Microsoft Word For Mac 15.26 Restore Earlier Version Of Document

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Summary

Don't worry if you saved over an Excel or Word by mistake. This page will show you how to effortlessly recover previous version of Excel. You can restore an Excel file to an earlier version from a temporary file or auto-recovery if you haven't saved the file. If you've saved the file, you can recover Excel from previous version and Excel's built-in tool. And if you need to recover deleted Excel file, you can resort to a professional file recovery software.

Quick navigation for solutions to recover the previous version of excel with or without saving:

Workable SolutionsStep-by-step Troubleshooting
Fix 1. Recover from Previous VersionRight-click on the saved Excel > 'Properties' > 'Previous Versions'..Full steps
Fix 2. Revert Saved ExcelOpen Excel > 'File' > 'Info' > 'Manage Documents' > Click 'When I closed..'..Full steps
Fix 3. Recover from AutoRecoverOpen Excel > 'File' > 'Info' > 'Manage Workbook' > 'Recover Unsaved..'..Full steps
Fix 4. Recover from .TMP FileFind the Excel temp file with .TMP extension > Copy and change extension..Full steps

Q: How to recover a previous version of an Excel spreadsheet after saving it?

'Is it possible to recover a saved-over Excel to a previous version? I got a very important two-sheet Excel file, but it was saved by mistake, and there was only one spreadsheet left with much useful data loss. I don't know how it happened without me knowing it. I need the lost data back. So, I'm hoping someone will be able to help and tell me if I can recover a previous version of this spreadsheet before the deletion occurred? If so, how do I do this?'

Recovering an Excel file that was saved over is a long-standing hot issue for many users. How you can restore earlier Excel depends on whether you've saved it or not. If the Excel file is still open, you can directly use Ctrl + Z or the Undo option to revert the Excel file to an earlier state.

However, if the edited Excel is saved and closed, recovery is not so easy. In the following content, we will discuss how to recover previous version of Excel file 2016, 2013, 2010, and 2007 in two cases. One is restoring older Excel version if you've saved the file, the other is recovering the previous version of Excel if you haven't saved it. Besides, in the end, we highly recommend you try EaseUS Data Recovery Wizard to recover lost saved Excel file without effort.

How to Recover Previous Version of Excel File After Saving

Two ways are available to help you restore previous version of Excel file by using Windows's previous versions tool and Excel's Manage Wordbook feature.

1. Recover Earlier Version of Excel File from Previous Versions

Windows can automatically save old versions of your data files when you have enabled the File History and system backup and restore.

Step 1. Open File Explorer and locate the Excel/Word file.

Step 2. Right-click on the Excel file and select 'Properties'.

Step 3. Click the 'Previous Versions' tab and select the version you would like to get back and then hit 'Restore'.

2. Revert Excel File to Previous Version with Excel's Built-in Tool

Step 1. Open the file you are working on;

Step 2. Go to 'File' and click 'Info'. Under 'Manage Documents', click the file labeled 'When I closed without saving'.

Step 3. Click 'Restore' in the bar at the top of the file to overwrite any previously saved versions.

How to Restore Previous Version of Excel File Without Saving

If you haven't saved the file, try below two approaches to get an Excel file earlier version back.

1. Recover Unsaved Excel File from AutoRecover

If the AutoRecover option is turned on, Windows can automatically save versions of your file while you're working on it.

Step 1. Click 'File' > 'Info' > 'Manage Workbook' > 'Recover Unsaved Workbooks' .

Step 2. Select the file and click 'Open'.

Step 3. In the bar at the top of the file, click 'Save As' to save the file.

2. Recover Old Version of Excel File from .TMP file

Microsoft Office has this feature that it would automatically save temp files for the file that you are editing. So you can try to find the .TMP file to get an earlier version of Excel or Word file back:

Step 1. Follow the temp file folder location on your PC and find the Excel/Word temp files with .TMP extension.

  • For Windows 7 users: C:UsersUserNameAppDataRoamingMicrosoftExcel
  • For Windows 8/10 users: C:UsersUserNameAppDataLocalMicrosoftOfficeUnsavedFiles

Step 2. Locate and find the temporary excel or word files begin with '$' or '~' and end with “.TMP”, select the right version of Excel/Word temp file by date, then copy and save to another safe spot by changing the extension from .TMP to .XLS/.XLSX or .DOC/.DOCX.

Conclusion: If your Excel file got overwritten accidentally with data loss, you could use the four methods in total to recover previous version of the Excel file. In addition to Excel getting saved over, users also have trouble with Excel loss caused by mistaken deletion, storage device formatting, OS crash, virus attack, recycle bin emptying, and so on. Under these circumstances, the above approaches are not useful any longer. Then, how to recover deleted Excel document? Calm down and use the data recovery software demonstrated below to get back lost Excel easily.

How to Retrieve Deleted/Lost Excel File with Data Recovery Software

If you've already deleted the earlier version of Excel file, or if the saved Excel gets lost due to careless deletion, hard drive formatting, and other reasons, you can use EaseUS Data Recovery to help you restore the deleted Excel from your PC or other storage devices within three steps. It even enables you to recover files from emptied recycle bin.

Now, install this program and follow to see how to get your lost Excel/Word file back effortlessly.

Step 1. Launch EaseUS Office file recovery software on your computer. Your hard drives, as well as external hard drives, will be detected and displayed on the disk map. Choose the exact location where you lost the Office files and click the Scan button.

Step 2. The software will start a quick scan after you click the Scan button, and very soon the deleted files will show up. It may take a little longer for the Advanced scan to find many more data. When the process is over, you can filter the Office files by the 'Documents' category.

Step 3. Select the Office files (e.g. Word, Excel, and PowerPoint) and click the Recover button. You can browse for a different location to save the recovered files.

Debunking the Software Patent Myths

This article was published in the Communications of the ACM,June, 1992

Introduction

An Absurd Patent (This authors patentattacked as absurd)

The Informed Opinion (What the patentbar and others say)

A Study of Nine Software Patents (Thoseattacked by the LPF)

Analysis Results (The results of analyzingthe use of these patents)

Recommendations (for improving thepatent system)

The Software Patent Confrontation (betweenthe pro- and anti- patent forces)

Acknowledgements and citations

SideBars in the ACM article

Quotations on patents

Software Patents: IBM's Role in History

The Academic Debate: ConsideredOpinion and Advocacy

Document Comparison: (An exampleof prior art on a patent)

Patents & Copyrights

How Patents Work

Tables of referenced patents

When Will People Take Software Patents Seriously?

