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From: crandell@ut-sally.UUCP (Jim Crandell)
Newsgroups: net.music.synth,net.legal
Subject: Re: Marble Madness & FM Music Synthesis
Message-ID: <2953@ut-sally.UUCP>
Date: Fri, 20-Sep-85 18:18:56 EDT
Article-I.D.: ut-sally.2953
Posted: Fri Sep 20 18:18:56 1985
Date-Received: Sun, 22-Sep-85 05:17:03 EDT
References: <2614@ihnss.UUCP> <267@weitek.UUCP> <2882@ut-sally.UUCP> <269@weitek.UUCP>
Reply-To: crandell@sally.UUCP (Jim Crandell)
Organization: U. Texas CS Dept., Austin, Texas
Lines: 103
Xref: watmath net.music.synth:526 net.legal:2371

In article <269@weitek.UUCP> mahar@weitek.UUCP (mahar) writes:
>In article <2882@ut-sally.UUCP>, crandell@ut-sally.UUCP (Jim Crandell) writes:
>> In article <267@weitek.UUCP> mahar@weitek.UUCP (mahar) writes:
>> >In article <2614@ihnss.UUCP>, knudsen@ihnss.UUCP writes:
>> >>     FM chip should be pretty easy to build.
>> >Your right. FM chips are not that hard to build. However, Yamaha
>> >has the basic patent on FM sound generation. Atari's lawyers
>> >didn't want to fight it so they just bought the chips from Yamaha.
>> 
>> Uh -- wait a minute.  Exar was making an FM-able waveform generator
>> chip (XR206, I think) fifteen years ago.  Aren't you leaving out a
>> significant part of the story?
>
>Patenting FM synthesis is a lot like patenting the color blue to my mind.
>I'm well aware that others were there first. They didn't get that patent
>however. There exists a feature of patent law which makes an idea unpatentable
>if "it is obvious to anyone skilled in the art." I think FM qualifys here.
>Yamaha's lawyers have big teeth however, and Atari didn't want to mess
>with them.

This seems to be a good example of a type of incident that one hears
about now and then and which usually leaves me with a profound sinking
feeling.  I am assuming, of course, that Yamaha has a US patent, else
much of this will seem rather silly.  The operative clause, the one
about denying patent protection to any idea ``obvious to anyone skilled
in the art'', is clearly designed to prevent unscrupulous moguls (or
entrepreneurs, for that matter) from taking unfair advantage of patent
laws, since there are obviously many good, potentially marketable
technical ideas which have been in the public domain for a long time
but have never been explicitly identified as such, despite (or perhaps
because of) their familiarity.  It often seems that the Patent Office
staff is easily snowed where certain kinds of technology are concerned,
and of course patent attorneys, like their more generally practicing
cousins, seldom miss a trick.  But I dimly recall reading about
incidents in patent proceedings where legally issued patents have been
successfully challenged on the obviousness clause and subsequently
thrown out.  I also have a general impression that the interests of
ethical propriety would be better served if such challenges were more
common than they currently are.  (Can anyone present a solid statistical
case against this opinion?  Frankly, I'd like to be proved wrong on that
one.)  The reason they aren't more common is fairly clear: manufacturers
and inventors are in business to make a profit, and legal proceedings
are expensive.  No one can afford to press a case if there's ``no
percentage in it''.  Okay; such is life.  Them's the facts, warts and
all.  Eventually, however, we come around to the case that started all
this.  Now I don't pretend to know all the facts that motivated Atari's
decision not to compete with Yamaha, but I can't help observing that
Yamaha's patent, if it really is a general patent covering essentially
all forms of FM sound synthesis, sounds like a Certified Grade-A sitting
duck.  Another thing I can't help observing is that Atari surely isn't
taking on this particular manufacturing project for the amusement value.
The conclusion that forces itself upon me -- and it's a rather unsettling
one -- is that Yamaha is successfully using this highly questionable
patent to prevent Atari (and probably others) from fairly and
legitimately competing in this marketplace, by this simple ploy.  That
is, Yamaha can't (or doesn't wish to) sell the product at a price that
will effectively undercut all the competition, so the patent is raised
as an impediment to those who would compete, since although they might
easily beat Yamaha's price in an even match, they can't if they have
to shell out the cash and take the schedule ``hit'' that challenging the
silly patent would necessitate.  Now this technique, more generally
applied, could lead to some interesting scenarios.  Let's set the clock
back a little and imagine John DeLorean, still in the automotive
business, but starting to flounder big-time.  Let's suppose he gets
this bright idea: ``Hmmmmm.  I wonder who owns the patent on the
windshield?''  Checking around, he finds that there is none.  So he
gets the sharpest lawyer he can find (he's going to need one, anyway,
right?) and goes right to the Patent Office and obtains a patent on the
windshield.  Now, everyone in Detroit (everyone who makes cars, that is)
has to make a choice: either pay an outrageous royalty to DeLorean for
the privilege of making windshields (assuming he permits that option)
or buy windshields from him.  Now it turns out that windshields from
DeLorean cost just a little more than it used to cost Ford to make them.
So what's Ford going to do?  (Cocaine?  What's that?)

Now if I have made a grave mistake in fact, then I sincerely apologize
to anyone whom I may have offended.  But the way I see it, this (the
outrageous DeLorean scenario) is exactly what Yamaha is doing.  I can't
really deny that such a claim seems pretty far-fetched at first glance.
But I keep hearing reports of things that somehow render it increasingly
plausible.  Anyone remember the reports (some of them well documented)
from a year or two ago of Japanese manufacturers ``dumping'' shiploads
of consumer products -- mostly TV sets -- in the USA and western Europe?
Someone told me that such practices were illegal.  (Say, that law is
really well enforced, isn't it!  If I had to guess, I'd say we've got
the Keystone Kops working overtime on it.)  And of course, the Japanese
government's subsidized-export policy is hardly news.

To me, this practice more than casually resembles restraint of trade,
and since it was accomplished with the indispensable aid of a legal
proceeding (granting of a patent), it may constitute abuse of process,
as well.  If my perception is correct, then what I want to know is, why
aren't we doing anything about it?  Maybe this case is just a grain of
sand in a vast dessert; we have to start somewhere.  Maybe Atari alone
can't afford to fight the bullies, but surely some kind of consortium
could.

Am I the only person in the world who sees it this way?  Am I totally
off the wall?  What is happening, anyway?
-- 

    Jim Crandell, C. S. Dept., The University of Texas at Austin
               {ihnp4,seismo,ctvax}!ut-sally!crandell