PRESENTATION BY RICHARD JORDAN THINKING MACHINES CORPORATION MR. JORDAN;: Mr. Commissioner, ladies and gentlemen, my name is Richard Jordan. I'm Patent Counsel with Thinking Machines Corporation. By way of background, Thinking Machines Corporation was founded in 1983 to develop, manufacture and sell massively parallel super computer systems. Thinking Machines products are an outgrowth of research undertaken principally by its chief scientist, Danny Hillis while he was a graduate student at MIT. Since Thinking Machines announced its first product, the Connection Machine, Model CM-1 super computer in 1986 the company has had excellent revenue growth and revenue from massively parallel super computers is believed to be the largest of any company. However, it should be noted that its revenue is much less than that of a number of other companies in the computer industry, both domestic and foreign, including companies in the traditional super computer field as well as those principally known for selling computers and more conventional architectures, many of which I should say are developing products that are competitive with Thinking Machines. Over the past several years the computing power of massively parallel computing technology has been emphasized by a number of awards relating to Thinking Machines' technology. Since 1990 the IEEE, the Institute of Electrical and Electronics Engineers, has given its Gordon Novell Award for computing speed to several teams, including Thinking Machines employees for programs processed on a connection machine super computer and for compiler technology. The importance of massively parallel computing technology has also been recognized by articles in journals such as the Scientific American and newspapers such as the New York Times and the Wall Street Journal. A connection machine computer achieves its computing power through a combination of hardware and software, unlike a conventional computer which uses one or only a few powerful data processors on masses of data, the hardware of a connection machine computer includes tens, hundreds, or even thousands of microprocessors which operate in parallel on relatively small amounts of data that are distributed to them. The individual microprocessors are interconnected by a data routing network which allow them to share data as necessary and the software effectively coordinates the operations of the individual microprocessors and the routing network to achieve tremendous computing power. While the hardware is important to the computing power achieved by a massively parallel computing system, at least as important as the advancement in software techniques. Many advancements have come in the development of parallel algorithms and computing techniques; the pattern of assignment of data to processors to minimize processing time; techniques for rapidly routing data through the routing network; compiler techniques; the development of high level languages and compilers to make massively parallel computers easy to use. Thinking Machines currently has a staff in excess of 500, of whom approximately one-third are involved in hardware and software engineering development. Of these engineers only about 30 percent are involved in what might traditionally be referred to as hardware development, while fully 70 percent are involved in software development. In addition, a number of other employees actively develop software in Thinking Machine's large customer service group developing software techniques specifically for or with customers. It is manifestly evident that Thinking Machines software development effort represents a very significant portion of its investment in massively parallel computing technology and Thinking Machines believes that patent protection provides an important tool to help protect this investment. Thinking Machines further has an ongoing program to encourage its developers to publish papers and articles describing new parallel processing techniques. This provides information on new uses for massively parallel computing technology and techniques and may also help to enhance the professional standing of its employee authors within their professions. Published papers represent divulgation of technology for which Thinking Machines has provided often considerable investment. And Thinking Machines believes that patent protection can be an important tool to protect this investment as well, particularly in view of the substantial degree of competition that's developing in the marketplace. Thinking Machines, unlike some larger companies, does not require its employee's papers to be cleared, that is scrutinized to determine whether they describe technology which the company may wish to protect, before the papers can be sent out for publication, but it does actively file for patent protection on technology to be described in the papers. Thinking Machines recognizes that computer software is also protected by copyright, but it believes that copyright will not provide the degree of protection required to protect its investment. First, the scope of copyright protection is far from clear and has been made less clear in recent years in view of the Second Circuit's opinion in the Computer Associates case. It's generally said that copyright protects the expression of a work and not its idea. While these words are easy to say, it's very difficult to apply them in practice. Furthermore, the application of 17 U.S.C. Section 102(b), which exempts from copyright protection ideas, processes, methods and so forth regardless of the form in which they're described, further renders uncertain the degree of protection provided by copyright. Much of the value in the program related techniques developed by Thinking Machines is not in the detailed computer program code, which is clearly protected by copyright, but in the algorithms, programming techniques for which copyright protection is far less clear. Similar ambiguities are not present in patent protection. Furthermore, patent protection is important in view of the publishing by Thinking Machine's employees, which disclosed the algorithms and techniques to the world and particularly to the competition and in view of the fact that copyright protection may not protect against reverse engineering. Accordingly, Thinking Machines believes that patent protection for computer program related inventions is an important tool to protect its investment. That being said, Thinking Machines believes it important that the patent system maximize the likelihood that the patents issued are valid, that the claims are directed to new, useful, and nonobvious technology in