A Brief History of Patents (It started in Italy in the 15th century)

Obviousness: Polaroid v. Kodak

Trademarks: Apple paid $30 million to use the name 'Apple'

Big Companies Do Sue Small Ones

Introduction

Jealousy and Envy deny the merit or the novelty of your invention;but Vanity, when the novelty and merit are established, claimsit for its own.. One would not therefore, of all faculties, orqualities of the mind, wish for a friend, or a child, that heshould have that of invention. For his attempts to benefit mankindin that way, however well imagined, if they do not succeed, exposehim, though very unjustly, to general ridicule and contempt; andif they do succeed, to envy, robbery, and abuse.
-Ben Franklin, 1755
All Nature is but Art, unknown to thee;
All Chance, Direction, which thou canst not see;
All Discord, Harmony not understood;
All partial Evil, universal Good;
And, spite of Pride, in erring Reason's spite,
One truth is clear, Whatever is, is Right.
-Alexander Pope, Essay on Man

The issue of software patentability is an important topic becauseit affects the environment in which programmers and designerswork, software innovation, the health of the software industry,and U.S. competitiveness. This paper while motivated by 'Against Software Patents,'by the League for Programming Freedom inCommunications (Jan 1992), is an overall defense of software patents.

An Absurd Patent

U.S. Patent 4,736,308, the first patent under the heading 'AbsurdPatents' in 'Against Software Patents' is described:'Forexample, Apple was sued because the HyperCard program allegedlyviolates patent number 4,736,308 a patent that covers displayingportions of two or more strings together on the screen, effectivelyscrolling with multiple subwindows. Scrolling and subwindows arewell-known techniques, but combining them is apparently illegal.'The League calls this an 'outrageous result.' Basedon this description alone, any reasonable person would have toagree.

But I am that inventor and Apple was actually sued on a priorrelated patent, 4,486,857. Because my patents were misrepresented,I researched the other patents described in the League's articleand am reporting my results.

There is much the League did not say about my patent and the circumstancessurrounding it. First, it did not describe my background. In 1963I worked on the software for the first computer designed to bea timesharing computer. I was at Xerox PARC in its early days,wrote two articles for the CACM[17,20]and a book on user interface design.[16] Mypatent covers a commercial product called Zoomracks [19]which introduced a new computer metaphor called the card and rackmetaphor. Although there is a MS/DOS version, Zoomracks was marketedprimarily on the Atari ST. Zoomracks developed a strong base ofusers who used it for a very broad range of applications, butit was a financial struggle largely because Atari did poorly.In August 1987, Apple Computer introduced HyperCard which is basedon a similar, but more limited card and stack version of the metaphor.

I was then faced with having invested six years of raising money,developing a product, marketing it, and proving its value in themarket, only to find I was in debt, my customer base was on adying computer and Apple was giving away free a more polishedand featured, although less elegant, version of the metaphor.While Apple may not have set out to rip Zoomracks off, it wasaware of it (having seen it under non-disclosure), of HyperCard'ssimilarity to Zoomracks, and Zoomracks' patents.

HyperCard created expectations that Zoomracks could not meet,and other companies began to develop HyperCard clones. Meanwhile,I asserted my rights, sued and settled with Apple licensing thepatents. Apple is to be applauded for respecting my patents.

IBM was less respectful: We had twice brought our patent to itsattention with respect to products like HyperCard and we had visiblyasserted our patents and sued and settled with Apple by the timeIBM decided to bundle what many consider to be a HyperCard clone.I spent six months patiently trying to deal with IBM. FinallyIBM representatives flew to San Francisco to show us prior art-earliertechnology-invalidating our patents that they claimed to have.When they arrived, they refused to show us the prior art, 'forfear the patent office would recertify our patents in error.'Even if IBM had been straightforward with me during the six months,to accept such an assertion without evidence would have been naive.

Faced with a choice of accepting IBM's offer of 0.2% of the $5million IBM is said to have paid to license the token ring patent,or to accept its challenge to 'sue us' if we wantedto see the prior art, IBM left me no choice but to fight. ButI have chosen to fight in the court of public opinion where possible,rather than the civil courts where, because of its financial strength,IBM has the advantage. I added a detailed description of my dealingswith IBM to my book[16] and sent copies ofmy book to the members of the Commission on Patent Reform whenthey asked for comments.

Based on my experience I formulated Heckel's Principle of Dealingwith Big Companies: There is no such thing as a free lunch;unless you're the lunch.

With Apple and IBM, I did battle against large companies who weresophisticated about intellectual property, rather than small onesthat were not. I felt it was in everyone's interest to force companiesand the courts to make decisions about software patents so therules and the marketplace realities can be clear to all. not justthe sophisticated few. This article is written in that same spirit.While it is a personal issue, I write to clarify the softwarepatent issues in general, to raise he level of discussion andbecause like most good inventors, I am curious about what thetruth is.

One can only understand the need for patents in the light of acompetitive marketplace. We need a heavy to show what the innovatorfaces as Humphrey Bogart needed Sidney Greenstreet in The MalteseFalcon. IBM has already presented itself in that role; it willreappear as did Sidney Greenstreet.

The Informed Opinion

We will visit the other eight patents mentioned by the Leaguein its article and show that the patents it selected, on examination,disprove its case.But first, we take the broader view.

Should software be patentable like other technologies? The primaryissue is a policy one and so we have been influenced by Neustadtand May and their book on governmental decision-making[33].In the background of our analysis are these questions: What analogies(to software) exist? What are the similarities and differences?What are the assumptions, explicit and hidden? 'What is known?'What is the history of the issues?' What are the interestsof the various players?' We will follow the Goldberg ruleand ask, not 'What is the problem?' but 'What isthe story?' Most important, we ask, 'How did thingsturn out in the past?'

History and innovation economics, more than law and computer science,must be the foundation on which to make policy. We have framed10 points which are, we believe, the consensus of informed opinionon software patents. We hope they help you crystallize your thoughtson patents and enable you to better articulate your differences,if any, with the informed opinion.

1. By creating property rights, patents promote innovationin non-software areas. They particularly promote innovation fromsmall and mid-size companies.

Most of the arguments against software patents turn out to bearguments against patents per se. These arguments are advancedmost credibly on the basis of established technologies where dataand research already exist.

Patents have been accepted around the world as promoting innovation.Many giants of U.S. industry such as G.E., AT&T, Polaroid,Xerox and Hewlett-Packard, started as small companies that usedpatent protection to protect their inventions.

Yet, most of the articles on patents in the trade, business andeven academic press read by the computer community [5,13, 26,27,28,41,42,48]have a an antisoftware patent bias. The reason is that for everypatent there is one patentholder who is reluctant to speak becausethe issue is complex and what someone says could be used againstthem in litigation. And there are a dozen who might like to usethe patented technology without paying for it and so are willingto malign the patent and patent system and pass on unsubstantiatedrumors and misinformation

Economists have researched innovation in other technologies [24,31,43] and found the following:patents encourage innovation; and small entities-individual inventorsand small companies-are a very important source of innovation.According to Jewkes et al. [24],

It is almost impossible to conceive of any existing social institutionso faulty in so many ways. It survives only because there seemsto be nothing better. And yet for the individual inventor or thesmall producer struggling to market a new idea, the patent rightis crucially important. It is the only resource he possesses and,fragile and precarious as his rights may be, without them he wouldhave nothing by which to establish a claim to a reward for hiswork. The sale of his ideas directly or the raising of capitalfor exploiting the ideas would be hopeless without the patent.

