Here is a revised draft plan for completing the legal side of the
Augment preservation project. Thanks to Jonathan and Kathe for
feedback and additional material. (01)
OVERVIEW (02)
We would like to make Augment available for anyone in the community
to study and use. Our goal is to put the Augment IP in the public
domain. There are potentially four kinds of IP: (03)
o Patent
o Trademark
o Copyright
o Trade secret (04)
[Patent] (05)
It is unlikely there are any patents related to the Augment software
system itself, since a work on Augment stopped around 1986 while
owned by McDonnell Douglas, and software patents were not generally
granted before that time. (06)
The US Patent and Trademark Office (USPTO) did not grant patents
prior to 1981 if the invention utilized a calculation made by a
computer. In 1981 US Supreme Court order the USPTO to grant a patent
an invention that utilized a computer program to monitor heating
times in a rubber making process. Throughout the 1980's and 1990s,
courts applied rules that held a mere algorithm was not patentable,
although inventions that used a computer to govern a physical process
were. It was not until a 1998 Federal Circuit ruling that pure
software inventions that embodied business or technical processes
were patentable. (07)
Kathe Gust has completed a preliminary patent search in an attempt to
locate patents related to Augment filed by members of the NLS/Augment
team or SRI. By an examination of the abstracts, she could not
identify any patents that related to the Augment system itself.
However, negative results do not constitute proof that no patents on
the Augment software system itself exist. (08)
*Actions: (09)
Phil will verify with Doug Englebart that to the best of his
knowledge that no patents were ever filed on the Augment software system. (010)
[Trademark] (011)
An "Augment" US Trademark, serial number 73256814 is listed by the
USPTO as "Dead". It was a service mark for "Educational
Services-Namely, Classes and Training in Office Automation". Filing
by Tymshare Inc. was in 1980 and it was registered on September 28,
1982. First use and first use in commerce was listed as June 22,
1978. Its last listed assignee was MCI Communications
Corporation.. The service mark was cancelled on July 5, 2003
See http://tess2.uspto.gov/bin/showfield?f=doc&state=q1eviu.2.13 (012)
Another "Augment" US Trademark, serial number 73647182 is also listed
by the USPTO as "Dead". It was a trademark for "Computer Programs
for Use in Providing Organizational Information Management". Filing
by McDonnell Douglas was in 1987 and it was registered on May 3,
1988. First use and first use in commerce was listed as January 28,
1987. Its last listed assignee was British Telecommunications
PLC. The trademark was cancelled on November 7, 1994. See
http://tess2.uspto.gov/bin/showfield?f=doc&state=q1eviu.2.11 (013)
*Actions: (014)
None necessary, since the service mark and trademark registrations
have been cancelled. (015)
[Copyright] (016)
The copyright status of Doug Englebart's Augment system is
unclear. This version of the system was originally created at SRI
and principal work was done there in the 1970s under government
funding. Augment was sold to TymShare and was marketed commercially
by them. It was transferred to McDonnell Douglas around 1985, and
the last known work on the commercial system was done around 1986 and
bears a McDonnell Douglas tradmark. Doug Englebart has retained a
full Augment system including all source and documentation, and his
Boostrap Consortium has made additional enhancements to portions of Augment. (017)
For works created and published or registered in unpublished form
before 1978, 17 USC 304 provides that copyright extends for 28 years,
with a single renewal term of 67 years. Works created on or after
1978, or created prior to 1978 but never registered or published,
have a lifetime of 95 years from publication or 120 years from
creation, whichever is shorter. (018)
We have not been able to ascertain whether Augment was published or
whether copyrights for material were registered prior to 1978.