accordance with the statutory mandate. It does no one any service if patents are issued that do not meet the statutory standard. While no one can reasonably expect that any institution run by human beings can be 100 percent perfect, we believe that enhancements can be made to improve the system. And I might mention that while we're here discussing patent issues relating to computer software-related inventions, these same problems can arise in connection with computer hardware and indeed in any technology. The problems may be exacerbated somewhat in the software area since the PTO for a number of years was reluctant to consider computer program related inventions to be statutory subject matter -- a reluctance that to some extent still continues -- which delayed its development of a prior art database in this area. However, there is no industry in which all of the technology is patented or otherwise published. Several changes to U.S. procedure may be appropriate to provide for early publication of the applications. This would have two advantages. First, it would ensure more timely publication of the technology, making it available to those working in the industry. A publication delay of one to one-and-a-half years after submission to a paper is not atypical for engineering and scientific journals, but for patents, particularly in this subject matter, a much longer delay is more typical. With developments in computer technology moving as rapidly as they are, the patent disclosure after such a lengthy delay may be somewhat less valuable as a source of technical information. Second, early publication can also operate as early notification to others working in the field of the potential issuance of a patent, allowing them to favor that into their business decisions. The potentially lengthy delays to patent issuance under current practice in the United States means that others working in the field would not be notified that a patent application is pending that may cover something they are developing until the patent actually issues, which can be a number of years after its original filing date and perhaps after much time and money has been invested in the potentially infringing enterprise. Third, early publication followed by an examination in a more contemplative environment than would be possible in the current push for a reduction in the pendency period would provide a better patent upon issuance. For example, if a patent issued on the original application with the approximately 18 month pendency period as currently suggested by the PTO, the prior art from foreign patent offices would most likely not be available for consideration by the U.S. examiner. Having this prior art is particularly important in the computer area. It makes for a more complete examination and a higher degree of confidence in the validity of the patent. Typically such prior art is not available until around 18 to 24 months after the priority date and an 18 month pendency time would mean that the art would not be available until just around the time the U.S. patent would be issuing. If the art were deemed material and the application still pending, the applicant would likely have to file a continuation application to get it considered, which could delay issuance to the patent and publication of the technology for an even greater amount of time and require additional expenditure by the applicant of another filing fee. On the other hand, if the U.S. patent had already issued the only ways to have the art considered would be by reexamine or reissue, both of which can be costly. In addition, it puts too much stress on the Patent Examining Corps which can have problems with retention of examiners. These problems can be alleviated by a few relatively simple changes to the prosecution procedures and the PTO. First, they can publish the application 18 months from the priority date, preferably with a search report so that the applicant can have it and ideas to the likelihood of being able to get a patent. In addition, the public should be brought into the process at some point, perhaps by way of an opposition proceeding just before or after issuance. It would alleviate the secrecy problem, things going into the Patent Office. But you have to make sure that oppositions are conducted and restricted here as to procedures and time frames, otherwise they can run on interminably. Another way that the system can be improved is by holding ongoing dialogue such as these hearings to get input from the Bar and others who have interest in the patent system. Wearing another hat, I am also Chairman of the Electronic and Computer Law Committee of the AIPLA and our committee leadership has for a number of years been meeting with the group directors and others in the electrical examining groups to discuss issues of mutual concern. We expect to hold another meeting in April, of which we hope to discuss among other things, some of the issues raised by the notice for these hearings. An outgrowth of earlier meetings was a program held last October in conjunction with the AIPLA's annual meeting that was extremely well attended by examiners from the Examining Corps and by members of the AIPLA. At the program a number of problems and practice issues of concern to the Examining Corps and to the Bar were discussed in detail. Each side, so to speak, learned quite a bit of the problems and perspectives of the others and the program received quite good reviews and we hope to have more of them. Thank you very much. COMMISSIONER LEHMAN;: Thank you very much. Those were very helpful comments and I appreciate your be willing to give them in advance of your prepared time. MR. JORDAN;: Thank you very much. COMMISSIONER LEHMAN;: I'm going to try to call one more person in the morning session. Is Jonathan Band here? (No audible response.) COMMISSIONER LEHMAN;: How about Vern Blanchard? (No audible response.) COMMISSIONER LEHMAN;: Jeffrey Berkowitz? Mr. Berkowitz, great. Mr. Berkowitz is an attorney with Finnegan, Henderson, Farabow, Garrett & Dunner. Yesterday we had a meeting with the unions at the PTO and we big -- we were sitting on the Partnership Council and we had a big discussion about who should get represented and how many representatives they should have on this. It's interesting that we have a disproportionate representation from Finnegan, Henderson, Farabow, Garrett & Dunner. I think this is about the fifth witness that we've had in the course of these four days of hearings. It will be interesting to see this other face of the firm.Back to the index of speakers for Arlington
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