While several articles discuss software patent and copyrights[8,46,47],few have been written for the software, as opposed to the legal,community [11,16,37].Such studies have only rarely been linked to software[7],and, we are unaware of any empirical studies of the effect ofsoftware patents on innovation other than this one.

If we are to reject patents in principle, we should argue thatcase. If we accept patents as promoting innovation elsewhere butnot in software then we should differentiate software from othertechnologies.

2. Patents have evolved to address the concerns raised bythose who suspect software patents.

The courts have developed a patent jurisprudence as a unifyingmechanism to support many technologies and foster evolutionaryimprovement while balancing the rights of patentholders and potentialinfringers.

Patents have a long history (see sidebar) ,Most of the concerns about patents raised by the League have beenraised long ago in the context of other technologies and addressedin case law and legislation and have stood the test of time. Thepatent system, like MS/DOS, is not perfect. MS/DOS has a longhistory of evolutionary improvement: it is a derivative of CP/M,which is a derivative of TOPS-20, which is a derivative of theSDS-940 timesharing system which evolved from the first timesharingsystem developed at BBN about 1960. Patent jurisprudence has asimilar history of evolution.

Part of the value of patents is they are a proven, public domainstandard of intellectual property protection that have a historyof evolutionary improvement over 500 years, compared to the 30or 40 years of experience developing operating systems. TopViewand OS/2, demonstrate how developing a new operating system andcrystallizing a new infrastructure around it are fraught withdangers known and unknown. An infrastructure has crystallizedaround MS/DOS . It includes developers and consultants who knowit, books explaining its use, and commercial products based onit. Similarly, an infrastructure has crystallized around thatpatent system. It includes patent lawyers, case law examples ofvalid and invalid, infringed and not infringed patents, and booksand articles explaining patents to both lawyers and non-lawyers.

3. Patents are not perfect.

There are problems with the patent system. Only that which isnot real is perfect. The patent community and the Patent and TrademarkOffice (PTO) are aware of the problems and have been working toaddress them. A Commission on Patent Reform is considering improvements.The problems that the patent community sees are these: (a) thedifficulty and expense of prior art searches; (b) patents beingissued with inadequate examination; (c) imprecise claims makingit difficult to know whether infringement has occurred; and (d)the length of time the examination process takes. (This hurtsboth the patentholder who can't enforce unissued patents and potentialinfringers who won't know about them. Patents are published automatically18 months after filing in all other countries.) None of theseproblems are unique to software.

If lack of perfection was a reason to get rid of something, noteenager would survive to adulthood. Other industries find patentsuseful in spite of these problems; software will too.

Patents, it is said, inhibit standards. They do not; they inhibitthe expropriate of intellectual property without just compensationin violation of the Fifth Amendment. Where patents exist standardsare created two ways:

  • Where people want a standard which infringes a patent, thestandards body usually negotiates an agreement whereby the patentholderin return for having the technology required as part of a standard,agrees to make a standard license and rate available to all.
  • Most standards don't infringe any intellectual property. TheQWERTY keyboard and the standard automobile controls (Steeringwheel, brake and accelerator) demonstrate that patents don't inhibitstandards creation. Both public domain standards were developedduring the working lifetime of Edison who received 1100 patents.
4. Software is not inherently different from other technologiesin the way innovation or patents work.

Arguments that software is different should be treated critically;you can be sure those same arguments will be used by those whodo not believe that the protections of the Bill of Rights extendto areas where computers and software are used.

Fred Brooks, following Aristotle, suggested the distinction betweenessence and accident[3], and that distinctionhas guided our analysis in the distinctions raised by the Leagueand the academics (see sidebar). Thequestion is whether the differences between software are essentialor accidental in their encouraging innovation. The League sayssoftware is different and should be protected differently. Theypresent two arguments.

A. Programs are complex.

Why, so they are; but so are airplanes, silicon chips, siliconchip fabrication plants, potato chip plants, oil refineries andmany things. But people find the patent system beneficial in theseother technologies.

B. Software is cheap to develop compared to other technologiesbecause it is a cottage industry.

Other industries have cottage manufacturers and they deal withpatents. Outside of software much invention is a cottage industry;about 5000 independent inventors belong to the 37 organizationsthat are members of the National Congress of Independent Inventors.And most cottage industries don't rely on invention.

We should no more optimize an intellectual property system forcottage developers then we should for Fortune 500 companies.

When one talks about marketing and maintaining commercial softwareproducts, the costs are much greater than the estimates made bythe League. At the other extreme, IBM is reported to have spent2.5 billion dollars to develop OS/2, including applications.

It is expensive to develop software if the task is to design itfrom scratch and make it a success in the market; it is not, ifthe task is to clone something that already exists or is preciselyspecified.

Indeed, that clone software is so much cheaper to develop arguesfor the necessity of patent protection if one wants to stimulatethe development of products worth cloning.

Making software non-patentable or subjecting it to a differentform of protection creates practical difficulties, rather likea state seceding from the Union and setting up checkpoints onits border. And if one state secedes, they all can. If each technologyhas a sui generis (unique to itself ) form of protection, we wouldhave to set up boundaries between the different technologies andwould need rules for what happens at the boundaries.

This situation occurs in software development. Should programmersbe able to define their own conventions or should they conformto the system conventions even where they are not optimal? Donew programmers get to define their own conventions just becausethey were not involved in the original decision? Aren't programmersexpected to abide by the conventions so the code will integratebetter and others can maintain it later. Of course, as problemssurface, it is foolish to resist all change in conventions justbecause changes have repercussions. Changes are made, but as partof a deliberative process in which the burden of proof is on thosewho advocate the changes.

The evolution of the law works the same way; computer law is justanother subsystem to be integrated into the fabric of jurisprudence.

The problem of having different conventions in different areasis demonstrated by the Cadtrak patent which is discussed later.It is a hardware, rather than a software, patent. It requiresa display device but no software to infringe it. A computer canbe designed so it does not infringe, although a simple programrunning on it can. This demonstrates that simple software programscan infringe almost pure hardware patents and suggests the difficultyof drawing a legal distinction between hardware and software.

In the legal debate (see sidebar) womenare playing important roles. Susan Nycum, the founding chair ofthe ACM Section for Legal Issues advocated in 1974 that softwarebe patentable.[34]She recommended I get patentsin 1981 and suggested Hugh Finley, another long-time ACM member,as a patent lawyer. She now heads the computer law group at, Bakerand MacKenzie. This view is now the mainstream view taken nowby the practicing and academic patent bar and most computer lawyers.The contrarians who argue against software having the same breadthof protection as other technologies are led by Pamela Samuelson.Unless overruled by the Supreme Court., the issues will be decidedby the Court of Appeals for the Federal Circuit whose chief judgeis the Honorable Helen W. Nies

The League for Programming Freedom has launched an offense inthe debate. Like the Battle of the Bulge, up close it looks formidable.But, while it must be treated seriously, it is the last gasp ofa dying cause.

