Font Patent Myths - The Basics
pk...@flnet.com
MYTH #15 - If Copyright Does Not Provide Font Protection, Patents Can
Protect Most Fonts.
In a font, any programming code not describing the font design (and
possibly non-alphanumeric designs that are not common and don't carry
information) are all that can be copyrighted, if anything. This leaves
the door open in the USA to have anyone pay for the output of each
character from a typesetter and redigitize it or extract the design
from a font program (and rename it), easily duplicating the design.
Most foundries have very similar fonts derived from work largely
designed by others.
QUESTION What about Design Patents?
ANSWER Unfortunately, only a small percentage of design patents hold
up in court - the first place they are actually challenged. (unlike
utility patents)
QUESTION What is a Design Patent supposed to protect?
Patents are not there to protect fine art or even most commercial art
- those classes of design never have been protected in this way and
they never will! One court case said,
It is the application of the design to an article which separates mere
pictures from a design protectible by a patent;
QUESTION What is required to have a valid Design Patent?
Must be statutory subject matter.
Computer font designs (as opposed to lead matrix designs) are not an
"ornamental design for an article of manufacture." This makes them
non-statutory subject matter and ineligible for design patent
protection. 35 U.S.C. §171 provides that;
[w]hoever invents any new, original and ornamental design for an
article of manufacture may obtain a patent therefor, subject to the
conditions and requirements of this title.
The "article of manufacture" requirement means that the design must be
embodied in a product. A picture, standing alone, even placed on paper
or canvas, is not protectible by a design patent.
Generalized intent to ornament some article with your design at a
later date is insufficient to qualify for design patent protection. In
order to meet this threshold requirement of an applied design, an
applicant's specification must expressly disclose some article of
manufacture ornamented by the design.
This factor distinguishes patentable designs from mere pictures,
surface ornamentation or abstract designs. With font designs, this was
previously done by the manufacture of a punch block or a filmstrip.
This is why it was possible for previous, non-computer type to meet
this standard. It might be interesting to note that I have a copy of
the first design patent ever awarded in the US. It is for a typeface.
But nevertheless, current computer faces do not meet this threshold
that was so easily scaled by typefaces in the past. Since this is no
longer the case technologically (and in any event, no such type punch
blocks are disclosed in current type patents) any type font patents
not stating an article of manufacture are bare designs and are not
entitled to patent protection.
You might argue that the computer is an article of manufacture, since
the font appears on the computer screen. This does not rise to the
level of "embodiment in an article of manufacture" or else all art,
once digitized, would then be able to apply for patent protection. The
gates would swing wide to embrace all manner of things that were never
patentable before. There is a court case refusing design patent
protection for a computer icon, where no other article of manufacture
was disclosed. So, we can assume that computer fonts would also fail
based on mere "disclosure of the computer".
Font designs, as in a recent line of court cases involving computer
icons, do not "describe, claim or show the claimed design as applied
to any article of manufacture." There is a court case requiring that
the article of manufacture be shown in the drawings.
Just in case you think I am blowing smoke, the First Circuit
invalidated just such a patent in Goudy v. Hansen, The patent claimed
"[t]he ornamental design for a font of type." The court determined
that the patent was invalid, on two grounds, one of which was because
the font design was non-statutory subject matter.
Must disclose material prior art.
Don Lancaster, an engineer, PostScript Guru and prolific author in the
field of inventions and patents says,
There must be no prior art anywhere in the world. Even in
ultra-obscure and limited distribution documents. All prior art must
be fully disclosed. Failure to disclose trashes the patent. Because so
many people are thinking about so many things in so many places,
synchronicity virtually guarantees that your idea or concept is
neither new nor unique. In fact, your idea almost certainly has been
plowed over decades ago. To the point where there is not one patent in
one thousand that cannot be busted by a diligent enough search for
prior art in obscure enough places. The only exceptions here are if
you have a totally unique lifestyle, tools, and mindset. And have made
the total personal commitment to being well beyond the bleeding edge
of the technology in your target field
The general rule is that all prior art can be used against you to
overturn your design patent.
You MUST declare all prior art. Oz Cooper lost his design patent on
Cooper Black (Robertson, Commissioner of Patents, v. Cooper, 1931)
because of one word (Asbestone) done a couple of years earlier (very
possibly done by Cooper, himself) that was similar to the font.
The judge said,
that there were comparatively a few letters in the word "Asbestone";
whereas, the application was for an entire font of type, and,
therefore, could not be anticipated by the use of a few letters only.
We (the court) cannot agree with this conclusion. It seems apparent to
us that given even a few letters a skilled workman could construct an
entire font of type of the same design, and that this, while it might
involve a very high degree of skill, would not arise to the dignity of
an invention. The English alphabet consists of fixed groups, such as
the round letters c, e, o, C, G, O, Q, and the oblique line group, as
A, V, W, Y, Z. Then we have the verticle (sic) line group, as E, F,
H, I, L, T, i, l, m, n, r, a, and the vertical line group combined
with a half loop, as B. D, P. R. b, d, p, q.
Another combination is the vertical and oblique line group, as K, k,
M, N. It is apparent that the design of any one of these groups would
suggest to a skilled workman the design of all the others of the same
group, and such a workman, having before him the word "Asbestone,"
could, without any inventive ingenuity whatever, by exercise of a high
degree of skill only, construct the entire font of patent, and it is
also apparent that such a font of type, made with the word "Asbestone"
used as a model, would differ in no material respect from the font of
type upon which Cooper based his application for a patent.
Every patentee has a duty to disclose to the patent examiner any
information "known to that individual to be material to
patentability." Each patent application has a form where the applicant
swears to this fact. If a patentee willfully fails to disclose, the
patent will not issue.
Information is considered to be material to patentability when either
it establishes an unpatentability on the face of it or is inconsistent
with a position the applicant takes in connection with the prosecution
of the patent. The test is whether the prior art would have had a
material effect on the patent examiner. Basically, the applicant is
required to submit all evidence for why they shouldn’t get the patent.
For the prior art to be material, the Court need not determine that it
would have stopped the issuance of the patent. Courts say materiality
may be established "by a showing that a reasonable examiner would
consider the withheld prior art important in deciding whether to issue
the patent." You can’t just submit what you think is relevant, but
what you think anybody else might think is relevant. The attitude,
"but there is nothing like that on my shelves or in the local library"
is a recipe for failure.
Must not intentionally mislead the Patent/Trademark Office.
A court case says the concept of inequitable conduct in the patent
context "derives from the equitable doctrine of unclean hands: that a
person who obtains a patent by intentionally misleading the PTO cannot
enforce the patent."
To establish inequitable conduct on the basis of a failure to disclose
prior art, one must offer clear and convincing proof of:
(1) the existence of prior art or information that is material,
(2) knowledge chargeable to the applicant of that prior art and of its
materiality, and
(3) the applicant's failure to disclose the prior art, coupled with an
intent to mislead the PTO. This has happened many times and the courts
are very hard on this kind of stuff. Courts also say intent need not
be shown by direct evidence.
When a court has determined that inequitable conduct occurred during
prosecution of the patent application, the patent is rendered
unenforceable.
As the Federal Circuit has pointed out,
One who has engaged in inequitable conduct has inflicted damage on the
patent examining system, obtaining a statutory period of exclusivity
by improper means, and on the public, which must face an
unlawfully-granted patent. Loss of one's patent and damage to
reputation are justified penalties for such conduct.
Where the applicant fails to disclose the very foundation for each of
his "inventions," the patent will be ruled unenforceable because of
inequitable conduct.
Evidence of intent to deceive the PTO need not be direct, but instead
may be inferred by the patent applicants conduct. A court has said,
[w]hile direct proof of intent to mislead is normally absent, [the
submission of a false or misleading statement] usually will support
the conclusion that the affidavit in which they were contained was the
chosen instrument of an intentional scheme to deceive the PTO. In any
event, proof of the actual state of mind of the applicant or persons
associated with or representing an applicant is not required.
Also,
"[p]roof of deliberate scheming is unnecessary; gross negligence may
constitute sufficient wrongful intent to support a holding of
inequitable conduct. "
In determining intent, courts say there is a balance between
materiality and intent.
"The more material the omission, the less culpable the intent
required, and vice versa."
And also,
"mere denials of intent to mislead may not be sufficient to overcome
circumstantial evidence of intent to deceive."
Must have one common design theme running through the entire font that
rises to the level of patentability.
The Commissioner of Patents has said,
A single design patent is granted for an entire font on the theory
that there is but one inventive idea running through the entire font.
If, however, we take the position that one letter would not suggest
the appearance of the other letter, then there should be a design
patent for each letter, as the law contemplates that only one design
may be covered by one patent.
It seems from this statement that only a small feature running through
each character submitted in the patent application - like a new type
of serif - is all that is contemplated for a font design patent.
Must be ornamental.
The judge in Robertson, Commissioner of Patents, v. Cooper said,
There is grave doubt whether Cooper's design, upon which he makes the
application, (Cooper Black - ed.) is ornamental so as to bring it
within the statute which says that in order to be patentable, it must
not only be useful, but also ornamental.
Must be novel.
You font design must be "novel" and original over any prior art. To be
"novel", it must be new and must not have existed before.
As was said by the Supreme Court in the ease of Gorham Fog. Co. v.
White
Given the great similarity of fonts, the hurdle of prior art is raised
even higher because it has long been settled that the true test of
identity of a design is the effect of the comparison between the
designs upon an ordinary observer and not upon the one skilled in that
particular art.
As stated in one of the earliest typeface design patent cases, the
test for novelty "is a question to be determined from the impression
it makes on the mind, through the eye of the court, or of the ordinary
observer . . . and not the eye of some skilled engraver of type." The
court then found that the type font at issue did not possess
"sufficient novelty or beauty to constitute a design patent". Thus,
the Court can easily resolve the patentability issue based on a
comparison of the patented fonts with the prior art. And in order for
a patent holder to succeed in court, it must do more than point out
minute differences in letter forms that would be apparent only to one
skilled in the art.
Must be original and non-obvious.
We now take those identified original elements (and only those) to the
next level. Even if font design patents survive the foregoing
challenges, most still can be found invalid because most font designs
lack the requisite novelty and non-obviousness for patentability. The
patentability requirements for design patents are no less stringent
than for utility patents. To be patentable, a concept must not only
never have existed before. The new element must not be an obvious
stretch of art to any practitioner in the field.
The test for originality is "non-obviousness" - such that a skilled
practitioner in the art would not have thought of it. The differences
between your design and all prior art must not have been obvious to
any designer of ordinary skill at the time you created your design.
This standard for originality is high, maybe too high for any fonts.
Auto fenders and bumpers, for example, may be different for each model
of car, but courts have generally ruled that the underlying ideas of
their design are inherently obvious in earlier products. I would say,
changes in car bumpers are generally bigger than the changes in fonts!
This rules out revivals, morphing, all bold or thin versions of fonts,
and copying designs from other people's copy books (which many people
think has been done by "top of the line" foundries under the name of
"originality") as ever subject matter for a patent. It also rules out
combinations of features others have used on several fonts, merely as
a new arrangement in a single font. Foundries who apply for design
patents like this are whistling past the graveyard!
Frederic W. Goudy, considered by many to be one of the greatest type
designers of the 20th century with 123 typeface designs to his credit,
approached the question of whether or not it was possible for an
artist to design an original face of type in his book. Tyoplogia -
Studies in Type Design & Type Making
What, then, is original type design? Is it possible for an artist to
design an original face of type? Probably not in the strictest sense
of the words, since, after all, what we call an "original type face"
is undoubtedly little more than a subtle variation of an orthodox or
traditional letter form, a form to which we attempt to impart a charm
of character or a quality of personality - our efforts sometimes
achieving a measure of unconscious originality.
The unpatentability (and unoriginality) of most fonts is illustrated
by a story that I understand Mac Brumwell tells about watching Ed
Benguiat make the font Benguiat by taking enlargements of the font
Korinna and pasting down a different serif design on each letter.
Non-original to be sure, and easily done by any first year art
student. Definite prior art from other designs. It would be an obvious
design EVEN IF the story didn't have Ed first seeing the idea of
"Korinna with a different serif" sketched out in another famous
designer's work and was just trying to beat him to market.
Benguiat is the receiver of the prestigious Goudy Award from the RIT
and also is known as the designer of Souvenir. Yet there seem to be
many earlier "Souvenir" designs - for instance in the 1906 ATF
catalog. One story has him merely stat-ing his "new design" out of a
book or pulling proof sheets and cleaning them up. To make the
different weights, he supposedly just double exposed each letter on
stat paper, moving it slightly. You can see a double crest on the top
of the lower case "e" in some of the bolder weights, where it wasn't
even cleaned up! Since they didn't have Postscript back then - or
computers, would you agree that this might be the closest analogy for
digital extraction today?
Some exercise of the inventive faculty is as essential to the validity
of a design patent as to the validity of a mechanical patent. It is
not enough to show that the design has not been anticipated, nor is it
enough to show that the design is pleasing and ornamental, and
presents a substantial difference to the eye from anything which has
gone before. In order to involve an exercise of the inventive faculty,
a design must be shown to be beyond the range of the ordinary routine
designer. Most designs do not contain the requisite originality to
warrant design patent protection and even if they did contain original
elements, they would have been obvious to one skilled in the art
(indeed, even to a layman).
The First Circuit invalidated just such a patent in Goudy v. Hansen,.
The court determined that the patent was invalid, among other reasons
because it did not possess "sufficient novelty or beauty to constitute
a design patent." Notice, Goudy didn’t find this out until he spent
the application fee and then spent more money in court! It should be
clear from this that not all fonts which are designed in good faith
with no attempt at plagiarism will be able to rise to the level of
patentability.
The Goudy v. Hansen court's logic is inescapable and perfectly in
keeping with other intellectual property laws. Congress has
specifically excepted typeface designs from copyright protection in
order to prevent someone from, essentially, owning versions of the
alphabet. Yet affording patent protection to type fonts "just because
they are type" accomplishes this same forbidden result which font
protectionists so eagerly desire. The court in Goudy v. Hansen
recognized that extending such protection is beyond the scope of
patent law and invalidated the patent for that very reason.
One foundry president has said,
There are few truly original typeface designs. Most designs considered
"new" by the type design community are merely adaptations, derivative
works or outright copies of earlier works. One of the most famous and
widely used typefaces of the Twentieth Century is Helvetica. Although
it brought a breath of fresh air into the post- W.W.II design
community of the 1950's, it was nothing more than an adaptation of the
existing Haas Grotesk typeface, which in turn owed its origins to
nineteenth-century German Grotesque (loosely, sans serif) typefaces
such as Berthold's Akzindenz Grotesk.
The type design community is quite small. Only a few hundred people
are actively engaged in the design of new typefaces' very few of them
doing it as their sole means of producing income. There are, perhaps,
a few thousand other people who could be considered "typophiles," avid
fans of typography, typeface designs and designers. Within this small
community, endless battles rage over the finer points of a type
design, much as they did centuries ago about how many angels could
dance upon the head of a pin.
Copying of typeface designs is and has been common for centuries. It
was, in fact, a business war between the manufacturers of older hot
metal typecasting and phototypesetting equipment that gave rise to the
aggressive marketing of typeface design trademarks through the
creation of the International Typeface Corporation, a business partner
of Adobe Systems, Inc.
Like many special-interest groups, the type design community has
developed its own jargon. Those from outside the inner circle who copy
type designs are called "plagiarists," "font thieves" and worse.
Inside the community, however, a more polite system of description has
arisen.
To protect themselves from charges of "plagiarism" by outsiders, the
type community adopted two key words to describe their practices of
copying other people's typeface designs: "facsimile" and "revival."
A "revival" typeface design is "an adaptation of an existing design
for newer technology or methods of manufacture." facsimile is "a
revival of an existing (usually historic) typeface which takes into
account all the imperfections . . . and idiosyncrasies of the original
model, rather than regularising them for current taste."
However, these inbred terms cut no ice with the Patent/Trademark
Office! They just don’t matter. In the real world, designers have to
submit applications based on the same standards of originality as
everyone else.
Must apply for patent within one year of first public use.
The "on-sale" bar in §102(b) of the patent act provides that a person
may not obtain a patent if
the invention was ... in public use or on sale in this country, more
than one year prior to the date of the application for patent in the
United States.
Generally, the purpose behind the section 102(b) bar
is to require inventors to assert with due diligence their right to a
patent through the prompt filing of a patent application.
QUESTION What is required to actually collect on a Design Patent
infringement?
Whatever your attitude toward patents, we can all agree that it is no
fun paying a lot of money for a leaky raincoat - especially if you
don’t discover it until the Great Flood starts!
Someone might say, "Well, Adobe just did it improperly. Let’s not
throw the baby out with the bath water! I’ll avoid all of their errors
and omissions and still try the patent route. I know that Adobe has
the money to hire good patent lawyers, but I think I can learn from
their mistakes. What do I need to do?"
First of all, you will need a lot of money for attorney’s fees! Owning
a patent gives you the right to find and sue infringers - not an
automatic injunction. Federal court cases are very expensive and the
win rate of design patents is not very favorable.
Even though patent fees run about $500.00 per design (not counting
steep attorney’s fees), you cannot wait until your design becomes
commercially acceptable before you attempt to protect it. And some
people may say that you should protect all your designs immediately,
because you don’t know which ones will become successful - even over
time. When they are successful, it is too late for a patent! The
financial hurdle per successful design becomes considerable at this
point!
The key issue here is finding the time to economic break-even. One
patent expert says the break-even point for a patented item is if you
can expect $250,000.00 from it. This rule of thumb would clearly
discourage most font patents. Don Lancaster says that "any involvement
with the patent system is nearly certain to result in a net loss of
time, energy, money, and sanity."
Don’t forget, a design patent is only good for a very limited number
of years.
Must carry the Patent Marking required.
All patented Designs must carry the Patent Marking required by 35
U.S.C. §287(a), placing the public on notice that there is a patent.
35 U.S.C. §287(a) provides that patentees may give notice to the
public that the same is patented, either by fixing thereon the word
"patent" or the abbreviation "pat. ", together with the number of the
patent, or when, from the character of the article, this can not be
done, by fixing to it, or to the package wherein one or more of them
is contained, a label containing a like notice. If the marking is
absent,
"no damages shall be recovered by the patentee in any action for
infringement, except on proof that the infringer was notified of the
infringement and continued to infringe thereafter, in which event
damages may be recovered only for infringement occurring after such
notice.
In any court action for patent infringement,
"[t]he patent owner must also plead and prove compliance with section
287(a).
Must have patent drawings which clearly show the originality.
If you go to court to enforce the design patent against an infringer,
the court will be required to compare the accused product with the
drawings in your design patent. Infringement will be found only if the
defendant's product is substantially the same in overall appearance to
the patent drawings. Even if a font copies the "essence" of another's
design, minor changes or variations in the defendants design may make
the design sufficiently different from the patent drawings even if you
have jumped the other hurdles of prior art and non-obviousness.
QUESTION Does a Design Patent protect a font design against font
software which draws the design (because it contains a list of
coordinates, but does not actually contain the design in the form
shown on the patent application)?
Section 271(a) of the Patent Act does not define an infringer as "one
who makes a copy without authority". Instead, an infringer is defined
as
"whoever without authority makes, uses, offers to sell, or sells . . .
or imports . . . any patented invention. "
Even if it is possible today to obtain a valid design patent on a font
design which is upheld by the courts, sale of a font program does not
infringe on that design by the legal meaning of the term. Remember,
you are getting a patent on a font design, not a piece of font
software! The publisher of a competing font software program does not
make the font design, nor do they use them, offer to sell them, sell
or import them. What the publisher does is sell software that is
capable of rendering the font design. But that is not patent
infringement. Since the only inquiry relevant to the infringement
issue is whether defendants make, use or sell the designs themselves,
testimony that someone’s computer code which renders fonts is similar
to the patent holder’s computer code could not be less relevant.
The Infamous "Gap"!
There is definitely a gap here between Copyright rulings and Patent
Law. Copyright rulings specifically consider outline coordinates and
algorithms for deriving a font as equal to a font design - and then
say even those things are uncopyrightable. Patent Law does not even
connect outlines or coordinates or algorithms or programs with the
design at all! Both rulings are a blow to protectionists. In their
perfect world, the two rulings would be reversed.
Apparently some protectionists hope that by offering a comparison of
the font program code (Copyright argument) in a Patent case and
offering a comparison of the actual font designs (Patent argument) in
a Copyright case, they can confuse and intertwine the two legal
theories and convince a court that somebody, somewhere, must have done
something illegal. But courts have not found that copying computer
code constitutes patent infringement or that copying uncopyrightable
typeface designs is somehow copyright infringement. This protectionist
tactic is known as the "smoke and mirrors" approach to law.
QUESTION Why is the PTO soliciting type patents then?
Great question!
Part may have to do with the fact that Adobe’s old Outside Counsel is
now head of the Patent Office. Everyone approaches their job with some
kind of bias based on their past.
Another factor is that the patent office is supposed to survive based
on their application fees rather than appropriations from Congress.
The more applications - the more money. It doesn’t matter if your
patent gets overturned in court, they get the money based on
applications. If you were a patent examiner in the font area, and you
realized the money for your position was based on the amount of
application fees in your area, you might be inclined to write an
article or two yourself!
So recently, there have been articles in magazines from PTO employees
almost soliciting font patent applications. An artist I talked to have
said they were specifically asked by the PTO to submit their fonts for
patent. Their impression was that the person currently in the job has
no long term aspirations to continue. Policies change when people do!
The person reviewing type design applications 5 years ago is not doing
it now. There doesn’t seem to be a large continuity, institutional
memory or even employee training in this area of the PTO.
Patent examiners are not always lawyers, nor do they necessarily
understand all patent law, or the enforcement costs to the designer to
provide actual economic protection over the entire (short) life of the
patent. Statistics show that a very substantial portion of design
patents are overturned the first time they hit a courtroom. Of course,
by then the poor designer has spent a prince’s ransom in money and a
good deal of their life, just to find out how cheap and easy the
patent approval process is compared to an actual defense of their
patent in court.
By the way, the IBM site at http://patent.womplex.ibm.com/ibm.html
allows FREE searches of the past few years of patents, including
design patents. You can find the ones at issue in the Adobe v.
Southern Software, Inc case, and others that Adobe (and others who
have design patents on typefaces) has obtained.
QUESTION Why are other type protectionists promoting type patents?
Another source of patent encouragement are the font protectionists
serving as armchair patent lawyers. They remind me about the story of
two small boys who walked into the dentist's office. One of them said
bravely, "I want a tooth taken out and I don't want any gas, and I
don't want it deadened. . . because we're in a hurry!" The dentist
said, "You're quite a brave young man. Which tooth is it?" The boy
turned to his smaller friend and said, "Show him your tooth, Albert."
The world is full of armchair advisors like that. We're anxious to
have something happen -- to someone else!
Here are some questions to ask these "experienced men of the world."
1) Have you ever spent your own money to patent a font?
2) Have you ever successfully defended your font patent in court?
3) Did you break even on the economic benefit from your patent?
Paul King
Paul King - President, Southern Software, Inc. (pk...@flnet.com)
www.ssifonts.com is the best Internet source for all your font
requirements, Mac or PC! See the restr of the Font foundery Myths. We
have the only free searchable font database on the web,
cross-referencing 40,000 font names. Download our Type Directory to
look at each font before you buy. 3320 fonts for $29.95!
Clive Bruton
Part 1 of 2 (since my newsreader can't deal with such verbosity).
You know, I hate going through all this crap again, since we all know it's
crap, but since someone has to tell the truth it may as well be me...
In article <33cf9423...@news.packet.net>,
pk...@flnet.com wrote:
>MYTH #15 - If Copyright Does Not Provide Font Protection, Patents Can
>Protect Most Fonts.
Before anyone starts reading the rest of this look up the meaning of the
word "myth", now go look up the terms legislation, intellectual property,
protection and law.
You'll notice that there is a great deal of difference between the terms,
this is because our governments want it to be very obvious that the law is
not about how individuals interested in spreading untruths want to
interpret it (because of their own self-interest), but how it is applied
for the protection of society
>
>In a font, any programming code not describing the font design (and
>possibly non-alphanumeric designs that are not common and don't carry
>information) are all that can be copyrighted, if anything. This leaves
>the door open in the USA to have anyone pay for the output of each
>character from a typesetter and redigitize it or extract the design
>from a font program (and rename it), easily duplicating the design.
>Most foundries have very similar fonts derived from work largely
>designed by others.
This is your interpretation of a policy decision by the US Copyright
Office, unfortunately, as you well know, the USCO doesn't make the law.
There is nothing in US legislation or legal history that says theft of
software code is legal, in fact the opposite is true.
The truth of the matter is that the poster of this drivel is currently
being sued by two type vendors for infringement of copyright. The poster's
co-defendents have decided to settle out of court.
The poster has openly admitted in this forum that his font library is in a
large part derived from the software code of other foundries.
Everybody on this forum who has been here for any length of time knows that
US copyright does not currently cover type design (although it has in the
past, and will again in the future thanks to the efforts of Paul King),
which is why design patent is advocated for its protection. What else would
be the point of determining legislation that protects intellectual
property/design that isn't already covered by other law?
>
>QUESTION What about Design Patents?
>
>ANSWER Unfortunately, only a small percentage of design patents hold
>up in court - the first place they are actually challenged. (unlike
>utility patents)
This is nonsense, ask yourself, what is the point of having a design
patent?
Answer, so that anyone with any sense is astute enough to realise that this
item is protected in law, therefore I'd better not steal it. You don't need
to go to court to proove the validity of you patent, the patent examiners
already did that.
Also, I'd really appreciate some facts and figures here, how many design
patents have been over-ruled in the past 20 years, how many have been
filed, how many have been challenged?
And, out of those, how many patents for type design were over-ruled? (The
answer is *none*.)
Answer those questions and you may be taken seriously
>
>QUESTION What is a Design Patent supposed to protect?
>
>Patents are not there to protect fine art or even most commercial art
>- those classes of design never have been protected in this way and
>they never will! One court case said,
>
>It is the application of the design to an article which separates mere
>pictures from a design protectible by a patent;
This again is nonsense.
If we were talking about "mere pictures" then quite obviously copyright law
would protect the item, since it has no "utility" (a test of copyright).
Therefore type is protected by design patent (since 1851) as its utility is
recognised (by the US legislature).
>
>QUESTION What is required to have a valid Design Patent?
>
>Must be statutory subject matter.
>
>Computer font designs (as opposed to lead matrix designs) are not an
>"ornamental design for an article of manufacture." This makes them
>non-statutory subject matter and ineligible for design patent
>protection. 35 U.S.C. §171 provides that;
This is again [NONSENSE].
It is the design that is protected, not its application (and I don't
believe anyone ever made matrices from lead - unless you have a different
understanding of the term).
If this were the case, why then is the US Patent and Trademarks Office (you
would think that these guys, if anyone, would know) accepting and passing
patent applications for type designs?
>This factor distinguishes patentable designs from mere pictures,
>surface ornamentation or abstract designs. With font designs, this was
>previously done by the manufacture of a punch block or a filmstrip.
Oh, your point is; it must be something physical. Here's a floppy disk, as
physical as a filmstrip.
So you don't actually deny that protection is granted to type design, you
just don't accept that a floppy disk is physical, perhaps because there is
no physical impression of the type (perhaps on the disk at sub-atomic
level?)
A better answer is type on CD ROM, obviously, since this is a non-magnetic
media, that requires measureable physical attributes to achieve a result.
>This is why it was possible for previous, non-computer type to meet
>this standard. It might be interesting to note that I have a copy of
>the first design patent ever awarded in the US. It is for a typeface.
>But nevertheless, current computer faces do not meet this threshold
>that was so easily scaled by typefaces in the past. Since this is no
>longer the case technologically (and in any event, no such type punch
>blocks are disclosed in current type patents) any type font patents
>not stating an article of manufacture are bare designs and are not
>entitled to patent protection.
The artwork/working drawings of the design are submitted to the USPTO and
passed by its patent examiners, no more is required.
>
>You might argue that the computer is an article of manufacture, since
>the font appears on the computer screen. This does not rise to the
>level of "embodiment in an article of manufacture" or else all art,
>once digitized, would then be able to apply for patent protection.
No, all other art is protected by copyright.
>The
>gates would swing wide to embrace all manner of things that were never
>patentable before. There is a court case refusing design patent
>protection for a computer icon, where no other article of manufacture
>was disclosed. So, we can assume that computer fonts would also fail
>based on mere "disclosure of the computer".
And this is given as the reason for its failure? Or that just so happend to
be the case too? (please be specific when replying, giving the case details
and the relevant judgement).
>
>Font designs, as in a recent line of court cases involving computer
>icons, do not "describe, claim or show the claimed design as applied
>to any article of manufacture." There is a court case requiring that
>the article of manufacture be shown in the drawings.
Then this is either complied with, or is not relevant, since the USPTO
would not pass type design patents if it were true.
>
>Just in case you think I am blowing smoke, the First Circuit
>invalidated just such a patent in Goudy v. Hansen, The patent claimed
>"[t]he ornamental design for a font of type." The court determined
>that the patent was invalid, on two grounds, one of which was because
>the font design was non-statutory subject matter.
And that non-statutory subject matter was?
>
>Must disclose material prior art.
Must disclose all *known* prior art
>
>Don Lancaster, an engineer, PostScript Guru and prolific author in the
>field of inventions and patents says,
[snip]
This article had nothing to do with design patent (yes, I read it too, the
Net's a wonderful thing, no?). The main thrust of it was that an amatuer in
any field is unlikely to every secure a valid patent.
Since we are not talking about amatuers here (the original poster faces
court actions brought by Adobe and Emigre), we can discount this article
altogether. It also specificly pertains to utility patents.
You'll note that Mr Lancaster is not credited with being a design "guru",
lawyer or patent examiner.
>
>You MUST declare all prior art. Oz Cooper lost his design patent on
>Cooper Black (Robertson, Commissioner of Patents, v. Cooper, 1931)
>because of one word (Asbestone) done a couple of years earlier (very
>possibly done by Cooper, himself) that was similar to the font.
It is well known that a patent must be applied for within one year of the
publication of the original, therefore it is no surprise, and no big deal
that Oz Cooper invalidated his own patent.
>
>The judge said,
>
>that there were comparatively a few letters in the word "Asbestone";
>whereas, the application was for an entire font of type, and,
>therefore, could not be anticipated by the use of a few letters only.
>We (the court) cannot agree with this conclusion. It seems apparent to
>us that given even a few letters a skilled workman could construct an
>entire font of type of the same design, and that this, while it might
>involve a very high degree of skill, would not arise to the dignity of
>an invention. The English alphabet consists of fixed groups, such as
>the round letters c, e, o, C, G, O, Q, and the oblique line group, as
>A, V, W, Y, Z. Then we have the verticle (sic) line group, as E, F,
>H, I, L, T, i, l, m, n, r, a, and the vertical line group combined
>with a half loop, as B. D, P. R. b, d, p, q.
>
> Another combination is the vertical and oblique line group, as K, k,
>M, N. It is apparent that the design of any one of these groups would
>suggest to a skilled workman the design of all the others of the same
>group, and such a workman, having before him the word "Asbestone,"
>could, without any inventive ingenuity whatever, by exercise of a high
>degree of skill only, construct the entire font of patent, and it is
>also apparent that such a font of type, made with the word "Asbestone"
>used as a model, would differ in no material respect from the font of
>type upon which Cooper based his application for a patent.
I think it could well be debated that such a font could differ
substantially from one person's interpretation to the next, and that if
Cooper's patent had excluded the characters in the word "Asbestone" his
patent may well have been upheld.
The point clearly being made here is not that the idea of type design
patent is invalid, but that it was invalid in this case (because the
designer had not sought protection for his previous work ("Asbestone").
>
>Every patentee has a duty to disclose to the patent examiner any
>information "known to that individual to be material to
>patentability." Each patent application has a form where the applicant
>swears to this fact. If a patentee willfully fails to disclose, the
>patent will not issue.
This seems perfectly reasonable, and thus many design patents for type are
issued.
[snip]
No point in debating.
>
>A single design patent is granted for an entire font on the theory
>that there is but one inventive idea running through the entire font.
>If, however, we take the position that one letter would not suggest
>the appearance of the other letter, then there should be a design
>patent for each letter, as the law contemplates that only one design
>may be covered by one patent.
>
>It seems from this statement that only a small feature running through
>each character submitted in the patent application - like a new type
>of serif - is all that is contemplated for a font design patent.
Application for design patent for a typeface may take the form of a single
character, a range of characters, a complete single font or a whole family.
Indeed anything in between.
As it would be difficult to show theft of an individual character the
sensible method is to judge infringement across a whole range of
characters, thus type patents are submitted in this manner.
>
>Must be ornamental.
>
>The judge in Robertson, Commissioner of Patents, v. Cooper said,
>
>There is grave doubt whether Cooper's design, upon which he makes the
>application, (Cooper Black - ed.) is ornamental so as to bring it
>within the statute which says that in order to be patentable, it must
>not only be useful, but also ornamental.
Many people dislike Cooper Black.
>
>Must be novel.
>
>You font design must be "novel" and original over any prior art. To be
>"novel", it must be new and must not have existed before.
>
>As was said by the Supreme Court in the ease of Gorham Fog. Co. v.
>White
>
>Given the great similarity of fonts, the hurdle of prior art is raised
>even higher because it has long been settled that the true test of
>identity of a design is the effect of the comparison between the
>designs upon an ordinary observer and not upon the one skilled in that
>particular art.
Thus all expert testimony is thrown out?
Surely the test is that the difference can be discerned by a user of such a
product?