Consequently, we will need to assume not, and seek transfer of
ownership from any entity that created parts of the system on or
after 1978. Using the trademark records as a guide, this includes
Boeing as the successor to Tymshare and McDonnell Douglas, and
British Telecom, who may have acquired the rights to Augment through
the sale of a division to it by Boeing around 1995. (019)
CHM has had numerous discussions with Boeing, and had a nearly
complete transfer of ownership agreement earlier in 2005.. When
Boeing discovered that it may have sold the rights to British
Telecom, the decided they could not complete the agreement. Sally
Abel, an IP attorney at Fenwick & West, who acted for CMH in
discussions with Boeing, has suggested approaching Boeing again and
asking for a quitclaim to the copyrights in favor of CHM. The
advantage of a quitclaim is that it does not require the assignor to
warrant having any particular right to the trademarks being
assigned. Consequently, Boeing could execute a quitclaim even though
it may have sold the rights to Augment to British Telecom. We could
use this same form of agreement for British Telecom and the Bootstrap
Institute as well. Based on trademark records, it is unlikely that
MCI acquired copyright from British Telecom. (020)
The Augment preservation committee understands that if CHM acquires
rights to Augment through such quitclaims, that it will promptly
release all material to the public domain, per the wishes of Doug
Englebart and the the committee. (021)
*Actions: (022)
1) Phil Gust will ask Sally Abel to reestablish contact with Boeing
and ask them to execute a quitclaim agreement for any copyrights to
the Augment system and documentation. (023)
2) Phil Gust will ask Scott Griffin, Boeing's CIO to help us make
contact with the right people at British Telecom. Scott strongly
supports this project, and offered to do this for us. (024)
3) Phil Gust will contact Mike Cochran of Cyber1 to learn about their
interactions with British Telcom with regard to PLATO, and see if
they would be willing make an introduction to their contacts. (025)
[Trade Secret] (026)
It is unclear whether any of the parties holds the source code or
documentation to Augment as a trade secret. To the extent that no
patents were issued and no copyrights were registered, there is a
chance that Augment is being held as a trade secret. (027)
A trade secret is any information that derives independent economic
value from not being generally known, or readily ascertainable. Trade
secret protection is at the state level, and stems from common
law. Most state trade secret laws use the Uniform Trade Secrets Act
for uniformity from state to state. The Federal government does not
create civil remedies for protecting trade secrets or recovering
damages, but it has laws (18 USC 1905) that make it a Federal crime
to disclose trade secrets Copyright law allows portions of material
that are held as a trade secret to be redacted from material
submitted for copyright registration. Trade secret rights are transferrable. (028)
Actions: (029)
Phil will ask Sally Abel to give us an opinion on whether we need to
worry about trade secrets once we have quitclaims from Boeing,
British Telcom and the Boostrap Foundation. If so, Phil will ask
Sally to take this into account in our dealings with Boeing, British
Telecom and the Bootstrap Foundation. (030)
REPORTING AND APPROVAL (031)
The committee recognizes that where legal issues are at stake, it is
best to review all actions taken under the auspices of CHM in
advance, and keep everyone involved in this effort informed of
progress and actions taken. With that in mind, the following ground
rules will be observed. (032)
1. Communications about legal issues should be done through the
nls-legal@chm.cim3 mailing list. Membership to this list is
restricted, and members should treat information posted to this list
as confidential. (033)
2. Use of CHM legal resources will be by prior approval of John Toole
or a designated representative. John Toole will review and have
final approval of any legal legal agreements entered into on behalf of CHM. (034)
3. Members who make new contacts during this effort should post their
intention and briefly describe the purpose to the list in
advance. If no objection is raised within a reasonably short period,
the member may proceed with the contact. (035)
4. A summary of significant discussions with outside parties as well
as progress toward specific tasks should be posted to the list. (036)
5. Progress reports posted to wider distributions should be posted to
the list first for review. If no objection is raised with a
reasonably short period, the progress report can be posted to the
wider distribution. (037)
TIME FRAME (038)
Time is essential since accomplishing certain goals for the current
phase and our ability to move to the next phase of the project
depends on having Augment be available to a wider audience. The
following indicates the time frames we would like to see for
accomplishing certain tasks: (039)
Nov 11: Contact Scott Griffin at Boeing to ask for his help contacting BT
Nov 11: Contact Mike Cochran of Cyber1 to discuss their contacts at BT
Nov 15: Restart discussions with Boeing with regard to quitclaim
Nov 30: Make contact with parties at BT to discuss Augment ownership
and quitclaim agreement
Dec 16: Complete quitclaim agreement with Boeing
Jan 20: Agreement in principal from BT for quitclaim
Feb 10: Complete quitclaim agreement with BT (040)
While we cannot control how quickly Boeing and BT will act, we would
like to move forward as quickly as possible, and do everything
possible to keep the process moving on our side. (041)
Philip Gust
Nouveau Systems, Inc. (042)
phone: +1 650 961-7992
fax: +1 520 843-7217 (043)
mailto: gust@NouveauSystems.com (044)
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