The PTO and those patent lawyers who prosecute software patentshave much more experience in the nitty gritty of protecting softwarethan the contrarian academics. And the PTO and the courts havemore experience weaving new technologies into the fabric of thepatent system than the software community has in creating formsof intellectual property protection.

The pioneers in each new technology see that technology as new,different, and central, and expect the world to accommodate it.To some extent the world does. But slowly each new technologybecomes woven into the tapestry of knowledge encompassing othertechnologies-each distinctive in its picture-but using the samethreads and the same weave.

5. A Marxist economic system is not optimal in promoting innovationin software.

This is the paradox that one must confront if one argues softwarepatents decrease innovation. The essential difference betweenMarxism and Capitalism is property rights. Patents and copyrightscreate intellectual property rights which can be brought, sold,rented and licensed like other property rights. Marxism may bebetter than Capitalism in some areasÐcertainly not in Russia,but Capitalism, with all its flaws, has outperformed Marxism.

The paradox of Marxism is not just a theoretical issue. Stallman,the founder of the League for Programming Freedom, heads the FreeSoftware Foundation which is developing and planning to distributea clone of the Unix¨ operating system. AT&T has investedin Unix based on its ownership as manifest in patents and copyrights.AT&T can't be pleased when Mr. Stallman comes along and givesaway free copies of a clone of a product it invested millionsin developing and marketing.

If AT&T had not used patents and user interface copyrightsto protect its intellectual property rights, Mr. Stallman wouldhave no trouble making and distributing a Unix clone. But AT&Tmust pay its bills with money it receives from customers and hasasserted its rights. If it is acceptable to clone Unix or anyprogram, will anyone invest in new ideas? Should we optimize anintellectual property jurisprudence for, not large entities, notsmall entities, but companies that distribute free clones of otherpeople's software?

For all his talk about wanting to promote innovation, Mr. Stallmanseems to get his ideas for technology from AT&T, 1969 andhis ideas for intellectual property protection from IBM, 1965.

Many software developers do it for the fun of it. But the distinctionis based, not on the technology, but on amateurism: amateurs flourishin the early stages of a new technology. From the time the world'soldest profession began, professionals have accepted that othersgive it away, but they bristle if they are expected to work atthe same rates.

6. Like every technology, software has its unique problems.

Software patents have unique problems: prior art libraries arelimited, the search classification system was designed for hardwarepatents, few computer scientists are examiners. Still, when itgets to specific cases computer scientists and the PTO see inventionsimilarly. (See Document Comparison)

For the last two years the PTO has been improving the situation.It is improving its prior art search facilities in software, haspublished a new software classification system, and is activelyrecruiting computer scientists.

The PTO has still not been able to rid itself of the prejudiceagainst software patents as patent practitioners in the softwarearea will tell you. It still is conservative in its interpretationof what constitutes patentable subject matter and has rejectedseveral applications that that are being appealed.

7. Legally, software is patentable. And it will remain so.

Prior to 1982, about 30 different software related patent caseswent through the Appellate Courts. The range of technologies-seismic,medical, petrochemical, telecommunications, firmware, and software-demonstratethat software is both well grounded in patent law, and basic tothe advancement of American Industry. Software has become pervasivein industry that it has been basing business decisions on software'sbeing patentable for 10 to 20 years. This has created a sophisticatedbroad-based constituency for keeping software patentable. Congresshas not given in to demands to make less pervasive technologies,such as biotechnology, unpatentable; it is less likely to do sowith software. Software has been clearly patentable longer thanit has been copyrightable (See Patents and Copyrights).

Chisum, the leading authority on patents, wrote an article onthe patentability of software and concluded:

The continuing confusion over the patentability of computer programmingideas can be laid on the doorsteps of a single Supreme Court decision,Gottschalk v. Benson, which held that mathematical algorithmscannot be patented, no matter how new and useful. A careful analysisof that decision shows the holding is not supported by any ofthe authorities on which it relied, that the Court misunderstoodthe nature of the subject matter before it, and that the Courtfailed to offer any viable policy justification for excludingby judicial fiat mathematical algorithms from the patent system.The Benson decision is inconsistent with the later Supreme Courtruling in Diamond v. Chakabarty that the patent system appliesimpartially to new technologies and that any policy issues forexcluding new technologies should be addressed to Congress. Policyconsiderations indicate that patent protection is appropriatefor mathematical algorithms that are useful for computer programmingas for other technological innovations. [8]

Chisum is in the mainstream in saying the courts made a mistakeby making software unpatentable. But courts are reluctant to overturnprevious decisions directly, and then only after their scope hasbeen eroded. A similar situation where prejudice had become partof the jurisprudence occurred earlier: Plessy v. Furgesson(1896)held that 'separate but equal' facilities for whitesand blacks were lawful. The courts did not directly overturn it,but eroded its vitality on a case- by-case basis over a periodof years in a number of decisions starting with Murrey v.Maryland while appearing to show respect for Plessy.Finally, when faced with Brown v. Board of Education(1954), ample precedent had been created for the Supreme Courtto overrule Plessy directly.

Samuelson, having asked Professor Chisum to write his article,now attempted to refute him, but after arguing for over 100 pagesthat the basis for software patentability is weak, was forcedto conclude that:

..the only principle which seems to have guided the court's decisionsis one of upholding the patentability of as many program-relatedinventions as possible while appearing to show respect for theSupreme Court's decisions. [39]

Samuelson's observation seems to be compelling evidence that whileshe has not been persuaded that Benson, like Plessy, is a fundamentalerror in giving prejudice the force of law, the Court has andwill, in due course, reverse it. The original intent of Congresswill again become law, and statutory subject matter will 'includeanything under the sun that is made by man.'

8. Whether or not one agrees that software patents are beneficial,patents are here to stay so we should plan to work with them.

The software community will be best served by articles about howto avoid infringement, how to deal with infringement notices,how to find prior art, how to use patents to protect new ideas,how to differentiate products, and how to make the patent systemwork better for software (based on experience rather than speculation).In brief, we should direct our energies towards making the systemwork so as to increase innovation and U. S. competitiveness, ratherthan fighting patents.

9. The practical effect of to spreading misinformation onsoftware patents will be to hurt small developers and U.S. competitivenessin software.

Patents, like a cat's claws. are weapons to punish when necessary.A declawed cat will not survive long in the wild; nor can a defenselessstartup once it succeeds and attracts substantial competitors.Patents are not the only defense, but they are a vital one toinnovative startups that must survive in a real world. In business,as in the jungle, respect is given only to those who can protectthemselves.

Microsoft, IBM and others are applying for patents in quantity.Those who don't understand the situation, are not. Many are happyto have software patents attacked. Why let your competitor inon a good thing? Why pioneer new product ideas when it is lessrisky to copy competing products and incorporate useful featuresonce market success is proven.

From the perspective of large companies, a loud voice, like theLeague, yelling against software patents can be useful, as a meatpacker finds a Judas goat useful in leading sheep to slaughter.