And if this test was not easy to acomplish there would certainly be no
point in the poster's CD library containing over 3,000 different fonts. If
there were no discernable difference then surely 20 or so would do the job?
>
>As stated in one of the earliest typeface design patent cases, the
>test for novelty "is a question to be determined from the impression
>it makes on the mind, through the eye of the court, or of the ordinary
>observer . . . and not the eye of some skilled engraver of type." The
>court then found that the type font at issue did not possess
>"sufficient novelty or beauty to constitute a design patent". Thus,
>the Court can easily resolve the patentability issue based on a
>comparison of the patented fonts with the prior art. And in order for
>a patent holder to succeed in court, it must do more than point out
>minute differences in letter forms that would be apparent only to one
>skilled in the art.
This seems to imply that patent examiners are stupid, in that they
apparently allowed so many invalid patents to be issued.
>The test for originality is "non-obviousness" - such that a skilled
>practitioner in the art would not have thought of it. The differences
>between your design and all prior art must not have been obvious to
>any designer of ordinary skill at the time you created your design.
>This standard for originality is high, maybe too high for any fonts.
If this were true then we'd all be type designers, yet we'd only have a few
designs to choose from, evidently false.
>
>Auto fenders and bumpers, for example, may be different for each model
>of car, but courts have generally ruled that the underlying ideas of
>their design are inherently obvious in earlier products. I would say,
>changes in car bumpers are generally bigger than the changes in fonts!
Obviously you know less about cars than you do about fonts, bumpers and
fenders are integral pieces of design, not bolted on after-thoughts.
>
>This rules out revivals, morphing, all bold or thin versions of fonts,
No, revivals have passed the test of patentability, strict redrawing does
not obviously, but that doesn't constitute a revival. Morphed/other wieghts
are clearly covered by the patent of the original.
>and copying designs from other people's copy books (which many people
>think has been done by "top of the line" foundries under the name of
>"originality") as ever subject matter for a patent.
Please explain the last remark, you seem to imply that some foundries have
copied others work, then applied for patent on it, please cite examples.
>It also rules out
>combinations of features others have used on several fonts, merely as
>a new arrangement in a single font. Foundries who apply for design
>patents like this are whistling past the graveyard!
I'd agree, there is no originality in copying parts of characters from
different designs and combining them into another, whether this is done by
digital or analogue means.
If your suggesting that this has been done in type issued with patents
please cite examples. Otherwise I cannot see the point of your reference
since the purpose of your post seems to be to debunk patent.
>
>Frederic W. Goudy, considered by many to be one of the greatest type
>designers of the 20th century with 123 typeface designs to his credit,
>approached the question of whether or not it was possible for an
>artist to design an original face of type in his book. Tyoplogia -
>Studies in Type Design & Type Making
>
>What, then, is original type design? Is it possible for an artist to
>design an original face of type? Probably not in the strictest sense
>of the words, since, after all, what we call an "original type face"
>is undoubtedly little more than a subtle variation of an orthodox or
>traditional letter form, a form to which we attempt to impart a charm
>of character or a quality of personality - our efforts sometimes
>achieving a measure of unconscious originality.
Please read this carefully, the above does not prove your point in the
slightest, the last line wholly disproves your point:
"our efforts sometimes achieving a measure of unconscious originality."
See the last word, go look it up.
>
>The unpatentability (and unoriginality) of most fonts is illustrated
>by a story that I understand Mac Brumwell tells about watching Ed
>Benguiat make the font Benguiat by taking enlargements of the font
>Korinna and pasting down a different serif design on each letter.
Is this documented? You know the term "hearsay" I'm sure.
>Non-original to be sure, and easily done by any first year art
>student.
Even easier to spot by any patent examiner. And who's to say that a first
year student isn't capable of original art, I would hope that was how they
got into college in the first place.
>Definite prior art from other designs. It would be an obvious
>design EVEN IF the story didn't have Ed first seeing the idea of
>"Korinna with a different serif" sketched out in another famous
>designer's work and was just trying to beat him to market.
Please cite your example.
>
>Benguiat is the receiver of the prestigious Goudy Award from the RIT
>and also is known as the designer of Souvenir. Yet there seem to be
>many earlier "Souvenir" designs - for instance in the 1906 ATF
>catalog. One story has him merely stat-ing his "new design" out of a
>book or pulling proof sheets and cleaning them up. To make the
>different weights, he supposedly just double exposed each letter on
>stat paper, moving it slightly. You can see a double crest on the top
>of the lower case "e" in some of the bolder weights, where it wasn't
>even cleaned up! Since they didn't have Postscript back then - or
>computers, would you agree that this might be the closest analogy for
>digital extraction today?
I think not.
Please also show that any of the above is any more than hearsay and that
any of the typefaces involved were subject to patents.
>
>Some exercise of the inventive faculty is as essential to the validity
>of a design patent as to the validity of a mechanical patent. It is
>not enough to show that the design has not been anticipated, nor is it
>enough to show that the design is pleasing and ornamental, and
>presents a substantial difference to the eye from anything which has
>gone before. In order to involve an exercise of the inventive faculty,
>a design must be shown to be beyond the range of the ordinary routine
>designer. Most designs do not contain the requisite originality to
>warrant design patent protection and even if they did contain original
>elements, they would have been obvious to one skilled in the art
>(indeed, even to a layman).
Then this must have been proved to the patent examiners satisfaction.
>
>The First Circuit invalidated just such a patent in Goudy v. Hansen,.
>The court determined that the patent was invalid, among other reasons
>because it did not possess "sufficient novelty or beauty to constitute
>a design patent." Notice, Goudy didn’t find this out until he spent
>the application fee and then spent more money in court! It should be
>clear from this that not all fonts which are designed in good faith
>with no attempt at plagiarism will be able to rise to the level of
>patentability.
I believe you were trying to paint a picture of Goudy as a plagiarist in
your argument above, you appear now to claim the opposite.
It is obvious that not all designs will qualify for patent, even if the
designer has not plagiarised anothers work. This is because of the basic
difference between patent and copyright;
Copyright allows for two people to have exactly the same idea,
divided by geography or time, ideas can be the same and
qualify for copyright. What has to be shown is that neither
author copied the other.
Patent on the other hand insists that only one person can hold
the rights to an idea, the first one to get to the patent
office.
>
>The Goudy v. Hansen court's logic is inescapable and perfectly in
>keeping with other intellectual property laws. Congress has
>specifically excepted typeface designs from copyright protection...
Please do not keep referencing patent to copyright, these are two very
different and distinct areas of legislation. Your points have already been
stated and answered.
>
>One foundry president has said,
Who shall remain nameless (Paul King perhaps?).
>
>There are few truly original typeface designs. Most designs considered
>"new" by the type design community are merely adaptations, derivative
>works or outright copies of earlier works. One of the most famous and
>widely used typefaces of the Twentieth Century is Helvetica. Although
>it brought a breath of fresh air into the post- W.W.II design
>community of the 1950's, it was nothing more than an adaptation of the
>existing Haas Grotesk typeface, which in turn owed its origins to
>nineteenth-century German Grotesque (loosely, sans serif) typefaces
>such as Berthold's Akzindenz Grotesk.
A weird thing, did you know Haas actually own the rights to Helvetica (now
a part of Linotype), so what you are accusing them of doing is plagiarising
their own typeface!?
>
>The type design community is quite small. Only a few hundred people
>are actively engaged in the design of new typefaces' very few of them
>doing it as their sole means of producing income. There are, perhaps,
>a few thousand other people who could be considered "typophiles," avid
>fans of typography, typeface designs and designers. Within this small
>community, endless battles rage over the finer points of a type
>design, much as they did centuries ago about how many angels could
>dance upon the head of a pin.
And your point is?
>
>Copying of typeface designs is and has been common for centuries. It
>was, in fact, a business war between the manufacturers of older hot
>metal typecasting and phototypesetting equipment that gave rise to the
>aggressive marketing of typeface design trademarks through the
>creation of the International Typeface Corporation, a business partner
>of Adobe Systems, Inc.
Yes, pirates like you have been around for centuries, and what does that
have to do with either ITC or Adobe?
>
>Like many special-interest groups, the type design community has
>developed its own jargon. Those from outside the inner circle who copy
>type designs are called "plagiarists," "font thieves" and worse.
>Inside the community, however, a more polite system of description has
>arisen.
Yes, "plagiarists", "font thieves" and "pirates" are what I'd call people
that steal design, I think I can be considered to be "within" the type
design community. Rather than an outsider attempting to make a quick buck
because of his misinterpretaion of US law.
>
>To protect themselves from charges of "plagiarism" by outsiders, the
>type community adopted two key words to describe their practices of
>copying other people's typeface designs: "facsimile" and "revival."
>
>A "revival" typeface design is "an adaptation of an existing design
>for newer technology or methods of manufacture." facsimile is "a
>revival of an existing (usually historic) typeface which takes into
>account all the imperfections . . . and idiosyncrasies of the original
>model, rather than regularising them for current taste."
I've never heard the term "facsimile" used in connection with a type
design. "Revival" is used to describe a typeface redrwn for new technology,
yes. What you miss is that to accurately use this term the font must be
free of any legal protection, and usually a good deal of research and
redrawing is involved.
Otherwise the term is used falsely.
>
>However, these inbred terms cut no ice with the Patent/Trademark
>Office! They just don’t matter. In the real world, designers have to
>submit applications based on the same standards of originality as
>everyone else.
Of course they do, which is why true historical revivals have been granted
patents by the USPTO.
>
>Must apply for patent within one year of first public use.
Everyone knows this, you may develop and test over an extended period
however.
>
>The "on-sale" bar in §102(b) ...
Your point is taken, we understand the rules, none of this disproves the
viability of design patent as applied to typefaces.
-- Clive
Clive Bruton
Part 2 of 2
Paul King:
>QUESTION What is required to actually collect on a Design Patent
>infringement?
>
[sniiiiiiip]
All the snipped portion is seeking to do is discourage anyone from thinking
about protecting their work through patent, guess what? Exactly the same
rules apply to any other legal issue, copyright included. Copyright is
free, it costs nothing, it is implied at the time of creation, if you want
to collect on copyright infringement you're going to have to go to court
(and that costs).
Paul King is saying "Don't protect your work, 'cos then you can't sue me,
and that won't have cost you anything!"
The quote from the "expert" is from the same article quoted above and
pertains to utility patents, not design patents. Again the main thrust of
the article was that amatuers in any field stand a good chance of having
patents overturned - obvious.
Having experience in an industry greatly reduces such risk (when was the
last time a pharmaceutical or large industrial company had a patent
overturned? DIY inventors at home are overturned or rejected every day).
>
>Must carry the Patent Marking required.
This pertains to utility patent.
>Must have patent drawings which clearly show the originality.
These are submitted with the patent application, how could you apply for a
patent without some evidence that the design exists ("I designed this font,
it's kinda wibbly. a little wobbly, it has some curves, some straigh
bits...").
>
>If you go to court to enforce the design patent against an infringer,
>the court will be required to compare the accused product with the
>drawings in your design patent. Infringement will be found only if the
>defendant's product is substantially the same in overall appearance to
>the patent drawings. Even if a font copies the "essence" of another's
>design, minor changes or variations in the defendants design may make
>the design sufficiently different from the patent drawings even if you
>have jumped the other hurdles of prior art and non-obviousness.
This is nonsense, design obviously derived from a protected design is an
infringement, please cite a case where this isn't true.
>
>QUESTION Does a Design Patent protect a font design against font
>software which draws the design (because it contains a list of
>coordinates, but does not actually contain the design in the form
>shown on the patent application)?
>
>Section 271(a) of the Patent Act does not define an infringer as "one
>who makes a copy without authority". Instead, an infringer is defined
>as
>
>"whoever without authority makes, uses, offers to sell, or sells . . .
>or imports . . . any patented invention. "
"makes... any patented invention"
Point one: we're talking about design patents here, not utility patents.
Point two: copying a design into software is a method of production
(produce=make).
>
>Even if it is possible today to obtain a valid design patent on a font
>design which is upheld by the courts, sale of a font program does not
>infringe on that design by the legal meaning of the term. Remember,
>you are getting a patent on a font design, not a piece of font
>software!
Great, so anyone using the font software to output the design is infringing
patent.
Your interpretation of the law leaves much to be desired.
>The publisher of a competing font software program does not
>make the font design, nor do they use them, offer to sell them, sell
>or import them.
This is sheer stupidity. If you're not offerning for sale the design, why
would people buy it as opposed to any other "software".
"Oh, I need Gill Sans to set this copy in, no bollocks I'll buy Lotus Notes
instead, that'll do the same job".
What!?
[sniiiiiiiiiiiiiiiiiip (more nonsense)]
>
>The Infamous "Gap"!
>
>There is definitely a gap here between Copyright rulings and Patent
>Law. Copyright rulings specifically consider outline coordinates and
>algorithms for deriving a font as equal to a font design - and then
>say even those things are uncopyrightable.
This has already been discussed, no precedent exists for you to assert this
as fact.
>Patent Law does not even
>connect outlines or coordinates or algorithms or programs with the
>design at all! Both rulings are a blow to protectionists. In their
>perfect world, the two rulings would be reversed.
The former is about to be, the latter is just mischievious nonsense on your
part.
>Apparently some protectionists hope that by offering a comparison of
>the font program code (Copyright argument) in a Patent case and
>offering a comparison of the actual font designs (Patent argument) in
>a Copyright case, they can confuse and intertwine the two legal
>theories and convince a court that somebody, somewhere, must have done
>something illegal. But courts have not found that copying computer
>code constitutes patent infringement or that copying uncopyrightable
>typeface designs is somehow copyright infringement. This protectionist
>tactic is known as the "smoke and mirrors" approach to law.
Smoke and mirrors is your job, exactly what you're trying to pull here. The
current case you are involved in necessarily encompasses Patent and
Copyright, since your operations have breached both.
>
>QUESTION Why is the PTO soliciting type patents then?
They are?
>
>Great question!
More nonsense (so self-congratulatory).
>
>Part may have to do with the fact that Adobe’s old Outside Counsel is
>now head of the Patent Office. Everyone approaches their job with some
>kind of bias based on their past.
Everyone knows this don't they (not who Adobe may or may not have employed
as consultants, but...)?
People who are experts in their field tend to get consulted by people who
are in need of specialist advice, such people also tend to eventually be
involved closely in high profile decision and policy making.
Big deal, this person was obviously chosen to run the USPTO because he
evidently understood the subject matter.
Or maybe it's a big conspiracy, all the font manufacturers in the world
bribed the president so he would appoint their man, just so they could
successfully sue Paul King, yes that's it.
Keep taking the pills and seeing that shrink.
>
>Another factor is that the patent office is supposed to survive based
>on their application fees rather than appropriations from Congress.
>The more applications - the more money. It doesn’t matter if your
>patent gets overturned in court, they get the money based on
>applications. If you were a patent examiner in the font area, and you
>realized the money for your position was based on the amount of
>application fees in your area, you might be inclined to write an
>article or two yourself!
Yes, except for the fact that the applicant has to pay a fee if his patent
gets passed or not. This surmises that a gonvernment body is also involved
in large scale fraud.
I'd sue their pants off if I was you.
>
>So recently, there have been articles in magazines from PTO employees
>almost soliciting font patent applications.
Ex-PTO employees I think.
>An artist I talked to have
>said they were specifically asked by the PTO to submit their fonts for
>patent. Their impression was that the person currently in the job has
>no long term aspirations to continue. Policies change when people do!
>The person reviewing type design applications 5 years ago is not doing
>it now. There doesn’t seem to be a large continuity, institutional
>memory or even employee training in this area of the PTO.
Please cite a source for any of this conjecture.
>
>Patent examiners are not always lawyers, nor do they necessarily
>understand all patent law, or the enforcement costs to the designer to
>provide actual economic protection over the entire (short) life of the
>patent.
Please give a citation of source and figures for this assertion.
>or the enforcement costs to the designer to
>provide actual economic protection over the entire (short) life of the
>patent.
It is not their job to advise on the cost of enforcement.
>Statistics show that a very substantial portion of design
>patents are overturned the first time they hit a courtroom.
Again provide citations.
>Of course,
>by then the poor designer has spent a prince’s ransom in money and a
>good deal of their life, just to find out how cheap and easy the
>patent approval process is compared to an actual defense of their
>patent in court.
So again we have "don't protect your stuff, so then you can't sue me".
>QUESTION Why are other type protectionists promoting type patents?
>
>Another source of patent encouragement are the font protectionists
>serving as armchair patent lawyers.
Obviously Paul King is a qualified patent lawyer? Oh, what, no? He's a
whaaaaaat?
(in the employ of the Lord)
>They remind me about the story of
>two small boys who walked into the dentist's office. One of them said
>bravely, "I want a tooth taken out and I don't want any gas, and I
>don't want it deadened. . . because we're in a hurry!" The dentist
>said, "You're quite a brave young man. Which tooth is it?" The boy
>turned to his smaller friend and said, "Show him your tooth, Albert."
>The world is full of armchair advisors like that. We're anxious to
>have something happen -- to someone else!
Or we're anxious to stick out as much crap as possible to confuse the
opposition.
>
>Here are some questions to ask these "experienced men of the world."
>
>1) Have you ever spent your own money to patent a font?
I have no work in the public domain that requires such. If I did, then yes
I would.
>
>2) Have you ever successfully defended your font patent in court?
N/A
>
>3) Did you break even on the economic benefit from your patent?
N/A
Here's a question to ask the original poster:
Why did you post all this rubbish to a public newsgroup (because no
reliable news source is interested in your outpourings)?
-- Clive
pk...@flnet.com
On Sat, 19 Jul 1997 02:49:31 +0100, cl...@typonaut.demon.co.uk (Clive
Bruton) wrote:
<snip - scatological comments>
>This is your interpretation of a policy decision by the US Copyright
>Office, unfortunately, as you well know, the USCO doesn't make the law.
>There is nothing in US legislation or legal history that says theft of
>software code is legal, in fact the opposite is true.
Ya know, it's really enlightening that Adobe begged the Judge not to
have to compare line by line code variations.WE are the ones who want
them to compare our code to theirs. I think their position is, they
just want to compare outlines and points. Perhaps you should get your
facts straight about "theft of software code" before you run your
mouth!
>The truth of the matter is that the poster of this drivel is currently
>being sued by two type vendors for infringement of copyright. The poster's
>co-defendents have decided to settle out of court.
Kinda wrong. There were four defendants to the suit. One has dropped
out. Their insurance company paid less than one mont's legal fees to
not have to drag this thing on out. Everybody else is hanging in there
- in spite of the ruinous costs of proving our innocence in court.
Looks a little like you wouldn't know the truth if it hit you like a
truck. Let's see .. two paragraphs ... two sets of facts wrong. Looks
like a trend, Clive.
>The poster has openly admitted in this forum that his font library is in a
>large part derived from the software code of other foundries.
Wrong - O, Little One!
We extract outlines from code. We don't "derive" our font software
from other software code. We have been very clear about that. Three
paragraphs, three falsehoods.
>Everybody on this forum who has been here for any length of time knows that
>US copyright does not currently cover type design (although it has in the
>past, and will again in the future thanks to the efforts of Paul King),
It actually NEVER has, Clive. Four paragraphs ... four falshoods.
>>ANSWER Unfortunately, only a small percentage of design patents hold
>>up in court - the first place they are actually challenged. (unlike
>>utility patents)
>This is nonsense, ask yourself, what is the point of having a design
>patent?
Clive, I've got the actual stastistics on design patents that are held
up in court. Before you spout off about things you never check, why
don't you consider a little research?
>Answer, so that anyone with any sense is astute enough to realise that this
>item is protected in law, therefore I'd better not steal it. You don't need
>to go to court to proove the validity of you patent, the patent examiners
>already did that.
The examination process is not adversarial like the court system is.
You never have to stand up against competitors and defend your
statements until court. When you swear something is true, it is pretty
well taken at face value unless it is internally inconsistent with the
other evidence the examiner has at hand.
>Also, I'd really appreciate some facts and figures here, how many design
>patents have been over-ruled in the past 20 years, how many have been
>filed, how many have been challenged?
I believe the success rate is something like 68%. That would mean
about one third of the patents issued, the courts say should never
have been issued.
>And, out of those, how many patents for type design were over-ruled? (The
>answer is *none*.)
Wrong again! In my posts, I cite several. Remember Cooper v.
Comissioner of patents that overturned the patent on Cooper Black?
Remember my cites about the patents that Goudy lost out on in court?
Clive, Where do you get all of these falshoods? Don't you check
ANYTHING out? That's five!
>>one court case said,
>>It is the application of the design to an article which separates mere
>>pictures from a design protectible by a patent;
>
>This again is nonsense.
Look at the big man calling a court case that establishes precidence
for font patents, "nonsense." What color is the sky on the planet you
live on? These aren't my words, they are the ruling of the COURT.
That's six!
>If we were talking about "mere pictures" then quite obviously copyright law
>would protect the item, since it has no "utility" (a test of copyright).
>
>Therefore type is protected by design patent (since 1851) as its utility is
>recognised (by the US legislature).
No. It does not follow that a thing must be protected by either
Patent or Copyright. There is a "Gap" that many fonts fall into. A
thing does not have to be either red or yellow. Do you remember
selection "E" on tests - "None of the above"? That's seven!
>>Computer font designs (as opposed to lead matrix designs) are not an
>>"ornamental design for an article of manufacture." This makes them
>>non-statutory subject matter and ineligible for design patent
>>protection. 35 U.S.C. §171 provides that;
>It is the design that is protected, not its application (and I don't
>believe anyone ever made matrices from lead - unless you have a different
>understanding of the term).
It IS the design that is protected, but the "article of manufacture"
is a PTO requirement for the design to be protected. Why don't you
check with someone instead of making these falsehoods up? That's
eight!
>So you don't actually deny that protection is granted to type design, you
>just don't accept that a floppy disk is physical, perhaps because there is
>no physical impression of the type (perhaps on the disk at sub-atomic
>level?)
I just say that software is not protected - designs are. And the
design is visable nowhere on the diskette.
>A better answer is type on CD ROM, obviously, since this is a non-magnetic
>media, that requires measureable physical attributes to achieve a result.
Nope, you are confusing software with a design. It must be a visable
design, Clive.
>The artwork/working drawings of the design are submitted to the USPTO and
>passed by its patent examiners, no more is required.
A LOT more is required for a successful defense, Clive - or 1/3 of the
patents would not fail in court. I think you would have us believe
that the patent examiner is the final word - and that settles it.
That's just not so!
Please read all of the Patent Basics posting.
What about the obligation to submit Prior Art?
What about the fee?
What about the obligation to place the patent marking on the article?
>And this is given as the reason for its failure? Or that just so happend to
>be the case too? (please be specific when replying, giving the case details
>and the relevant judgement).
Ex Parte Tamaya, 24 U.S.P.Q.2d 1614, 1616-17 (Bd. Pat App & Int.,
1992) (refusing design patent protection for a computer icon where no
article of manufacture was disclosed)
Does the name Goudy ring a bell? He lost a patent on these same
grounds in Goudy v. Hansen 247 F. 782 (1917), cert denied, 246 U.S.
667 (1918) There, just as here, the patent claimed, "the ornamental
design for a font of type." The court determined that the patent was
invalid both because it was non-statutory subject matter (no article
of manufacture) and because it did not posess "sufficient novelty or
beauty to constitute a design patent." Id. at 783, 785.
Ex parte Donaldson, 26 U.S.P.Q.2d 1250, 1257 (Bd. Pat. App & Int.,
1992)
Ex parte Strijland, 26 U.S.P.Q.2d 1259 (Bd. Pat. App. & Int., 1992)
Ex parte Donoghue, 26 U.S.P.Q.2d 1266 (Bd. Pat. App. & Int., 1992)
Ex parte Donoghue, 26 U.S.P.Q.2d 1270 (Bd. Pat. App. & Int., 1992) 37
C.F.R. Sec. 1.152 (requiring the article of manufacture TO BE SHOWN ON
THE DRAWINGS)
There, Clive. Read em and weep!
>This article had nothing to do with design patent (yes, I read it too, the
>Net's a wonderful thing, no?). The main thrust of it was that an amatuer in
>any field is unlikely to every <sic>secure a valid patent.
It had to do with Prior Art, and patent enforcement costs which are
the same for bothe kinds of patents.
Yup, the net is somethin' kinda special. That's the first thing in
this post that you've said that I agreed with. I just couldn't let it
pass without a positive comment.
>Since we are not talking about amatuers here (the original poster faces
>court actions brought by Adobe and Emigre), we can discount this article
>altogether. It also specificly pertains to utility patents.
Yeah, let's throw presumed innocence out the window. Anybody can be
sued by anybody else for anything. And as soon as they are .... they
should immediately be presumed to be a liar, an idiot, and their
research is all invalidated. Have I got it all, Clive?
You, on the other hand can post without any more than the barest of
research, ignore all the court cases and facts. Tell the other guy to
get off the newsgroup - but you are on the side of the angels?
NOT!
>You'll note that Mr Lancaster is not credited with being a design "guru",
>lawyer or patent examiner.
He probably has 2500 published magazine articles and close to 30
books. What's YOU'RE definition of guru?
>I think it could well be debated that such a font could differ
>substantially from one person's interpretation to the next, and that if
>Cooper's patent had excluded the characters in the word "Asbestone" his
>patent may well have been upheld.
No, Clive. Again you have it exactly backwards. The judge said the
features in the word "Asbestone" were sufficient to invalidate all the
other letters, because the design of those few would suggest the
design of ALL THE OTHERS to any craftsman of reasonable skill.
>The point clearly being made here is not that the idea of type design
>patent is invalid, but that it was invalid in this case (because the
>designer had not sought protection for his previous work ("Asbestone").
The concept of Pior Art has a bearing then, you agree? And for Adobe
or anybody else to not produce it leaves them open to it's production
in court (as with Cooper) and the invalidation of their patents.
Would you agree that the 1542 Garamond in Belgum might suggest the
design of Adobe Garamond to another designer of some skill?
>>Every patentee has a duty to disclose to the patent examiner any
>>information "known to that individual to be material to
>>patentability." Each patent application has a form where the applicant
>>swears to this fact. If a patentee willfully fails to disclose, the
>>patent will not issue.
>This seems perfectly reasonable, and thus many design patents for type are
>issued.
OK, reasonable then. If Adobe wilfully failed to disclose Prior Art,
do you agree that their patent should be overturned?
>>A single design patent is granted for an entire font on the theory
>>that there is but one inventive idea running through the entire font.
>>If, however, we take the position that one letter would not suggest
>>the appearance of the other letter, then there should be a design
>>patent for each letter, as the law contemplates that only one design
>>may be covered by one patent.
>>
>>It seems from this statement that only a small feature running through
>>each character submitted in the patent application - like a new type
>>of serif - is all that is contemplated for a font design patent.
>
>Application for design patent for a typeface may take the form of a single
>character, a range of characters, a complete single font or a whole family.
>Indeed anything in between.
Yes, as long as there is but one common design theme.
>As it would be difficult to show theft of an individual character the
>sensible method is to judge infringement across a whole range of
>characters, thus type patents are submitted in this manner.
Well, it might be difficult to show infringement of just one
character, but that has nothing to do with the submission of a whole
range of characters. It has to do with protecting the range of
characters.
>>Must be ornamental.
>>
>>The judge in Robertson, Commissioner of Patents, v. Cooper said,
>>
>>There is grave doubt whether Cooper's design, upon which he makes the
>>application, (Cooper Black - ed.) is ornamental so as to bring it
>>within the statute which says that in order to be patentable, it must
>>not only be useful, but also ornamental.
>
>Many people dislike Cooper Black.
So? It is not "ornamental" if many people dislike it? If Cooper Black
is not sufficiently ornamental for the state of type in 1931, then you
conceed that all "new" type is not a fit subject for patent?
>>Given the great similarity of fonts, the hurdle of prior art is raised
>>even higher because it has long been settled that the true test of
>>identity of a design is the effect of the comparison between the
>>designs upon an ordinary observer and not upon the one skilled in that
>>particular art.
>
>Thus all expert testimony is thrown out?
On this issue, *YES*! You see this incredible hurdle that new designs
must face. They must essentially be revolutionary, not evolutionary -
as most type is. There must be clearly discernable differences to the
masses. There are other patent hurdles which involve the judgement of
"skilled practicioners in the art" but not this one!
>Surely the test is that the difference can be discerned by a user of such a
>product?
No!
>And if this test was not easy to acomplish there would certainly be no
>point in the poster's CD library containing over 3,000 different fonts. If
>there were no discernable difference then surely 20 or so would do the job?
Maybe.
IF that were the test.
But it's not.
So, you're speculation is moot.
>>As stated in one of the earliest typeface design patent cases, the
>>test for novelty "is a question to be determined from the impression
>>it makes on the mind, through the eye of the court, or of the ordinary
>>observer . . . and not the eye of some skilled engraver of type." The
>>court then found that the type font at issue did not possess
>>"sufficient novelty or beauty to constitute a design patent". Thus,
>>the Court can easily resolve the patentability issue based on a
>>comparison of the patented fonts with the prior art. And in order for
>>a patent holder to succeed in court, it must do more than point out
>>minute differences in letter forms that would be apparent only to one
>>skilled in the art.
>
>This seems to imply that patent examiners are stupid, in that they
>apparently allowed so many invalid patents to be issued.
Well, it's a quote from a court case so you would be saying that a
judge is implying that patent examiners are stupid. I don't think that
is what it is saying.
It says that when a judge who is hearing from two sides in a dispute
(having inherently more balance than the patent examiner, who must
trust just one interested party and his own limited resources) makes a
decision, he has more facts and a clearer picture. It is part of the
process of checks and balances - executive v. judicial. All executive
actions, when brought in a suit, are subject to judicial review.
>>The test for originality is "non-obviousness" - such that a skilled
>>practitioner in the art would not have thought of it. The differences
>>between your design and all prior art must not have been obvious to
>>any designer of ordinary skill at the time you created your design.
>>This standard for originality is high, maybe too high for any fonts.
>
>If this were true then we'd all be type designers, yet we'd only have a few
>designs to choose from, evidently false.
Wow, Clive! This is really out in left field. The only thing that
would then be true is that we would only have a few fonts which were
patented and then held up in court. A true statement.
Fonts don't need protection to survive economically - even though you
take that as axiomatic.
Fonts don't need protection to continue to be created - even though
you take that as axiomatic.
Fonts don't need creativity to be economically successful - even
though you take that as axiomatic.
>>Auto fenders and bumpers, for example, may be different for each model
>>of car, but courts have generally ruled that the underlying ideas of
>>their design are inherently obvious in earlier products. I would say,
>>changes in car bumpers are generally bigger than the changes in fonts!
>
>Obviously you know less about cars than you do about fonts, bumpers and
>fenders are integral pieces of design, not bolted on after-thoughts.
Nope, courts have ruled on bumper design patents. My point stands.
That's nine! You need to do a lot more research and shoot from the hip
a lot less. You'll not shoot yourself in the foot as often.
>>This rules out revivals, morphing, all bold or thin versions of fonts,
>
>No, revivals have passed the test of patentability, strict redrawing does
>not obviously, but that doesn't constitute a revival. Morphed/other wieghts
>are clearly covered by the patent of the original.
Really? How about a couple of court cases. Complete with cites. Give
me just one!
And they are NOT clearly covered under the patent of the original.
Where do you get this stuff? That's ten!
>>and copying designs from other people's copy books (which many people
>>think has been done by "top of the line" foundries under the name of
>>"originality") as ever subject matter for a patent.
>Please explain the last remark, you seem to imply that some foundries have
>copied others work, then applied for patent on it, please cite examples.
Yes, some top of the line foundries have copied others' work! Do you
disagree with this? I never said they applied for a patent. I said
that fonts done in this manner were not a fit subject for a patent.
>>It also rules out
>>combinations of features others have used on several fonts, merely as
>>a new arrangement in a single font. Foundries who apply for design
>>patents like this are whistling past the graveyard!
>
>I'd agree, there is no originality in copying parts of characters from
>different designs and combining them into another, whether this is done by
>digital or analogue means.
So then you agree that any features that Slimbach added to the 1542
Garamond which were "parts of characters from different designs" which
were "combin(ed) ... into another" ie. Adobe Garamond should not be
considered as original by the PTO or the industry as a whole?
>If your suggesting that this has been done in type issued with patents
>please cite examples. Otherwise I cannot see the point of your reference
>since the purpose of your post seems to be to debunk patent.
I cited one in each of seven Myths and I named the fonts that could
be Prior Art for each part of a character. THIS IS PRECISELY MY POINT!
>>Frederic W. Goudy, considered by many to be one of the greatest type
>>designers of the 20th century with 123 typeface designs to his credit,
>>approached the question of whether or not it was possible for an
>>artist to design an original face of type in his book. Tyoplogia -
>>Studies in Type Design & Type Making
>>What, then, is original type design? Is it possible for an artist to
>>design an original face of type? Probably not in the strictest sense
>>of the words, since, after all, what we call an "original type face"
>>is undoubtedly little more than a subtle variation of an orthodox or
>>traditional letter form, a form to which we attempt to impart a charm
>>of character or a quality of personality - our efforts sometimes
>>achieving a measure of unconscious originality.
>Please read this carefully, the above does not prove your point in the
>slightest, the last line wholly disproves your point:
Nope! The only originality he could see came only occasionally - and
that from the unconcious. His point is the same as mine - most type
faces are not original. Our overt attempts to produce originality are
mostly "originality failures". (I would add in response to your post,
"Yet they are still made and marketed.")
>>The unpatentability (and unoriginality) of most fonts is illustrated
>>by a story that I understand Mac Brumwell tells about watching Ed
>>Benguiat make the font Benguiat by taking enlargements of the font
>>Korinna and pasting down a different serif design on each letter.
