[ih] Saving IETF history

[Jack Haverty]

PatentLand really is complicated to navigate through, and I'm not
competent to explain it.  I did learn a lot from the lawyers I worked
with about the legal jungle, and they learned a bit too about how
computers really work.

We did find Alex's paper and many others.   But like most of the
paperwork, it lacked detail to show, to judges and juries who probably
don't understand the words, that the IMP did all of those things
described in that "claim" verbiage.

There are other aspects that lawyers argue about.  For example, one can
argue that it is not sufficient that some idea was published.    For
something to qualify as "prior art" it has to be some design detail, or
technique, or practice that would have "been known by an ordinary
practitioner of the art", or could have been known if that person had
managed to read about it.  In other words, it has to have been used, in
some kind of public way, so that other everyday engineers could have
used the same approach.

Of course, one can bring in a person to testify about that, assuming
that such people can be found after 40 years, and, as the lawyer told
me, "still have all their marbles."   As an expert witness who was
actually an engineer in that time frame, I could give first-hand
testimony.   But that could be challenged by pointing out that an
"expert" is not necessarily indicative of "an ordinary practitioner of
the art".

Take all of what I just said with the caveat IANAL.   Talk to your
patent attorneys.   I've learned you'll likely never get the Truth, but
you'll be able to get informed Opinions -- for a judge/jury to make the
final decision.   That's why working hardware/software was so desirable
-- you can see it in action.   The old mantra "Rough Consensus and
Running Code" applies in courthouses too.

FYI, the way I got involved in this battle happened when a researcher
working on the case stumbled across an old document I wrote about "XNET"
(IEN 158), somehow found me and asked if I was the author of that
then-34-year-old document.   They surmised that XNET might be a lead
toward some possible prior art, but the 1980 date of that IEN was
uncomfortably close to the relevant cutoff date.  I mentioned that XNET
was just documenting for the Internet in 1980 what had been going on for
more than a decade  earlier in the ARPANET.   That's when the IMP became
the very interesting candidate as source of proof of prior art.

In digging through all sorts of old IENs, RFCs, papers, et al, one issue
that frequently came up was whether or not a technique described was
ever actually implemented and available to "ordinary practitioners of
the art".   RFCs and IENs describe hundreds, maybe thousands, of
protocols, algorithms, etc., but it's very difficult to determine which
of them have actually ever operated in real hardware and software.  

IENs, RFCs, et al seem to describe lots of ideas but little about how
those ideas have actually been used in the operational Internet.   I've
wondered how many of those legions of protocols and algorithms are
actually present in the computer I'm using now.   More documentation of
that aspect of the Internet would be welcome.

You can't patent an idea or concept.   It has to be captured in some
real implementation, or at least a design of one.   That's why the
patent claim describes processors connected to memories, etc.

/Jack Haverty




On 5/13/21 11:59 AM, Toerless Eckert via Internet-history wrote:
> So who would back in the day read this documentation, and at which point in
> time did it become "public" ?
>
> If it was produced grudgingly and maybe not even read by government folks
> funding the project, one can still be very happy about at that point in time
> maybe seemingly useless bureaucracy now. Very interesting read.
>
> Cheers
>     Toerless
>
>
> On Thu, May 13, 2021 at 09:30:21AM -0400, dave walden via Internet-history wrote:
>> The 1973 IMP had extensive documentation although not for the purpose of a
>> patent dispute and not exactly for the same listing version as we were
>> analyzing.
>> See https://walden-family.com/impcode/IMPSYS-Document-with-flowcharts.pdf
>> and'
>> https://walden-family.com/impcode/Technical_Information_Report_89.pdf
>> These also are now archived at the Software History Center of the Computer
>> History Museum.
>>
>> Such documentation was not our normal practice.  It was required one year by
>> whichever government person was managing our contract --- for a purpose I do
>> not remember.  More normally, the documentation was the listing and in the
>> memory of the program maintainer.
>>
>>
>> On 5/12/2021 11:21 PM, Toerless Eckert via Internet-history wrote:
>>> Thanks for the story, Jack.
>>>
>>> Given how much of a believer in good public documentation i am, however curious:
>>>
>>> Was the functionality in question well enough publically documented with
>>> according early dates ? I suspect not befcause i would be surprised if the documentation
>>> would not have been good enough, if it existed. After all, most patents are also graanted
>>> without evidence that they work, so its patenting of concept, not evidence
>>> thereof (which might have been different in decades before my time though..).
>>>
>>> Cheers
>>>      Toerless
>>>
>>>
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