The Japanese are aggressively filing for U.S. patents on software.While our strength is innovation, Japan's is in adapting innovationsand steady improvement. If they have the improvement patents andwe did not file for the basic patents, we lose. If we arrogantlydismiss the Japanese as incapable of creating good software orcavalierly dismiss patents as undesirable, then 20 years fromnow we will be trying to get back the software market from Japanjust as today we are trying to get back the automobile and semiconductormarkets. We aren't even trying to get back the consumer electronicsmarket.

Who is responsible for the misperception about the desirabilityand legality of software patents? In a certain sense, it is theLeague for Programming Freedom. But it knows not what it does.And its arguments are the ghosts of arguments for IBM's corporateself-interest of a bygone era. Is not the origin of the problemIBM's attempt in the 1960's to declaw a competing technology bydepriving its practitioners of their constitutional rights asinventors? (See Software Patents: IBM's Role in History.)

If it was just a question of IBM outfoxing its competitors, wemight learn our lesson and let it pass. But we think it usefulto ask some questions: Is it in the interest of the United Statesto have strong, competitive, innovative software industry? Isit in IBM's interest? Did IBM use its position on the 1966 PatentCommission to put its corporate self interest ahead of that ofthe United States? Should IBM be held responsible for its rolein creating the current software patent mess?

Some have proposed making software patents unenforceable. Mighta law making IBM patents unenforceable make more sense? Or a lawthat would prevent IBM from obtaining patents for a period oftime, say 5 or 10 years? At a time when when competitiveness withJapan is a major concern, what kind of a message should we sendabout what happens to those who use their positions on governmentcommissions to sacrifice their country's interest to their corporateself interest?

Similarly, if we should eliminate patents to avoid patent litigationas the League suggests, should we not eliminate all laws so asto avoid all litigation?

10. In considering the issues, we should deal with examplesof real patents and, where possible, real infringement.

If we are to have a meaningful debate on whether software shouldbe patentable, I suggest we take our standards, both of debateand of where the burden of proof lies, from Abraham Lincoln:

I do not mean to say we are bound to follow implicitly in whateverour fathers did. To do so would be to discard all the lights ofcurrent experience-to reject all progress-all improvement. ..if we would supplant the opinions and policy of our fathers inany case, we should do so upon evidence so conclusive, and argumentso clear, that even their great authority, fairly considered andweighed, cannot stand..
If any man [believes something], he is right to say so, and toenforce his position by all truthful evidence and fair argumentwhich he can. But he has no right to mislead others, who haveless access to history, and less leisure to study it, into [a]false belief..thus substituting falsehood and deception for truthfulevidence and fair argument.

What I find most frustrating in this debate is that the mode ofargument used against software patents by so many [15,26,27,28]is to throw as much mud against the wall as possible and hopesome of it will stick. I have expended some effort here removingsome of the mud. I don't claim to have removed it all, but I hopethat I have wiped away enough to show you that the rest will washoff too.

A Study of Nine Software Patents

In its article,the League listsnine patents, mine and eight others to make its case. It is unlikelythat the members of the League considered the positive side ofany of the patents they cited. It is as if they went searchingfor quarters with heads showing, and finding several, reportedtheir findings without turning any of them over. Here we turnover the other eight quarters in an attempt to produce some empiricalresults.

U.S. Patent 4,197,590: The inventor founded a companyto develop and market what appears to be the first personal computerto write directly from memory to the display. This invention hasbeen widely licensed to the personal computer industry by Cadtrak.The 'XOR' is only part of the invention. Cadtrak filedand has won at least one lawsuit against a larger company. Theidea behind the 'XOR' claims of this patent is simple.A program XORs a cursor icon onto a display device; later a secondXOR to the same place erases the cursor restoring the originaldisplay. To move the cursor one XORs the cursor to its old location,then XORs it onto the new location. There are many ways to getaround this patent. One can use an underline as a cursor or 'logicallyor' the cursor onto the display, erasing later by rewritingthe display with its original information. This approach is fast,lets you change cursor icons easily, accesses the minimum possibledata, and requires no space be reserved on the screen for thecursor.

The League says this patent can be infringed in 'a few linesof a program.' It can be, but not on a computer that wascommercially available at the time the invention was made. Theinvention is largely the invention of the frame buffer. As such,it requires hardware which has since become common, making itpossible to infringe the XOR claims with a few lines of code.Many, if not most, computer manufacturers including Apple andIBM have taken out licenses which covers programs running on theircomputers.

This patent illustrates that it is usually easy to design arounda patent one accidentally infringes. If this patent, a hardwarepatent, is a 'bad' patent as some claim, it only demonstratesthat the electronics industry tolerates 'bad' patentsbecause it finds patents beneficial on balance. Software shouldbe able to tolerate 'bad' patents similarly. To discardthe patent system because some bad patents exist would be thesame as suppressing free speech to stamp out lies.

U.S. Patent 4,398,249: This is what the League mischaracterizedas the 'Refac recalculation patent.' In 1970 Rene Pardoand Remy Landau invented the concept of an array of formulas whichwould enable businessmen to write their own programs to createbusiness applications. Although the word was not used, their inventionis in essence the modern computer spreadsheet. That the claimscover recalculation is an artifact of how the patent claims werewritten. Pardo and Landau marketed a commercial spreadsheet-likeproduct based on this technology. This invention has been widelyadapted in the personal computer industry-over 250 spreadsheetshave been marketed.

This patent was originally rejected by the Patent and TrademarkOffice (PTO) as a mathematical algorithm and thus unpatentablesubject matter. Pardo and Landau felt so strongly about theirinventive contribution that they appealed their case pro se, whichmeans they, not a lawyer, wrote the brief and argued it beforethe appeals court. The decision, In re Pardo[23]is a major legal precedent which establishes that an inventionis patentable whether or not the novelty involves software. Iftheir experience was typical, they were stonewalled when theytried to enforce their patents. This would explain why they approachedRefac a white knight in the fight against the patent pirates.If Pardo and Landau have the same deal Refac offered others, thenthey can expect to collect royalties only as Refac does.

U.S. Patent 4,633,416: This patent is held by Quantel,a company that developed a line of commercial video editing productsprotected by its patents. Quantel filed for patents when it wassmall. and it has grown from being small to large because it hasused its patents to prevent competitors from using its technology.The first company Quantel sued was much larger than it was.

U.S. Patent 4,777,596: The League tells us XyQuestwas notified that their product XyWrite infringed ProductivitySoftware patent protecting the ability to accept an abbreviationor correct a spelling error by hitting a space bar. When licensingnegotiations failed, XyQuest removed the feature from future releases.

Productivity Software was founded in 1984 to develop data inputsystems where minimal keystroke data input is important. Basedon its patented technology, Productivity Software has grown toseven employees and markets 31 specialty products. It has foundniches in the medical and legal transcription and the handicappedmarketplaces.

Patent problems are generally minor compared to the other problemspioneering companies face. At about the same time XyQuest hadpostponed introduction of its latest version for about a yearso it could upgrade to IBM standards as part of an agreement whereIBM would market XyWrite exclusively. At the last minute IBM renegedon the deal[25].

