Re: [hylafax-users] Problem on the Patent Front

[Steve Underwood <steveu@xxxxxxxxxxx>]

hylafax_resp@xxxxxxxxxxxxxxx wrote:

> On Thursday 11 August 2005 06:50, Bill Binko wrote:
>  
>
> > As I mentioned in my last (more important) post, there was a reason I
> > thought of Hylafax tonight.
> >
> > I think everyone involved in hylafax development should read this post on
> > Groklaw tonight:
> >
> > http://www.groklaw.net/article.php?story=2005080914234645
> >
> > Basically, J2 Communications (the eFax people) are suing a bunch of
> > competitors using a patent on "Fax over Email" and several related topics.
> > The competitors use Open Source software (including Hylafax it seems) and
> > I think this may be a real risk.
> >
> > The article is important enough that at least the core developers should
> > really look at it and see a) if they need to be concerned and b) if there
> > is prior art that they can provide.
> >
> > As I mentioned, Hylafax has worked wonders for our business, and I would
> > be happy to help defend it against this threat.  If there is anything I
> > can do, please ask.
> >    
>
> Software patents are null and void in many jurisdictions -- and not without 
> good reason.  I am proud to live in just such a place.
>  
Before starting this commonly used little rant, it might have been 
worthwhile looking at the patents. There is no mention of software in 
the patents.

> A patent can be struck down if there is prior art, or if the technique it 
> claims would be obvious to an expert in the field.  I would guess that the 
> obviety clause would apply in this case  {e-mail is just a way of getting 
> data from one computer to another}.  It is also possible that the patent may 
> not even cover what the competitors are doing -- there may well not even be a 
> case to answer.  A patent is meant to cover one specific means of reaching a 
> given end, not the end in itself.
>  
Striking them down should be possible in this case, however court 
outcomes in these things are unpredictable and could bankrupt you even 
if you win.

> If there is an offence under US law of maliciously initiating a lawsuit -- 
> surely such dangerous weapons should be subject to some controls? -- then it 
> might well be worth counter-prosecuting.
>  
Defending your patents doesn't count as malicious, whatever the real intent.

> Once upon a time the American dream was to make money by having an idea that 
> nobody else had thought of before.  Nowadays, it seems that the new American 
> dream is to find a way to charge everyone else money for something they 
> already do very often.
>  
The robber baron model has been found more profitable in modern America.

Hylafax has no problems with these patents. It is how you might use 
HylaFAX, rather than HylaFAX itself which count put you in a position of 
infringement. That said, if anyone has useful prior art that might help 
the defendants, please step forward. They really need to hear about 
people who were doing things like FAX or voice to e-mail, e-mail to FAX 
or voice, or FAX-to-FAX through an e-mail intermediary before 1988. 
There were certainly people doing elements of this before 1988. The 
thing now is to put together a comprehensive picture of the prior art at 
that time. I think if that is done it should paint the patents in a dim 
light. If that can be used to cause a re-examination of the patents they 
might be shot down cheaply. If this goes to court it could be a disaster 
for those involved, whatever the final decision.

Regards,
Steve


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