>
>Is this documented? You know the term "hearsay" I'm sure.
It comes from a believable and respected source who got it from Mac.
>>Non-original to be sure, and easily done by any first year art
>>student.
>Even easier to spot by any patent examiner.
Maybe yes. Maybe no. Are you saying that a patent examiner has never
been fooled? Courts say they are fooled almost 1/3 of the time. Do you
disagree with the courts? What is your basis for your disagreement?
>And who's to say that a first
>year student isn't capable of original art, I would hope that was how they
>got into college in the first place.
No, my point was that it would not pass the test of "non-obviousness"
even to one not-yet-skilled in the art. Yet the font was a commercial
success. Benguiat had the respect of his peers. Even though he
produced fonts which were not always original.
>>Definite prior art from other designs. It would be an obvious
>>design EVEN IF the story didn't have Ed first seeing the idea of
>>"Korinna with a different serif" sketched out in another famous
>>designer's work and was just trying to beat him to market.
>Please cite your example.
What do you mean "cite"? I just gave it?
>>One story has him merely stat-ing his "new design" out of a
>>book or pulling proof sheets and cleaning them up. To make the
>>different weights, he supposedly just double exposed each letter on
>>stat paper, moving it slightly. You can see a double crest on the top
>>of the lower case "e" in some of the bolder weights, where it wasn't
>>even cleaned up! Since they didn't have Postscript back then - or
>>computers, would you agree that this might be the closest analogy for
>>digital extraction today?
>I think not.
Then name a closer analogy, please. Be constructive here. Just saying,
"I think not." adds nothing to the discussion.
>Please also show that ...any of the typefaces involved were subject to patents.
I don't have to. I am showing that, on the face of it, there are
respected men and commercially successful fonts that never rise to the
patentable level of originality.
>>The First Circuit invalidated just such a patent in Goudy v. Hansen,.
>>The court determined that the patent was invalid, among other reasons
>>because it did not possess "sufficient novelty or beauty to constitute
>>a design patent." Notice, Goudy didn’t find this out until he spent
>>the application fee and then spent more money in court! It should be
>>clear from this that not all fonts which are designed in good faith
>>with no attempt at plagiarism will be able to rise to the level of
>>patentability.
>I believe you were trying to paint a picture of Goudy as a plagiarist in
>your argument above, you appear now to claim the opposite.
No, I am trying to say he was not always original. If Goudy was a
plagiarist, then we are all, every one, in trouble. The point is,
there is so much un-originality in all of us, even at our best. It
does not mean we are bad people. We can't all win the Congressional
Medal of Honor. We can't all get a design patent to stand up in court.
It is not time to cheapen the patent process and declare every
craftsman, "capable of completely original work", just because a few
people feel the need to have more font protection.
Don't you just hate it when you see people with no obvious ailment
park in a handicapped parking place and they HAVE the sticker. You
used to need a wheelchair like the symbol shows. Now sometimes, I
don't think you even have to have a bunion! Let's not let that happen
to design patents.
Repeat after me, "All fonts are not deserving of patents."
>It is obvious that not all designs will qualify for patent, even if the
>designer has not plagiarised anothers work. This is because of the basic
>difference between patent and copyright;
> Copyright allows for two people to have exactly the same idea,
> divided by geography or time, ideas can be the same and
> qualify for copyright. What has to be shown is that neither
> author copied the other.
>
> Patent on the other hand insists that only one person can hold
> the rights to an idea, the first one to get to the patent
> office.
Great Clive! That's the second thing you've said in this post that I
agree with.
Do you also agree that the fundamental design of Garamond was gone
after 1542 as a patentable idea? That there would have to be some very
specific, never-seen-before, non-Garamond features in the font to make
it patentable?
>Please do not keep referencing patent to copyright, these are two very
>different and distinct areas of legislation. Your points have already been
>stated and answered.
Stated, never answered.
>>One foundry president has said,
>Who shall remain nameless (Paul King perhaps?).
No!
>>There are few truly original typeface designs. Most designs considered
>>"new" by the type design community are merely adaptations, derivative
>>works or outright copies of earlier works. One of the most famous and
>>widely used typefaces of the Twentieth Century is Helvetica. Although
>>it brought a breath of fresh air into the post- W.W.II design
>>community of the 1950's, it was nothing more than an adaptation of the
>>existing Haas Grotesk typeface, which in turn owed its origins to
>>nineteenth-century German Grotesque (loosely, sans serif) typefaces
>>such as Berthold's Akzindenz Grotesk.
>A weird thing, did you know Haas actually own the rights to Helvetica (now
>a part of Linotype), so what you are accusing them of doing is plagiarising
>their own typeface!?
I am remarking that the "original" was not as successful as the
adaptation. Patents are not required to make a font successful. A
foundery can have good, commercial reasons for making a face that will
never be original or patentable. The driving forces in the industry
have never been based around originality. If patents were never
available to our industry, it would not fail. The sky is not falling.
>>Copying of typeface designs is and has been common for centuries. It
>>was, in fact, a business war between the manufacturers of older hot
>>metal typecasting and phototypesetting equipment that gave rise to the
>>aggressive marketing of typeface design trademarks through the
>>creation of the International Typeface Corporation, a business partner
>>of Adobe Systems, Inc.
>
>Yes, pirates like you have been around for centuries, and what does that
>have to do with either ITC or Adobe?
I'm not a pirate, Bubba!
Are you saying that you DON'T think that there is any copying of
design elements in Adobe Garamond or any other ITC or Adobe fonts?
>Yes, "plagiarists", "font thieves" and "pirates" are what I'd call people
>that steal design, I think I can be considered to be "within" the type
>design community. Rather than an outsider attempting to make a quick buck
>because of his misinterpretaion of US law.
So, answer the other 7 posts and tell me, Clive, what you call that?
Paul
Paul King - President, Southern Software, Inc. (pk...@flnet.com)
www.ssifonts.com is the best Internet source for all your font
requirements, Mac or PC! We have the only free searchable font
pk...@flnet.com
>Paul King is saying "Don't protect your work, 'cos then you can't sue me,
>and that won't have cost you anything!"
No, I'm not! I'm saying, a wise person counts the entire cost. I
honestly don't believe there are many founderies who have the
financial resources to carry through with everything that is required.
I'm just saying, don't make an eight foot leap across a ten foot
ditch!
>>Must carry the Patent Marking required.
>
>This pertains to utility patent.
Yes it does, and also design patents. Do your homework, Clive!
>>Must have patent drawings which clearly show the originality.
>These are submitted with the patent application, how could you apply for a
>patent without some evidence that the design exists ("I designed this font,
>it's kinda wibbly. a little wobbly, it has some curves, some straigh
>bits...").
You might be surprised ....
>>If you go to court to enforce the design patent against an infringer,
>>the court will be required to compare the accused product with the
>>drawings in your design patent. Infringement will be found only if the
>>defendant's product is substantially the same in overall appearance to
>>the patent drawings. Even if a font copies the "essence" of another's
>>design, minor changes or variations in the defendants design may make
>>the design sufficiently different from the patent drawings even if you
>>have jumped the other hurdles of prior art and non-obviousness.
>This is nonsense, design obviously derived from a protected design is an
>infringement, please cite a case where this isn't true.
This is NOT nonsense. It is the essence of an article from a design
patent lawyer in a publication relating to design patents. Clive,
please don't go on and on about things you know absolutely know
nothing about ...
>>QUESTION Does a Design Patent protect a font design against font
>>software which draws the design (because it contains a list of
>>coordinates, but does not actually contain the design in the form
>>shown on the patent application)?
>>
>>Section 271(a) of the Patent Act does not define an infringer as "one
>>who makes a copy without authority". Instead, an infringer is defined
>>as
>>
>>"whoever without authority makes, uses, offers to sell, or sells . . .
>>or imports . . . any patented invention. "
>Point one: we're talking about design patents here, not utility patents.
Right! It applies.
>Point two: copying a design into software is a method of production
>(produce=make).
NO! The design must exist as the design. You are not patenting the
tool which MAKES the design. If it doesn't have the design on it, it's
not patented by a design patent. You are not "copying a design into
software". You are making software which contains outline points to
make a design. Those digital outlines are NOT the design according to
the patent office. They certainly weren't shown on the application.
They are also excluded by the CO as an unprotectable element from the
software. Two blows.
>>Even if it is possible today to obtain a valid design patent on a font
>>design which is upheld by the courts, sale of a font program does not
>>infringe on that design by the legal meaning of the term. Remember,
>>you are getting a patent on a font design, not a piece of font
>>software!
>Great, so anyone using the font software to output the design is infringing
>patent.
If someone had a valid design patent, I believe the only infringer
would be the person outputting it to laser. Neither the maker nor the
seller of the software fit the legal definition of infringer. See how
little protection even a VALID patent gives the holder?
>Your interpretation of the law leaves much to be desired.
Cry all you want. It's the law!
>>The publisher of a competing font software program does not
>>make the font design, nor do they use them, offer to sell them, sell
>>or import them.
>This is sheer stupidity. If you're not offerning for sale the design, why
>would people buy it as opposed to any other "software".
Come on! You heard all the guys from demon.uk beating up on me about
"font software as program". This is THEIR argument. It is either the
"design" or not. For PTO purposes, the font software has no analog
design to be protected. Remember, the analog is all that is shown on
the patent. For CO purposes the design and digital outline together
with any algorithms are unprotectable. For you, the worst of both
worlds!
>>The Infamous "Gap"!
>>There is definitely a gap here between Copyright rulings and Patent
>>Law. Copyright rulings specifically consider outline coordinates and
>>algorithms for deriving a font as equal to a font design - and then
>>say even those things are uncopyrightable.
>This has already been discussed, no precedent exists for you to assert this
>as fact.
Yes, the precedent is called the 1988 and 1992 rulings by the CO. They
have the force of law unless overturned by a court of competent
jurisdiction. They say this in plain English.
>>Patent Law does not even
>>connect outlines or coordinates or algorithms or programs with the
>>design at all! Both rulings are a blow to protectionists. In their
>>perfect world, the two rulings would be reversed.
>The former is about to be, the latter is just mischievious nonsense on your
>part.
And how is that going to change? A change in patent law takes a change
in patent law. There is not even any introduced or up for debate! I'm
not sure you know what you are talking about. When I wrote these
articles, I expected to hear some opposition. I was rather hoping it
would be researched and well-thought-through. Answering your pitiful
arguments is more on the line of taking candy away from a baby!
>>Apparently some protectionists hope that by offering a comparison of
>>the font program code (Copyright argument) in a Patent case and
>>offering a comparison of the actual font designs (Patent argument) in
>>a Copyright case, they can confuse and intertwine the two legal
>>theories and convince a court that somebody, somewhere, must have done
>>something illegal. But courts have not found that copying computer
>>code constitutes patent infringement or that copying uncopyrightable
>>typeface designs is somehow copyright infringement. This protectionist
>>tactic is known as the "smoke and mirrors" approach to law.
>
>Smoke and mirrors is your job, exactly what you're trying to pull here. The
>current case you are involved in necessarily encompasses Patent and
>Copyright, since your operations have breached both.
They haven't breached either. Nevertheless Adobe's patent and
copyright arguments must each stand on their own feet with rules
different for each. That is my point here. Just to assert both does
not mean that you can blur the requirements between the two and take
what arguments you want. Patent is patent and copyright is copyright.
>>QUESTION Why is the PTO soliciting type patents then?
>They are?
Yup!
>>Part may have to do with the fact that Adobe’s old Outside Counsel is
>>now head of the Patent Office. Everyone approaches their job with some
>>kind of bias based on their past.
>
>Everyone knows this don't they (not who Adobe may or may not have employed
>as consultants, but...)?
Outside Counsel are hardly just "consultants" as you so breezily put
it.
>>Another factor is that the patent office is supposed to survive based
>>on their application fees rather than appropriations from Congress.
>>The more applications - the more money. It doesn’t matter if your
>>patent gets overturned in court, they get the money based on
>>applications. If you were a patent examiner in the font area, and you
>>realized the money for your position was based on the amount of
>>application fees in your area, you might be inclined to write an
>>article or two yourself!
>Yes, except for the fact that the applicant has to pay a fee if his patent
>gets passed or not. This surmises that a gonvernment body is also involved
>in large scale fraud.
No. They offer no fraudulent guarantees. Nobody said that they did.
Their job is not to do your legal or financial homework for you. The
government does not owe you a living.
>>So recently, there have been articles in magazines from PTO employees
>>almost soliciting font patent applications.
>Ex-PTO employees I think.
I don't believe he was at the time. If he has now left, that
reinforces my next point...
>>An artist I talked to have
>>said they were specifically asked by the PTO to submit their fonts for
>>patent. Their impression was that the person currently in the job has
>>no long term aspirations to continue. Policies change when people do!
>>The person reviewing type design applications 5 years ago is not doing
>>it now. There doesn’t seem to be a large continuity, institutional
>>memory or even employee training in this area of the PTO.
>>Patent examiners are not always lawyers, nor do they necessarily
>>understand all patent law, or the enforcement costs to the designer to
>>provide actual economic protection over the entire (short) life of the
>>patent.
>Please give a citation of source and figures for this assertion.
Do you think anyone believes that patent examiners have any reason to
understand enforcement costs? I'd say it was self evident.
The fact that they don't understand all patent law may be supported by
the 1/3 of their approvals that the courts overturn.
>>or the enforcement costs to the designer to
>>provide actual economic protection over the entire (short) life of the
>>patent.
>It is not their job to advise on the cost of enforcement.
You are right. It behooves somebody to think of it at some point.
>>Statistics show that a very substantial portion of design
>>patents are overturned the first time they hit a courtroom.
>Again provide citations.
I have
>>Of course,
>>by then the poor designer has spent a prince’s ransom in money and a
>>good deal of their life, just to find out how cheap and easy the
>>patent approval process is compared to an actual defense of their
>>patent in court.
>So again we have "don't protect your stuff, so then you can't sue me".
No. Just "look before you leap".
Paul King - President, Southern Software, Inc. (pk...@flnet.com)
www.ssifonts.com is the best Internet source for all your font
requirements, Mac or PC! We have the only free searchable font
Clive Bruton
In article <33d11489...@news.packet.net>,
pk...@flnet.com wrote:
In article <33d11489...@news.packet.net>,
pk...@flnet.com wrote:
>Ya know, it's really enlightening that Adobe begged the Judge not to
>have to compare line by line code variations.WE are the ones who want
>them to compare our code to theirs. I think their position is, they
>just want to compare outlines and points. Perhaps you should get your
>facts straight about "theft of software code" before you run your
>mouth!
This is merely your interpretation. Clearly if your outlines are identical
then they are derived from the same code. Your argument is whether this
code represents software or not, US legislation clearly defines that it is,
as does the CO policy decision of 1992.
The fact that you failed to even remove other people's copyright notices
shows the level of your input and derivation.
>Kinda wrong. There were four defendants to the suit. One has dropped
>out. Their insurance company paid less than one mont's legal fees to
>not have to drag this thing on out. Everybody else is hanging in there
>- in spite of the ruinous costs of proving our innocence in court.
Excuse me, my reading of it is that there were three defendants, one of
those has settled out of court, you will please name the four defendants?
I don't see how you could know/be able to quote the settlement Adobe
reached, since the amount was not disclosed and both parties are barred
from doing so.
>
>Looks a little like you wouldn't know the truth if it hit you like a
>truck. Let's see .. two paragraphs ... two sets of facts wrong. Looks
>like a trend, Clive.
You have a strange set of rules, and a major problem with numbers.
>
>
>>The poster has openly admitted in this forum that his font library is in a
>>large part derived from the software code of other foundries.
>
>Wrong - O, Little One!
Guess what, I'm not that little, and I don't need your patronising
attitude.
>
>We extract outlines from code. We don't "derive" our font software
>from other software code. We have been very clear about that. Three
>paragraphs, three falsehoods.
More nonsense.
>>Everybody on this forum who has been here for any length of time knows that
>>US copyright does not currently cover type design (although it has in the
>>past, and will again in the future thanks to the efforts of Paul King),
>
>It actually NEVER has, Clive. Four paragraphs ... four falshoods.
Go do some research, you're wrong.
>Clive, I've got the actual stastistics on design patents that are held
>up in court. Before you spout off about things you never check, why
>don't you consider a little research?
I've asked you in this thread and previously to publish such information if
you have it, you have declined to do so.
>
>>Answer, so that anyone with any sense is astute enough to realise that this
>>item is protected in law, therefore I'd better not steal it. You don't need
>>to go to court to proove the validity of you patent, the patent examiners
>>already did that.
>
>The examination process is not adversarial like the court system is.
Your other "Myth" posts appear to state otherwise.
>You never have to stand up against competitors and defend your
>statements until court. When you swear something is true, it is pretty
>well taken at face value unless it is internally inconsistent with the
>other evidence the examiner has at hand.
This surmises that there is no point in patent examination, since the
examiners have no valid opinion or knowledge.
>
>>Also, I'd really appreciate some facts and figures here, how many design
>>patents have been over-ruled in the past 20 years, how many have been
>>filed, how many have been challenged?
>
>I believe the success rate is something like 68%. That would mean
>about one third of the patents issued, the courts say should never
>have been issued.
So in fact the majority of the patents challenged actually passed the test,
and those are the ones challenged in court, what of all the others that
went unchallenged, therefore by default proving their validity?
>
>>And, out of those, how many patents for type design were over-ruled? (The
>>answer is *none*.)
>
>Wrong again! In my posts, I cite several. Remember Cooper v.
>Comissioner of patents that overturned the patent on Cooper Black?
>Remember my cites about the patents that Goudy lost out on in court?
>Clive, Where do you get all of these falshoods? Don't you check
>ANYTHING out? That's five!
Hey guess what, learn to read and comprehend what you have read before you
answer, this is actually what I wrote:
>Also, I'd really appreciate some facts and figures here, how many design
>patents have been over-ruled in the past 20 years, how many have been
>filed, how many have been challenged?
>And, out of those, how many patents for type design were over-ruled? (The
>answer is *none*.)
So, to simplify that for you:
How many design patents for type that have been granted in the past
20 years have been overturned?
>
>>>one court case said,
>>>It is the application of the design to an article which separates mere
>>>pictures from a design protectible by a patent;
>>
>>This again is nonsense.
>
>Look at the big man calling a court case that establishes precidence
>for font patents, "nonsense." What color is the sky on the planet you
>live on? These aren't my words, they are the ruling of the COURT.
>That's six!
First I'm "little one" now I'm "big man", some confusion or your part?
Clearly if this ruling established *relevent* precedence then the USPTO
would no longer be able to pass type designs for design patent.
>
>>If we were talking about "mere pictures" then quite obviously copyright law
>>would protect the item, since it has no "utility" (a test of copyright).
>>
>>Therefore type is protected by design patent (since 1851) as its utility is
>>recognised (by the US legislature).
>
>No. It does not follow that a thing must be protected by either
>Patent or Copyright. There is a "Gap" that many fonts fall into. A
>thing does not have to be either red or yellow. Do you remember
>selection "E" on tests - "None of the above"? That's seven!
You're not getting it are you? If type design didn't fall into the domain
of design patent then the USPTO would refuse to issue patents on type
design, that is a simple fact.
>
>>>Computer font designs (as opposed to lead matrix designs) are not an
>>>"ornamental design for an article of manufacture." This makes them
>>>non-statutory subject matter and ineligible for design patent
>>>protection. 35 U.S.C. §171 provides that;
>
>>It is the design that is protected, not its application (and I don't
>>believe anyone ever made matrices from lead - unless you have a different
>>understanding of the term).
>
>It IS the design that is protected, but the "article of manufacture"
>is a PTO requirement for the design to be protected. Why don't you
>check with someone instead of making these falsehoods up? That's
>eight!
I have spoken with the examiner of patents on this matter. Seems like eight
points we've had, 7:1 to me (one point on a technical fault:-)).
>>So you don't actually deny that protection is granted to type design, you
>>just don't accept that a floppy disk is physical, perhaps because there is
>>no physical impression of the type (perhaps on the disk at sub-atomic
>>level?)
>
>I just say that software is not protected - designs are. And the
>design is visable nowhere on the diskette.
But software is protected via copyright, patent isn't an issue. You now
seem to condede that outlines (design) is software?
>
>>A better answer is type on CD ROM, obviously, since this is a non-magnetic
>>media, that requires measureable physical attributes to achieve a result.
>
>Nope, you are confusing software with a design. It must be a visable
>design, Clive.
The code of the font is visable on the surface of the CD. Though I think
this is pointless argument, since I don't accept you premise in the first
place.
>>The artwork/working drawings of the design are submitted to the USPTO and
>>passed by its patent examiners, no more is required.
>
>A LOT more is required for a successful defense, Clive - or 1/3 of the
>patents would not fail in court. I think you would have us believe
>that the patent examiner is the final word - and that settles it.
>That's just not so!
I never said that was the end of it, I accept that there is such a thing as
invalid patent, I accept that there is such a thing as invalid copyright
even. But your figures testify to the fact that in 7 out of 10 cases *that
were challenged* the patent examiners got it right. That is disregarding
the many others that never went to court since they were never challenged.
>
> Please read all of the Patent Basics posting.
>
>What about the obligation to submit Prior Art?
What about it?
>
>What about the fee?
So you have to pay a fee to the government in order to register a patent,
you have to pay a fee to the government to get the licence plates for you
car, so what?
>
>What about the obligation to place the patent marking on the article?
Well I guess that doesn't matter in this case, otherwise all those fonts
out there would have the patent number on them.
>Does the name Goudy ring a bell? He lost a patent on these same
>grounds in Goudy v. Hansen 247 F. 782 (1917), cert denied, 246 U.S.
>667 (1918) There, just as here, the patent claimed, "the ornamental
>design for a font of type." The court determined that the patent was
>invalid both because it was non-statutory subject matter (no article
>of manufacture) and because it did not posess "sufficient novelty or
>beauty to constitute a design patent." Id. at 783, 785.
[snip]
Again I must state the obvious, if this were the case the USPTO could no
longer pass patent applications for type.
>There, Clive. Read em and weep!
What, tears of joy?
>It had to do with Prior Art, and patent enforcement costs which are
>the same for bothe kinds of patents.
It had to do with prior art only in the sense that an amatuer was unlikely
to have a clue about the history of any particular industry. Hence they
would have no idea about what was a current or past trend, or what ideas
are taught as being classic intellectual faux pas.
Anyone involved in an industry should recognise the bounds and restrictions
of that industry and use the legal protection provided appropriately.
And yes of course I acknowledge that enforcement cost can be prohibitive,
unfortunately that's the nature of the legal system. However one aspect of
patent is that it in many cases prevents litigation, since it is prima
facie evidence of a recognised claim to the intellectual property
concerned.
>
>Yup, the net is somethin' kinda special. That's the first thing in
>this post that you've said that I agreed with. I just couldn't let it
>pass without a positive comment.
Well you'll note that I agree with several of your points, so at least we
share some common ground in our paradigms.
>
>>Since we are not talking about amatuers here (the original poster faces
>>court actions brought by Adobe and Emigre), we can discount this article
>>altogether. It also specificly pertains to utility patents.
>
>Yeah, let's throw presumed innocence out the window. Anybody can be
>sued by anybody else for anything. And as soon as they are .... they
>should immediately be presumed to be a liar, an idiot, and their
>research is all invalidated. Have I got it all, Clive?
I never said or indicated that this had any bearing on my presumption of
your guilt. This is based entirely on your own testimony here, and relevent
US legislation.
>
>You, on the other hand can post without any more than the barest of
>research, ignore all the court cases and facts. Tell the other guy to
>get off the newsgroup - but you are on the side of the angels?
I rather thought the angels were your department.
Our mutual problem is one of interpretation, something we will soon find a
cure for.
>>You'll note that Mr Lancaster is not credited with being a design "guru",
>>lawyer or patent examiner.
>
>He probably has 2500 published magazine articles and close to 30
>books. What's YOU'RE definition of guru?
Some guy living up a pole in India.
I don't really care what this gentleman has written about utility patent or
electronics, my point was that he isn't credited with knowing anything
about design, he isn't a lawyer, and he isn't (never has been?) a patent
examiner.
I think this a vaild point to make, I don't go to an accountant, no matter
how well read and widely acclaimed he is, and ask him to fix my car.
>>I think it could well be debated that such a font could differ
>>substantially from one person's interpretation to the next, and that if
>>Cooper's patent had excluded the characters in the word "Asbestone" his
>>patent may well have been upheld.
>
>No, Clive. Again you have it exactly backwards. The judge said the
>features in the word "Asbestone" were sufficient to invalidate all the
>other letters, because the design of those few would suggest the
>design of ALL THE OTHERS to any craftsman of reasonable skill.
Please read what I wrote, it is my opinion that several distinct typefaces
could be derived from a common subset. It matters not what a judge said in
a particular case. In fact the advice from the USPTO is that certain
characters may be removed from the application if they could be confused
with those from another font (possible in the case of a sans serif "I" or
"l").
>
>>The point clearly being made here is not that the idea of type design
>>patent is invalid, but that it was invalid in this case (because the
>>designer had not sought protection for his previous work ("Asbestone").
>
>The concept of Pior Art has a bearing then, you agree? And for Adobe
>or anybody else to not produce it leaves them open to it's production
>in court (as with Cooper) and the invalidation of their patents.
I have never discounted that prior art has a bearing, of course it does,
otherwise anyone could exactly copy another face and apply for a patent,
clearly the process is designed to avoid such.
I would always, and have always campaigned for clear law that protects
designers from plagiarists, whether those plagiarist come from within the
industry or outside it.
(continued)
-- Clive
Clive Bruton
>Would you agree that the 1542 Garamond in Belgum might suggest the
>design of Adobe Garamond to another designer of some skill?
As I and others have clearly said there are several distinct typefaces
influenced by Garamond (style) work, I have no doubt that Adobe Garamond is
such a face, and is discernably different to any historical models.
It has a patent, it has been examined to be thus.
>OK, reasonable then. If Adobe wilfully failed to disclose Prior Art,
>do you agree that their patent should be overturned?
If the prior art is relevant, if it shows that the forms of Adobe's
Garamond is exactly derived from an earlier model then yes, of course.
Though I doubt this is the case since this Garamond is distinct from others
available in the current market.
I have no wish to see plagiarism protected under any law.
Though this does not effect my assertion that fonts are software and are
thus protected by copyright.
>Yes, as long as there is but one common design theme.
This would be difficult to show, some fonts encompass many themes across
different character ranges. But we both accept that the item that is
protected is the complete range of characters.
>
>>As it would be difficult to show theft of an individual character the
>>sensible method is to judge infringement across a whole range of
>>characters, thus type patents are submitted in this manner.
>
>Well, it might be difficult to show infringement of just one
>character, but that has nothing to do with the submission of a whole
>range of characters. It has to do with protecting the range of
>characters.
I accept that, but also believe that a subset of characters could infringe
a patent. Just as your example of "Abestone" invalidated a patent.
>>Many people dislike Cooper Black.
>
>So? It is not "ornamental" if many people dislike it? If Cooper Black
>is not sufficiently ornamental for the state of type in 1931, then you
>conceed that all "new" type is not a fit subject for patent?
I never said or implied any such thing, I merely made an aside that many
people dislike Cooper Black, ie this particular Judge didn't like it.
Of course I believe that all "new" type is entirely suitable for patent.
>>Thus all expert testimony is thrown out?
>
>On this issue, *YES*! You see this incredible hurdle that new designs
>must face. They must essentially be revolutionary, not evolutionary -
>as most type is. There must be clearly discernable differences to the
>masses. There are other patent hurdles which involve the judgement of
>"skilled practicioners in the art" but not this one!
>
>>Surely the test is that the difference can be discerned by a user of such a
>>product?
>
>No!
I would conceed that, if under direction of expert testimony, a jury could
not discern the difference between two typefaces, then their opinion is
valid. Or the legal system has failed.
Flashing two cards at "the man in the street" doesn't constitute a valid
test.
>
>>And if this test was not easy to acomplish there would certainly be no
>>point in the poster's CD library containing over 3,000 different fonts. If
>>there were no discernable difference then surely 20 or so would do the job?
>
>Maybe.
>
>IF that were the test.
>
>But it's not.
>
>So, you're speculation is moot.
You've completely lost me now, you appear to be agreeing that there is
discernable difference in your library to warrant 3,000 different fonts.
Therefore agreeing that the test of differentiation is esy to achieve.
>It says that when a judge who is hearing from two sides in a dispute
>(having inherently more balance than the patent examiner, who must
>trust just one interested party and his own limited resources) makes a
>decision, he has more facts and a clearer picture. It is part of the
>process of checks and balances - executive v. judicial. All executive
>actions, when brought in a suit, are subject to judicial review.
I have no problem with that, since by your own figures 7 out of 10
challenged patents are found, by judges, to be valid.
>Wow, Clive! This is really out in left field. The only thing that
>would then be true is that we would only have a few fonts which were
>patented and then held up in court. A true statement.
The case is that we do only have a few fonts that are currently protected
by patent out of the many thousands that have been designed in the last 500
years.
I have no problem with that.
>
>Fonts don't need protection to survive economically - even though you
>take that as axiomatic.
I beleive that, today, design does need protection, since technology allows
for its counterfeiting to be easily achieved.
>
>Fonts don't need protection to continue to be created - even though
>you take that as axiomatic.
The protection of intellectual property can historically be shown to
encourage its creation.
>
>Fonts don't need creativity to be economically successful - even
>though you take that as axiomatic.
New fonts need to be creative to be successful, that is obvious, otherwise
they would just be clones of existing work. I have no doubt that
historically unprotected type will continue to sell, since it has proven
itself in the market place.
The bible still sells, but who would write a new novel if they couldn't
protect their rights?
>
>>>Auto fenders and bumpers, for example, may be different for each model
>>>of car, but courts have generally ruled that the underlying ideas of
>>>their design are inherently obvious in earlier products. I would say,
>>>changes in car bumpers are generally bigger than the changes in fonts!
>>
>>Obviously you know less about cars than you do about fonts, bumpers and
>>fenders are integral pieces of design, not bolted on after-thoughts.
>
>Nope, courts have ruled on bumper design patents. My point stands.
>That's nine! You need to do a lot more research and shoot from the hip
>a lot less. You'll not shoot yourself in the foot as often.
All you are pointing out is that patents have been challenged and have
failed over the patent of an auto part, I don't doubt this. That doesn't
imply that all auto part patents are invalid.
I don't doubt that there are invalid patents in every field of patent
protection, again that doesn't invalidate every patent that was ever
written.
I don't own a gun, they're illegal over here.
>
>>>This rules out revivals, morphing, all bold or thin versions of fonts,
>>
>>No, revivals have passed the test of patentability, strict redrawing does
>>not obviously, but that doesn't constitute a revival. Morphed/other wieghts
>>are clearly covered by the patent of the original.
>
>Really? How about a couple of court cases. Complete with cites. Give
>me just one!
I don't need any cites, since this is the basis of patent. Historical
revivals qualify for patent, they have been examined and passed, you cannot
dispute this. Derivation from an original can be an infringement of a
patent, therefore it is also protected by the patent. This can be filed as
updated art.
>
>And they are NOT clearly covered under the patent of the original.
>Where do you get this stuff? That's ten!
Wow, 9:1 you'll have to do better than that.
>
>
>>>and copying designs from other people's copy books (which many people
>>>think has been done by "top of the line" foundries under the name of
>>>"originality") as ever subject matter for a patent.
>
>>Please explain the last remark, you seem to imply that some foundries have
>>copied others work, then applied for patent on it, please cite examples.
>
>Yes, some top of the line foundries have copied others' work! Do you
>disagree with this? I never said they applied for a patent. I said
>that fonts done in this manner were not a fit subject for a patent.
You imply that foundries have sought patent on this basis. I of course
agree that people have copied other's designs and there is no way that
these should be granted protection of patent. This is the reason patent was
developed in the first place, to allow protection of an original.
>So then you agree that any features that Slimbach added to the 1542
>Garamond which were "parts of characters from different designs" which
>were "combin(ed) ... into another" ie. Adobe Garamond should not be
>considered as original by the PTO or the industry as a whole?
I didn't say that, I agree that copying the serif from one font, the stem
of another and the bowl of yet another should give no grounds to issue a
patent.
I don't believe that Adobe Garamond was constructed in this way at all.
> I cited one in each of seven Myths and I named the fonts that could
>be Prior Art for each part of a character. THIS IS PRECISELY MY POINT!
I think that your "MYTHS" are entirely without a basis in fact, the
difference between the sources you quote is easily discernable.
>>Please read this carefully, the above does not prove your point in the
>>slightest, the last line wholly disproves your point:
>
>Nope! The only originality he could see came only occasionally - and
>that from the unconcious. His point is the same as mine - most type
>faces are not original. Our overt attempts to produce originality are
>mostly "originality failures". (I would add in response to your post,
>"Yet they are still made and marketed.")
I have no interest in protecting unoriginal designs (the term is an
oxymoron in itself)
You acknowledge that design can be original, my point is made.
>>Is this documented? You know the term "hearsay" I'm sure.
>
>It comes from a believable and respected source who got it from Mac.
Then it means nothing, since your source is not named, it's hearsay.
>
>>>Non-original to be sure, and easily done by any first year art
>>>student.
>
>>Even easier to spot by any patent examiner.
>
>Maybe yes. Maybe no. Are you saying that a patent examiner has never
>been fooled? Courts say they are fooled almost 1/3 of the time. Do you
>disagree with the courts? What is your basis for your disagreement?
I didn't disagree, I merely noted that a patent examiner has eyes and a
brain too. I have no doubt that invalid patents are issued, but your
figures don't make your case, 2/3 of those patents *challenged* are found
to be valid.