While the first five patents are held by small entities, the lastfour patents are held by large entities and they also protectedcommercial products.

U.S. Patent 4,558,302: Unisys licenses this, theLZW compression patent, for 1 percent of sales. It has threateneda large entity with a lawsuit, but no small ones.

U.S. Patent 4,555,775: The League describes AT&T'sbackup store patent as 'Too Obvious to Publish.' Yet,in a letter in this issue of CACM, Dennis Richie points out thatthis technology was published in the ACM[35]and was recently called 'a seminal paper' whose ideasare seen in X Windows, Macintosh and many other windows systems[14]. While AT&T has sent notificationletters on this patent, it has put the patent into reexaminationand has not threatened suit or sued anyone on this patent.

U.S. Patent 4,656,583: This is an IBM patent on compilerspeedup.

U.S. Patent 4,742,450: This is an IBM-shared copyon write patent. These two patents are what IBM calls Group 1patents whose royalty is 1% of sales. They have been licensedby IBM as part of general licensing agreements but have not beenlicensed individually. (About 50 of IBM patents are Group 2 patents.Group 2 patents can be licensed for 2% each; the entire Group1 portfolio, for 2%; and the entire IBM patent portfolio for 5%.)

These two patents have not been litigated and I do not believethat IBM has aggressively asserted these patents against anyone.IBM, like most companies, normally files for patents only to protectwhat they expect to become commercial products. We treat thesepatents as protecting commercial products.

Most patents are never asserted. Much of the value of patents,like that of the Swiss Army, is that they act as a deterrent.The patents described here are typical of the small number wherethe patentholder forces a resolution: the infringer may take alicense, designs around the patent, or produce prior art showingthere was no infringement.

Many letters asserting patents are no trespassing signs, puttingpotential infringers on notice should they infringe or tellingthem not to. They require no action. The notified companies mightsend prior art back to the patentholder, who might send it tothe PTO for reexamination. The 'infringer' may ignorethe notice, waiting to see the reexamined patent or for the patentholderto become more assertive. The resolution may be hidden, in thatan infringer may design around the patent. Rarely, a product iswithdrawn from the market. The statistics on the cited patentsare summarized in Table 1.

Whether any patent including those described here, is valid andinfringed is a complex legal and technical question. An advantageof the patent system is that the question is an objective onebased on the patent, prior art, and the 'infringing'device. Such a dispute is less acrimonious than one where thetask is to evaluate testimony where one person yells 'thief,'and the other 'liar.' Whether infringement actuallyoccurred in any of the cases is irrelevant. The relevant questionis did the original patentholders bring commercial products tomarket based on the patented technology and motivated by the rightsa patent bestows?

Analysis Results

The 9 patents cited by the League summarized in Table 1 leadus to these conclusions:

1. Software patents stimulate companies to bring commercialproducts to market.

All nine patents protected commercial products.

2. Software patents stimulate new business formation.

Four of the nine patents were from startups funded to exploitthe patented technology. A fifth filed for its patent in its seventhyear. All five companies struggled for years.

3. Software patents stimulate the commercial introductionof fundamental advances by small entities.

The technology pioneered by at least three of the small patentholderswas significant in that they started new product categories orwere widely adopted in the industry.

4. Licenses are usually available where companies enforcepatents.

Only Quantel seems to be unwilling to license its patent.

5. Where similar-size companies had a dispute, they settleddifferences quickly without litigation.

The only patent dispute between similar sized companies (XyQuest)was settled readily. No small entities were faced with a lawsuitbrought by a large entity without the advantage of the patentholderhaving settled earlier with a large infringer.

6. Small entities incurred little if any royalty and litigationcosts for infringing patents.

The only disputes where a small entity paid patent royalties orwas sued was where the patentholder had previously settled disputeswith larger companies. No case was cited where a big company aggressivelywent after a small one over patents unless a large company hadrespected the patents first. Pdf preview. The only big company this authorknows about that has gone after small ones is IBM (see sidebar).

7. Patent piracy by large entities appears to be common andsmall entities have a tough time getting their rights respected.

Four of the five small entities had large entities use their technologywithout first licensing it. All four were forced to sue. Thismakes it unlikely that all the patent disputes were an honestdifference of opinion although some likely were. It is for thisreason 'piracy' seems a fair characterization. Thesesame small entities have had their patents mischaracterized andtheir motives impugned in the academic, trade and business pressread by the software community.

It can cost over a million dollars to litigate a patent throughto trial. The data shows that large entities are quick to usetheir power to try to intimidate small ones into abandoning theirrights or accepting nuisance settlements rather than address infringementissues on their merits. It appears that this high rate of patentpiracy is caused in part by the Federal Rules of Civil Procedurewhich tilt the scales of justice against the weak.

Our results confirm the League's suggestion that big companieswill readily bully small ones but refutes its suggestion thata patentholder who asserts a patent will get showered with gold.The yellow matter is not gold.

8. U.S. companies are slow to accept software innovationsfrom outside sources.

The Japanese adapt innovations from sources outside the companytwice as fast as United States companies[31].The technology protected by at least two of the patents (CadTrakand HyperRacks) was exposed to companies that later became thefirst infringers.

Japan's ability to accommodate outside [the firm] innovation maybe one of the reasons it has been so successful in dominatingmarkets. If the U.S. is to exploit its strengths in innovation,it must learn to adapt outside innovations without the inefficiencyof legal confrontation. Fast and efficient patent enforcementshould encourage U.S. companies to license outside technologyearly on rather than waiting until they have an infringing productin the market and face substantial legal exposure.

If large companies are forced to deal with a infringement issuesearly, they might see it is in their advantage to work with theinventors to use their knowledge. Now, the legal system keepsthe patentholder and infringer at war until such time as the patentholdersknowledge is of little value to the 'infringer,' thuswasting one of our most valuable resources: the creativity andexperience of innovators.

9. Developers do not seem to be infringing multiple patentson a single product.

The only example that was cited where someone faced infringementissues from more than one patentholder seems to be XWindows facingthe CadTrak and AT&T patents, but this has not been resolvedand no lawsuits seem to have been filed or threatened.

10. The patent system seems to reject bad patents early inthe patent assertion process.

We think the League is right in alleging that bad patents havebeen issued. The League, however, fails to identify a patent thatwas rejected by the courts. We think this is because issues ofprior art and patent invalidity are considered early on in thepatent assertion process. Patentholders rarely continue to assertpatents in the face of solid evidence of invalidity or non-infringement.

11. If software patents were more widely respected we wouldprobably have had fewer variations on a theme, and more themeson which to vary.

Product development effort seems to have focused on creating manyversions of an invention once its value was proven. Over 250 differentspreadsheets and at least four products generally considered tobe HyperCard clones were marketed.

12. Big companies' patents do not seem to inhibit small developers.

The innovations protected by small entity patents listed hereseem to have been more widely adopted than those of big companiesin their industries. Big companies are better at commercializingand protecting their minor innovations, than their major ones.

