, India, and so on, and not USA thousands of developers and business trying to remove them from their legislation? No one with common sense can tell that software and business methond patents offer any advantage to society and innovation, instead they produce a lot of damate and they limit freedom of simply citizens
I can't believe that a commercial company is willing to instigate a
hacker riot. I mean, they have google ads on their website, so any outraged scriptor can ruin their online revenue. What's more, this blog entry and the fallout from it will be very very popular, so the next time someone googles for KAM's software, A LOT of attention will be drawn to the open source alternative,
because the "KAM sucks"-hits will have more google mojo than their own promotional material. I think KAM is going down the tubes anyway, and soon at that, because healthy companies are more sportsy than the KAM-fuckers. Be that as it may, the CEO should be ceremonously fired in a bizarre
"sodomized with a toilet-brush"-ritual to seal the expellation from the company. Put 10 Dollars in an envelope and send it to the poor victim. And isn't "frivolous litigation" a felony in the US? Man, am I angry. Toast'em, nuke'em, fuck'em, fry'em, hang'em.
If things go on like that in the US, patent law will bring back the old American tradition of lynch-mobs, putting the tarred-and-feathered into a whole new demographics: Designer-clad executives with MBAs.
[ Haha - omen! My Word verification
pattern spells "nuukh"! I like that! ]
There is not the smallest doubt that the human right of creativity - comercionally or not - is bigger than that claimed from some for exclusion of others from thinking, from access etc. and than the 'reservation' of thinkings and ideas for a few people or 'firmas', and that it always in the history was the source of desenvolving and power. When in some banane republics like meanwhile the USA the 'democratical control' of right over such primitive interests disappears and thinking and desenveloping is hindered, one should support this, then let it just so, let be forbidded open source there and desenvelopment inside them country while at the same others go forewards. This is the Darwin principle, what cleans the human desenvelopment from mongoloism in thinking and other indignities. Because of this, nobody need to be worry about this situation, let it just as it is. Desenvolvers SHOULD not stay at such places, but f.ex. go to Europe, China, Russia or other culturs where thinking and freedoom is not hindered.
Werner Landgraf
werner@monkey.is-a-geek.net
For any one wnodering about dates. The patent was filed on April 17 2002, awarded on March 11 2003. The oldest JMRI file in the CVS had its last change made on Aug 9 2001 making hte it atleast 9 months older than the patent filing.
Why is everyone wasting their breath over this? If Bob's work was prior to the patent, which it appears to be, then the KAM folks are idiots and have no standing. End of story.
Some of you are saying to reform the system, when it is precisely the system that will prevent KAM from getting anything out of this except bad publicity, and will allow Bob to continue the good work he's doing.
Yes, the KAM folks appear to be wrong, and are rightfully getting negative publicity. Yes, Bob should easily when this case, including any attorney's fees.
Why? Because the system, while not perfect, works. If we did not have these patents, there would be far less incentive for people and firms to innovate. We live in a capitalistic society, and there are only so many Bob Jacobsen's out there.
Best of luck to Bob, even though he will not need it!
Anonymous said...
Are patents intended to defeat competition?
Of course they are ! Look at the medical industry, they do it all the time. They patent their research in ground-breaking treatments, then slap a suit on anyone else who follows similar ground or (god forbid) tries to turn it into a treatment to save lives.
Isn't that what patents are for ?
"Yes, the KAM folks appear to be wrong, and are rightfully getting negative publicity. Yes, Bob should easily when this case, including any attorney's fees."
Except, of course, that this kind of C&D is sent routinely to many who don't have the resources to fight in court, even if there is a prospect of recouping attorneys fees. Patents have an incredibly chilling effect. For every Bob Jacobsen, there are a hundred others who have rolled over and died because of letters just like those from KAM.
Bob is lucky. It appears the EFF hooked him up with someone willing to take the case pro-bono. Most of us are not so lucky.
I speak from experience. I had a university research project cancelled because of an illegitimate threat from a patent holder.
Guys, I know some hundreds of people using this method with their Sinclair/ Commodores and other Microprocessor kits, in the 80's (Z80/ 8031 etc.,)
The Info is there in hundreds of BBS' al around.
This guy KAM is the king of frauds, along with plenty of others.
HE, KAM, has copied several copyrighted articles, ideas and techniques from these old PC precursors.
Plenty of people CAN SUE kam for violating THEIR rights!!!
Remember the "levitator"???
Just shows us what the world is coming too. Everything revolves around money. Mr Jacobson you are one of a kind, given everything and taken nothing. Countersue and nail thier balls (if they have any ) to the walls !. Oh, thanks for the excellent software.
Hi
At one time I was about to buy software from KAM, but I'm glad I never did.
It's a shame that a company can behave like this. I suggest that we start a ban campain against them and helps Bob to create a system that works better than theirs, and for free!
More moronicisims from these scam artists. Their web site has a button on the home page that says "Shrink Warp Serial Number Activitation." Presumably they mean "Wrap," but given their integrity, perhaps "warp" is more accurate.