This is discounting many more that are never challenged.
>
>>And who's to say that a first
>>year student isn't capable of original art, I would hope that was how they
>>got into college in the first place.
>
>No, my point was that it would not pass the test of "non-obviousness"
>even to one not-yet-skilled in the art. Yet the font was a commercial
>success. Benguiat had the respect of his peers. Even though he
>produced fonts which were not always original.
Did Benguiat apply for patent of this design, was patent granted upon it?
If not your point has no place in this thread, all you are doing is acusing
Ed Beguiat of plagiarism, not invalidating the process of patent. I have no
doubt that many faces do not qualify for patent.
>
>>>Definite prior art from other designs. It would be an obvious
>>>design EVEN IF the story didn't have Ed first seeing the idea of
>>>"Korinna with a different serif" sketched out in another famous
>>>designer's work and was just trying to beat him to market.
>
>>Please cite your example.
>
>What do you mean "cite"? I just gave it?
Cite an example where design patent was applied for on this basis, and
where someone was trying to beat another to market, Korinna was already on
the market (Korinna; Victor Caruso 1904 - Beguiat; Ed Beguiat 1977).
Not to mention the fact that Korinna and Beguiat are completely different
faces and forms.
>
>>>One story has him merely stat-ing his "new design" out of a
>>>book or pulling proof sheets and cleaning them up. To make the
>>>different weights, he supposedly just double exposed each letter on
>>>stat paper, moving it slightly. You can see a double crest on the top
>>>of the lower case "e" in some of the bolder weights, where it wasn't
>>>even cleaned up! Since they didn't have Postscript back then - or
>>>computers, would you agree that this might be the closest analogy for
>>>digital extraction today?
>
>>I think not.
>
>Then name a closer analogy, please. Be constructive here. Just saying,
>"I think not." adds nothing to the discussion.
Korinna and Benguiat are easily discernable, the forms are completely
different. What kind of nonsense is "they didn't have computers back then"?
Benguiat was drawn in 1977, how do you think they got it into digital
typesetting machines if they didn't have computers?
If there is anything in common between the two faces it shouldn't be too
surprising, Ed Benguiat re-drew Korinna in 1974.
>
>>Please also show that ...any of the typefaces involved were subject to patents.
>
>I don't have to. I am showing that, on the face of it, there are
>respected men and commercially successful fonts that never rise to the
>patentable level of originality.
I don't doubt this, this doesn't invalidate the process of patent. It also
doesn't mean that Benguiat was refused a patent, or was ever even the
subject of an application, it has ne bearing on the issue whatsoever.
>No, I am trying to say he was not always original.
Does this have any bearing on the subject of patent at all?
>If Goudy was a
>plagiarist, then we are all, every one, in trouble. The point is,
>there is so much un-originality in all of us, even at our best. It
>does not mean we are bad people. We can't all win the Congressional
>Medal of Honor. We can't all get a design patent to stand up in court.
>It is not time to cheapen the patent process and declare every
>craftsman, "capable of completely original work", just because a few
>people feel the need to have more font protection.
I don't expect that it is, I'll say it again, I have no interest in seeing
applications for patent that will be invalidated. I have no doubt that
there is type available that is plagiarised from pther sources, I have no
wish to see this work protected by patent.
>
>Repeat after me, "All fonts are not deserving of patents."
"All fonts are not deserving of patents."
So? I never said they were. On the other hand you're saying that no fonts
are deserving of patents, obviously I disagree with this.
>Do you also agree that the fundamental design of Garamond was gone
>after 1542 as a patentable idea? That there would have to be some very
>specific, never-seen-before, non-Garamond features in the font to make
>it patentable?
I'd say that if I were moved to a Garamond revival it would be
substantially different from Slimbach's. If the two were discernably
different, then the two should qualify for patent.
>
>>Please do not keep referencing patent to copyright, these are two very
>>different and distinct areas of legislation. Your points have already been
>>stated and answered.
>
>Stated, never answered.
You just do not accept the answers
>
>>>One foundry president has said,
>
>>Who shall remain nameless (Paul King perhaps?).
>
>No!
Another nameless, faceless bit of hearsay.
>I am remarking that the "original" was not as successful as the
>adaptation. Patents are not required to make a font successful. A
>foundery can have good, commercial reasons for making a face that will
>never be original or patentable. The driving forces in the industry
>have never been based around originality. If patents were never
>available to our industry, it would not fail. The sky is not falling.
Obviously a patent is not required to make a font successful, if you imply
that the font is successful whoever sells the font and no matter that the
designer thereof gets a valid return for his work and success. It is easy
to pick out the successful fonts for cloning, far less easy to design a
successful font in the first place.
The driving force in the industry is sales, sales for pirates, sales for
lookalikes, sales for the original, however, the designer only benefits
from the sales of the original, as does the foundry who made the investment
to back that original, this is the basis of intellectual property
protection.
Similarly if anyone could copy the latest Stephen King novel and resell it
they would profit at the expense of the author and his publishing house.
These pirate publishing houses would be no more profitable than the
original if they had to make the investment the official publisher did, and
publish all the less successful novels they did too.
The industry has changed a lot in the last 20 years, you could not have
dreamt of having such a wide source for your library, so easily available,
so easily resold before that time. This is why protection is required
>>Yes, pirates like you have been around for centuries, and what does that
>>have to do with either ITC or Adobe?
>
>I'm not a pirate, Bubba!
That's a matter of opinion.
>
>Are you saying that you DON'T think that there is any copying of
>design elements in Adobe Garamond or any other ITC or Adobe fonts?
I think Adobe Garamond is a distinct face in its own right, I certainly
don't believe that the Adobe or ITC libraries are derived from unlicensed
sources.
>So, answer the other 7 posts and tell me, Clive, what you call that?
A case you'll have to answer in court.
-- Clive
Clive Bruton
I'm going to keep this short, and then separately sum-up, I don't believe
there is anything further to be gained through debate.
In article <33d13afe...@news.packet.net>,
pk...@flnet.com wrote:
Read this folks, especially if you have bought are considering buying SSI's
font library.
>>>Even if it is possible today to obtain a valid design patent on a font
>>>design which is upheld by the courts, sale of a font program does not
>>>infringe on that design by the legal meaning of the term. Remember,
>>>you are getting a patent on a font design, not a piece of font
>>>software!
>
>>Great, so anyone using the font software to output the design is infringing
>>patent.
>
>If someone had a valid design patent, I believe the only infringer
>would be the person outputting it to laser. Neither the maker nor the
>seller of the software fit the legal definition of infringer. See how
>little protection even a VALID patent gives the holder?
So Paul King, President of SSI agrees with my statement, that the user of
the font, by outputting a laserproof would be infringing patent, leaving
themselves open to prosecution.
Are you really going to buy fonts from this man?
>For CO purposes the design and digital outline together
>with any algorithms are unprotectable. For you, the worst of both
>worlds!
The CO policy decision 1992 states that the outline data is protected, but
again as I have stated the CO does not make the law, either way.
>Yes, the precedent is called the 1988 and 1992 rulings by the CO. They
>have the force of law unless overturned by a court of competent
>jurisdiction. They say this in plain English.
They don't, and you're going to court.
-- Clive
David Marshall
In a post, pk...@flnet.com wrote:
> We extract outlines from code. We don't "derive" our font software
> from other software code. We have been very clear about that. Three
> paragraphs, three falsehoods.
An interesting piece of semantics. Unfortunately, the only way to "extract"
(actually, "produce") outlines from a Type 1 font program is to execute it
or reverse engineer it. Adjusting the outline slightly then recompiling it
into Type 1 code clearly produces a derived work. The argument that the work
isn't derived as the middle outline stage is uncopyrightable (debatable) is
wrong. Consider splitting a book up into its component (uncopyrightable)
letters then joining them back together.
> I believe the success rate is something like 68%. That would mean
> about one third of the patents issued, the courts say should never
> have been issued.
You're playing semantics to mislead again. One third of the patents that
get to court, the courts say should never have been issued.
> I just say that software is not protected - designs are. And the
> design is visable nowhere on the diskette.
So, Microsoft Word isn't covered by Copyright because you can't see its
component features on the disk?
> Repeat after me, "All fonts are not deserving of patents."
True. But all creative acts are worthy of copyright protection. And no matter
what the CO says, there is no doubt around these parts that type design is a
creative act.
> I'm not a pirate, Bubba!
You are in Britain.
pk...@flnet.com
On Sun, 20 Jul 1997 10:44:12 GMT, David Marshall <da...@durge.org>
wrote:
>An interesting piece of semantics. Unfortunately, the only way to "extract"
>(actually, "produce") outlines from a Type 1 font program is to execute it
>or reverse engineer it. Adjusting the outline slightly then recompiling it
>into Type 1 code clearly produces a derived work. The argument that the work
>isn't derived as the middle outline stage is uncopyrightable (debatable) is
>wrong. Consider splitting a book up into its component (uncopyrightable)
>letters then joining them back together.
Sorry if I wasn't clear. When he meant "derived", I took it that he
meant "in the illegal sense" and I was trying to clear that
misinformation up for the 25th time.
If you split a book up into letters and then joined them back
together, you would somehow need a roadmap, like an assembled copy of
the book. Our contention is that you can take ONLY the unprotectable
portions of a font and re-assemble them into a workable font with no
aid at all from the copyrightable portions. This is another matter
altogether. Wouldn't you agree?
>> I believe the success rate is something like 68%. That would mean
>> about one third of the patents issued, the courts say should never
>> have been issued.
>You're playing semantics to mislead again. One third of the patents that
>get to court, the courts say should never have been issued.
I think you are wrong when you try to attribute bad motives to me. You
obviously have no way of knowing. Again, if I was unclear, let me back
up and take another shot at it. Are you saying that the portion of
patents that go to court are somehow;
1) not a big enough sample to be statistically relevant and thus no
projections can be made to the whole? Don't forget, in statistical
analysis, 1/2 of 1% can be relevant. All of those Gallup polls are
done with only a few thousand people and then extrapolated
(accurately, statisticians say) to almost 300 million.
2) not representative of the entire group of patents somehow? Are they
weaker than other patents, and less likely to survive the tests? I
would think if the patent owner is taking someone to court, he is
voting with his pocketbook that his patent is one of the strongest.
Else, he would be money ahead to abandon it and cave court costs and
attorney's fees.
Or are YOU just throwing up a straw man argument for whatever purpose?
Please finish your point!
>> I just say that software is not protected - designs are. And the
>> design is visable nowhere on the diskette.
>So, Microsoft Word isn't covered by Copyright because you can't see its
>component features on the disk?
You are missing the distinction between PATENTS and COPYRIGHT. This is
easy to do, but the laws are separate, and the bureaucracies are
separate. In the case of Word, the actual item (code) which is
copyrighted (and is shown, in part, on the copyright form) is not even
required to bear a copyright notice to preserve Microsoft's rights. It
has been that way for some time. In a patent, the actual item shown on
the patent form is an analog design. Nothing is protected by patent
that is not part of the patent (like an embrordery design patent does
not also protect the underlying sewing machine software that makes it
- just the design). The law and courts are clear that notice must be
given to each person SEEING THE DESIGN that the item is protected by
patent. This is reasonable to keep others from unwittingly infringing
on a patented design.
>> I'm not a pirate, Bubba!
>
>You are in Britain.
You either mean "you would be if you lived in Britian and did there
what you do in the US." In which case my response is, I don't live
there. If I did and I drove the same way there as I drive here, I
would surely be arrested for driving on the wrong side of the street.
Civilized people change their behavior to conform to the laws of the
land they are in. "When in Rome, do as the Romans." If I lived in
Britian, I would conform to their laws. Since I live in the US, you
should not expect I would want to drive or sell fonts in conformance
to a set of rules that clearly don't apply here.
Or, you might mean, "In Britian, we consider you a pirate wherever you
live." I would think that you would realize that, in the British
tradition, Sir Francis Drake is not considered a pirate like
Blackbeard. Drake operated under "letters of marque" from the Crown,
allowing him to do legally what he did. People who didn't have
government approval were considered pirates. People who had the
approval, were not!
I have the approval required by the CO to proceed as we are. Soon the
courts will concurr.
Another possible meaning might be, "Our government considers what you
are doing is wrong, even though you are doing it in another
jurisdiction, and if you visited here and they got their hands on you,
they would throw you in the pokey." If you think that, you would be
wrong! Since Britian is a signatory to the Berne Convention, they
recognize the right of other signatories to invoke "reservations"
about certain non-core articles of the treaty. The US has done so
regarding fonts. It is the law now of Britian, that actions taken in
the US under color of the reservations the US has invoked are not
contested in Britian.
Although Britian has some of the strongest Font Protectionist Laws in
the world, they still do not address what happens outside Britian.
English citizens are allowed to go offshore (internet, mail-order,
vacation) and purchase fonts from me without breaking any laws. They
are also explicitly allowed then to posess and use those fonts in
Britian without breaking any British laws. The law there seems to just
say, "Bring it here. Use it here. Just don't sell it here." By that
understanding, I am not a pirate either.
You know, I just noticed how little your post dealt with the factual
issues in an honest way and how much was unwarranted attack on my
character. In some cases, you attributed motives to me where you have
absolutely no way of knowing.
Get a grip on yourself.
Be polite.
Research your facts before you spout off.
Personal attacks are not about fonts and not part of the mandate of
this newsgroup.
Regards,
Paul King
pk...@flnet.com
>I didn't say that, I agree that copying the serif from one font, the stem
>of another and the bowl of yet another should give no grounds to issue a
>patent.
>I don't believe that Adobe Garamond was constructed in this way at all.
Do you agree then that the issue in patents (as opposed to copyright)
is that you don't have to be proven even to have seen a desigh, or
even conciously copy it. That it merely needs to be shown that that
feature existed before and is not original with you?
Do you agree, by that standard, there are many fonts in these myths,
including Adobe Garamond, that utilize features previously done by
others?
Do you agree that using or even independently re-inventing "the serif
from one font, the stem of another and the bowl of yet another should
give no grounds to issue a patent"?
>I think that your "MYTHS" are entirely without a basis in fact, the
>difference between the sources you quote is easily discernable.
So YOU say. Now, take the time to look up the fonts and do a
comparison yourself before you say words you may have to eat.
>>Do you also agree that the fundamental design of Garamond was gone
>>after 1542 as a patentable idea? That there would have to be some very
>>specific, never-seen-before, non-Garamond features in the font to make
>>it patentable?
>I'd say that if I were moved to a Garamond revival it would be
>substantially different from Slimbach's. If the two were discernably
>different, then the two should qualify for patent.
Would you go so far as to say, "discernably different with new
features not seen on any other font"?
pk...@flnet.com
>>>>Even if it is possible today to obtain a valid design patent on a font
>>>>design which is upheld by the courts, sale of a font program does not
>>>>infringe on that design by the legal meaning of the term. Remember,
>>>>you are getting a patent on a font design, not a piece of font
>>>>software!
>>>Great, so anyone using the font software to output the design is infringing
>>>patent.
>>If someone had a valid design patent, I believe the only infringer
>>would be the person outputting it to laser. Neither the maker nor the
>>seller of the software fit the legal definition of infringer. See how
>>little protection even a VALID patent gives the holder?
>So Paul King, President of SSI agrees with my statement, that the user of
>the font, by outputting a laserproof would be infringing patent, leaving
>themselves open to prosecution.
Yes, IF there is a valid patent. For only the period of 14 years. If
it is marked with the patent number. I contend that these rules are
fair.
I also contend that Adobe and Slimbach didn't particularly follow all
the rules. If their patents are either invalid or unenforceable, then
do you agree it is not possible for ANYONE to infringe?
I have never said tha NO font designs should ever be patented. Just
that it was hard and very few fonts actually qualify. And that people
who blunder down this road will find themselves with a net shortage of
cash.
>>For CO purposes the design and digital outline together
>>with any algorithms are unprotectable. For you, the worst of both
>>worlds!
>The CO policy decision 1992 states that the outline data is protected, but
>again as I have stated the CO does not make the law, either way.
That's pretty much an outright lie.
"Font software" (Adobe's definition) has been registered since 1988.
The problem is, disclaimers were required in which you explicitly had
to state that you knew that the portion of the code containing the
digital font outline was not covered by the copyright registration.
Some big companies wanted to change that. They petitioned the
Copyright Office to drop the REQUIREMENT (not to drop the exclusion)
and in 1992, there was a final regulation handed down that said;
"In light of the heavy administrative burden imposed by disclaimers,
the Copyright Office has concluded that the best course is to amend
it's regulations to state that digitized typeface as typeface is
unregisterable, and to delete the disclaimer requirement. "
This still held to their definition of "digitized typeface" that
included algorithms. It did NOT change their stance on anything
regarding protectability. AND they said so in plain English.
This 1992 administrative filing change allowed the CONTINUATION of the
registration of font software (not the beginning of it) but merely,
without a disclaimer.
So, the Copyright Office says that a software font contains mostly
unprotectable outline data, but that MAYBE some subset of these types
of fonts are purely program code and MAY contain registerable
material. Certain program code can THEORETICALLY exist in a font and
might be protectable. A disclaimer is not required any longer, but it
is still assumed by the Copyright Office that the bulk of the font,
being outline data, is unprotected.
The fact that there is a copyright notice in the font, or a
registration on file, does not mean that the entire font is
copyrighted. It means that there may be a small portion of the font
that is. A font might be registered and nevertheless still contain no
registerable material. Registration is not conclusive proof there is
protectible material.
pk...@flnet.com
>In article <33d11489...@news.packet.net>,
>pk...@flnet.com wrote:
>>Kinda wrong. There were four defendants to the suit. One has dropped
>>out. Their insurance company paid less than one mont's legal fees to
>>not have to drag this thing on out. Everybody else is hanging in there
>>- in spite of the ruinous costs of proving our innocence in court.
>Excuse me, my reading of it is that there were three defendants, one of
>those has settled out of court, you will please name the four defendants?
Southern Software, Inc.
Softkey - noe The Learning Company
Nova Development Corporation
Paul King, as an individual
>I don't see how you could know/be able to quote the settlement Adobe
>reached, since the amount was not disclosed and both parties are barred
>from doing so.
Do you disagree with me on the amount?
>>The examination process is not adversarial like the court system is.
>Your other "Myth" posts appear to state otherwise.
There is never anyone who stands to gain if the patent is overturned
in the process at the patent application level. There is one
interested party on one side who is swearing to tell the truth and
disclose everything "material" that could invalidate the patent. They
may or may not do so.
There is also the patent examiner. An agent of the bureaucracy. They
may or may not be diligent and thorough in their job. They mar have
the time to put into it or not. But, it's a job in a bureaucracy. They
are not always personally interested.
My "Myths" all support this position. If, with limited resources and
varying degrees of interest and truth from the applicant, the patent
examiner finds Prior Art to overturn an application before a patent is
issued, that does not mean that it is an adversarial process. You have
to go through the "deep frisk" of a major court case to believe just
how adversarial it is, Clive.
>>You never have to stand up against competitors and defend your
>>statements until court. When you swear something is true, it is pretty
>>well taken at face value unless it is internally inconsistent with the
>>other evidence the examiner has at hand.
>This surmises that there is no point in patent examination, since the
>examiners have no valid opinion or knowledge.
No, there is a point. It is the start of a process. It is ministerial
in function, granting the right to later go to court on the issue and
have the burden of proof placed largely on the other side. It is not
"of no benefit". But is of limited benefit.
>So in fact the majority of the patents challenged actually passed the test,
>and those are the ones challenged in court, what of all the others that
>went unchallenged, therefore by default proving their validity?
See my reply to Marshall to avoid redundancy in posts.
> How many design patents for type that have been granted in the past
> 20 years have been overturned?
If there are none, do you agree that the earlier precedents hold? YOU
are the one making up nonsensical hurdles like "20 years" the courts
nor the PTO care how old the cases are.
>You're not getting it are you? If type design didn't fall into the domain
>of design patent then the USPTO would refuse to issue patents on type
>design, that is a simple fact.
Please re-read my original Basics post on "Gaps". I deal with the fact
that SOFTWARE CODE of a font program is not protected by design
patent. The code itself is not an analog design submitted to a patent
examiner, therefore it is not protected by patent.
>>I just say that software is not protected - designs are. And the
>>design is visable nowhere on the diskette.
>But software is protected via copyright, patent isn't an issue.
Really? Tell that to Adobe who is trying to say that I infringed on
their PATENT (not just copyright) by SOFTWARE.
>You now
>seem to condede that outlines (design) is software?
No, I only conclude that digital representations are covered by
neither the CO or the PTO. The digital outline or algorithms
describing it are not analog design. It is not a binary choice, Analog
design (protected by patent in some cases) OR software9protected by
copyright in some cases). The "gap" is the third possibility - not
protected at all.
>>Nope, you are confusing software with a design. It must be a visable
>>design, Clive.
>The code of the font is visable on the surface of the CD.
Yet the Analog Design does not exist on the CD and that is all the
patent can protect. (Not that I agree "the font is visable on the
surface of the CD". Where do you come up with this stuff?
>Though I think
>this is pointless argument, since I don't accept you premise in the first
>place.
If you are losing, it all seems pointless huh, Clive?
>>What about the obligation to submit Prior Art?
>What about it?
1) Adobe didn't do it in quite a few cases.
2) Slimbach signed a form declaring he knew of his obligation to
submit the Prior Art.
3) Adobe had art that was the basis of some of these fonts. The Adobe
review committee mand Slimbach be faithful to many of the lines of
this Prior Art
3) Wilful failure to submit Prior Art invalidates patents!
That's what, Clive!
>>What about the obligation to place the patent marking on the article?
>Well I guess that doesn't matter in this case, otherwise all those fonts
>out there would have the patent number on them.
Actually Clive, you might be surprised to learn (if you had actually
read the articles) that Adobe didn't put the required patent markings
on any of the fonts at issue in theis case.
>>Does the name Goudy ring a bell? He lost a patent on these same
>>grounds in Goudy v. Hansen 247 F. 782 (1917), cert denied, 246 U.S.
>>667 (1918) There, just as here, the patent claimed, "the ornamental
>>design for a font of type." The court determined that the patent was
>>invalid both because it was non-statutory subject matter (no article
>>of manufacture) and because it did not posess "sufficient novelty or
>>beauty to constitute a design patent." Id. at 783, 785.
>Again I must state the obvious, if this were the case the USPTO could no
>longer pass patent applications for type.
Or, it could be that the current administration of the PTO is ignoring
clear case law for whatever reason and the courts will have to jerk
them up short under our system of checks and balances.
And the people having to pay fo all of this will be the poor designers
who spent money on patents to get no protection from them.
>>You, on the other hand can post without any more than the barest of
>>research, ignore all the court cases and facts. Tell the other guy to
>>get off the newsgroup - but you are on the side of the angels?
>I rather thought the angels were your department.
They should be yours as well. I thought we had some of that in common
too. I'm disappointed.
>>>You'll note that Mr Lancaster is not credited with being a design "guru",
>>>lawyer or patent examiner.
>>He probably has 2500 published magazine articles and close to 30
>>books. What's YOU'RE definition of guru?
>Some guy living up a pole in India.
Some well respected author with monthly colums running in several
different magazines from several different disciplines each month -
who lives in Arizona.
Don't make fun of everything and everybody you don't understand.
>I don't really care what this gentleman has written about utility patent or
>electronics, my point was that he isn't credited with knowing anything
>about design, he isn't a lawyer, and he isn't (never has been?) a patent
>examiner.
>I think this a vaild point to make, I don't go to an accountant, no matter
>how well read and widely acclaimed he is, and ask him to fix my car.
If he is the holder of many patents and has actually gone through the
process and spent his own money and defended them in court with his
own cash (things your lawyers and examiners have never done), coming
into the system ans an outsider and trying to make it work
economically for him, I'd say he has walked the exact path several
font designers contemplate walking. He is more like one beggar telling
another beggar where to get the bread.
Lawyers make money only if you file a patent or sue. They make very
little telling you your font is not a fit subject for a patent. They
make very little money telling you you probably will not break even on
the patent after court costs and their fees.
Examiners fund their departments with application fees, not "happy
client fees."
So, I think a lot of designers on comp.fonts should care about his
opinion. Many of his free articles are up on his website at tinaja.com
>>The judge said the
>>features in the word "Asbestone" were sufficient to invalidate all the
>>other letters, because the design of those few would suggest the
>>design of ALL THE OTHERS to any craftsman of reasonable skill.
>it is my opinion that several distinct typefaces
>could be derived from a common subset. It matters not what a judge said in
>a particular case.
What?! Of course it matters! It becomes binding precident on any other
cases in that district. And persuasive to all other cases.
You are right that several distinct (child) fonts could be made from
the parent. But not a one of them would be patentable. That is my
point about all the Garamond derivations.
> In fact the advice from the USPTO is that certain
>characters may be removed from the application if they could be confused
>with those from another font (possible in the case of a sans serif "I" or
>"l").
That would be good practice. But it has nothing to do with the case at
hand. A few letters are enough to invalidate the patents of all fonts
which derive their major design components from the parent font.
Unless there is a readily distinguishable, original, non-obvious
feature running through every character of a child font which has
never been present in any other font (and the features of the parent
font are specifically disclaimed in the patent), agreed?
David Marshall
> meant "in the illegal sense" and I was trying to clear that
> misinformation up for the 25th time.
I regard your derivation of a type program from another via an
"unprotectable stage" to be an act or derivation as serious as
any other decompilation/compilation activity.
> If you split a book up into letters and then joined them back
> together, you would somehow need a roadmap, like an assembled copy of
> the book. Our contention is that you can take ONLY the unprotectable
> portions of a font and re-assemble them into a workable font with no
> aid at all from the copyrightable portions. This is another matter
> altogether. Wouldn't you agree?
Unfortunately, the only "unprotectable" portions of a font program
are the data it produces when executed (it still isn't clear that these
are unprotectable IMHO - it still isn't clear that by "outline" the CO
includes marked-up digital outlines) and by recompiling these data
you have simply produced a derivative work of the original font program
via the program's data output. An illegal act in anyone's book!
> 2) not representative of the entire group of patents somehow? Are they
> weaker than other patents, and less likely to survive the tests? I
> would think if the patent owner is taking someone to court, he is
> voting with his pocketbook that his patent is one of the strongest.
> Else, he would be money ahead to abandon it and cave court costs and
> attorney's fees.
That's exactly the point. A weaker patent is more likely to be challenged
in court than a strong patent. Surely that is obvious. The patents that
are challenged in court are certainly not representative of patents as
a whole.
> You are missing the distinction between PATENTS and COPYRIGHT. This is
> easy to do, but the laws are separate, and the bureaucracies are
> separate.
No, surprisingly I do understand the difference - but I couldn't care less
about design patents - it shouldn't be necessary for type designers to
resort to a design patent when copyright would cover them completely if
they designed practically any other creative thing but type.
> In the case of Word, the actual item (code) which is
> copyrighted (and is shown, in part, on the copyright form) is not even
> required to bear a copyright notice to preserve Microsoft's rights. It
> has been that way for some time.
And the best type design is less creative that the sloppiest program?
All type design, like all software, deserves automatic copyright
protection.
> >> I'm not a pirate, Bubba!
> >You are in Britain.
[SNIP]
Your products are distributed in Britain. They infringe the copyright
of many companies here. This is unethical, immoral and illegal. It's more
likely that your UK distributors would be in hot water though.
> I have the approval required by the CO to proceed as we are. Soon the
> courts will concurr.
It is my opinion (and that of many others) that the CO is highly naive
about type design and you are simply exploiting their naivete.
> You know, I just noticed how little your post dealt with the factual
> issues in an honest way and how much was unwarranted attack on my
> character. In some cases, you attributed motives to me where you have
> absolutely no way of knowing.
I don't believe I've used any untruths in my arguments against you. I've
severely corrected your accusations of the nature of Type 1 in the past
and certainly expressed my opinions...
I certainly have never attacked you personally. I have no problem in
attacking your unethical activities though. As I'm not a lawyer or a
type designer, I'm happy to argue the technicalities of font programs
and software with you.
Type design is an act as creative as any other design activity and all
your activities do is exploit a misguided loophole in US copyright law.
pk...@flnet.com
On Mon, 21 Jul 1997 21:24:11 GMT, David Marshall <da...@durge.org>
wrote:
>I regard your derivation of a type program from another via an
>"unprotectable stage" to be an act or derivation as serious as
>any other decompilation/compilation activity.
Well, then you have no regard for the rule of law or think it plays no
valid role in our society. Several times in the 1980's congress
considered changing copyright law and each time refused to include
fonts. The ratification of the Berne Convention treaty with the
reservations on fonts is a clear case.
>Unfortunately, the only "unprotectable" portions of a font program
>are the data it produces when executed (it still isn't clear that these
>are unprotectable IMHO - it still isn't clear that by "outline" the CO
>includes marked-up digital outlines) and by recompiling these data
>you have simply produced a derivative work of the original font program
>via the program's data output. An illegal act in anyone's book!
Not in the Copyright Office's book, or mone, or millions of other
people's.
> A weaker patent is more likely to be challenged
>in court than a strong patent. Surely that is obvious. The patents that
>are challenged in court are certainly not representative of patents as
>a whole.
I think you have it exactly backwards. It is the patent OWNER who
elects to sue, not the alleged infringer. The patent owner would not
do so if they thought their patent was weak.
If they thought their patent was weak, they wouldn't go to court. We
have no idea how many invalid patents are simply abandoned without
court because a citizen shows prior art to a patent owner.
> it shouldn't be necessary for type designers to
>resort to a design patent when copyright would cover them completely if
>they designed practically any other creative thing but type.
That isn't true in the US. I don't know about Britian. Designer colors
are not covered here, perfumes, many other marketable, creative fields
flourish in the absence of any protection.
>It is my opinion (and that of many others) that the CO is highly naive
>about type design and you are simply exploiting their naivete.
Would you agree to follow the rules of civilization and law until you
educate them?
ki...@idt.net
David Marshall <da...@durge.org> wrote:
: Unfortunately, the only way to "extract"
: (actually, "produce") outlines from a Type 1 font program is to execute it
: or reverse engineer it. Adjusting the outline slightly then recompiling it
: into Type 1 code clearly produces a derived work.
A PROOF AGAINST THIS ABSURD FOLLY WILL NOW BE GIVEN
PLEASE READ -- I TIRE OF REPEATING IT
Like it or not, the US CO says typefaces as typefaces are not copyrightable,
are not a work of authorship, and in effect are in the public domain as
regards copying. Morally right or wrong, this is a given, and is not
open to question in the sense of analog shapes. The question is, can
a digital version somehow _introduce_ a work of authorship that did not
exist in the analog version?
The output of a Type 1 font is such an analog, non-copyrightable shape,
regardless of whether the Type 1 font is or contains a "program", and
regardless of the effort or ingenuity that went into producing the
font.
The Bezier abstraction of such shapes is a mechanical conversion. The
corners and extrema are obvious. Anything else is curve-fitting, crude
or precise, which may be computed automatically.
The mechanical conversion of a public domain thing is itself public domain.
No authorship can possibly attain by virtue simply of mechanical conversion.
ERGO, Bezier outlines necessarily inherit the non-copyrightability of
the underlying typeface.
: Consider splitting a book up into its component (uncopyrightable)
: letters then joining them back together.
This is a red-herring fallacy. Said joining would equal or exceed the
work of authorship that produced the original.
: But all creative acts are worthy of copyright protection.
Laughably false! Create an apple pie. Lay a brick wall. Style
a woman's hair. Sew her a dress. All are creative acts, all may
involve any amount of labor and skill, perhaps years of effort.
Like font designs, none are works of authorship. The statement
quoted above betrays an utter ignorance of the legal theory of copyright.
: And no matter what the CO says, there is no doubt around these parts
: that type design is a creative act.
Creativity is no measure of the "work of authorship." An accidental
photo can be copyrighted. Many thousands of artist-hours go into
designing an automobile shape, but it cannot. Creativity is the
warm touch of the human soul. Copyright is the cold, dead hand of the
magistrate. There is no connection between the two.
Dave Nalle
In article <869519628.5741.0...@news.demon.co.uk>, David
Marshall <da...@durge.org> wrote:
> > >> I'm not a pirate, Bubba!
> > >You are in Britain.
> [SNIP]
>
> Your products are distributed in Britain. They infringe the copyright
> of many companies here. This is unethical, immoral and illegal. It's more
> likely that your UK distributors would be in hot water though.
Actually, given recent cases in which courts in France and the Netherlands
have gone after people running websites in the US which carried material
found offensive in those countries, the fact that SSI has a website on
which it does business might open them up to being sued in Britain when
they pirate the work of a British foundry.
Dave
--
---------------------------------------------------------------------
I write both as an individual and as a company representative
Scriptorium Fonts & Graphic Arts:http://ragnarokpress.com/scriptorium
New Mapmaker Fonts Site: http://ragnarokpress.com/mapmaker
pk...@flnet.com
>Actually, given recent cases in which courts in France and the Netherlands
>have gone after people running websites in the US which carried material
>found offensive in those countries, the fact that SSI has a website on
>which it does business might open them up to being sued in Britain when
>they pirate the work of a British foundry.
Don't you agree that there is a big difference between a site that
might import pictures over phone lines INTO a country and a mail order
transaction that all countries agree is taking place in the US. When
the website delivers that picture into the country, laws are broken.
It is illegal to transmit across the borders and illegal to posess.
Remember, these countries don't ban their citizens from making
purchases like my fonts in other countries. If that were their intent,
they could do that. It is illegal for a US citizen to perform certain
sex acts with a minor anywhere in the world - even on vacation.