That small entities seem to introduce the more fundamental innovationsto the market is telling. Big companies are often unsuccessfulin transforming innovations into commercial success: Xerox PARCpioneered much of modern day personal computer and its software.Although IBM invented a predecessor to the spreadsheet (expiredU. S. Patent 3,610,902), it did not market a commercial productbased on it, nor did it assert the patent even though its claimsseem to read on (i.e. be infringed by) modern spreadsheets. Thesetechnologies became major product categories primarily throughthe efforts of small entities.

13. Small entities using patents are exceptionally cost-effectivein encouraging innovation-especially compared to federal funding.

Table 2 shows a rough estimateof the efficacy of three major sources of innovation: federallyfunded, large entity, and small entity. Our results show thatsmall entities are 7.5 times as cost-effective at stimulatinginnovation as large ones, and 200,000 times as cost-effectiveas federal funding. The U.S. grants patent rights to universitiesas part of its research contracts thus patents are issued in allthese areas and patents asserted is a reasonable measure of innovation.We believe that a more scientific study would refine these results,but doubt it would change the basic conclusion.

As a software developer, you might review the patents discussedand put yourself in the place of each of the parties involved.If your product finds satisfied users, do you think better financedcompanies with stronger marketing organizations will market competitiveproducts using your innovations? If so, will patents be usefulto you? If a patent is enforced against you, do you think youwill be able to design around it? If you have to license it, doyou think your competitors will also have to license it, thuspassing the cost on to the end customers? Which problem wouldyou rather have: a big company entering a market you developed,or finding out you were accidentally infringing a patent? Do youthink the effect of software patents might be more innovation,higher software prices and an industry with more long term profitability?

If you are protected by patents, your success depends in parton your patented inventions as others must deal with them. Ifyou accidentally infringe a patent, designing around it is withinyour expertise. If you do not have patents, success depends muchmore on the ability to finance and market products-capabilitiesoutside of your expertise and control. If you are a software developer,don't patents benefit you by manifesting your contributions inrights you can bring to the bargaining table, while confiningthe problems largely to your area of expertise and control?

Issues in Science and Technology (Winter 1991/2) contains a letterfrom Commissioner of Patents Harry F. Manbeck who said of anotherarticle by the same authors that they[15]:

.. demonstrate they do not understand the current law..Mostof their statements .. do not appear to be the result of a balancedand reasoned inquiry and do not appear to be supported by thefacts. .. they cavalierly dismiss the view of those who appearto have used the patent system successfully and impugn their motives..

The PTO issued about 89,000 patents in 1990 from which the League,with the advantage of hindsight, can pick and choose the onesto attack. Consider the information presented here on patentsthe League selected to demonstrate the PTO's mistakes. Whose standardsare higher, the League's or the PTO's?

Recommendations

After reviewing our results we can make some general recommendations.

1. Policy should be made on the assumption that innovationoccurs in software as in other technologies until compelling evidenceto the contrary is found.

This is consistent with the results described here. The operationalimplications are to continue to let the system operate as it isaccepting evolutionary changes based on experience rather thanspeculation.

2, The PTO should be viewed as a source of innovation thatcompetes for funding with other federally funded sources of innovation.

PTO fees should be reduced, especially for smaller entities, andthe PTO should receive a higher level of funding to improve itsability to examine patents so it can issue better quality, moretimely, patents in software and other technologies. European patentoffices are much better equipped and much better funded. It seemsthat the PTO should compete with the NSF and other organizationsfor federal funding on the basis of their cost effectiveness inencouraging innovation.

In 1990 only $2 million of the PTO budget of $419 million camefrom federal funding; the rest came from user fees. Superficially,it might seem that investing in the patent system will have amultiplier effect of 80,000 in creating innovation as comparedto federally funded science. We suggest no such thing. We do howeverask the question: If taxpayers were to spend on additional $160million per year to support innovation, we could either increasethe $64 billion federal funding on science by one-fourth of onepercent (0.25%) or increase PTO funding by 40% enabling the PTOto issue better patents and restore reduced user fees for smallentities. Which will likely produce a more innovation? Which willachieve a greater multiplier effect by encouraging additionalprivate investment?

An example of federally funded science is fusion power researchwhich has been going on for at least 25 years, has cost hundredsof millions of dollars and has produced little practical result.Pons and Fleishman developed (and filed for patents on) cold fusionwithout government funding yet they, having invested their ownmoney and not being in the mainline of governmental funding, areheavily criticized. While it is not clear that Pons and Fleishmanhave produced cold fusion, respected people in the field believethat they have, even if no one yet understands what is happening.This is just an example of how the system is biased in favor ofgovernmental funding of expensive conventional solutions, andagainst individuals and small companies who risk their own timeand money to innovate.

Individuals taking a contrarian view have been the major sourceof new ideas in both science[38] and engineering[24].This is why small entities and the patent system is so important.Most will fail, but the successes more than make up for the failures

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It would be interesting to evaluate the results of federally fundedscience to determine which projects are worth the cost. Some projectsseem to have become like those welfare mothers, who generationafter generation, are entrapped in a governmental support system.

3. The patent laws should be modified to make it possiblefor small entities to assert their patent rights more effectively.

The data shows that it is commonplace for large companies to piratethe technology of small entities. No case was cited where a largecompany licensed a small entity's technology without first beingsued suggesting that the existing laws do not motivate large companiesto resolve patent disputes with small companies quickly. The issuehere is not just fairness to inventors and improved efficiencyin settling disputes, it has to do with avoiding the waste thatoccurs because U.S. companies are so much slower at adopting newinnovations than Japanese companies.

Congress responded with anti-piracy legislation where softwarecopyrights are concerned; we would hope it would similarly passlegislation to prevent patent piracy. Remedies similar to thecriminal penalties for copyright infringement and Rule 11 sanctionsfor attorneys who file frivolous suits are worth considering.We also suggest the following as possible remedies for patentsdisputes to stimulate discussion:

  • After being put on notice, an 'infringer' wouldhave six months to file any prior art with the PTO to be usedto defend the infringement suit. (I find it difficult to believeit is well-known art if it can not be found in six months.)
  • If a patentholder prevails in a lawsuit, the remedies shouldinclude an extension of the period of his exclusivity againstthat infringer equal to the length of time the suit was in progress.
  • Discovery should be limited.

These suggestions which should induce speedier resolution of patentdisputes, like all our recommendations, are suggested for allpatents disputes, not just software.

The patent system, an enormously productive system for inducinginnovation, is being stymied by a cumbersome dispute resolutionprocess. Is it in the public good to have a system of conflictresolution which discourages conflict resolution? Should innovatorsspend their time innovating or litigating?

If the courts could resolve software patent and copyrights issuesmore quickly, it would clarify the law so everyone can make decisionswith some predictability. The problem are not unique to patentsbut occurs in all litigation. That the judicial and even the legal,community are beginning to address the inefficiency of disputeresolution and litigation is grounds for cautious optimism.