A person or a firm is liable to be sued for patent infringement only if they try to SELL or market something that infringes upon an existing patent. In this particular case, the gentleman involved is simply inventing and releasing software for FREE - it is NOT a product that is being sold or marketed, therefore it can NOT be infringing upon any existing patent.
This particular case may indeed be invalid - the suit is a wrongful one, so the defendant may have very good grounds to file a countersuit claiming Court costs, personal damages, and likely punitive damages as well.
On Bob's web site, the Feb 7, 2006 letter from the lawyer says he hasnt shown them any prior art yet. Why doesnt Bob just send them a copy of the prior art and be done with it???
That makes more sense than all this dramatic "lets start a legal fund" and "countersue them" nonsense.
Hey, I like drama as much as the next guy, but come on, take the simple road home dude... Fuss over something worth fussing over.
there are a number of companies that currently have computer controls both hardware and software for Model Trains that go back into the 80's & 90's just search the internet for them. Also as one of the previous people noted I did this in a college class in the early 80's at Purdue.
Ignore their shallow threats i say!
This is just cray, its some kind of scare tactic yes, this might scare others form making progs and making them freely avaiable (under GPL i guess) even so, dont KAM distribuite this software with their own brand of trains and such?
Patentlaws from what I know claim that you cannot hold/get a patent for something that already is created (eg you can't use a patent to steal/control/take an idea). Thus if the patent was filed AFTER his release the patent would go to him as he was the original creator of it.
When Bob Jacobsen wins, he should claim compensations for everything - lost work-time, phone calls, post stamps - WITH INTEREST! Perhaps some future suing companies will think twice.
I say boycott Lenz Elektronik, as they are in a partnership role with KAM it seems.
I read this with interest, and disspointment.
I hope Bob is not defeated by needing $$$ to defend himself.
I hope it can all go away, but I wonder what caused this to occur in the first place , and it does comes down to one man hating another, or a sheer conflict of personality.
I hope the above is not the case. But it is a shame it has come to this. It wil hurt both people on some way regardless who wins or loses.
My concern is the money needed to defend, and often no money to defent lets the bigger purse win.
I do not know details, but hope it works out. Has anyone any info commercialy what stare KAM is in - are they in trouble financially?
KAM Industries...! What a bunch of morons
Who the hell do KAM think they are.
I should submit an invoice to them for an unspeakable sum.
The first time that I used a computer to control a model railway layout was when the Altair 8080 was the latest and greatest.
To the dickhead at KAM: Based on your statement that KAM was founded in 1991, I think you will find that what I developed in the early 70's predates you by almost 20 YEARS!
You've now had your 15 minutes of fame with this deceitful claim. It is now well and truly time to crawl back into the hole from whence you came!!!!!
we need some kind of legal defense fund set up for this guy so he can hire the lawyers to counter-sue and invalidate their patents.
EFF if nothing else, at eff.org
If KAM is attempting to make pecuniary gain by claiming a property it does not own - and knows it does not own - surely it is committing a criminal offence: fraud.
It should therefore not be sued (or countersued) but prosecuted.
I agree KAM is a jerk.
However, the comment about not going after patent (or copyright) infringers who distribute material because they get no benefit is a poor example. Even if you distribute someone else's work for free, there is loss of revenue. In the tangible world, one would lose out big time if they made stuff from someone else's idea and then gave it away. But in the intangible world of software (or any electronically stored/transmitted item), it hardly costs anything to duplicate someone else's stuff.
Go ahead, try and give away 1000's of copies of Windows XP or anything related that makes use of Microsoft patents and see how far you get.
Say you develop a method for a truely uncrackable security code and you patent it. Your source code is leaked somehow but doesn't detract from the security provided by the code. You legitimately sell such code for profit. Good for you! I come around and mimic your code, somehow not violating copyright law but violating the patent. But I don't sell 'my' product, I give it away. Now nobody wants your stuff because they can get the same function with my free stuff. Are you saying I shouldn't or can't be stopped for causing your loss of revenue?
Again, I am not sympathetic to KAM or condoning their actions, just the opposite. I am just saying that some of the arguements posted regarding gained revenue or lack of it aren't valid.
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This comment has been removed by a blog administrator.
A while ago I was about to buy software from KAM, but I'm glad I never did.
If someone develpops a program and wants to give it away and it is their own coding and not plagerised, no company should have the right to do what KAM is doing, maybe hornby should sue KAM for writing a program that accesses their product, or Microsoft invoice them for making it windows friendly.
Patent enforcement can get a little crazy especially in the USA, the infringements may be small but a lot of companys see a law suit more as an income generator as much as scare tacticts for other companies.
after many years Jacobsen has finally won, http://jmri.sourceforge.net/k/docket/index.shtml
Wow. When will we get reform? At this poing we need something radical. What if we phase out the patent system entirely over 5 years. It is a myth that patents help the little guy. That may have been the original intent, but as this example shows, usually it's the huge company, with armies of patent lawyers that fucks the little guy.
You want to solve the energy crisis, slow global warming, make this economy take off like a rocket? Abolish the US patent system, cut taxes/govt. spending in half and get rid of the uneccessary regulations out there (again, probably about half the regulations currently in existence)!
I love this blog! I'll definitely link to it from my sites!
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