It is also not illegal for them to bring them into the country for
their own personal use. And, once inside tha country, it is not
illegal to posess or use the fonts. Only the sale INSIDE THE BORDERS
OF THE COUNTRY is forbidden, if anything
Since there is a non-banned transaction taking place outside their
jurisdiction, what action would they take? What laws are broken?
Thankfully, there are not any British foundrys that are making a big
splash in international circles!
Now, tell me again, what material could possibly be found offensive in
the Netherlands? Drugs are legal. Prostitution is legal. Involuntary
euthanasia is practiced often enough that some citizens have taken to
carrying cards refusing it under any circumstances.
Clive Bruton
In article <33d38bf6....@news.packet.net>,
pk...@flnet.com wrote:
>Do you agree then that the issue in patents (as opposed to copyright)
>is that you don't have to be proven even to have seen a desigh, or
>even conciously copy it. That it merely needs to be shown that that
>feature existed before and is not original with you?
That is a facet of patent, yes (one reason I support copyright over
patent).
>
>Do you agree, by that standard, there are many fonts in these myths,
>including Adobe Garamond, that utilize features previously done by
>others?
No. In order for design patent patent to cover type design (as it is
intended to) examiners have to take the bounds of that form into account
(as would a court). ie it is a subtle form that isn't apparent to the
untrained or un-directed eye.
>
>Do you agree that using or even independently re-inventing "the serif
>from one font, the stem of another and the bowl of yet another should
>give no grounds to issue a patent"?
If they were *identical*, in the same way that copyright would define a
derivative work.
>>I think that your "MYTHS" are entirely without a basis in fact, the
>>difference between the sources you quote is easily discernable.
>
>So YOU say. Now, take the time to look up the fonts and do a
>comparison yourself before you say words you may have to eat.
Do you not think I'm already familiar with these fonts? Your comparison
between Korinna and Benguiat is laughable, especially your assertion that
this was Benguiat's attempt to beat Korinna to market, despite the fact
that Korinna was designed some 70 years previously.
>>I'd say that if I were moved to a Garamond revival it would be
>>substantially different from Slimbach's. If the two were discernably
>>different, then the two should qualify for patent.
>
>Would you go so far as to say, "discernably different with new
>features not seen on any other font"?
No identical features would appear in any other font for the patented font
(though we already seem to have accepted that patent exists at the font
level, not the character level (ie definitely not the serif level)). I
don't know what your understanding of "discernable" is.
-- Clive
Clive Bruton
In article <33d38c24....@news.packet.net>,
pk...@flnet.com wrote:
>On Sun, 20 Jul 1997 03:10:50 +0100, cl...@typonaut.demon.co.uk (Clive
>Bruton) wrote:
>
>>Excuse me, my reading of it is that there were three defendants, one of
>>those has settled out of court, you will please name the four defendants?
>
>Southern Software, Inc.
>Softkey - noe The Learning Company
>Nova Development Corporation
>Paul King, as an individual
I think you're just guilty of dissembling, Nova have, as we have
established, settled out of court. Paul King and SSi are clearly
distinguishable only in legal terms.
>>I don't see how you could know/be able to quote the settlement Adobe
>>reached, since the amount was not disclosed and both parties are barred
>>from doing so.
>
>Do you disagree with me on the amount?
As I wrote: "non-disclosure agreement" - to which you were not a party.
>
>>So in fact the majority of the patents challenged actually passed the test,
>>and those are the ones challenged in court, what of all the others that
>>went unchallenged, therefore by default proving their validity?
>
>See my reply to Marshall to avoid redundancy in posts.
You didn't answer the question, you just suggested that a third of all
patents are invalid, you have no facts on which to base this assertion.
Just for the record I believe that statistical analysis is only considered
accurate if the sample exceeds 2,000.
>
>> How many design patents for type that have been granted in the past
>> 20 years have been overturned?
>
>If there are none, do you agree that the earlier precedents hold? YOU
>are the one making up nonsensical hurdles like "20 years" the courts
>nor the PTO care how old the cases are.
This is untrue, current practice/more recent judgements will always
over-rule earlier decisions.
>
>
>
>>You're not getting it are you? If type design didn't fall into the domain
>>of design patent then the USPTO would refuse to issue patents on type
>>design, that is a simple fact.
>
>Please re-read my original Basics post on "Gaps". I deal with the fact
>that SOFTWARE CODE of a font program is not protected by design
>patent. The code itself is not an analog design submitted to a patent
>examiner, therefore it is not protected by patent.
This is just nonsense, the code couldn't exist without the design.
>If you are losing, it all seems pointless huh, Clive?
Yes, just like Damon Hill would decline competition with your current
wheels.
>Actually Clive, you might be surprised to learn (if you had actually
>read the articles) that Adobe didn't put the required patent markings
>on any of the fonts at issue in theis case.
I read the articles, I didn't say or imply I didn't, my point was that if
such were required then all fonts on the market with design patent would be
thus marked.
>>I rather thought the angels were your department.
>
>They should be yours as well. I thought we had some of that in common
>too. I'm disappointed.
I merely do the right thing, I don't play at doing it.
>Don't make fun of everything and everybody you don't understand.
I didn't, I don't. Check you own dictionary.
>Lawyers make money only if you file a patent or sue. They make very
>little telling you your font is not a fit subject for a patent. They
>make very little money telling you you probably will not break even on
>the patent after court costs and their fees.
They don't make much by telling you to settle out of court either.
>>it is my opinion that several distinct typefaces
>>could be derived from a common subset. It matters not what a judge said in
>>a particular case.
>
>What?! Of course it matters! It becomes binding precident on any other
>cases in that district. And persuasive to all other cases.
It doesn't effect my opinion.
>That would be good practice. But it has nothing to do with the case at
>hand. A few letters are enough to invalidate the patents of all fonts
>which derive their major design components from the parent font.
>Unless there is a readily distinguishable, original, non-obvious
>feature running through every character of a child font which has
>never been present in any other font (and the features of the parent
>font are specifically disclaimed in the patent), agreed?
Unless this were the case the fonts would be indistinguishable.
-- Clive
Clive Bruton
In article <33d3ae44....@news.packet.net>,
pk...@flnet.com wrote:
>On Sun, 20 Jul 1997 03:54:30 +0100, cl...@typonaut.demon.co.uk (Clive
>Bruton) wrote:
>
>>The CO policy decision 1992 states that the outline data is protected, but
>>again as I have stated the CO does not make the law, either way.
>
>That's pretty much an outright lie.
"After a careful review of the testimony and written comments, The
Copyright
Office is persuaded that creating scalable typefonts using
already-digitized
typeface represents a significant change in the industry since our
previous Policy Decision. We are also persuaded that computer programs
designed
for generating typefaces in conjunction with low resolution and other
printing devices may involve original computer instructions entitled to
protection under the Copyright Act. For example, the creation of scalable
font
output programs to produce harmonious fonts consisting of hundreds of
characters
typically involves man decisions in drafting the instructions that drive
the
printer. The expression of these decisions is neither limited by the
unprotectible shape of the letters nor functionally mandated. This
expression,
assuming it meets the usual standard of authorship, is thus registerable as
a
computer program."
You can read that whatever way you like.
-- Clive
Clive Bruton
In article <5r1ded$e...@nnrp2.farm.idt.net>,
<ki...@IDT.NET> wrote:
>David Marshall <da...@durge.org> wrote:
>
>: Unfortunately, the only way to "extract"
>: (actually, "produce") outlines from a Type 1 font program is to execute it
>: or reverse engineer it. Adjusting the outline slightly then recompiling it
>: into Type 1 code clearly produces a derived work.
>
> A PROOF AGAINST THIS ABSURD FOLLY WILL NOW BE GIVEN
>
> PLEASE READ -- I TIRE OF REPEATING IT
Your argument has no basis in reality.
At least not by US standards of the the definition of a program.
-- Clive
pk...@flnet.com
>>Do you agree, by that standard, there are many fonts in these myths,
>>including Adobe Garamond, that utilize features previously done by
>>others?
>No. In order for design patent patent to cover type design (as it is
>intended to) examiners have to take the bounds of that form into account
>(as would a court). ie it is a subtle form that isn't apparent to the
>untrained or un-directed eye.
Then you are saying that you don't understand the requirements of a
patent. That kind of renders your opinion to be that of a sidewalk
supervisor.
>Do you not think I'm already familiar with these fonts? Your comparison
>between Korinna and Benguiat is laughable, especially your assertion that
>this was Benguiat's attempt to beat Korinna to market, despite the fact
>that Korinna was designed some 70 years previously.
No, that just shows that either you are a sloppy reader or have a
cavalier disregard for truth. Benguiat (according to the story) used
Korinna, pasting down different serifs in a hurry, to beat another
designer to market who had the same idea of pasting dow a different
serif on Korinna.
>>Would you go so far as to say, "discernably different with new
>>features not seen on any other font"?
>No identical features would appear in any other font for the patented font
No Clive, that's what they call Prior Art. " Repeat after me, "You
can't just combine a mish-mash of features from previous fonts in a
new way and have a patentable font." Remember the minimum requirements
for a design patent of "novelty" and non-obviousness"?
>(though we already seem to have accepted that patent exists at the font
>level, not the character level (ie definitely not the serif level)).
There must be SOME new component. But if an "inventor" takes an old
font like Garamond as the basis for most of the lines of his work, we
are reduced to looking for the novelty in the smallest of features,
because that is all that is left.
>I don't know what your understanding of "discernable" is.
I have explained at least 4 times to you that according to the legal
standard, the differences must be discernable by the man on the
street.
pk...@flnet.com
>I think you're just guilty of dissembling, Nova have, as we have
>established, settled out of court. Paul King and SSi are clearly
>distinguishable only in legal terms.
No Clive, you are! Your original statement said, "The poster's
co-defendents have decided to settle out of court." You are obviously
in the wrong in that by any of the possible meanings;
a) all of the other defendants.
b) at least two of the other defendants
Then, when given the facts and the forum to admit it, you quibble
about whether two of the four defendants are the same. This has
nothing to do with your earlier falsehood. It certainly doesn't give
you a graceful way out.
Repeat after me, "Paul, I was wrong. I apologise. I'll try to check my
facts a little better next time."
Bye the way, legally there is a LOT of difference between me and
Southern Software, Inc. Adobe first tried to add me as an individual
last December, over 13 months after the original suit was filed. It
took an extra motion to the court and the legal rules are different to
add an individual like this.
If they prevail, they will now try to go right through the Southern
Software corporate veil after not just corporate assets but also my
personal assets. I am now having to face the fact that a loss in court
could affect the economic future of my family and keep my kids from
ever going to college, etc.
I believe that this pressure is the precise reason they added me as an
individual. I think, based on your issue of defendants settlement, I
have different considerations than Southern Software. It would be
possible for me to say, "It should be just business. Because they are
making it personal for me, I want out."
Yet, I believe in the rightness of what we are doing. I also believe
we will prevail in court. I am not quitting.
But, you are wrong when you say, "Paul King and SSi are clearly
distinguishable only in legal terms."
>You didn't answer the question, you just suggested that a third of all
>patents are invalid, you have no facts on which to base this assertion.
I have plenty of facts to base it on. Do your own research! You take
all I have done, read it sloppily, make it say things that are not in
the text and then beg for more. Contribute something constructive to
the discussion, Clive. For once, go out and do a little research of
your own.
>Just for the record I believe that statistical analysis is only considered
>accurate if the sample exceeds 2,000.
Nope, check it out! Don't guess and then post it as a relevant part of
the discussion. Remember how you wanted to discount anything others
couldn't back up with cites. Please follow your own rules!
>>If there are none, do you agree that the earlier precedents hold? YOU
>>are the one making up nonsensical hurdles like "20 years" the courts
>>nor the PTO care how old the cases are.
>This is untrue, current practice/more recent judgements will always
>over-rule earlier decisions.
Again, sloppy reading and then accusing me of an untruth. I SAID,
"If there are none" Then there would be no recent judgements to
overturn the last established precident.
>>Please re-read my original Basics post on "Gaps". I deal with the fact
>>that SOFTWARE CODE of a font program is not protected by design
>>patent. The code itself is not an analog design submitted to a patent
>>examiner, therefore it is not protected by patent.
>This is just nonsense, the code couldn't exist without the design.
That doesn't make the child software a protectable part of the parent
design patent. An analogy might be, you don't get to go to heaven just
because your momma did. We laughingly refer to that as "salvation by
geneology"
Whether you want to be precise or not, other readers of comp.fonts
need to understand that the law can be very precise about the things
it protects. It can protect a design without protecting the
manufacturing process for that design.
>>Actually Clive, you might be surprised to learn (if you had actually
>>read the articles) that Adobe didn't put the required patent markings
>>on any of the fonts at issue in theis case.
>I read the articles, I didn't say or imply I didn't, my point was that if
>such were required then all fonts on the market with design patent would be
>thus marked.
In a perfect world. If there were no foul-ups. If all lawyers gave
perfect advice to their clients.
You seem to be more experientially based than rules based. Do you
think that there must be no speed limit because all cars don't stay
under 65?
>I merely do the right thing, I don't play at doing it.
Then apologise for your hurtful, inaccurate mis-characterizations.
Agree to follow your own rules of proof.
>>>it is my opinion that several distinct typefaces
>>>could be derived from a common subset. It matters not what a judge said in
>>>a particular case.
>>What?! Of course it matters! It becomes binding precident on any other
>>cases in that district. And persuasive to all other cases.
>It doesn't effect my opinion.
We understand that about you now Clive, and we are sad for all who
have to deal with a man whose head is stuck firmly in the .....
sand.
David Marshall
In a post, pk...@flnet.com wrote:
> >I regard your derivation of a type program from another via an
> >"unprotectable stage" to be an act or derivation as serious as
> >any other decompilation/compilation activity.
> Well, then you have no regard for the rule of law or think it plays no
> valid role in our society. Several times in the 1980's congress
> considered changing copyright law and each time refused to include
> fonts. The ratification of the Berne Convention treaty with the
> reservations on fonts is a clear case.
I'm afraid you've misread what I've said. I'm stating that I regard
taking a font program through (what you regard as) an uncopyrightable
stage, as serious as any other act of software derivation.
Taking any other piece of software through an "uncopyrightable stage"
(and graphical disassembler for example) still produces a derivative
work. I don't see why you think font programs are any different.
> That isn't true in the US. I don't know about Britian. Designer colors
> are not covered here, perfumes, many other marketable, creative fields
> flourish in the absence of any protection.
Does it not strike you as odd that any "creative" series of black strokes
on a piece of white paper are protected by copyright in the US unless
those strokes represent a letter?
> Would you agree to follow the rules of civilization and law until you
> educate them?
Oh please. *I'm* the one being uncivilized? I'm not the one ripping of
thousands of fonts and doing type designers out of hundreds of thousands
of dollars for their creative work while I manage to loand and save the
font programs in and out of a font editor.
David Marshall
In a post, <ki...@IDT.NET> wrote:
> Like it or not, the US CO says typefaces as typefaces are not copyrightable,
> are not a work of authorship, and in effect are in the public domain as
> regards copying. Morally right or wrong, this is a given, and is not
> open to question in the sense of analog shapes. The question is, can
> a digital version somehow _introduce_ a work of authorship that did not
> exist in the analog version?
The answer is yes. If I write a program that produces as output an image
known to be in the public domain, then my program is still my intellectual
property and covered by copyright.
> The output of a Type 1 font is such an analog, non-copyrightable shape,
> regardless of whether the Type 1 font is or contains a "program", and
> regardless of the effort or ingenuity that went into producing the
> font.
No, the output from a Type 1 font program is a series of Bezier instructions
which can be rasterized into a bitmap or otherwise manipulated. And the
output of the program is never analogue by definition.
> The Bezier abstraction of such shapes is a mechanical conversion. The
> corners and extrema are obvious. Anything else is curve-fitting, crude
> or precise, which may be computed automatically.
It is possible to have any kind of software produced automatically. These
programs had no author and are therefore public domain.
> The mechanical conversion of a public domain thing is itself public domain.
> No authorship can possibly attain by virtue simply of mechanical conversion.
Correct. But the vast majority of type isn't produced by mechanical
conversion, it's produced by creative people carefully placing points.
This is the creative bit - often the bit that makes the difference between
a professional quality and a freeware font.
> ERGO, Bezier outlines necessarily inherit the non-copyrightability of
> the underlying typeface.
No. If the Bezier outline instructions are mechanically derived from
an unprotectable source, then clearly the resulting program is public
domain. But if the points are carefully chosen to express the subtlety
of the intended analogue design then this *is* a creative act and the
resulting program is a work of authorship.
> : Consider splitting a book up into its component (uncopyrightable)
> : letters then joining them back together.
> This is a red-herring fallacy. Said joining would equal or exceed the
> work of authorship that produced the original.
If I send you the characters of book one at a time in order, each
character is clearly unprotectable by copyright, but what you end up with
at the other end is still a derived work. The same is true of outline
instructions passing through an uncopyrightable stage.
> Like font designs, none are works of authorship. The statement
> quoted above betrays an utter ignorance of the legal theory of copyright.
You took my comment too far. Type design is an act as creative as (and
rather similar to) any other graphic design activity - it should therefore
get the same copyright protection.
pk...@flnet.com
>It is possible to have any kind of software produced automatically. These
>programs had no author and are therefore public domain.
David, I'm glad you agree. Because that is exactly how Adobe produces
their fonts. The people roughly pick the corners and approxomate
locations of other points of the outline with a mouse or other device
- but not to the numeric accuracy of the end product. The mouse merely
approxomates the location because the resolution that the human is
looking at is not sufficient to select a specific point with great
enough accuracy. The computer then assigns a specific digital
coordinate to that mouse location out of the 25 or so digital
coordinates that make up a coordinate location on the screen big
enough for a human to differentiate.
Then when the computer selection of the precise coordinates is done,
the computer generates the code.
Then Adobe says that the exact coordinate was selected by a person and
nobody else can use it.
Or, if you take their coordinates and even fuzz, shift, smooth or
average them to get a generic outline, making sure your outline does
NOT match theirs, you still are infroinging. Infringing on nmbers a
computer assigned - not a human. And upon code a computer wrote - not
a human.
>> The mechanical conversion of a public domain thing is itself public domain.
>> No authorship can possibly attain by virtue simply of mechanical conversion.
>Correct. But the vast majority of type isn't produced by mechanical
>conversion, it's produced by creative people carefully placing points.
>This is the creative bit - often the bit that makes the difference between
>a professional quality and a freeware font.
But not selecting specific coordinates, right? We agree that takes
place by the computer.
>> ERGO, Bezier outlines necessarily inherit the non-copyrightability of
>> the underlying typeface.
>No. If the Bezier outline instructions are mechanically derived from
>an unprotectable source, then clearly the resulting program is public
>domain. But if the points are carefully chosen to express the subtlety
>of the intended analogue design then this *is* a creative act and the
>resulting program is a work of authorship.
But, on the screen, the person is looking at analogue drawings of a
letter outline. Even in outline form, on their screen, they are
drawing complicated analog letters which are uncopyrightable. The
bezier curves they use may or may not be carefully placed, but what
they are doing at a human level is all analog, agreed?
The computer is doing all the conversion to digital, right?
gra...@ccsi.com
In article <33d4d311....@news.packet.net>,
pk...@flnet.com wrote:
>
> On Tue, 22 Jul 1997 09:08:18 -0700, gra...@infinity.ccsi.com (Dave
> Nalle) wrote:
>
> >Actually, given recent cases in which courts in France and the Netherlands
> >have gone after people running websites in the US which carried material
> >found offensive in those countries, the fact that SSI has a website on
> >which it does business might open them up to being sued in Britain when
> >they pirate the work of a British foundry.
>
> Don't you agree that there is a big difference between a site that
> might import pictures over phone lines INTO a country and a mail order
> transaction that all countries agree is taking place in the US. When
> the website delivers that picture into the country, laws are broken.
> It is illegal to transmit across the borders and illegal to posess.
Oh, absolutely. I also think the recent cases in France and the
Netherlands have very little foundation even without that considertation.
The question I see with your fonts is what happens when you
electronically transmit into one of those countries a font which you
originally ripped off from a type foundry originating in that country. I
would think that at that point you would be potentially exposed to
prosecution. The most likely country for this to happen in would
probably be Germany, because it's the only European country I can think
of that has any font foundries of note.
> Remember, these countries don't ban their citizens from making
> purchases like my fonts in other countries. If that were their intent,
> they could do that. It is illegal for a US citizen to perform certain
> sex acts with a minor anywhere in the world - even on vacation.
That's a whole different issue.
> It is also not illegal for them to bring them into the country for
> their own personal use. And, once inside tha country, it is not
> illegal to posess or use the fonts. Only the sale INSIDE THE BORDERS
> OF THE COUNTRY is forbidden, if anything
Are you sure that this is the case in all those European countries? Some
of them are truly bulldog-like about intellectual property. I've heard
some interesting stories about rather draconian laws in the Czech
republic.
> Now, tell me again, what material could possibly be found offensive in
> the Netherlands? Drugs are legal. Prostitution is legal. Involuntary
> euthanasia is practiced often enough that some citizens have taken to
> carrying cards refusing it under any circumstances.
I believe the issue had something to do with neo-nazi propaganda in
at least one of the cases, but I'm not an expert.
Dave
-------------------==== Posted via Deja News ====-----------------------
http://www.dejanews.com/ Search, Read, Post to Usenet
Clive Bruton
In article <8696306...@dejanews.com>,
gra...@ccsi.com wrote:
>> It is also not illegal for them to bring them into the country for
>> their own personal use. And, once inside tha country, it is not
>> illegal to posess or use the fonts. Only the sale INSIDE THE BORDERS
>> OF THE COUNTRY is forbidden, if anything
>
>Are you sure that this is the case in all those European countries? Some
>of them are truly bulldog-like about intellectual property. I've heard
>some interesting stories about rather draconian laws in the Czech
>republic.
I believe this is the case, except that one has to carefully consider what
"Personal use". For example, you may own a bootleg music CD, you may not
sell it or broadcast it's contents. If you have a pirated font what can you
use it for?
Writing personal letters, on printed letterheads, on a friends wedding
invite, on a commissioned piece of work?
At least one of these would fall foul of the law. Is it even the case that
it's only "personal" use if *no one* else sees it (more than 5 people
listening to music requires a PRS licence, therefore a bootleg would break
the law).
-- Clive
-- Clive
Clive Bruton
In article <33d4ff87...@news.packet.net>,
pk...@flnet.com wrote:
>No Clive, you are!
I already conceded that point, I'm merely stating that Paul King and SSI
are one in the same.
>Repeat after me, "Paul, I was wrong. I apologise. I'll try to check my
>facts a little better next time."
Try to read and understand a little better.
>If they prevail, they will now try to go right through the Southern
>Software corporate veil after not just corporate assets but also my
>personal assets. I am now having to face the fact that a loss in court
>could affect the economic future of my family and keep my kids from
>ever going to college, etc.
You want me to feel sorry for you? You did this deliberately, you set up a
company to preserve your personal assets, you set out on a crusade to prove
your own interpretation of the law.
Really, tough.
>Yet, I believe in the rightness of what we are doing. I also believe
>we will prevail in court. I am not quitting.
Fine, so quit complaining, you set the whole thing in motion, you pay the
price.
>Contribute something constructive to
>the discussion, Clive. For once, go out and do a little research of
>your own.
I have been, how do you like this little snippet:
set of statements or instructions to be used directly or
indirectly in a computer in order to bring about a certain
result
Do you know what it is?
US Legal definition of a computer program, no matter what the USCO says.
>
>>Just for the record I believe that statistical analysis is only considered
>>accurate if the sample exceeds 2,000.
>
>Nope, check it out! Don't guess and then post it as a relevant part of
>the discussion. Remember how you wanted to discount anything others
>couldn't back up with cites. Please follow your own rules!
I didn't say that maybe I thought this might be the case, this isn't a
guess this is the accumulated knowledge that I have, if you want to dispute
it please do so.
>Again, sloppy reading and then accusing me of an untruth. I SAID,
>"If there are none" Then there would be no recent judgements to
>overturn the last established precident.
If there are no patents that failed in court then there are no judgements
to be overturned?
A mistake I think, if there no failures this implies that there were no
cases or that they all succeeded, if they succeeded then there could indeed
been judgements that overturned previous rulings. Do you dispute this?
Please quote accurately, the original question was "how many patents have
failed in the past 20 years".
>>This is just nonsense, the code couldn't exist without the design.
>
>That doesn't make the child software a protectable part of the parent
>design patent. An analogy might be, you don't get to go to heaven just
>because your momma did. We laughingly refer to that as "salvation by
>geneology"
I guess you don't go to heaven because of what you play at on a Sunday
afternoon either?
Clearly the software is protected by copyright anyway (I care not what the
USCO has to say on the matter).
>Then apologise for your hurtful, inaccurate mis-characterizations.
You're some kind of joker, I think you're scum, and you deserve everything
that happens to you.
-- Clive
Clive Bruton
In article <33d528a5...@news.packet.net>,
pk...@flnet.com wrote:
>>It is possible to have any kind of software produced automatically. These
>>programs had no author and are therefore public domain.
>
>David, I'm glad you agree. Because that is exactly how Adobe produces
>their fonts. The people roughly pick the corners and approxomate
>locations of other points of the outline with a mouse or other device
>- but not to the numeric accuracy of the end product. The mouse merely
>approxomates the location because the resolution that the human is
>looking at is not sufficient to select a specific point with great
>enough accuracy. The computer then assigns a specific digital
>coordinate to that mouse location out of the 25 or so digital
>coordinates that make up a coordinate location on the screen big
>enough for a human to differentiate.
Paul, you are indeed very stupid.
You can place a mouse coordinate with precise accuracy in *any* type
editing program. Why, because they all feature zoom levels, up to 800%.
Even if this were not the case, they also allow placement of points via
cursor keys and/or dialogue boxes. ie if a dialogue box is used <x=100>
<y=212> the point is placed precisely at this location, no approximation is
involved.
And again, even when using the mouse (or other methods) the *pricise*
coordinates are display in various ways.
If you are basing your defence on nonsense like this you will find yourself
in deep, deep... sand.
>
>Then when the computer selection of the precise coordinates is done,
>the computer generates the code.
In exactly the places the points are located at on screen.
>
>Then Adobe says that the exact coordinate was selected by a person and
>nobody else can use it.
Anyone else *can* do it, the results may differ, but it's certain a machine
can't do it on its own, just as a pen or word processor cannot write on its
own.
>>Correct. But the vast majority of type isn't produced by mechanical
>>conversion, it's produced by creative people carefully placing points.
>>This is the creative bit - often the bit that makes the difference between
>>a professional quality and a freeware font.
>
>But not selecting specific coordinates, right? We agree that takes
>place by the computer.
Nope, we don't (I think I can speak for Dave).
>But, on the screen, the person is looking at analogue drawings of a
>letter outline. Even in outline form, on their screen, they are
>drawing complicated analog letters which are uncopyrightable. The
>bezier curves they use may or may not be carefully placed, but what
>they are doing at a human level is all analog, agreed?
Paul this is a really stupid argument, is music unprotected because it is
translated to a digital format?
>
>The computer is doing all the conversion to digital, right?
How else could it happen, humans cannot generate electrical pulses to write
information to disk, the computer cannot do the job itself, it requires
human input, that input is by necessity creative.
-- Clive
Clive Bruton
In article <33d4fcdd...@news.packet.net>,
pk...@flnet.com wrote:
>Then you are saying that you don't understand the requirements of a
>patent. That kind of renders your opinion to be that of a sidewalk
>supervisor.
As I said the bounds of the medium have to be taken into account, otherwise
their could possibly be only one valid font patent, that of the alphabet in
neutral form, since every font is derivative of that.
>No, that just shows that either you are a sloppy reader or have a
>cavalier disregard for truth. Benguiat (according to the story) used
>Korinna, pasting down different serifs in a hurry, to beat another
>designer to market who had the same idea of pasting dow a different
>serif on Korinna.
At the risk of repeating myself:
"Your comparison between Korinna and Benguiat is laughable"
>No Clive, that's what they call Prior Art. " Repeat after me, "You
>can't just combine a mish-mash of features from previous fonts in a
>new way and have a patentable font." Remember the minimum requirements
>for a design patent of "novelty" and non-obviousness"?
Read and understand what I wrote:
"No identical features would appear in any other font for the
patented font"
It cannot be prior art if it is not identical to something already
existing, as I have also stated I have no wish to protect any font that
plagiarises another.
>There must be SOME new component. But if an "inventor" takes an old
>font like Garamond as the basis for most of the lines of his work, we
>are reduced to looking for the novelty in the smallest of features,
>because that is all that is left.
Then the expert witness and testimony better be pretty good at directing a
jury.
>
>>I don't know what your understanding of "discernable" is.
>
>I have explained at least 4 times to you that according to the legal
>standard, the differences must be discernable by the man on the
>street.
Fine, and I have replied in equal measure, one doesn't ask the man in the
street, one asks a member of a jury after they have been directed by
witness statements and evidence.
-- Clive
David Marshall
pk...@flnet.com wrote:
> David, I'm glad you agree. Because that is exactly how Adobe produces
> their fonts. The people roughly pick the corners and approxomate
> locations of other points of the outline with a mouse or other device
> - but not to the numeric accuracy of the end product. The mouse merely
> approxomates the location because the resolution that the human is
> looking at is not sufficient to select a specific point with great
> enough accuracy. The computer then assigns a specific digital
> coordinate to that mouse location out of the 25 or so digital
> coordinates that make up a coordinate location on the screen big
> enough for a human to differentiate.
Total rubbish I'm afraid. Type 1's hinting mechanisms simply couldn't
cope with such sloppy point assignment. The initial digitization is
always hand-tuned onscreen at coordinate accuracy to ensure that lines,
stems, counters and other features are consistent. If you truly do
believe this is how professional type is created, you should try it this
way.
> Then when the computer selection of the precise coordinates is done,
> the computer generates the code.
No, the computer compiles the Bezier instructions into more compact Type
1 instructions.
> Then Adobe says that the exact coordinate was selected by a person and
> nobody else can use it.
Not quite what they say, but it is true that all the coordinates were
hand-tuned.
> Or, if you take their coordinates and even fuzz, shift, smooth or
> average them to get a generic outline, making sure your outline does
> NOT match theirs, you still are infroinging. Infringing on nmbers a
> computer assigned - not a human. And upon code a computer wrote - not
> a human.
If the instructions had been computer-assigned then you would have a
greater defence, but as this is clearly not the case from the quality of
Adobe's outlines, this is not a valid defence. Taking someone else's
Bezier instructions and fuzzing, shifting or smoothing them creates a
derived work.
> But not selecting specific coordinates, right? We agree that takes
> place by the computer.
No, there is always human intervention to tune a digitized outline to
the *exact* coordinate that the digitizer intends. You are giving *far*
too much credit to the intelligence of the tools used for digitizing.
> But, on the screen, the person is looking at analogue drawings of a
> letter outline. Even in outline form, on their screen, they are
> drawing complicated analog letters which are uncopyrightable. The
> bezier curves they use may or may not be carefully placed, but what
> they are doing at a human level is all analog, agreed?
No, by definition there is no such thing as an analogue drawing on a
computer screen. What they are looking at is the digital effect of
executing a sequence of Bezier instructions. Analogue letters are
uncopyrightable in the US - but these aren't analogue.
> The computer is doing all the conversion to digital, right?
Rubbish. Ask Adobe nicely and they might just show you how real type
professionals work.
Dave
--
ki...@idt.net
David Marshall <da...@durge.org> wrote:
: I'm stating that I regard
: taking a font program through (what you regard as) an uncopyrightable
: stage, as serious as any other act of software derivation.
: Taking any other piece of software through an "uncopyrightable stage"
: (and graphical disassembler for example) still produces a derivative
: work. I don't see why you think font programs are any different.
Are you really advocating this? That any and all output of software
inherits its copyright? Nonsense! I'll write a program to generate
all possible programs, which will generate all possible outputs,
from which I shall own innumerable unregistered copyrights, and
then I shall own all intellectual property, ever written or to be
written, including holy writ and all dirty pictures of all persons
living or dead or yet unborn.
So this heritability concept is bald fallacy.
If font software outputs an analog shape (patterns on paper or
phosphor or whatever), that shape is by USCO policy public domain.
I can derive anything I like from it. If what I derive happens to
resemble the original software, well then, we have just proved that
the original was NOT "original" in the sense of human authorship,
since my machine did it.
And please don't call fonts "font programs". That's Orwellian
PC doublespeak introduced years after everyone, including the
big corporate protectionists, just called them "fonts".
A font might contain programs, but a font is never itself
a program. Your stomach might contain food, but you are not
a cheese pizza.
pk...@flnet.com
>In article <33d528a5...@news.packet.net>,
>pk...@flnet.com wrote:
>
>>>It is possible to have any kind of software produced automatically. These
>>>programs had no author and are therefore public domain.
>>
>>David, I'm glad you agree. Because that is exactly how Adobe produces
>>their fonts. The people roughly pick the corners and approxomate
>>locations of other points of the outline with a mouse or other device
>>- but not to the numeric accuracy of the end product. The mouse merely
>>approxomates the location because the resolution that the human is
>>looking at is not sufficient to select a specific point with great
>>enough accuracy. The computer then assigns a specific digital
>>coordinate to that mouse location out of the 25 or so digital
>>coordinates that make up a coordinate location on the screen big
>>enough for a human to differentiate.
<snip - personal insults by Clive>
>
>You can place a mouse coordinate with precise accuracy in *any* type
>editing program. Why, because they all feature zoom levels, up to 800%.
Yes, I agree that it is possible.