4. Further study of the role of patents and federal fundingin software innovation is useful

We are keenly aware that the sample is small and unscientificand so our results should be considered suggestive rather thandefinitive. A more definitive study should be useful in bringingout facts that would be useful in evaluating future changes tothe patent law.

The recommendations can be summarized as: Redress the balanceof incentives so innovators will prefer to develop their ideascommercially, using patent protection, rather than search forfederal funding.

The Software Patent Confrontation

The software industry is getting more competitive. Almost everycompany that has hit products uses its cash flow to develop entriesin other product categories. As a result, product categories aregetting very competitive. Since most software companies have confinedtheir intellectual property to source code copyrights, trademarksand, sometimes, user interface copyrights, whenever they comeup with a successful innovation, their competitors will oftenquickly replicate it. As a result, the impetus is toward similarlyfeatured products competing on price, differing only in the mistakeswhich the originators must maintain to support their existingcustomers.

Now companies are recognizing that by using patents, they cancompete on features and functionÑnot just tactically, butstrategically. Even if competitors do replicate the features theywill likely make them different enough to avoid infringement.Companies following this approach will support standards, buttheir products will have a substantial proprietary component engenderingproducts with more diverse feature sets. This will enable theindustry to compete more on the profitable playing field of uniquecapabilities and market position and less on price. This is consistentwith standard business school product marketing, where productdifferentiation and market segmentation are basic.

Intellectual property has already driven the market for thosewho got in early and established standards. Lotus owns the 1-2-3standard. Novell owns a major network standard and Wordperfecta major word processor standard. Apple owns the Macintosh Userinterface standard and Intel and Microsoft own the IBM compatibilitystandard. Patents give companies the opportunity to establishand own something of value in the market based on their innovativeness,rather than their marketing and financial capabilities.

While the problem of people accidentally infringing software patentshas been greatly exaggerated, several patents will be successfullyasserted against existing products. This will be primarily betweenthose companies that focused on innovation and have patents, andthose that focused on exploiting recognized business opportunities.This kind of confrontation happened earlier on in the aircraftand other industries[21].

During these confrontations, the businesses with a large volumeof infringing product will, if they are not patent aware, understandablyfeel 'extorted'. Such businesspeople will take supportfor their position from those who argue against software patentsand advocate or suggest invalidating existing software patents[15,39].

The software innovators who advanced the technology and made businessdecisions based on their patent rights will similarly feel cheatedespecially where they pioneered commercial products based on theirinventions. When depositors made decisions based on governmentguarantees of S&L deposits, no one suggested that the governmentdefault on their obligations to insured depositors as people suggestthe government invalidate existing software patents. No one vilifiesthe S & L depositors because the government has to pay themmoney, yet software innovators find themselves vilified with liesand half truths.

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In this confrontation, both sides start out feeling cheated.

Many 'infringers' will react emotionally and view itas a problem to be gotten rid of and many will fight to the bitterend. This raises the stakes, as a company having been put on noticemay be liable for treble damages and attorney's fees. Patentholderswill not likely pursue these cases for four or five years whilethe infringer's liability builds up. After a suit is filed thesecompanies will be getting much of their advice form those whohave most to profit from the litigation: their litigators. Thisseems to be what is happening with Lotus.

Some software developers on finding out that the rules were notwhat they thought, face the problems of infringing others' patentswhile not having patented their own successful innovations. Somewill chalk it up as one of many risks and uncertainties of business.Those who react emotionally might find it useful to first ask:Which of the players have acting in good faith? Which have not?Which have been responsible for the patent mess? Which have beeninnocent victims? Having answered these questions, such developerscan more effectively target their wrath.

Companies that act rationally will analyze the patents to ascertaintheir scope and validity, whether infringement is occurring, andhow easy it is to remove the 'infringing' capability.The will check with other licensees. They will consider the obviousoptions, such as taking out a license, removing the infringement,finding prior art and showing it to the patentholder, or fightingin court if that is the only possibility. They will likely tryto address the problem early on before the liability builds andconsider designing around the patent, negotiating a license orusing some form of alternative dispute resolution to resolve infringementand validity issues.

If the problem is associated with purchased product, most companieswill stand in back of their products and provide a license, warrantit against infringement, or provide guidelines on how to avoidinfringement. It will put its 'no problem' in writing.

Astute companies will view infringement as an opportunity in disguise.If the patent is good and competitors are, or soon will be, infringingit, the first licensee can generally get an inexpensive licenseforcing competitors to pay more if they want the technology. Itmay be possible to get an exclusive license on some feature whichdifferentiates a product from the competitor's . It can be worthwhileto see if the patent covers useful capability which could be addedto the product. The best time to negotiate for the patented technologyis when you are not incurring liability of infringement but rathercan offer to create a demand for that technology by incorporatingit into a product. Invention being the mother of necessity, competitorswill be faced with the choice of paying a higher price to licensepatented technology or leaving it out thus differentiating yourproduct from theirs.

In brief, what superficially looks like another problem to bedealt with in the increasingly competitive, commodities orientedsoftware business, will prove to be what makes products less pricecompetitive. Many industries have worked on this basis all along:patents make industries more diverse in their offerings, moreprofitable, more innovative, and ultimately will make the U.S.more competitive.

The essence of this article is simple: Software intellectual propertyissues are not inherently different in substance from other technologies;what motivates people is not inherently different; industry lifecycle is not inherently different; marketing and business strategiesand tactics are not inherently different; the law and policy issuesare not inherently different. The technology is not even new.Software has been around for 40 years. The issues may be new tothose who had no experience of them, but the only thing that isdifferent is that software is a mass market industry for the firsttime and real money is at stake.

Acknowledgments

I would like to thank Steve Lundberg, John P. Sumner, Susan Nycum,Lewis Gable, George Gates Dave Pressman and Tom Hassing for theirmany useful comments.

Microsoft remote desktop mac yosemite. Feb 26, 2015  Using Microsoft Remote Desktop on MacBook Air using OS Yosemite 10.10.2. Hi, I have recently acquired a MacBook and have been trying to use Microsoft Remote Desktop software to open a cloud based server called Universal anywhere. Next look for Microsoft Remote Desktop in the App Store to download the new application on your Mac running OS X Yosemite or higher. Once installed you can skip the first run experience. In the menu click connections and choose the option to import connections from the.

For Further Reading

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4. Bruce, R. Lincoln and the Tools of War. University of IllinoisPress, 1989.

6 Bugbee, B.W. The Genesis of American Patent andCopyright Law, Public Affairs Press, Washington D.C. 1967IMPORTANT

8. Chisum, D. The patentability of algorithms, 47 U Pitt. L Review,959,971, (1986).IMPORTANT

24. Jewkes, J., Sawers, D., and Stillerman, R. TheSources of Invention, Second ed., Norton, 1969. IMPORTANT

26. Kahin, B, The software patent crisis,Tech Rev. (Apr. 1990) 543-58

38. Root-Bernstein, R. Discovering, Harvard UniversityPress, 1989. IMPORTANT

Last Modified: October 26, 1995
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