>Even if this were not the case, they also allow placement of points via
>cursor keys and/or dialogue boxes. ie if a dialogue box is used <x=100>
><y=212> the point is placed precisely at this location, no approximation is
>involved.
Yes, that is true too.
>And again, even when using the mouse (or other methods) the *pricise*
>coordinates are display (sic) in various ways.
Yes, you are right again.
But you are wrong in every one of your conclusions.
NOBODY does all of their coordinates that way. And it would be
MANDITORY to do each one that way to claim that you had digitally
selected the coordinates.
Most people out there in comp.fonts-land have brushed up against
Fontographer, FontLab, Corel Draw, Freehand, or other of the Bezier
drawing packages and we all know exactly how it is done.
We DRAW, we don't sit around digitally picking coordinates. Yes, there
are Bezier constraints many programs place on us, which turn out to be
a constraint of the artistic process. This is just like choosing
watercolors which bleed into the paper over acrylics, or choosing a
knife technique over a brush. These are mere analog application
methods. And each one has limitations forced on you.
But, the work is done on an artistic, analog basis with the computer
picking 99% of the coordinates. Nobody I know who DOES (occasionally)
digitally pick a coordinate bothers to keep a contemporaneous record
of exactly which coordinates they picked - as opposed to those the
computer picked.
In a Bezier drawing program, the computer keeps you from drawing with
some intuitive techniques that we would all like to use. But, it
still, by default makes ALL the digital choices. And the latest
programs insulate the artist even more from all this digital nightmare
that you seem to swear they engage in. And these programs are hot
sellers because they do. While I disagree with some foundry's
protectionist philosophies, I DON"T think they are part of the "I do
all the digital decisions myself - Beat Me - Hurt Me" club.
Yes, it is possible to do the computer's job for it. But artists like
to work with analog art - not be digital programmers. And they don't
become this "mythical programmer" that you and Adobe keep talking
about by doing the art in an analog fashion (in Corel, let's say) and
then clicking on "file/export/EPS". The process must be more than
theoretically possible. It must be completely performed that way and
IT MUST BE PROVEABLE. You must do every point yourself - every time.
If you believe that is what Adobe (or any other designer) does, I've
got some swamp land in Florida to sell you!
I dare say that, if the font designers out there had to make the
choice between unprotected fonts with artistic analog freedom vs.
moving 1/10 the pace and doing the digital drudge-work decisions that
a computer could do better and faster- but with (you say they would
be) copyrightable fonts, they would choose the artistic, analog
approach in a New York minute!
>>Then when the computer selection of the precise coordinates is done,
>>the computer generates the code. In exactly the places the points are located at on screen.
Yes, the computer DOES select the precise coordinates (which makes the
work unprotectable). The artist is only drawing letters and refining
them at some reasonable resolution. Even if the artist looks at the
analog font design at some screen resolution where there is a
point-for-point correspondance with the 1000 M-square, that does not
mean they look at each numeric coordinate. And if they DID look at
each numeric coordinate, that does not mean that they actually made
intelligent, informed decisions, picking one location over another.
>>Then Adobe says that the exact coordinate was selected by a person and
>>nobody else can use it.
>Anyone else *can* do it, the results may differ, but it's certain a machine
>can't do it on its own, just as a pen or word processor cannot write on its
>own.
Actually, with ScanFont, Stramline, or Corel Trace, a computer CAN do
it on it's own. And if a human is shifting outline poiints on an
analog outline, making decisions about placement, that does not mean
they are the owner of precise digital coordinates they have never seen
or may not even be aware of. Especially if they were not working
always at a 1:1 screen/points ratio.
>>But not selecting specific (outline) coordinates, right? We agree that takes
>>place by the computer.
>Nope, we don't (I think I can speak for Dave).
Are you going to stand in fron tof this group of Fontographer users
and tell us that you select each DIGITAL numeric, outline coordinate?
Because, that is what is in the PostScript code that Adobe says they
own.
You really expect us to believe that you picked each number and made a
specific decision to use the location say of 200,411 instead of
200,410 or 199,411?
>>But, on the screen, the person is looking at analogue drawings of a
>>letter outline. Even in outline form, on their screen, they are
>>drawing complicated analog letters which are uncopyrightable. The
>>bezier curves they use may or may not be carefully placed, but what
>>they are doing at a human level is all analog, agreed?
>Paul this is a really stupid argument, is music unprotected because it is
>translated to a digital format?
You always go into the "stupid argument" mode when you are losing,
Clive.
What they are doing at a human level is all analog, agreed?
The computer is doing all the conversion to digital, right?
If so, the artist is merely an artist, not the hotshot "point
programmer" that some may try to con the CO into believing.
David Marshall
ki...@IDT.NET wrote:
> : Taking any other piece of software through an "uncopyrightable stage"
> : (and graphical disassembler for example) still produces a derivative
> : work. I don't see why you think font programs are any different.
> Are you really advocating this? That any and all output of software
> inherits its copyright? Nonsense!
Erm, an interesting, yet puzzling, reading of what I wrote. As discussed
elsewhere, the protection of the output of a program is not related the
protection of the program itself. Where the output of a program is
simply the input transformed (in the case of disassembler, font
convertor, font editor etc.) the copyright protection is passed on.
> I'll write a program to generate
> all possible programs, which will generate all possible outputs,
> from which I shall own innumerable unregistered copyrights, and
> then I shall own all intellectual property, ever written or to be
> written, including holy writ and all dirty pictures of all persons
> living or dead or yet unborn.
You'll see this isn't the same thing. Your program has no
copyright-protected input - a disassembler or font editor does.
> If font software outputs an analog shape (patterns on paper or
> phosphor or whatever),
Font software cannot output analogue shapes. It outputs a sequence of
digital drawing instructions chosen to be a strong approximation of the
analogue design.
> that shape is by USCO policy public domain.
The analogue shape is PD in the US, the drawing instructions when chosen
by a person to be a strong approximation of this analogue shape are
intellectual property and are protected as any other piece of software.
> I can derive anything I like from it. If what I derive happens to
> resemble the original software, well then, we have just proved that
> the original was NOT "original" in the sense of human authorship,
> since my machine did it.
Working from a real analogue output (big smudgy printouts of glyphs) is
legal in the US - transforming Type 1 instructions into "uncopyrightable
outlines" onscreen (actually a sequence of Bezier and line drawing
instructions) and then back to Type 1 creates a derivative work. A
program to a program to a program. No public domain stage at all.
> And please don't call fonts "font programs". That's Orwellian
> PC doublespeak introduced years after everyone, including the
> big corporate protectionists, just called them "fonts".
It's very fortunate that font programs are so well defined and
implemented that as far as a user can tell there might as well be real
metal type in that "font file". Font files are full of instructions and
operands with very little data (character map for example).
> A font might contain programs, but a font is never itself
> a program. Your stomach might contain food, but you are not
> a cheese pizza.
A program is a sequence of instructions and associated operands. Type 1
is a font program containing "procedures" in various languages. TrueType
is a file containing lots of programs.
Dave
--
J K Rigney
David Marshall wrote:
>
> In a post, J K Rigney <jkri...@nospam.msn.com> wrote:
> > > You're playing semantics to mislead again. One third of the patents that
> > > get to court, the courts say should never have been issued.
> > You are, of course, correct in your interpretation. But that does not
> > mean that all patents which are not challenged in court are valid.
>
> Indeed. My point was merely that the patent cases that get to court can
> not be seen as indicative of patents as a whole - in any way, not just
> enforcability.
>
Again, I'm not so sure. The U.S. Patent Office has gome under a great
deal of criticism in recent years for its sloppiness and lack of
professionalism. Of course, it is ridiculously underfunded for the task
it is supposed to perform, and that may very well be deliberate.
I am not a patent lawyer, and I do not play one on TV, but I have had
conversations with some, and they generally agree that very few current
U.S patents would survive the test of litigation, excepting plant
patents and the like.
There are very few genuinely new inventions, but there are more patents
being issued now than ever before. There is not really any easy or
convenient way to research a patent claim. Patent applicants are
reluctant to reveal all of the details of their inventions for fear of
predation (yes, big companies have been known to scan patent
applications and to just plain steal the ideas in them; the poor schmuck
holding the patent is just told "sue us, if you can afford it").
Unfortunately, nothing even remotely definitive comes with the issuance
of a patent. In those long gone halcyon days of inventing paper clips
and clothespins, inventions were so distinctive that a patent offered
real protection. But now, when most "inventions" involve a new process
for developing a variant of a subset of an alternative form of something
already in exisstence for years, it has all grown murky.
Take all of this into an area (typography) where the Congress has shown
itself to be unwilling to offer copyright protection and not very
enthusiastic about including it under the patent umbrella, and I think
that you have a pretty safe bet that a patent on a digital type font
will entitle you to some pretty expensive litigation and little more.
Like it or not, Mr. King's legal analysis is pretty damn good. The only
hope for font protectionists is to get Congres to cover fonts with
copyright or patent protection. But they may be whistling in the wind on
that issue. There have, in recent years, been significant reviews and
revisions of Copyright and Patent law in the U.S., but no change when it
comes to fonts. Quite frankly, there are probably more people in this
country opposed to protection than there are in favor of it by a large
margin, and the Congress is well aware of it and unlikely to take
action.
In the meantime, the debate in this newsgroup has pretty well exhausted
the possibilities. It is time to hunker down and wait for the results of
Adobe v. King, et al.
Cheers,
JKR
For e-mail, please remove the "nospam" in the return address.
David Marshall
In a post, J K Rigney <jkri...@nospam.msn.com> wrote:
> Again, I'm not so sure. The U.S. Patent Office has gome under a great
> deal of criticism in recent years for its sloppiness and lack of
> professionalism. Of course, it is ridiculously underfunded for the task
> it is supposed to perform, and that may very well be deliberate.
I don't think the patents that get to court are indicative of patents
as a whole - in either direction! And design patents are whole different
kettle of ballgames. I'd rather that US designers didn't have to resort
to the "odd" protection of a design patent and got the "simple" coverage
of copyright that would be conferred on any other sequence of black
squiggles on a white piece of paper.
Clive Bruton
In article <33d8d8ad....@news.packet.net>,
pk...@flnet.com wrote:
>On Wed, 23 Jul 1997 15:50:46 +0100, cl...@typonaut.demon.co.uk (Clive
>Bruton) wrote:
>
>But you are wrong in every one of your conclusions.
>
>NOBODY does all of their coordinates that way. And it would be
>MANDITORY to do each one that way to claim that you had digitally
>selected the coordinates.
Sorry Paul, you're wrong again, I *absolutely* do choose *every* single
point precisely, everyone I know in the business does so too. This is easy
to prove, check it yourself, open up and Adobe font:
All the point are at extrema
All the lines that are supposed to be *exactly* horizontal
or vertical are *exactly* horizontal or vertical
All lines that are to align across the font (ie stems and
cap heights *exactly* align.
What are you suggesting, this happened by chance, we all have some
marvelous program to clean up our data after we've "flung" it at the
screen?
>
>Most people out there in comp.fonts-land have brushed up against
>Fontographer, FontLab, Corel Draw, Freehand, or other of the Bezier
>drawing packages and we all know exactly how it is done.
I'm sure many people have encountered any one of these tools, I'm sure that
the vast majority will also confess that their efforts do not come up to a
professional standard. This isn't because they are in some way disabled by
the tools, but because they are not clear about what is really required
from their input, and at least two of the programs you have mentioned are
in no way set up to allow them to analyse their input. As well as haiving
no knowledge of the technical specifications of computer font contruction.
This argument is analagous to claiming that we're all architects because we
can buy CAD packages.
>
>We DRAW, we don't sit around digitally picking coordinates. Yes, there
>are Bezier constraints many programs place on us, which turn out to be
>a constraint of the artistic process. This is just like choosing
>watercolors which bleed into the paper over acrylics, or choosing a
>knife technique over a brush. These are mere analog application
>methods. And each one has limitations forced on you.
No, Freehand/CorelDraw/FOG in no way force upon you the standards required
for digital output, the first two are specifically freeform bezier drawing
tools, the last is considered by many *not* to be a professionally
acceptable tool.
>
>But, the work is done on an artistic, analog basis with the computer
>picking 99% of the coordinates.
Don't be stupid, the artistic work is already done. Besides anything else,
even if the work were being done on an "artistic" level that would entirely
disprove your point; digitisations are not copyrightable as they are
generated by machine. Artistic machines?
>Nobody I know who DOES (occasionally)
>digitally pick a coordinate bothers to keep a contemporaneous record
>of exactly which coordinates they picked - as opposed to those the
>computer picked.
Why would one need to?
>
>In a Bezier drawing program, the computer keeps you from drawing with
>some intuitive techniques that we would all like to use. But, it
>still, by default makes ALL the digital choices. And the latest
>programs insulate the artist even more from all this digital nightmare
>that you seem to swear they engage in.
I swear on oath that this is the case, the computer makes no decisions (it
cannot). The only *digital* choice it is making is compiling my input for
any of serveral outputs, translating into various machine readable formats.
This is entirely the same as the input of any programmer, analogue input
via keybord, digital output compiled by the machine.
>And these programs are hot
>sellers because they do. While I disagree with some foundry's
>protectionist philosophies, I DON"T think they are part of the "I do
>all the digital decisions myself - Beat Me - Hurt Me" club.
I really don't understand the last comment, in order to present
professional fonts you have to be a member of the "Beat Me - Hurt Me club".
Perhaps you'd like to tell us that Adobe's fonts are developed with any of
the tools you have mentioned above?
>
>Yes, it is possible to do the computer's job for it.
The computer is a tool, it has no job to do, it can make no decisions
unilaterally, it requires input to do anything.
>But artists like
>to work with analog art - not be digital programmers. And they don't
>become this "mythical programmer" that you and Adobe keep talking
>about by doing the art in an analog fashion (in Corel, let's say) and
>then clicking on "file/export/EPS". The process must be more than
>theoretically possible. It must be completely performed that way and
>IT MUST BE PROVEABLE. You must do every point yourself - every time.
We're not talking about "artists", we're talking about design that is done
and finished, this is production, not art. Your analagy of exporting from
CorelDRAW is relevant, if I were freehand drawing a logo or illustration
then *probably" I wouldn't be too bothered with precision point placement,
however if I were doing a technical illustration/plan/cutter guide I'd make
sure that *every* single point and curve was in exactly the right place.
>If you believe that is what Adobe (or any other designer) does, I've
>got some swamp land in Florida to sell you!
Why would I want to buy your relative's homes?
>
>I dare say that, if the font designers out there had to make the
>choice between unprotected fonts with artistic analog freedom vs.
>moving 1/10 the pace and doing the digital drudge-work decisions that
>a computer could do better and faster- but with (you say they would
>be) copyrightable fonts, they would choose the artistic, analog
>approach in a New York minute!
In a bogus minute, of course we all would, but since you are not
campaigning for or even supporting such an eventuality, and we plainly have
copyright protection for programs, that is the only avenue for protection
that we have.
I don't believe there is a computer or program available that could
accurately do this work.
>
>>>Then when the computer selection of the precise coordinates is done,
>>>the computer generates the code. In exactly the places the points are located at on screen.
>
>Yes, the computer DOES select the precise coordinates (which makes the
>work unprotectable).
No you idiot, when the operator of the computer has made the decision with
his tools (the computer/program)
>...Even if the artist looks at the
>analog font design at some screen resolution where there is a
>point-for-point correspondance with the 1000 M-square, that does not
>mean they look at each numeric coordinate. And if they DID look at
>each numeric coordinate, that does not mean that they actually made
>intelligent, informed decisions, picking one location over another.
"Even if..."? Many digitisers are working far in excess of this resolution,
there's no point for point correlation, we're talking about 8:1 zoom, at a
minimum, it is virtually impossible *not* to pick precision points at that
scale.
>Actually, with ScanFont, Stramline, or Corel Trace, a computer CAN do
>it on it's own.
Paul, please quit the jokes, I thought we were having a serious discussion,
there is no machine/program available that can match hand input. Sure
anyone/thing can make a mess.
>And if a human is shifting outline poiints on an
>analog outline, making decisions about placement, that does not mean
>they are the owner of precise digital coordinates they have never seen
>or may not even be aware of.
If they are making *decisions* then it seems obvious to me that they need
to be aware of precision coordinates, otherwise they are merely *guessing*.
>Especially if they were not working
>always at a 1:1 screen/points ratio.
There is no other real option. Check out screen resolutions, designers and
digitisers of type are buying/using 1200*1600 monitors, exactly so they
never have to compromise on this issue.
>Are you going to stand in fron tof this group of Fontographer users
>and tell us that you select each DIGITAL numeric, outline coordinate?
Absolutely, and I've never used Fontographer to do so either, so your
reference is nonsensical.
Do you think I have something to fear by saying so?
>Because, that is what is in the PostScript code that Adobe says they
>own.
And you should know by now that I 100% agree with them.
>
>You really expect us to believe that you picked each number and made a
>specific decision to use the location say of 200,411 instead of
>200,410 or 199,411?
Yes. This is easy to establish, as I have already pointed out. Further to
this I would add that in doing this you would generate several different
stem weights for different characters, different overshoot values, do you
believe that any machine is capable of doing this for you?
>>Paul this is a really stupid argument, is music unprotected because it is
>>translated to a digital format?
>
>You always go into the "stupid argument" mode when you are losing,
>Clive.
No, I go into the "stupid argument mode" when you actually reveal how
little you understand what you are debating.
>
>What they are doing at a human level is all analog, agreed?
It cannot be digital as previously discussed, this is identical to the
input of any prgrammer - via keyboard/interface.
>
>The computer is doing all the conversion to digital, right?
The computer is storing the input in digital format. Do you think I should
maybe write the coordinates down first, then key them in?
>
>If so, the artist is merely an artist, not the hotshot "point
>programmer" that some may try to con the CO into believing.
Oh, so you think the CO actually does recognise this as programming, you've
maintained otherwise so far.
-- Clive
Clive Bruton
In article <5r9lgb$d...@nnrp1.farm.idt.net>,
<ki...@IDT.NET> wrote:
>David Marshall <d.p.ma...@durham.ac.uk> wrote:
>
>: > Or, if you take their coordinates and even fuzz, shift, smooth or
>: > average them to get a generic outline, making sure your outline does
>: > NOT match theirs, you still are infroinging. Infringing on nmbers a
>: > computer assigned - not a human. And upon code a computer wrote - not
>: > a human.
>
>: If the instructions had been computer-assigned then you would have a
>: greater defence, but as this is clearly not the case from the quality of
>: Adobe's outlines, this is not a valid defence. Taking someone else's
>: Bezier instructions and fuzzing, shifting or smoothing them creates a
>: derived work.
>
>
>You protectionists keep getting your logic up-ended. At this moment in
>this thread you seem to have agreed that (1) analog typeface shapes are
>public domain as regards USCO policy, (2) it is possible to mechanically
>generate Bezier outlines of arbitrary precision for such shapes, which
>outlines are necessarily public domain as they involve no human author.
I think you need to be more careful with your quotes and your answers. The
above refers to the fact that (if we accept that outlines have protection)
if you take an orginal font and stick it through a digital spin-dryer the
result is derivative of the original.
Clearly it could *not* have existed without the original input.
Of course it is possible to generate arbitrary shapes with bezier curves
without human input. What relevance would this have to a commercial grade
computer font?
>
>Thus every typeface, which is, by explicit US policy, public domain,
>necessarily has public domain Bezier outlines.
Sure, if they are all arbitrarily generated without human input. Do you
think this is the case?
I'm moved to question what the opposite of a protectionist is? A thief?
-- Clive
Clive Bruton
In article <33D9A7...@nospam.msn.com>,
J K Rigney <jkri...@nospam.msn.com> wrote:
>You are, of course, correct in your interpretation. But that does not
>mean that all patents which are not challenged in court are valid. A
>recent, obvious case involved a doctor's patent on a test for genetic
>defects in neonates. He demanded that everyone who used "his" patented
>test pay him a royalty. Even though the concensus is that his patent is
>invalid, no one so far has decided to front the money to challenge the
>patent. Many hospitals and labs have simply decided to drop the test, a
>potentially tragic, but thoroughly warranted in an economic sense,
>decision.
Do you think that this is any way proves that said patent is invalid. If it
was so widely agreed surely health groups would start a class action?
>All litigation is expensive.
I agree and have said so in these threads, however should that prevent
anyone from trying to seek the protection of the law, either way?
>
>In an odd way, we should all be grateful to Mr. King for sticking it
>out. If he had settled and gotten out, none of the issues would have
>been truly resolved. This way, at least, we will see a definite
>conclusion to the litigation, whether we all like it or not.
That is something I can definitely agree with. You hang on in there Paul,
pay us no heed, whatever the outcome you'll be doing us all a big favour.
-- Clive
David Marshall
> But you are wrong in every one of your conclusions.
> NOBODY does all of their coordinates that way. And it would be
> MANDITORY to do each one that way to claim that you had digitally
> selected the coordinates.
This is undeniably false. In a set-up where, say I'm digitizing a large
glyph drawing using Ikarus. By using the different-coloured buttons, I can
instruct the computer that the place I'm pointing is should be joined with
a curve, or a line, or is on-curve etc. but then I sit down in front of
the computer and have a look at the numbers - if they're right, I leave
them, if they're not quite what I want, I change them. So, where's the
computer selecting my numbers for me?
And it is not "manditory" for every bit and byte of a program to be
hand-selected for it to by wholly copyrighted.
> Most people out there in comp.fonts-land have brushed up against
> Fontographer, FontLab, Corel Draw, Freehand, or other of the Bezier
> drawing packages and we all know exactly how it is done.
> We DRAW, we don't sit around digitally picking coordinates. Yes, there
> are Bezier constraints many programs place on us, which turn out to be
> a constraint of the artistic process. This is just like choosing
> watercolors which bleed into the paper over acrylics, or choosing a
> knife technique over a brush. These are mere analog application
> methods. And each one has limitations forced on you.
Erm, in my experience the design of type straight onto screen is very,
very rare. It's usually drawn (or painted) on paper, hand-digitized then
hand-tuned. And it takes a hell of a long time and a hell of a lot of
*human* work to get it right.
> But, the work is done on an artistic, analog basis with the computer
> picking 99% of the coordinates. Nobody I know who DOES (occasionally)
> digitally pick a coordinate bothers to keep a contemporaneous record
> of exactly which coordinates they picked - as opposed to those the
> computer picked.
This has no basis in reality... why would anyone keep a record of the
coordinates that they didn't change because they were the ones they
wanted anyway?
> In a Bezier drawing program, the computer keeps you from drawing with
> some intuitive techniques that we would all like to use. But, it
> still, by default makes ALL the digital choices. And the latest
> programs insulate the artist even more from all this digital nightmare
> that you seem to swear they engage in. And these programs are hot
> sellers because they do. While I disagree with some foundry's
> protectionist philosophies, I DON"T think they are part of the "I do
> all the digital decisions myself - Beat Me - Hurt Me" club.
Sorry Mr King, but by choosing to start your Bezier in *that* pixel, you
are making a "digital decision".
> Actually, with ScanFont, Stramline, or Corel Trace, a computer CAN do
> it on it's own. And if a human is shifting outline poiints on an
> analog outline, making decisions about placement, that does not mean
> they are the owner of precise digital coordinates they have never seen
> or may not even be aware of. Especially if they were not working
> always at a 1:1 screen/points ratio.
But with Corel Trace, there is no human input, the computer picks all
the coordinates on its own and the results are not a protectable computer
program. No commercial type is produced this way - it would all look crap
for a start. This is exactly the same as any other cheap-and-cheerful
software creation package.
> Are you going to stand in fron tof this group of Fontographer users
> and tell us that you select each DIGITAL numeric, outline coordinate?
> Because, that is what is in the PostScript code that Adobe says they
> own.
Utter rubbish. I don't select every bit and byte in the compiled programs
I produce but they're still my intellectual property.
> You really expect us to believe that you picked each number and made a
> specific decision to use the location say of 200,411 instead of
> 200,410 or 199,411?
Mr King, if it makes a difference to the digital approximation of the
intended analogue design then of course you would choose one rather than
the other!
> What they are doing at a human level is all analog, agreed?
> The computer is doing all the conversion to digital, right?
No Mr King, when I select a particular pair of integers then that
looks like a pretty "digital" action to me.
It is certainly true that you *can* get a computer to autotrace your
bitmaps for you and produce a series of Bezier instructions, but the
quality will be hopeless compared to hand-digitized then hand-tuned
outlines.
> If so, the artist is merely an artist, not the hotshot "point
> programmer" that some may try to con the CO into believing.
I think you're confused about the various ways that it's possible to
produce a sequence of Bezier drawing instructions.
Clive Bruton
In article <33DA33...@nospam.msn.com>,
J K Rigney <jkri...@nospam.msn.com> wrote:
>Quite frankly, there are probably more people in this
>country opposed to protection than there are in favor of it by a large
>margin, and the Congress is well aware of it and unlikely to take
>action.
Surely this is true of any area where the majority percieve that it will
cost them money? For example any of the following would be cheaper (in the
immediate aftermath) if protection were removed:
Books
CDs
Videos
Computer programs
But longer term you would find that there would be less new items of this
sort coming on to the market.
This really isn't any way to develop intellectual property protection.
-- Clive
Tiro Typeworks
On Sat, 26 Jul 1997 20:32:23 +0100, cl...@typonaut.demon.co.uk (Clive
Bruton) wrote:
(replying to Paul King)
>>Are you going to stand in fron tof this group of Fontographer users
>>and tell us that you select each DIGITAL numeric, outline coordinate?
>Absolutely, and I've never used Fontographer to do so either, so your
>reference is nonsensical.
I will also stand up and say the same thing. Furthermore, I invite any
readers of this group to come and sit in our offices and watch me
work, for a day, a week, a month, or for as long as they like. Of
course I carefully select each outline coordinate (and offline
coordinate)! How the Hell else am I supposed to make a font look the
way I want it to look?
A large amount of my work is carried out directly on the computer,
building bezier outlines from scratch, with only visual reference to
my drawings. Why? Because I'm more accurate than any autotracer, and
it is quicker and more precise for me to plot each outline point than
it is for me to clean up traced outlines (deleting unwanted points and
inserting those that I desire). As the US Copyright Office affirmed in
1992, the making of a scaleable digital font is characterised by such
decisions, and these decisions are not limited by the unprotected
letterform design or functionally mandated.
John Hudson, Type Director
Tiro Typeworks
Vancouver, BC
ti...@tiro.com
www.tiro.com
Tiro Typeworks
On Sat, 26 Jul 1997 03:30:38 -0400, J K Rigney
<jkri...@nospam.msn.com> wrote:
>All litigation is expensive. Consequently, even though there may be
>virtual certainty about a favorable result in litigation, parties often
>decide against it simply because it does not make good economic sense.
I think we all agree on this. This is another reason why I am glad
that a company like Adobe, who can afford the lawyers fees, are
engaged in this fight. I see too many small, independent foundries who
cannot afford such suits being stolen from by font pirates. Even
shareware and freeware fonts, which individuals have generously
created and distributed without payment, are being included on illicit
CD-Rom collections profiting pirates. As a greater number of type
designers choose the independent route, as is undeniably the industry
trend, these people will more likely be the future victims of King and
his ilk.
As you say, the King case will finally provide a definitive judgement,
and in this respect we can all be glad as the long period of doubt
will be at and end. We, as independent designers, are also glad that
the fight is happening now, among people who can afford lawyers' fees.
pk...@flnet.com
MYTH #15 - If Copyright Does Not Provide Font Protection, Patents Can
Protect Most Fonts.
In a font, any programming code not describing the font design (and
possibly non-alphanumeric designs that are not common and don't carry
information) are all that can be copyrighted, if anything. This leaves
the door open in the USA to have anyone pay for the output of each
character from a typesetter and redigitize it or extract the design
from a font program (and rename it), easily duplicating the design.
Most foundries have very similar fonts derived from work largely
designed by others.
QUESTION What about Design Patents?
ANSWER Unfortunately, only a small percentage of design patents hold
up in court - the first place they are actually challenged. (unlike
utility patents)
QUESTION What is a Design Patent supposed to protect?
Patents are not there to protect fine art or even most commercial art
- those classes of design never have been protected in this way and
they never will! One court case said,
It is the application of the design to an article which separates mere
pictures from a design protectible by a patent;
QUESTION What is required to have a valid Design Patent?
Must be statutory subject matter.
Computer font designs (as opposed to lead matrix designs) are not an
"ornamental design for an article of manufacture." This makes them
non-statutory subject matter and ineligible for design patent
protection. 35 U.S.C. §171 provides that;
[w]hoever invents any new, original and ornamental design for an
article of manufacture may obtain a patent therefor, subject to the
conditions and requirements of this title.
The "article of manufacture" requirement means that the design must be
embodied in a product. A picture, standing alone, even placed on paper
or canvas, is not protectible by a design patent.
Generalized intent to ornament some article with your design at a
later date is insufficient to qualify for design patent protection. In
order to meet this threshold requirement of an applied design, an
applicant's specification must expressly disclose some article of
manufacture ornamented by the design.
This factor distinguishes patentable designs from mere pictures,
surface ornamentation or abstract designs. With font designs, this was
previously done by the manufacture of a punch block or a filmstrip.
This is why it was possible for previous, non-computer type to meet
this standard. It might be interesting to note that I have a copy of
the first design patent ever awarded in the US. It is for a typeface.
But nevertheless, current computer faces do not meet this threshold
that was so easily scaled by typefaces in the past. Since this is no
longer the case technologically (and in any event, no such type punch
blocks are disclosed in current type patents) any type font patents
not stating an article of manufacture are bare designs and are not
entitled to patent protection.
You might argue that the computer is an article of manufacture, since
the font appears on the computer screen. This does not rise to the
level of "embodiment in an article of manufacture" or else all art,
once digitized, would then be able to apply for patent protection. The
gates would swing wide to embrace all manner of things that were never
patentable before. There is a court case refusing design patent
protection for a computer icon, where no other article of manufacture
was disclosed. So, we can assume that computer fonts would also fail
based on mere "disclosure of the computer".
Font designs, as in a recent line of court cases involving computer
icons, do not "describe, claim or show the claimed design as applied
to any article of manufacture." There is a court case requiring that
the article of manufacture be shown in the drawings.
Just in case you think I am blowing smoke, the First Circuit
invalidated just such a patent in Goudy v. Hansen, The patent claimed
"[t]he ornamental design for a font of type." The court determined
that the patent was invalid, on two grounds, one of which was because
the font design was non-statutory subject matter.
Must disclose material prior art.
Don Lancaster, an engineer, PostScript Guru and prolific author in the
field of inventions and patents says,
There must be no prior art anywhere in the world. Even in
ultra-obscure and limited distribution documents. All prior art must
be fully disclosed. Failure to disclose trashes the patent. Because so
many people are thinking about so many things in so many places,
synchronicity virtually guarantees that your idea or concept is
neither new nor unique. In fact, your idea almost certainly has been
plowed over decades ago. To the point where there is not one patent in
one thousand that cannot be busted by a diligent enough search for
prior art in obscure enough places. The only exceptions here are if
you have a totally unique lifestyle, tools, and mindset. And have made
the total personal commitment to being well beyond the bleeding edge
of the technology in your target field
The general rule is that all prior art can be used against you to
overturn your design patent.
You MUST declare all prior art. Oz Cooper lost his design patent on
Cooper Black (Robertson, Commissioner of Patents, v. Cooper, 1931)
because of one word (Asbestone) done a couple of years earlier (very
possibly done by Cooper, himself) that was similar to the font.
The judge said,
that there were comparatively a few letters in the word "Asbestone";
whereas, the application was for an entire font of type, and,
therefore, could not be anticipated by the use of a few letters only.
We (the court) cannot agree with this conclusion. It seems apparent to
us that given even a few letters a skilled workman could construct an
entire font of type of the same design, and that this, while it might
involve a very high degree of skill, would not arise to the dignity of
an invention. The English alphabet consists of fixed groups, such as
the round letters c, e, o, C, G, O, Q, and the oblique line group, as
A, V, W, Y, Z. Then we have the verticle (sic) line group, as E, F,
H, I, L, T, i, l, m, n, r, a, and the vertical line group combined
with a half loop, as B. D, P. R. b, d, p, q.
Another combination is the vertical and oblique line group, as K, k,
M, N. It is apparent that the design of any one of these groups would
suggest to a skilled workman the design of all the others of the same
group, and such a workman, having before him the word "Asbestone,"
could, without any inventive ingenuity whatever, by exercise of a high
degree of skill only, construct the entire font of patent, and it is
also apparent that such a font of type, made with the word "Asbestone"
used as a model, would differ in no material respect from the font of
type upon which Cooper based his application for a patent.
Every patentee has a duty to disclose to the patent examiner any
information "known to that individual to be material to
patentability." Each patent application has a form where the applicant
swears to this fact. If a patentee willfully fails to disclose, the
patent will not issue.
Information is considered to be material to patentability when either
it establishes an unpatentability on the face of it or is inconsistent
with a position the applicant takes in connection with the prosecution
of the patent. The test is whether the prior art would have had a
material effect on the patent examiner. Basically, the applicant is
required to submit all evidence for why they shouldn’t get the patent.
For the prior art to be material, the Court need not determine that it
would have stopped the issuance of the patent. Courts say materiality
may be established "by a showing that a reasonable examiner would
consider the withheld prior art important in deciding whether to issue
the patent." You can’t just submit what you think is relevant, but
what you think anybody else might think is relevant. The attitude,
"but there is nothing like that on my shelves or in the local library"
is a recipe for failure.
Must not intentionally mislead the Patent/Trademark Office.
A court case says the concept of inequitable conduct in the patent
context "derives from the equitable doctrine of unclean hands: that a
person who obtains a patent by intentionally misleading the PTO cannot
enforce the patent."
To establish inequitable conduct on the basis of a failure to disclose
prior art, one must offer clear and convincing proof of:
(1) the existence of prior art or information that is material,
(2) knowledge chargeable to the applicant of that prior art and of its
materiality, and
(3) the applicant's failure to disclose the prior art, coupled with an
intent to mislead the PTO. This has happened many times and the courts
are very hard on this kind of stuff. Courts also say intent need not
be shown by direct evidence.
When a court has determined that inequitable conduct occurred during
prosecution of the patent application, the patent is rendered
unenforceable.
As the Federal Circuit has pointed out,
One who has engaged in inequitable conduct has inflicted damage on the
patent examining system, obtaining a statutory period of exclusivity
by improper means, and on the public, which must face an
unlawfully-granted patent. Loss of one's patent and damage to
reputation are justified penalties for such conduct.
Where the applicant fails to disclose the very foundation for each of
his "inventions," the patent will be ruled unenforceable because of
inequitable conduct.
Evidence of intent to deceive the PTO need not be direct, but instead
may be inferred by the patent applicants conduct. A court has said,
[w]hile direct proof of intent to mislead is normally absent, [the
submission of a false or misleading statement] usually will support
the conclusion that the affidavit in which they were contained was the
chosen instrument of an intentional scheme to deceive the PTO. In any
event, proof of the actual state of mind of the applicant or persons
associated with or representing an applicant is not required.
Also,
"[p]roof of deliberate scheming is unnecessary; gross negligence may
constitute sufficient wrongful intent to support a holding of
inequitable conduct. "
In determining intent, courts say there is a balance between
materiality and intent.
"The more material the omission, the less culpable the intent
required, and vice versa."
And also,
"mere denials of intent to mislead may not be sufficient to overcome
circumstantial evidence of intent to deceive."
Must have one common design theme running through the entire font that
rises to the level of patentability.
The Commissioner of Patents has said,
A single design patent is granted for an entire font on the theory
that there is but one inventive idea running through the entire font.
If, however, we take the position that one letter would not suggest
the appearance of the other letter, then there should be a design
patent for each letter, as the law contemplates that only one design
may be covered by one patent.
It seems from this statement that only a small feature running through
each character submitted in the patent application - like a new type
of serif - is all that is contemplated for a font design patent.
Must be ornamental.
The judge in Robertson, Commissioner of Patents, v. Cooper said,
There is grave doubt whether Cooper's design, upon which he makes the
application, (Cooper Black - ed.) is ornamental so as to bring it
within the statute which says that in order to be patentable, it must
not only be useful, but also ornamental.
Must be novel.
You font design must be "novel" and original over any prior art. To be
"novel", it must be new and must not have existed before.
As was said by the Supreme Court in the ease of Gorham Fog. Co. v.
White
Given the great similarity of fonts, the hurdle of prior art is raised
even higher because it has long been settled that the true test of
identity of a design is the effect of the comparison between the
designs upon an ordinary observer and not upon the one skilled in that
particular art.
As stated in one of the earliest typeface design patent cases, the
test for novelty "is a question to be determined from the impression
it makes on the mind, through the eye of the court, or of the ordinary
observer . . . and not the eye of some skilled engraver of type." The
court then found that the type font at issue did not possess
"sufficient novelty or beauty to constitute a design patent". Thus,
the Court can easily resolve the patentability issue based on a
comparison of the patented fonts with the prior art. And in order for
a patent holder to succeed in court, it must do more than point out
minute differences in letter forms that would be apparent only to one
skilled in the art.
Must be original and non-obvious.
We now take those identified original elements (and only those) to the
next level. Even if font design patents survive the foregoing
challenges, most still can be found invalid because most font designs
lack the requisite novelty and non-obviousness for patentability. The
patentability requirements for design patents are no less stringent
than for utility patents. To be patentable, a concept must not only
never have existed before. The new element must not be an obvious
stretch of art to any practitioner in the field.
The test for originality is "non-obviousness" - such that a skilled
practitioner in the art would not have thought of it. The differences
between your design and all prior art must not have been obvious to
any designer of ordinary skill at the time you created your design.
This standard for originality is high, maybe too high for any fonts.
Auto fenders and bumpers, for example, may be different for each model
of car, but courts have generally ruled that the underlying ideas of
their design are inherently obvious in earlier products. I would say,
changes in car bumpers are generally bigger than the changes in fonts!
This rules out revivals, morphing, all bold or thin versions of fonts,
and copying designs from other people's copy books (which many people
think has been done by "top of the line" foundries under the name of
"originality") as ever subject matter for a patent. It also rules out
combinations of features others have used on several fonts, merely as
a new arrangement in a single font. Foundries who apply for design
patents like this are whistling past the graveyard!
Frederic W. Goudy, considered by many to be one of the greatest type
designers of the 20th century with 123 typeface designs to his credit,
approached the question of whether or not it was possible for an
artist to design an original face of type in his book. Tyoplogia -
Studies in Type Design & Type Making
What, then, is original type design? Is it possible for an artist to
design an original face of type? Probably not in the strictest sense
of the words, since, after all, what we call an "original type face"
is undoubtedly little more than a subtle variation of an orthodox or
traditional letter form, a form to which we attempt to impart a charm
of character or a quality of personality - our efforts sometimes
achieving a measure of unconscious originality.
The unpatentability (and unoriginality) of most fonts is illustrated
by a story that I understand Mac Brumwell tells about watching Ed
Benguiat make the font Benguiat by taking enlargements of the font
Korinna and pasting down a different serif design on each letter.
Non-original to be sure, and easily done by any first year art
student. Definite prior art from other designs. It would be an obvious
design EVEN IF the story didn't have Ed first seeing the idea of
"Korinna with a different serif" sketched out in another famous
designer's work and was just trying to beat him to market.
Benguiat is the receiver of the prestigious Goudy Award from the RIT
and also is known as the designer of Souvenir. Yet there seem to be
many earlier "Souvenir" designs - for instance in the 1906 ATF
catalog. One story has him merely stat-ing his "new design" out of a
book or pulling proof sheets and cleaning them up. To make the
different weights, he supposedly just double exposed each letter on
stat paper, moving it slightly. You can see a double crest on the top
of the lower case "e" in some of the bolder weights, where it wasn't
even cleaned up! Since they didn't have Postscript back then - or
computers, would you agree that this might be the closest analogy for
digital extraction today?
Some exercise of the inventive faculty is as essential to the validity
of a design patent as to the validity of a mechanical patent. It is
not enough to show that the design has not been anticipated, nor is it
enough to show that the design is pleasing and ornamental, and
presents a substantial difference to the eye from anything which has
gone before. In order to involve an exercise of the inventive faculty,
a design must be shown to be beyond the range of the ordinary routine
designer. Most designs do not contain the requisite originality to
warrant design patent protection and even if they did contain original
elements, they would have been obvious to one skilled in the art
(indeed, even to a layman).
The First Circuit invalidated just such a patent in Goudy v. Hansen,.
The court determined that the patent was invalid, among other reasons
because it did not possess "sufficient novelty or beauty to constitute
a design patent." Notice, Goudy didn’t find this out until he spent
the application fee and then spent more money in court! It should be
clear from this that not all fonts which are designed in good faith
with no attempt at plagiarism will be able to rise to the level of
patentability.
The Goudy v. Hansen court's logic is inescapable and perfectly in
keeping with other intellectual property laws. Congress has
specifically excepted typeface designs from copyright protection in
order to prevent someone from, essentially, owning versions of the
alphabet. Yet affording patent protection to type fonts "just because
they are type" accomplishes this same forbidden result which font
protectionists so eagerly desire. The court in Goudy v. Hansen
recognized that extending such protection is beyond the scope of
patent law and invalidated the patent for that very reason.
One foundry president has said,
There are few truly original typeface designs. Most designs considered
"new" by the type design community are merely adaptations, derivative
works or outright copies of earlier works. One of the most famous and
widely used typefaces of the Twentieth Century is Helvetica. Although
it brought a breath of fresh air into the post- W.W.II design
community of the 1950's, it was nothing more than an adaptation of the
existing Haas Grotesk typeface, which in turn owed its origins to
nineteenth-century German Grotesque (loosely, sans serif) typefaces
such as Berthold's Akzindenz Grotesk.
The type design community is quite small. Only a few hundred people
are actively engaged in the design of new typefaces' very few of them
doing it as their sole means of producing income. There are, perhaps,
a few thousand other people who could be considered "typophiles," avid
fans of typography, typeface designs and designers. Within this small
community, endless battles rage over the finer points of a type
design, much as they did centuries ago about how many angels could
dance upon the head of a pin.
Copying of typeface designs is and has been common for centuries. It
was, in fact, a business war between the manufacturers of older hot
metal typecasting and phototypesetting equipment that gave rise to the
aggressive marketing of typeface design trademarks through the
creation of the International Typeface Corporation, a business partner
of Adobe Systems, Inc.
Like many special-interest groups, the type design community has
developed its own jargon. Those from outside the inner circle who copy
type designs are called "plagiarists," "font thieves" and worse.
Inside the community, however, a more polite system of description has
arisen.
To protect themselves from charges of "plagiarism" by outsiders, the
type community adopted two key words to describe their practices of
copying other people's typeface designs: "facsimile" and "revival."
A "revival" typeface design is "an adaptation of an existing design
for newer technology or methods of manufacture." facsimile is "a
revival of an existing (usually historic) typeface which takes into
account all the imperfections . . . and idiosyncrasies of the original
model, rather than regularising them for current taste."
However, these inbred terms cut no ice with the Patent/Trademark
Office! They just don’t matter. In the real world, designers have to
submit applications based on the same standards of originality as
everyone else.
Must apply for patent within one year of first public use.
The "on-sale" bar in §102(b) of the patent act provides that a person
may not obtain a patent if
the invention was ... in public use or on sale in this country, more
than one year prior to the date of the application for patent in the
United States.
Generally, the purpose behind the section 102(b) bar
is to require inventors to assert with due diligence their right to a
patent through the prompt filing of a patent application.
QUESTION What is required to actually collect on a Design Patent
infringement?
Whatever your attitude toward patents, we can all agree that it is no
fun paying a lot of money for a leaky raincoat - especially if you
don’t discover it until the Great Flood starts!
Someone might say, "Well, Adobe just did it improperly. Let’s not
throw the baby out with the bath water! I’ll avoid all of their errors
and omissions and still try the patent route. I know that Adobe has
the money to hire good patent lawyers, but I think I can learn from
their mistakes. What do I need to do?"
First of all, you will need a lot of money for attorney’s fees! Owning
a patent gives you the right to find and sue infringers - not an
automatic injunction. Federal court cases are very expensive and the
win rate of design patents is not very favorable.
Even though patent fees run about $500.00 per design (not counting
steep attorney’s fees), you cannot wait until your design becomes
commercially acceptable before you attempt to protect it. And some
people may say that you should protect all your designs immediately,
because you don’t know which ones will become successful - even over
time. When they are successful, it is too late for a patent! The
financial hurdle per successful design becomes considerable at this
point!
The key issue here is finding the time to economic break-even. One
patent expert says the break-even point for a patented item is if you
can expect $250,000.00 from it. This rule of thumb would clearly
discourage most font patents. Don Lancaster says that "any involvement
with the patent system is nearly certain to result in a net loss of
time, energy, money, and sanity."
Don’t forget, a design patent is only good for a very limited number
of years.
Must carry the Patent Marking required.
All patented Designs must carry the Patent Marking required by 35
U.S.C. §287(a), placing the public on notice that there is a patent.
35 U.S.C. §287(a) provides that patentees may give notice to the
public that the same is patented, either by fixing thereon the word
"patent" or the abbreviation "pat. ", together with the number of the
patent, or when, from the character of the article, this can not be
done, by fixing to it, or to the package wherein one or more of them
is contained, a label containing a like notice. If the marking is
absent,
"no damages shall be recovered by the patentee in any action for
infringement, except on proof that the infringer was notified of the
infringement and continued to infringe thereafter, in which event
damages may be recovered only for infringement occurring after such
notice.
In any court action for patent infringement,
"[t]he patent owner must also plead and prove compliance with section
287(a).
Must have patent drawings which clearly show the originality.
If you go to court to enforce the design patent against an infringer,
the court will be required to compare the accused product with the
drawings in your design patent. Infringement will be found only if the
defendant's product is substantially the same in overall appearance to
the patent drawings. Even if a font copies the "essence" of another's
design, minor changes or variations in the defendants design may make
the design sufficiently different from the patent drawings even if you
have jumped the other hurdles of prior art and non-obviousness.
QUESTION Does a Design Patent protect a font design against font
software which draws the design (because it contains a list of
coordinates, but does not actually contain the design in the form
shown on the patent application)?
Section 271(a) of the Patent Act does not define an infringer as "one
who makes a copy without authority". Instead, an infringer is defined
as
"whoever without authority makes, uses, offers to sell, or sells . . .
or imports . . . any patented invention. "
Even if it is possible today to obtain a valid design patent on a font
design which is upheld by the courts, sale of a font program does not
infringe on that design by the legal meaning of the term. Remember,
you are getting a patent on a font design, not a piece of font
software! The publisher of a competing font software program does not
make the font design, nor do they use them, offer to sell them, sell
or import them. What the publisher does is sell software that is
capable of rendering the font design. But that is not patent
infringement. Since the only inquiry relevant to the infringement
issue is whether defendants make, use or sell the designs themselves,
testimony that someone’s computer code which renders fonts is similar
to the patent holder’s computer code could not be less relevant.
The Infamous "Gap"!
There is definitely a gap here between Copyright rulings and Patent
Law. Copyright rulings specifically consider outline coordinates and
algorithms for deriving a font as equal to a font design - and then
say even those things are uncopyrightable. Patent Law does not even
connect outlines or coordinates or algorithms or programs with the
design at all! Both rulings are a blow to protectionists. In their
perfect world, the two rulings would be reversed.
Apparently some protectionists hope that by offering a comparison of
the font program code (Copyright argument) in a Patent case and
offering a comparison of the actual font designs (Patent argument) in
a Copyright case, they can confuse and intertwine the two legal
theories and convince a court that somebody, somewhere, must have done
something illegal. But courts have not found that copying computer
code constitutes patent infringement or that copying uncopyrightable
typeface designs is somehow copyright infringement. This protectionist
tactic is known as the "smoke and mirrors" approach to law.
QUESTION Why is the PTO soliciting type patents then?
Great question!
Part may have to do with the fact that Adobe’s old Outside Counsel is
now head of the Patent Office. Everyone approaches their job with some
kind of bias based on their past.
Another factor is that the patent office is supposed to survive based
on their application fees rather than appropriations from Congress.
The more applications - the more money. It doesn’t matter if your
patent gets overturned in court, they get the money based on
applications. If you were a patent examiner in the font area, and you
realized the money for your position was based on the amount of
application fees in your area, you might be inclined to write an
article or two yourself!
So recently, there have been articles in magazines from PTO employees
almost soliciting font patent applications. An artist I talked to have
said they were specifically asked by the PTO to submit their fonts for
patent. Their impression was that the person currently in the job has
no long term aspirations to continue. Policies change when people do!
The person reviewing type design applications 5 years ago is not doing
it now. There doesn’t seem to be a large continuity, institutional
memory or even employee training in this area of the PTO.
Patent examiners are not always lawyers, nor do they necessarily
understand all patent law, or the enforcement costs to the designer to
provide actual economic protection over the entire (short) life of the
patent. Statistics show that a very substantial portion of design
patents are overturned the first time they hit a courtroom. Of course,
by then the poor designer has spent a prince’s ransom in money and a
good deal of their life, just to find out how cheap and easy the
patent approval process is compared to an actual defense of their
patent in court.
By the way, the IBM site at http://patent.womplex.ibm.com/ibm.html
allows FREE searches of the past few years of patents, including
design patents. You can find the ones at issue in the Adobe v.
Southern Software, Inc case, and others that Adobe (and others who
have design patents on typefaces) has obtained.
QUESTION Why are other type protectionists promoting type patents?
Another source of patent encouragement are the font protectionists
serving as armchair patent lawyers. They remind me about the story of
two small boys who walked into the dentist's office. One of them said
bravely, "I want a tooth taken out and I don't want any gas, and I
don't want it deadened. . . because we're in a hurry!" The dentist
said, "You're quite a brave young man. Which tooth is it?" The boy
turned to his smaller friend and said, "Show him your tooth, Albert."
The world is full of armchair advisors like that. We're anxious to
have something happen -- to someone else!
Here are some questions to ask these "experienced men of the world."
1) Have you ever spent your own money to patent a font?
2) Have you ever successfully defended your font patent in court?
3) Did you break even on the economic benefit from your patent?
Paul King
Paul King - President, Southern Software, Inc. (pk...@flnet.com)
www.ssifonts.com is the best Internet source for all your font
requirements, Mac or PC! See the restr of the Font foundery Myths. We
Tiro Typeworks
On Sat, 26 Jul 1997 12:48:39 GMT, David Marshall <da...@durge.org>
wrote:
>> Most people out there in comp.fonts-land have brushed up against
>> Fontographer, FontLab, Corel Draw, Freehand, or other of the Bezier
>> drawing packages and we all know exactly how it is done.
>> We DRAW, we don't sit around digitally picking coordinates. Yes, there
>> are Bezier constraints many programs place on us, which turn out to be
>> a constraint of the artistic process. This is just like choosing
>> watercolors which bleed into the paper over acrylics, or choosing a
>> knife technique over a brush. These are mere analog application
>> methods. And each one has limitations forced on you.
>Erm, in my experience the design of type straight onto screen is very,
>very rare. It's usually drawn (or painted) on paper, hand-digitized then
>hand-tuned. And it takes a hell of a long time and a hell of a lot of
>*human* work to get it right.
Not so very rare (although we who work this way are certainly in a
minority); however, no type designer I know who works directly on
screen uses paint tools or drawing tools. We work by building bezier
outlines, point by point, defining curves, straight line segments,
connection types, etc., as we go. As I explained in a previous post, I
work this way making visual refernce to my drawings, which are propped
infront of me while I work onscreen. I do this because I can place the
points more accurately the achieve the outlines I want than any
autotracer can. This is akin, in many ways, to plotting points on an
Ikarus outline, as you described in a previous thread, excepting that
what happens on the screen is wholly the result of my decisions of how
the font should be. The original drawing is simply a visual guideline
in the making of the digital font, and the latter is not in any direct
sense digitised. This is much as punchcutters worked, except rather
than working with the skill of my fingers, guided by my eye and my
knowledge of type forms and printing conditions, I work with my
knowledge of the behaviour of bezier curves in relation to all the
other elements of the font program, including stem hints, Blues
values, private library entries, etc..
Susan Jurist
In article <B0000F57...@0.0.0.0>, cl...@typonaut.demon.co.uk (Clive
Bruton) wrote:
> No, Freehand/CorelDraw/FOG in no way force upon you the standards required
> for digital output, the first two are specifically freeform bezier drawing
> tools, the last is considered by many *not* to be a professionally
> acceptable tool.
this was a great message (besides being an entertaining one) -- so I ask
you -- how do you specify the points? What program do you use? My fonts
aren't anywhere near professional standard, but I blame that more on that
I don't know what I'm doing with bezier curves, that I don't know that
much about font design & that I don't have the time to really get good at
it -- rather than the fault of the program.
But you've left me really curious about how a professional works. I'm not
being facetious (after all, I'm *not* Mr. King) -- do you draw it on paper
first? do you scan? do you literally type in the point numbers? I've been
frustrated with fontographer because their maximum resoultion isn't
maximum enough -- it's using a blunt weapon for micro surgery -- so if
there's (affordable) software out there, I'd love to know about it.
Amateur's like good tools too!
csj
David Marshall
In a post, ti...@tiro.com (Tiro Typeworks) wrote:
> We work by building bezier
> outlines, point by point, defining curves, straight line segments,
> connection types, etc., as we go. As I explained in a previous post, I
> work this way making visual refernce to my drawings, which are propped
> infront of me while I work onscreen.
I'm thoroughly impressed. If this isn't a creative, skillful act worthy of
protection, I'm Bill Clinton.
Tiro Typeworks
On Thu, 31 Jul 1997 16:14:49 GMT, pk...@flnet.com wrote:
>Now, if the precise coordinate points matter so much as you say...
>Why does Adobe not shift all points by hand?
>Why do they try to copyright points derived by a computer?
>Why do they try to copyright points they admit are functionally
>mandated?
>Why do they want to protect points they aren't even using and never
>even selected for their own fonts?
I'm not about to answer any of these questions, as I do not work for
Adobe, do not use the same software or processes that they use, and
have no magical ability to read the minds of Adobe employees. I know
how I work, and am happy for anyone to come and watch me (so long as
they don't pester me with silly questions while I'm trying to work).
pk...@flnet.com
On Sat, 26 Jul 1997 23:30:03 GMT, ti...@tiro.com (Tiro Typeworks)
wrote:
>On Sat, 26 Jul 1997 20:32:23 +0100, cl...@typonaut.demon.co.uk (Clive
>Bruton) wrote:
>
>(replying to Paul King)
>
>>>Are you going to stand in fron tof this group of Fontographer users
>>>and tell us that you select each DIGITAL numeric, outline coordinate?
>
>>Absolutely, and I've never used Fontographer to do so either, so your
>>reference is nonsensical.
>
>I will also stand up and say the same thing. Furthermore, I invite any
>readers of this group to come and sit in our offices and watch me
>work, for a day, a week, a month, or for as long as they like. Of
>course I carefully select each outline coordinate (and offline
>coordinate)! How the Hell else am I supposed to make a font look the
>way I want it to look?
John, It may interest you to know that Adobe took Judge Whyte and our
attorneys on a tour of their facilities to give them a tutorial on how
fonts are made. It may interest you to know that in many cases, Adobe
says it buys digital information from another company. It then uses a
curve fitting program similar to Streamline for the initial outline.
Then it makes changes to that.
Adobe agrees, through it's attorneys, that some points are not
creative at all and are mandated by the shape of the letters (for
instance, they say, all of the points in a san serif L).
Adobe also agrees that many of the points they use are not changed
from the points that the curve fitting routine supplied them with.
They only move some points! They even have color coded charts for the
Judge showing the points that they moved v. the ones the computer
placed.
And they not only are seeking protection for the precise point that
they selected (and it is not always certain that they moved them to
precise numerical coordinates) but they are also seeking protection
from anyone who is selling a font outline where the points are
somewhat different from the ones Adobe uses.
Now, if the precise coordinate points matter so much as you say...
Why does Adobe not shift all points by hand?
Why do they try to copyright points derived by a computer?
Why do they try to copyright points they admit are functionally
mandated?
Why do they want to protect points they aren't even using and never
even selected for their own fonts?
It's like a kid in the back seat of a car...
"Mama, he hit me!"
"Did you hit him?"
"No."
"Why did you say that about your brother?"
"Well, he's too close to me!"
"Did he touch you?"
"No, but it makes me uncomfortable that he's so close."
J K Rigney
Clive Bruton wrote:
>
> In article <33DA33...@nospam.msn.com>,
> >country opposed to protection than there are in favor of it by a large
> >margin, and the Congress is well aware of it and unlikely to take
> >action.
>
> Surely this is true of any area where the majority percieve that it will
> cost them money? For example any of the following would be cheaper (in the
> immediate aftermath) if protection were removed:
>
> Books
> CDs
> Videos
> Computer programs
>
> But longer term you would find that there would be less new items of this
> sort coming on to the market.
>
> This really isn't any way to develop intellectual property protection.
>
I could not agree less about the cost aspect. I am familiar with the
area of royalties, and I know that the cost of royalties is a very small
part of the price of a book, CD, video or computer program.
Of course, authors are reluctant to give their work away, but most do
anyway. Very few authors really make any money from their work. It's the
rare few who sell enough to make any real money from royalties.
None of this anticipates electronic publication which will, of
necessitiy, challenge all of these assumptions. It's a brave new world.
--
JKR
For e-mail, please remove the "nospam" in the return address.
La Nostalgie N'est Plus Ce Qu'elle Etuit.
J K Rigney
David Marshall wrote:
>
> kettle of ballgames. I'd rather that US designers didn't have to resort
> to the "odd" protection of a design patent and got the "simple" coverage
> of copyright that would be conferred on any other sequence of black
> squiggles on a white piece of paper.
But copyright only protects one from another who actually copies the
finished product--literally copies it. It offers no protection against
derivation. Adobe, et al, want more than that.
mic...@removecascadilla.com
> David Marshall wrote:
> >
>
> > kettle of ballgames. I'd rather that US designers didn't have to resort
> > to the "odd" protection of a design patent and got the "simple" coverage
> > of copyright that would be conferred on any other sequence of black
> > squiggles on a white piece of paper.
>
> But copyright only protects one from another who actually copies the
> finished product--literally copies it. It offers no protection against
> derivation. Adobe, et al, want more than that.
Please stop posting this absolutely false statement, and check any
reference work. Copyright includes the right to create derivative
works, and the right to prevent others from doing so.
J K Rigney
mic...@REMOVEcascadilla.com wrote:
>
> Please stop posting this absolutely false statement, and check any
> reference work. Copyright includes the right to create derivative
> works, and the right to prevent others from doing so.
Absolutely is a big word, and you use it very loosely. You also misuse
the word "derivative". If your reading of the word were correct, very
little could be protected by copyright since almost everything is
derivative, especially fonts. "Copy" is the most important word here.
One cannot copy, either completely or substantially, the written or
graphic work of another without permission. One can paraphrase (and
almost all fonts "paraphrase" some antecedent) or use another's ideas as
a point of departure for one's own work with impunity. It may not be
very original, but it won't violate copyright law.
The protected "derivatives" that the copyright law anticipate may be
photographic copies of paintings, reprints of books or articles, scaled
reproductions of works of art and the like. Copyright also generally
prevents the unauthorized incorporation of substantial, recognizable
portions of one's work into someone else's work (one of the most famous
recent instances was Andy Warhol's wholesale appropriation of another's
photograph for his own work). But check out recent cases on "parody",
which weaken the latter protection greatly. It just ain't that simple,
and there's nothing absolute about it, and that's absolutely true.
Cheers,
David Marshall
In a post, J K Rigney <jkri...@nospam.msn.com> wrote:
> But copyright only protects one from another who actually copies the
> finished product--literally copies it. It offers no protection against
> derivation. Adobe, et al, want more than that.
That's rubbish. Try producing a derived version of Microsoft Word and
seeing how long your case lasts in court.
mic...@removecascadilla.com
> mic...@REMOVEcascadilla.com wrote:
> >
> > Please stop posting this absolutely false statement, and check any
> > reference work. Copyright includes the right to create derivative
> > works, and the right to prevent others from doing so.
>
> Absolutely is a big word, and you use it very loosely. You also misuse
> the word "derivative". If your reading of the word were correct, very
> little could be protected by copyright since almost everything is
> derivative, especially fonts. "Copy" is the most important word here.
> One cannot copy, either completely or substantially, the written or
> graphic work of another without permission. One can paraphrase (and
> almost all fonts "paraphrase" some antecedent) or use another's ideas as
> a point of departure for one's own work with impunity. It may not be
> very original, but it won't violate copyright law.
The word "derivative" has several meanings in common usage. When you're
talking about copyright law, however, the word has a very specific meaning,
which is defined by law. And copyright most certainly applies to derivative
works.
If you only use somebody's ideas to create a new expression, then you're
not creating a derivative work as copyright law defines that. However,
if you start out with somebody's expression and change that expression,
you've created a derivative work. Take John Grisham's latest novel.
Change all the character names. Change all the adjectives. Change all
the sentences from active to passive voice. Keep making changes like
that. You may end up with something which is completely unrecognizable
after a while, but you'll still have created a derivative work. You won't
get into trouble if you've made it completely unrecognizable, unless you
announce what you've done, but you've still made a derivative work.
You said copyright "offers no protection against derivation." That
statement is absolutely false. Sorry to burst your bubble.
Constantin Teleman
In article <michael-0208...@mfs-01-241.port.shore.net>,
mic...@REMOVEcascadilla.com wrote:
> If you only use somebody's ideas to create a new expression, then you're
> not creating a derivative work as copyright law defines that. However,
> if you start out with somebody's expression and change that expression,
> you've created a derivative work.
This seems to need clarification ... how could you "use someone else's
ideas" and not "start out with somebody's expression" of those ideas?
For written work, unauthorised copying is generally prohibited, but
paraphrasing is generally permitted. It is not AFAIK a requirement
that the original be unrecognizable (if you know any edifying examples,
please provide them ...). A large grey area in between can fall under
the label "plagiarism" if proper credit is not given.
There would seem to be room for a lot more grey in the visual arts.
cheers
constantin
J K Rigney
mic...@REMOVEcascadilla.com wrote:
>
> You said copyright "offers no protection against derivation." That
> statement is absolutely false. Sorry to burst your bubble.
I said no such thing. This is my last response to you. You choose to
ignore the substance of other's statements, then distort them and
proceed to "refute" them. You do very well against "straw men", but you
are less than honest in dealing with others' arguments. If you have no
answer, do not distort others' statements just to make your point. You
are very big with absolutes and try to reduce everything to them. The
real world is never quite so definite.
You treat PTO documents as if they were the Bible; they are not. They
are "authority", but they are not the final word. Congress writes the
law. The Courts interpret it. That's the final word. What the PTO says
is merely advisory, always to be viewed with caution. That's why Adobe
hired lawyers, not typographers, to represent them. They'd like to win
their arguments in the real world.
Good bye. Good luck.
J K Rigney
David Marshall wrote:
>
> In a post, J K Rigney <jkri...@nospam.msn.com> wrote:
> > But copyright only protects one from another who actually copies the
> > finished product--literally copies it. It offers no protection against
> > derivation. Adobe, et al, want more than that
>
> seeing how long your case lasts in court.
Seems to be the way the courts have interpreted copyright protection of
software. Don't I recall several companies suing Microsoft over the
"look and feel" notion (Apple vs. Windows)? Their argument was that the
Windows desktop was "derivative". They lost.
In the US, you have to prove that someone copied your code (concerning
font code) or you will lose in court.
Cheers,
J K Rigney
Good points all. One might add that there are examples which might
violate, for instance, a university's rules against plagiarism which
wouldn't necessarily violate copyright law.
>
> There would seem to be room for a lot more grey in the visual arts.
This is most apparent in the area of parody. But then some very close
approximations of written works have been held not to be copyright
violations because they were essentially parodies of the originals. Free
speech does, after all, prevail over protection.
Cheers,
--
JKR
For e-mail, please remove the "nospam" in the return address.
La Nostalgie N'est Plus Ce Qu'elle Etuit.
mic...@removecascadilla.com
> mic...@REMOVEcascadilla.com wrote:
> >
>
> > You said copyright "offers no protection against derivation." That
> > statement is absolutely false. Sorry to burst your bubble.
>
> I said no such thing. This is my last response to you. You choose to
> ignore the substance of other's statements, then distort them and
> proceed to "refute" them. You do very well against "straw men", but you
> are less than honest in dealing with others' arguments. If you have no
> answer, do not distort others' statements just to make your point. You
> are very big with absolutes and try to reduce everything to them. The
> real world is never quite so definite.
A simple DejaNews search will turn up your quote. Unless someone else
was using your account? Barring that, I quoted you directly (and you
repeated your mistake in at least two posts).
> You treat PTO documents as if they were the Bible; they are not. They
> are "authority", but they are not the final word. Congress writes the
> law. The Courts interpret it. That's the final word. What the PTO says
> is merely advisory, always to be viewed with caution. That's why Adobe
> hired lawyers, not typographers, to represent them. They'd like to win
> their arguments in the real world.
First, the Copyright Office and the PTO are different. Second, I've
only recommended the Copyright Office documents as good introductions
to the area, since you seem unable to get your basic facts straight
from whatever sources you are using (if any).
David Marshall
Because they're already in the right...
"Oh, let's move all these points about for the hell of it without any
aesthetic sense just so we can claim that it's all our own work..."
This gets madder and madder...
Dave
--
http://www.aestiva.demon.co.uk/
David Marshall
In a post, J K Rigney <jkri...@nospam.msn.com> wrote:
> > You said copyright "offers no protection against derivation." That
> > statement is absolutely false. Sorry to burst your bubble.
> I said no such thing.
In a post, J K Rigney <jkri...@nospam.msn.com> wrote:
> But copyright only protects one from another who actually copies the
> finished product--literally copies it. It offers no protection against
> derivation. Adobe, et al, want more than that.
I think you used exactly those words... unless I'm misunderstanding.
David Marshall
> approximations of written works have been held not to be copyright
> violations because they were essentially parodies of the originals. Free
> speech does, after all, prevail over protection.
Yes, the copyright acts in quite a few countries make specific reference
to parody being almost always fair usage of copyrighted works. Britain,
for example, and we don't even have freedom of speech! :)
J K Rigney
David Marshall wrote:
>
> Yes, the copyright acts in quite a few countries make specific reference
> to parody being almost always fair usage of copyrighted works. Britain,
> for example, and we don't even have freedom of speech! :)
Mrs. Thatcher did seem to be especially hostile to that, didn't she?
J K Rigney
> > > statement is absolutely false. Sorry to burst your bubble.
>
> > I said no such thing.
>
> > finished product--literally copies it. It offers no protection against
> > derivation. Adobe, et al, want more than that.
>
> I think you used exactly those words... unless I'm misunderstanding.
>
I used those words, but in a context which qualified them. That's
different. It should be clear from the thread that Michael and I have
vastly different understandings of what the word "derivative" means. I
have attempted at least three times to clarify my understanding of the
term, and each time Michael has chosen to ignore the context and attack
without clearly defining his own terms. That's not debate, and I'm out
of it, thank you.
If you'll notice, I have tried to avoid absolutes in this discussion,
unlike Michael, who seems to have to put everything in black and white
terms. There's little left to say here. It's time to wait and see how
the Court rules. As you surely know from previous posts, I'm betting on
SSI, but I'll still be spending my money on Adobe.
Cheers,
--
JKR
For e-mail, please remove the "nospam" in the return address.
La Nostalgie N'est Plus Ce Qu'elle Etuit.
A gentleman is a man who can play the accordion, but doesn't.
Man is essentially alone, and one should pity him and love him and
grieve with him.
Halldor Laxness, "Independent People"
pk...@flnet.com
On Sun, 03 Aug 1997 00:09:40 GMT, David Marshall <da...@durge.org>
wrote:
>In a post, pk...@flnet.com wrote:
>> Why does Adobe not shift all points by hand?
>
>Because they're already in the right...
>
>"Oh, let's move all these points about for the hell of it without any
>aesthetic sense just so we can claim that it's all our own work..."
>
>This gets madder and madder...
Dave, don't be an idiot. You and others already agreed that work done
by a computer was not a fit subject for copyright. Adobe admits to
buying digitizations from other sources and getting the outlines by
using an automated computer program. THEN they shift SOME of the
points by hand.
On the TX copyright form in the US there is a place to check whether
they did the work based on other work. Although Adobe based their
outline (you say program) on other purchased digitizations and then
further based it on a computer generated outline AND DID NOT CHANGE OR
MOVE ALL THE COORDINATES, leaving many of the computer generated
coordinates to survive in the final copyrighted work,
ADOBE SPECIFICALLY DISCLAIMED THAT THEIR "ORIGINAL WORK" WAS BASED ON
ANYTHING. There is a little line to fill out. They did not leave it
blank or mention these other (potentially disqualifying) sources. They
put "N/A" (for not applicable) in it. It most certainly WAS
applicable! This is consistant with their outrageous treatment of the
patent applications.
You keep taking this "head in the sand" approach that Adobe can do no
wrong. You say, "they're already in the right" and you don't even
understand the issues!
Is THIS "in the right"? Earlier, you said that it was wrong to claim
copyright for computer generated work. Why do you change your position
every time more truth is uncovered about the way Adobe does business?
Is it OK for Adobe to not shift all points by hand and still claim
originality and sue other companies based on work they did not
humanly do?
I believe it seems to a lot of well meaning people that if you were
intellectually honest, you would stand up as your own man instead of
some kind of shill and say this does not square with your own
standards of conduct and that any Copyright Applications which were
wrongly filled out, misrepresenting a computer's work as "original and
human" should be thrown out!
David Marshall
pk...@flnet.com wrote:
> Dave, don't be an idiot. You and others already agreed that work done
> by a computer was not a fit subject for copyright. Adobe admits to
> buying digitizations from other sources and getting the outlines by
> using an automated computer program. THEN they shift SOME of the
> points by hand.
Imagine you have acquired the outline for a glyph by whatever means and
now you're looking at the quality of this digitization onscreen. Some of
the points are probably already in the places you want them - some of
them won't be. So what do you do? You move the ones that aren't in the
right place and leave the ones that are. You certainly don't move all
the points just in case you're later charged with being uncreative.
> On the TX copyright form in the US there is a place to check whether
> they did the work based on other work. Although Adobe based their
> outline (you say program) on other purchased digitizations and then
> further based it on a computer generated outline AND DID NOT CHANGE OR
> MOVE ALL THE COORDINATES, leaving many of the computer generated
> coordinates to survive in the final copyrighted work,
I don't know why Adobe didn't tick the box. Maybe you should ask them
and the CO. Where Adobe have created a digital outline from third-party
digital data, this is clearly a derivative work - whether they moved
*any* or *all* of the points. But they at least licenced and got
permission to do this from the originator of the data.
> ADOBE SPECIFICALLY DISCLAIMED THAT THEIR "ORIGINAL WORK" WAS BASED ON
> ANYTHING. There is a little line to fill out. They did not leave it
> blank or mention these other (potentially disqualifying) sources. They
> put "N/A" (for not applicable) in it. It most certainly WAS
> applicable! This is consistant with their outrageous treatment of the
> patent applications.
Is it really necessary when filing a design patent for a typeface design
to list the inspirations for the design when the CO have such a
comprehensive research library covering type designs? It'd be like
teaching your grandmother to suck coals to Newcastle, or something...
> You keep taking this "head in the sand" approach that Adobe can do no
> wrong. You say, "they're already in the right" and you don't even
> understand the issues!
That should have read "they're already in the right place" - referring
to the points in an outline. My typo.
> Is THIS "in the right"? Earlier, you said that it was wrong to claim
> copyright for computer generated work. Why do you change your position
> every time more truth is uncovered about the way Adobe does business?
Just because a computer is converting and preliminarily tidying up
digital data it doesn't mean it's "creating" it. Computers aren't erm,
that creative.
> Is it OK for Adobe to not shift all points by hand and still claim
> originality and sue other companies based on work they did not
> humanly do?
Yes. If the points are coincidentally where they already wanted them
then of course they shouldn't move the points just for the hell of it.
Adobe, of course, have paid the originators of any third party digital
data for the use of this data. They are wholly entitled to sue anyone
who goes on to use their creative reworking of that data. [Data is, of
course, a superset which includes programs]
> I believe it seems to a lot of well meaning people that if you were
> intellectually honest, you would stand up as your own man instead of
> some kind of shill and say this does not square with your own
> standards of conduct and that any Copyright Applications which were
> wrongly filled out, misrepresenting a computer's work as "original and
> human" should be thrown out!
I don't know why you think I'm some kind of stooge for Adobe. I make no
money out of digital type, have never bought any type from Adobe and
have never had any business contact with Adobe. It's just that in this
case they are right and you are wrong. My personal opinion based on my
experience, nothing more. Adobe certainly aren't angels incarnate, but
at least they reward the creativity of others rather than stealing it.
Dave
--
RudynFluffy
pk...@flnet.com wrote in article <33e6028a....@news.packet.net>...
>Dave, don't be an idiot. You and others already agreed that work done
>by a computer was not a fit subject for copyright. Adobe admits to
>buying digitizations from other sources and getting the outlines by
>using an automated computer program. THEN they shift SOME of the
>points by hand.
Work DOne By a COMPUTER??????
Wow the KING idiot has a computer that CAN think? It must be a robot.
This work done BY A cOMPUTER wAS not CopyRIGHTABLE????? HOW DO YOU THINK
SOFTWARE IS made in the first place??? ISN"T software made on a computer?
(that's ON not BY, idiot)
YEH I checked, Adobe buys stuff and pays the guy for the digital stuff (a
lot and more than $29.95) They ask them, can we fix it up and add stuff and
for all the money we gave. we'll sell the art in a usable form, dude.Cause
they pay for the art and digital it mAY be they have the OK to FIX and MAKe
it into something GOOD. That means paying someone to Fix and make it GOOD.
(GEE two get paid....) Then they can protect the investment.
Then SCUM (an american slang term for the stuff that is UNWANTED and UGLY)
just open it up and rename it and sell it and put their name on it.
GET A FICKN JOB YOU SCUM SUCKING IDIOT. YOU"RE HEAD IS IN THE MUD. YOU
DON'T UNDERSTAND ANYTHING AND KEEP CONFUSING WHAT IS NEW AND WHAT IS
LICENSED.
THE ONLY ORIGINAL THING COMING FROM YOU IS THE UNBELIEVABLE DISTORTION OF
REALITY AND MISREPRESENTING THE ORIGIN OF THE ART.
ps
Rudy said he's sick of you cause you're unrealistic and not worth his time.
and here's an idea, lower your price to $19.95 then you can go up against
the Riverdance guy.
I think you suck too,
your friend,
FLUFFY
Rudynfluffy Entertaiment
http://www.geocities.com/soho/studios/5424/
Clive Bruton
In article <33e0b366...@news.packet.net>,
pk...@flnet.com wrote:
>John, It may interest you to know that Adobe took Judge Whyte and our
>attorneys on a tour of their facilities to give them a tutorial on how
>fonts are made. It may interest you to know that in many cases, Adobe
>says it buys digital information from another company. It then uses a
>curve fitting program similar to Streamline for the initial outline.
>Then it makes changes to that.
Sorry Paul, you just show your ignorance once more, why would you need to
"curve-fit" digital data? You don't, you translate it from one format to
another.
I don't know to which particular font you refer, but it's likely that it
was generated using the Ikarus system. Guess what, someone precisely placed
every single point in that data! Adobe's work is derivative of that data
(as they acknowledge) and so are your fonts.
-- Clive
Clive Bruton
In article <33E177...@nospam.msn.com>,
J K Rigney <jkri...@nospam.msn.com> wrote:
>But copyright only protects one from another who actually copies the
>finished product--literally copies it. It offers no protection against
>derivation. Adobe, et al, want more than that.
Copyright absolutely does protect works from derivation, it even protects
"non-literal" aspects of a work (ie the idea of it, the sequence of a
book...), not just the leiteral parts of it.
Adobe want protection for their designs, and for their data, they can and
should use any aspect of the law that allows them to do so.
-- Clive
Clive Bruton
In article <33E179...@nospam.msn.com>,
J K Rigney <jkri...@nospam.msn.com> wrote:
>Of course, authors are reluctant to give their work away, but most do
>anyway. Very few authors really make any money from their work. It's the
>rare few who sell enough to make any real money from royalties.
I don't think that your opinion that few authors or artists make "real
money" negates the fact that they are, and should be, entitled to collect
such.
I think the point is, not that they earn "real money", but that they earn
any money at all, this is their livlihood.
>
>None of this anticipates electronic publication which will, of
>necessitiy, challenge all of these assumptions. It's a brave new world.
Tell us about it, type designers have been living with it for over ten
years.
There will have to be some serious changes in tracking of such materials
before the publishing or music industry takes up these opportunities.
Although one thing does make their works inately more protectable, sheer
size. Do you wabt to be on line for a week just to download the latest
album, cheaper and easier to buy it.
-- Clive
Clive Bruton
In article <33E2D9...@nospam.msn.com>,
J K Rigney <jkri...@nospam.msn.com> wrote:
>One can paraphrase (and
>almost all fonts "paraphrase" some antecedent) or use another's ideas as
>a point of departure for one's own work with impunity. It may not be
>very original, but it won't violate copyright law.
Nothing's black and white, and "paraphrasing" may well violate copyright.
-- Clive
pk...@flnet.com
>Sorry Paul, you just show your ignorance once more, why would you need to
>"curve-fit" digital data? You don't, you translate it from one format to
>another.
>
>I don't know to which particular font you refer, but it's likely that it
>was generated using the Ikarus system. Guess what, someone precisely placed
>every single point in that data! Adobe's work is derivative of that data
>(as they acknowledge) and so are your fonts.
Clive, You can be just so full of it!
You don't even know what I am talking about and you have no idea where
they bought the data.
Then you take this wonderful straw man that you have hypothesized and
tell us that you know all about how it was creative.
Then working from all of these surmisings, you tell the world that
"Adobe's work is derivitive of that data"
I disagree with your logic and say that you don't know what you are
talking about when it comes to facts!
The last first!
This is so blatantly false! Adobe did not admit to the CO on any
applications I have seen that their work is derivitave ov any Ikarus
data. They filled in N/A on the blank where they were required to list
any works they derived from.
Also, their CO application must stand on it's own as original. If it
is, as you say, that the points are derivitive from an earlier
copyrighted work, they must sue under that earlier copyright, (which
they did not do) not under their (later) derivitive font (which is
required to specifically disclaim any non-original items that are
included).
Your statement that "someone precisely placed every point" shows that
you don't have a clue what you are talking about! Adobe's own lawyers
have admitted this is not so to the judge, and I have the transcripts
from the official court reporter!
The fact that you are so insistent on perpetuating this myth shows how
necessary this is to your argument. You will always lose if the houses
you build are on the foundation of lies, Clive.
A little more truth .... a little less fiction.
There are many forms of digital font data that can be bitmaps and need
to be converted to curves. I believe this is what Adobe is talking
about. The fact that you admit that bezier curves are also digital
font data DOES show that you are coming around to the definition of
"digital font" that the CO gave to the term in 1988.
RudynFluffy
Hey King of Thieves how was your weekend?
We missed YAh.
YOU cOULD do US a BIG FAvor and tell us about you SSSSI.
HOw many people do you employ at SuckingSoftwareIdiots?
How many lawyers at SuckingSoftwareIDiots?
How Many people do the making of the fonts?
How Many people do the making of the disks and CDs?
How Many people the selling?
How many people does it take to make 3320 of these things?
How many years did it take???
Otherwise we assume you sucked them and made them from someone else's work.
just a thought.
Maybe we wouldn't hate you so much if we knew you weren't using illegal
immigrants and working from a garage or your basement in some ranch house
with vinyl siding.
Fluffy
RudynFluffy Entertainment
http://www.geocities.com/soho/studios/5424/
David Marshall
pk...@flnet.com wrote:
> You don't even know what I am talking about and you have no idea where
> they bought the data.
A lot of their data comes from Linotype (Linotype have a very large
library of some very famous-name fonts - it would be foolish for Adobe
not to offer these to their customers). Buying Ikarus data to produce
Type 1 font programs (it's really not a case of loading Ikarus, saving
Type 1) is really no different to buying big drawings and digitizing
them yourself.
> Also, their CO application must stand on it's own as original. If it
> is, as you say, that the points are derivitive from an earlier
> copyrighted work
Although clearly derived from the analogue that the Ikarus data
(allegedly) represents, I think it's false to say that Adobe's work is a
derivative of the points themselves. Ikarus and Type 1 are substancially
different.
> Your statement that "someone precisely placed every point" shows that
> you don't have a clue what you are talking about! Adobe's own lawyers
> have admitted this is not so to the judge, and I have the transcripts
> from the official court reporter!
You're misunderstanding Mr King. In the case of raw data produced by
Ikarus, the point is precisely placed but may not be numerically placed.
This data can be converted to Type 1, substancially rejigged, but it is
true that each point may not be numerically altered at this stage - as
it may already be in place intended.
If I generate a long stream of random characters, then alter the
characters that aren't the ones I wanted in the places I intended, do I
have copyright on the resulting work or only on the characters I
altered? I think the answer is obvious.
> There are many forms of digital font data that can be bitmaps and need
> to be converted to curves. I believe this is what Adobe is talking
> about. The fact that you admit that bezier curves are also digital
> font data DOES show that you are coming around to the definition of
> "digital font" that the CO gave to the term in 1988.
I'm sure this statement made sense when you typed it. "Data" is of
course a superset of all digital information which includes "programs".
In the case of a sequence of Bezier curves this is exactly the case.
> We have the only free searchable font database on the web
"Paul King is a liar" - Official...
Dave
--
David Marshall
> were obtained that way. We must be accurate in these posts.
I know that several of Adobe's key fonts were produced in this way - by
Adobe and Linotype's own admissions! It's a perfectly sensible, economic,
and creative way to produce digital approximations of analogue type.
> >Although clearly derived from the analogue that the Ikarus data
> >(allegedly) represents, I think it's false to say that Adobe's work is a
> >derivative of the points themselves. Ikarus and Type 1 are substancially
> >different.
> No, it's NOT clear, based on your anecdotal evidence that SOME of the
> Adobe fonts MAY have come from Ikarus data.
Ikarus is the usual (and a very easy) way to get an analogue on paper into
an accurate approximation on a computer as a sequence of drawing instructions.
If you want to use it as real type though, you need to do a hell of a lot
of work to it.
> And nobody said it was derived from the analogue. You are claiming
> that it is derived from the DIGITAL that Ikarus represents.
In the case of the very high resolution of Ikarus and the stages and
work that the sequence of drawing instructions goes through to become
a Type 1 (or Type 2, or TrueType) program, Adobe may as well have been
working from the analogue - that's kind of the idea of Ikarus...
> Now, let's quickly check our points of agreement.
> 1) Any analogue that the (hypothetical) Ikarus digital font data came
> from was unprotectible in the US, unless digitized under license,
> agreed?
Erm, no. The analogue is absolutely unprotected by copyright in the US.
A specific sequence of drawing instructions to approximate this analogue
is a program and protected by copyright just about everywhere.
> 2) You do not claim that the Ikarus digital font data is a program or
> is anything other that a digitization of the pure outline. Your
> position is that it is unprotectible in that stage as well, agreed?
No, I'm afraid raw Ikarus data is still a program - it's a sequence of
drawing instructions and is usable as nothing else.
> 3) Adobe says that they then used a program for the first pass of
> making bezier curves. This would rule out protectibility on anything
> done at that level as well, based on the doctine of computer
> generation not being original. Also, any end line coordinates taken
> directly from the (you say) Ikarus digital font data would be
> derivitave from that unprotectible work. This would include any
> points, off-line points, sequence of instructions, form, headers,
> etc., agreed?
I suggest you go and find out about what needs to be done to Ikarus
data to turn it into a usable Type 1 typeface - after your "30 seconds
a font" CD, you'll be very surprised.
> 4) You also agree that even after Adobe begins changing and moving
> points around by hand, there is no real reason to change the sequence,
> order of characters, etc. and you don't think any of that is
> protectible.
The above is meaningless.
> Also, you conceed in an earlier post that the math of the
> bezier coordinates needs to be abstracted out from the "font program"
> as unprotectible under the abstraction/filtration/comparison test that
> the courts use in similar software cases. Agreed?
It is not possible to "abstract out" maths or algorithms from code. What
you're talking about (and what you did) is nothing more than code theft.
> 5) You agree that if ANY digital data artifacts from the (you say)
> Ikarus digital font data that survived to the "font program" that
> Adobe registered should have been noted on the form as required. Your
> only point is that you don't believe any WOULD survive. right?
As Adobe were effectively working from an uncopyrightable analogue, what
would be the point?
> 6) You agree that Adobe should not attempt to copyright any
> coordinates or sequences that were generated first by a computer with
> no creative input by a person, right? That such things should have
> been disclaimed if the CO required it on the form?
Rubbish. "Oh yes, that coordinate is right, oh no that coordinate is
wrong" sounds like a creative decision to me...
> >You're misunderstanding Mr King. In the case of raw data produced by
> >Ikarus, the point is precisely placed but may not be numerically placed.
> >This data can be converted to Type 1, substancially rejigged, but it is
> >true that each point may not be numerically altered at this stage - as
> >it may already be in place intended.
> If it is, the "Postscript font program" is not copyrightable, being
> only a mechanical translation of an earlier work. If a computer places
> a point where a person later determines is the optimal place. That
> determination is NOT an act of creativity!
*LAUGH* Mechanical translation! Try it some time! That determination of the
position of a drawing instructions, with the determination of the drawing
instructions surrounding it create a *whole* not individual copyrightable/
uncopyrightable instructions. *All* instructions are uncopyrightable after
all.
> >If I generate a long stream of random characters, then alter the
> >characters that aren't the ones I wanted in the places I intended, do I
> >have copyright on the resulting work or only on the characters I
> >altered? I think the answer is obvious.
> But, your argument falls down in that SSi generated character points
> by a computer and even moved them in many cases to make SURE that our
> placement was not identical to any other known placement. Yet Adobe is
> suing SSi. You may argue that Adobe has the right to sue based on some
> other facts not in this para and the one above. But that invalidates
> your argument based just on your previous para.
I'm talking about *Adobe's* generation of their Type 1 font programs.
Even if Adobe generated their drawing instructions at random and changed
those that weren't as they wanted them, the whole work, even those
instructions which were random but coincidentally as intended would be a
work of authorship. There is no legal justification to believe otherwise.
> Generating a long stream of anything by a computer gives rise to a
> certain uncopyrightability. You MUST add other facts to the issue to
> gain protection. The issues you add would guarantee protectibility by
> themselves, showing that your argument about computer generation to
> not hold up.
I don't know what makes you think that that. Most executable code is a
long stream generated by computer - and certainly receives as much
protection as the original source.
> >> We have the only free searchable font database on the web
> >"Paul King is a liar" - Official...
> Enough of this reading only 1/2 of a sentence and not finishing it to
> be out of context. The entire sentence says, "We have the only free
> searchable font database on the web, cross-referencing 40,000 font
> names."
Finally, he rises to the bait...
What you said Mr King is "We have the only free searchable font database
on the web, cross-referencing 40,000 font names."
What you meant was "We have the only free searchable font database on the
web cross-referencing 40,000 font names."
You have demonstrated your twisty grasp of language (laughably managing to
show that Bezier drawing instructions were actually facts etc.) several
times and it appears to be about as good as your technical knowledge. The
phrase "technically naive" was invented for you Mr King.
Martin P. Pfeiffer
pk...@flnet.com wrote:
: Dave, you may think so, but you don't KNOW that the fonts in question
: were obtained that way. We must be accurate in these posts.
: eg. If you were to ask me what color the house is on the hill, I
: answer, "It's white .... on this side."
Oh great, now you are quoting from "Stranger in a Strange Land." I
wouldn't do that if I were you. You might incur the wrath of Robert
Heinlein's ghost.
You are, at best, an immoral person. Heinlein put forth in his books that
moral behavior was more important than anything else. Never mind all the
legal loopholes you seem to see, what you are doing is morally wrong. Sin,
according to Heinlein, is "hurting others unnecessarily." Well, sir, that
seems to be what you are doing.
--
_/ _/ _/_/_/_/ Marty Pfeiffer, a.k.a Scooter Boy
_/_/ _/_/ _/ _/ Font Designer
_/ _/ _/ _/ _/_/_/_/
_/ _/_/ _/ _/ See brand, spankin' new typefaces and music at:
_/ _/ _/ _/ <http://www.teleport.com/~wamozart/>
"He's just a politician trying to save both his faces ..."
Clive Bruton
In article <5sqg7e$si2$1...@nadine.teleport.com>,
Martin P. Pfeiffer <wamo...@teleport.com> wrote:
>Sin,
>according to Heinlein, is "hurting others unnecessarily." Well, sir, that
>seems to be what you are doing.
Oh he's not doing it unecessarily, he has his reasons, he's doing for the
god he worships - money.
-- Clive
Clive Bruton
In article <33ef8303....@news.packet.net>,
pk...@flnet.com wrote:
>On Sat, 09 Aug 1997 02:56:13 +0100, cl...@typonaut.demon.co.uk (Clive
>Bruton) wrote:
>
>
>>Sorry Paul, you just show your ignorance once more, why would you need to
>>"curve-fit" digital data? You don't, you translate it from one format to
>>another.
>>
>>I don't know to which particular font you refer, but it's likely that it
>>was generated using the Ikarus system. Guess what, someone precisely placed
>>every single point in that data! Adobe's work is derivative of that data
>>(as they acknowledge) and so are your fonts.
>
>Clive, You can be just so full of it!
I do my best. :-)
>
>You don't even know what I am talking about and you have no idea where
>they bought the data.
I have more than a clue. The matter is general knowledge in the type
industry.
>
>Then you take this wonderful straw man that you have hypothesized and
>tell us that you know all about how it was creative.
You show no alternative, just a hypothesis that makes no sense. I offer
facts that are known, you dispute them with conjecture.
>
>Then working from all of these surmisings, you tell the world that
>"Adobe's work is derivitive of that data"
That is an obvious fact, translation from one medium from another creates a
derivative work, once again I feel the need to point you at a dictionary.
>
>I disagree with your logic and say that you don't know what you are
>talking about when it comes to facts!
Sure, well tell us the facts Paul, not what you *think* *might* have
happened.
>
>The last first!
>
>This is so blatantly false! Adobe did not admit to the CO on any
>applications I have seen that their work is derivitave ov any Ikarus
>data. They filled in N/A on the blank where they were required to list
>any works they derived from.
How could I have stated what Adobe did or did not do on their applications,
I never mentioned them and have never seen them, you make a statement that
relates to nothing I wrote.
>
>Your statement that "someone precisely placed every point" shows that
>you don't have a clue what you are talking about! Adobe's own lawyers
>have admitted this is not so to the judge, and I have the transcripts
>from the official court reporter!
Paul, learn to read, I was referring to Ikarus data, Adobe never created
any Ikarus data (to my knowledge they've never used it for digitising), so
what would Adobe's lawyers know about data that came from a third party?
I know what the Ikarus process involves, and I know how it works, so I
stand by my statement that "someone precisely placed every point".
>
>The fact that you are so insistent on perpetuating this myth shows how
>necessary this is to your argument. You will always lose if the houses
>you build are on the foundation of lies, Clive.
You don't know the difference between simple, known facts and the piteous
paradigm that your mind occupies.
It is not a lie that one *precisely* place data points when digitising
type, I say it, John Hudson backs me up, the only person to dispute this is
you. I don't believe you've ever made a commercial grade font in your life,
so what do you know?
>
>A little more truth .... a little less fiction.
I'll vote for that.
>
>There are many forms of digital font data that can be bitmaps and need
>to be converted to curves. I believe this is what Adobe is talking
>about. The fact that you admit that bezier curves are also digital
>font data DOES show that you are coming around to the definition of
>"digital font" that the CO gave to the term in 1988.
There would be next to no point in Adobe buying bitmaps from anyone, I
don't believe they ever did so, and I think that any third party data they
bought was almost certainly in Ikarus format (the default digitising format
for the digital setting industry).
I've never denied that fonts are made up of bezier curves, please show a
post of mine that has said anything other than this. That doesn't mean that
I believe that they are not programs according to US Legislation.
-- Clive
pk...@flnet.com
On Tue, 12 Aug 1997 10:03:09 +0100, David Marshall <da...@durge.org>
wrote:
>A lot of their data comes from Linotype (Linotype have a very large
>library of some very famous-name fonts - it would be foolish for Adobe
>not to offer these to their customers). Buying Ikarus data to produce
>Type 1 font programs (it's really not a case of loading Ikarus, saving
>Type 1) is really no different to buying big drawings and digitizing
>them yourself.
Dave, you may think so, but you don't KNOW that the fonts in question
were obtained that way. We must be accurate in these posts.
eg. If you were to ask me what color the house is on the hill, I
answer, "It's white .... on this side."
>> Also, their CO application must stand on it's own as original. If it
>> is, as you say, that the points are derivitive from an earlier
>> copyrighted work
>Although clearly derived from the analogue that the Ikarus data
>(allegedly) represents, I think it's false to say that Adobe's work is a
>derivative of the points themselves. Ikarus and Type 1 are substancially
>different.
No, it's NOT clear, based on your anecdotal evidence that SOME of the
Adobe fonts MAY have come from Ikarus data.
And nobody said it was derived from the analogue. You are claiming
that it is derived from the DIGITAL that Ikarus represents.
Now, let's quickly check our points of agreement.
1) Any analogue that the (hypothetical) Ikarus digital font data came
from was unprotectible in the US, unless digitized under license,
agreed?
2) You do not claim that the Ikarus digital font data is a program or
is anything other that a digitization of the pure outline. Your
position is that it is unprotectible in that stage as well, agreed?
3) Adobe says that they then used a program for the first pass of
making bezier curves. This would rule out protectibility on anything
done at that level as well, based on the doctine of computer
generation not being original. Also, any end line coordinates taken
directly from the (you say) Ikarus digital font data would be
derivitave from that unprotectible work. This would include any
points, off-line points, sequence of instructions, form, headers,
etc., agreed?
4) You also agree that even after Adobe begins changing and moving
points around by hand, there is no real reason to change the sequence,
order of characters, etc. and you don't think any of that is
protectible. Also, you conceed in an earlier post that the math of the
bezier coordinates needs to be abstracted out from the "font program"
as unprotectible under the abstraction/filtration/comparison test that
the courts use in similar software cases. Agreed?
5) You agree that if ANY digital data artifacts from the (you say)
Ikarus digital font data that survived to the "font program" that
Adobe registered should have been noted on the form as required. Your
only point is that you don't believe any WOULD survive. right?
6) You agree that Adobe should not attempt to copyright any
coordinates or sequences that were generated first by a computer with
no creative input by a person, right? That such things should have
been disclaimed if the CO required it on the form?
So, what's left?
>> Your statement that "someone precisely placed every point" shows that
>> you don't have a clue what you are talking about! Adobe's own lawyers
>> have admitted this is not so to the judge, and I have the transcripts
>> from the official court reporter!
>You're misunderstanding Mr King. In the case of raw data produced by
>Ikarus, the point is precisely placed but may not be numerically placed.
>This data can be converted to Type 1, substancially rejigged, but it is
>true that each point may not be numerically altered at this stage - as
>it may already be in place intended.
If it is, the "Postscript font program" is not copyrightable, being
only a mechanical translation of an earlier work. If a computer places
a point where a person later determines is the optimal place. That
determination is NOT an act of creativity!
>If I generate a long stream of random characters, then alter the
>characters that aren't the ones I wanted in the places I intended, do I
>have copyright on the resulting work or only on the characters I
>altered? I think the answer is obvious.
But, your argument falls down in that SSi generated character points
by a computer and even moved them in many cases to make SURE that our
placement was not identical to any other known placement. Yet Adobe is
suing SSi. You may argue that Adobe has the right to sue based on some
other facts not in this para and the one above. But that invalidates
your argument based just on your previous para.
The characters and sequence made by the computer are unprotectible.
You damage your entire registration if you lie and do not declare the
underlying work.
Generating a long stream of anything by a computer gives rise to a
certain uncopyrightability. You MUST add other facts to the issue to
gain protection. The issues you add would guarantee protectibility by
themselves, showing that your argument about computer generation to
not hold up.
>> We have the only free searchable font database on the web
>
>"Paul King is a liar" - Official...
Enough of this reading only 1/2 of a sentence and not finishing it to
be out of context. The entire sentence says, "We have the only free
searchable font database on the web, cross-referencing 40,000 font
names."
It has read this way from the beginning. I have overlooked your poor
logic and rudeness, hoping others would just see the truth from the
sig. You delight in perpetuating myths by saying things that aren't
so.
You also slander whenever possible.
Also, I don't recall an election making whatever you say, "official."
Tiro Typeworks
On Tue, 12 Aug 1997 17:20:18 GMT, pk...@flnet.com wrote:
>>"Paul King is a liar" - Official...
>Enough of this reading only 1/2 of a sentence and not finishing it to
>be out of context. The entire sentence says, "We have the only free
>searchable font database on the web, cross-referencing 40,000 font
>names."
>It has read this way from the beginning. I have overlooked your poor
>logic and rudeness, hoping others would just see the truth from the
>sig. You delight in perpetuating myths by saying things that aren't
>so.
If you mean to say that your's is the only free database on the web
that cross-references 40,000 font names, I suggest you remove the
comma in the middle of that sentence. With the comma in place, Dave's
reading of the sentence is entirely accurate, as the comma makes the
'cross-referencing' clause is entirely secondary to the 'free
searchable database' clause. For your stated purpose, you want both
elements of the description of your database to be part of the same
clause.
John Hudson, Type Director & Head Grammarian
Tiro Typeworks
Vancouver, BC
ti...@tiro.com
www.tiro.com
Laurence Penney
On Tue, 12 Aug 1997, pk...@flnet.com wrote:
>...
> ... SSi generated character points
>by a computer and even moved them in many cases to make SURE that our
>placement was not identical to any other known placement. Yet Adobe is
>suing SSi.
>...
Sounds like you'd have saved a lot of trouble by applying to Adobe for them
to show you which of their coordinates were "creatively positioned", and
which were "automatic". Then you could have added the missing ones yourself.
What?! You say they wouldn't have obliged? How mean-spirited of them! OK,
time to find another career...
But instead you decide to move some of their coordinates. Not so clever. How
do you know when you've moved all "creatively positioned" points? Individual
points aren't placed in isolation; rather, every point is carefully
positioned in relation to every other point. In other words, a point doesn't
merely have it's own x and y; it has those, plus an x and y offset from
every other point; plus an angular offset and distance from every other
point; a key role in a complex curve; an alignment with other points in the
font, and so on... Font formats can easily be seen as compressed
representations of all these diverse relationships.
If there are any creative elements in your fonts that Adobe engineers &
designers can spot as their own, then you've infringed them. It's not as
simple as ensuring coordinates don't match up: Bezier glyph outlines (even
if not programs in the usual sense) are two-dimensional digital control
devices with, as I've just shown, innumerable relationships between their
parts. No algorithm of the kind I understand you use can eliminate all of
this without totally destroying the design. Since you have not totally
destroyed Adobe's designs, and substantial creative elements have been shown
to remain intact (as shown on comp.fonts a few months ago), I believe you to
have infringed their creativity. (And, yawn, no I'm not talking about the
unprotected underlying type design.)
Because there is creativity in Bezier outline construction (as is clear to
me with high quality fonts), it follows that *any* Bezier-based conversion
process is derivative of that creativity - however many points you nudge,
add, or delete, or however many times you convert cubic to quadratic and
back. You have to descend to bitmaps to avoid such derivation (but even then
many will dispute your right to do that in the US). Better stick to scanning
in printouts. Or, better still, find another job.
On another note, I'll join in with the others interested to find out how you
obtained access to Adobe's & Emigre's fonts in the first place...
-- Laurence Penney
-- http://www.truetype.demon.co.uk/
pk...@flnet.com
On Wed, 13 Aug 1997 15:47:19 GMT, Lo...@truetype.demon.co.uk (Laurence
Penney) wrote:
Laurence, You make very good points. I don't know why you don't relate
them first of all to the earlier relationship of the computer
generated points to Adobe.
Whatever your argument, it applies in the same relationship to them.
If you take an uncopyrightible work, build on it, need it's data in
relationship with yours to have an outline, then you have created
another uncopyrightible work through the doctrine of merger.
Of course if the relationship isn't close enough for that, then I
don't have to worry either.
It always cuts both ways.