The Braille Monitor                                                                                               _July 1997

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Larry  Israel
 PHOTO/CAPTION: Larry Israel

Patent Dispute Threatens Prices of Braille Displays:
Alva Takes Aim at Everybody


Every time one turns around one finds another example of the disadvantages facing producers and
consumers alike in a small technology market like the blindness field. Here is the latest crisis hanging
over everyone interested in the refreshable Braille display technology used in the portable note takers
and in the Braille screen displays of desktop and laptop computers. But this time there may be
something consumers can do to help. Larry Israel, Chairman, President, and CEO of Telesensory
Systems, Inc., wrote the following memo for the Braille Monitor summarizing the history of the problem:


Subject: The Alva Patent Situation
date: May 28, 1997

Deane Blazie asked if I would provide you with some historical background relating to the Alva
patent situation. In approximately mid-1992, Telesensory became aware that U.S. patent 4,985,692
had been issued in January, 1991, to Jacob (Jaap) Breider and Arend Arends. Jaap Breider is
President of Alva B.V. of the Netherlands, a firm which is a major supplier of refreshable Braille
displays. We later learned that similar patents had been obtained in Europe, Canada, and Australia, all
of which were assigned to Alva B.V. in the Netherlands, a company of which Breider is Managing
Director.

The patent purported to cover what is commonly referred to as "cursor routing." This function
typically involves some kind of switch near each Braille cell, which, when depressed, will bring the
cursor on the screen to that position. This is claimed to be a convenience to users of refreshable Braille displays. For instance, while reading the information on the screen (which does not require moving the cursor), if a typographical error is discovered which the reader wishes to correct, depressing the cursor switch brings the insertion cursor to that letter, and the correction can then be made quickly and easily.

In October, 1993, Telesensory received a letter from Jaap Breider claiming that Telesensory's
Navigator line infringed on the subject patent and requesting discussions about paying a royalty. (There may have been some earlier correspondence, but this was the first time I had heard of it, based on my current file search.) We also have good reason to believe that numerous other companies were similarly approached at one time or another from that time until the present, including Baum Elektronik of Germany, Frank Audiodata of Germany, Papenmeier of Germany, Lameris BV in Holland, Blazie
Engineering in the USA, Tieman B.V. of Holland, KHS of Germany, and Metec of Germany. In each
case Jaap Breider claimed that his patent was being violated by what had been since the mid-80's a
common feature in virtually all Braille displays.

He threatened to institute lawsuits against various parties unless they agreed to pay rather substantial
royalties. To the best of our knowledge, he has never filed a patent infringement lawsuit, perhaps
because (as I will describe below) there is substantial doubt as to the validity of his patent, nor is anyone paying royalties to him with respect to this patent, as far as we know.

It was and is the opinion of Telesensory that the patent was essentially invalid because, among other
reasons, (a) a number of products had been marketed in Europe and the USA as early as 1985 which
used the same cursor-routing scheme that was now patented; (b) academic papers had been written at
the University of Stuttgart (Germany) which predated the European patent application by more than a
year and disclosed the idea of cursor routing; and (c) by the time Breider applied for the patent, the idea was obvious (a bar to a patent in almost every country) and was being widely used in many different, independently-developed products.

The history of the U.S. patent is interesting because it has a bearing on whether the patent is valid.
The application was filed on January 20, 1988. It claimed priority based on a Netherlands patent
application filed January 23, 1987. This date is quite important, because it is my understanding that if it
could be shown that a device embodying the same technology or idea was marketed more than one
year before that priority date of January 23, 1987, the U.S. patent would be invalid. I do not specifically know the effect on the patents in the other countries, but I think it likely that the impact on their validity would be similar (although patent law is sufficiently complex and variable from country to country, that I would hesitate to make any general claims on this point).

Note that I have stated above that other products using this same idea were marketed as early as
1985 in the USA and Europe. If that could be proven, then the various patents would be invalid, since
any date in 1985 is clearly more than one year earlier than January 23, 1987. As I will show in a
moment, that has in fact been proven.

Over the next few years considerable action took place in the European Patent Office (EPO), mostly
in Munich, in what is called an "opposition." Various other manufacturers, including Baum Elektronik
and Metec in Germany, argued to the EPO that the patent was invalid because, among other reasons, of "prior art." It was exceedingly difficult to reach a resolution because many documents were unclear and difficult to recover since considerable time had elapsed. The EPO issued various interim or tentative decisions, first favoring one side and then the other.

However, a very recent ruling by the EPO in Munich, dated May 5, 1997, contains the following
points:

1. The Baum Braille-Box was publicly available in 1985.
2. The available descriptions of that device
indicated that it "destroys the novelty" of Claim #1 in the European patent being examined (which is
basically the same as the U.S. patent).
3. If certain associated allegations were supported, for example, by affidavit (a relatively easy matter),
then the patent could no longer be maintained in its present version.

The parties (Alva and Baum) were given two months more to submit additional information. While
the patent holder still has the right to protest further, if that were all there were to it, it is highly likely that the European patent would finally have been rejected, and with it, all the other patents would probably fail as well. However, there is a peculiarity in European law, as I understand it, which allows a patent to be restated to try to make it OK, even after it has been found to be invalid after it was granted (as here). I do not believe this is possible under U.S. patent law.

There is little doubt that Alva will now rewrite the patent, along lines suggested by the EPO, so that
the opposition and argument will still not reach an end. It is less clear whether the patent can be
sustained under U.S. law since I don't think U.S. law permits rewriting the patent once it has been
granted. If it's found invalid, that's the end of it. But, once again, I must clearly state that I am not a
patent attorney, and this is a particularly arcane legal area, which is difficult to understand with any
certainty.

So this still leaves considerable uncertainty, and it may well take years to play this out to its final
ending. Meanwhile, valuable resources, which could be put to better use benefiting blind people around the world, are being spent in a patent battle in Europe, likely to be followed by one in the USA if necessary. The view of the many companies objecting to Breider's patent is that he patented something which was obvious and being widely used and which he did not, in fact, invent--as most lay people would understand the term. They believe that he was able to get his patents because no one in this small industry has patent lawyers busily watching out for this kind of thing so that they can object at an early stage (which makes the job much, much easier). The fact is that many patents are granted which should not be, simply because no one is interested enough or aware enough to object at an early stage. Most of the time it makes no real difference.

In the interests of settling this matter and avoiding legal fees, a number of companies have offered to
pay royalties to Breider in some commercially reasonable amount. Breider's only demand until very
recently was for a royalty of four percent of the selling price of Braille displays using cursor routing or its equivalent (in his opinion). This would amount, for instance, to more than $200 on a typical 40-cell
Braille display and is quite a substantial amount, which would have to be passed along to all customers.

After the May 5 EPO ruling of a few days ago and presumably with this information clearly available
to him, Jaap Breider called me and asked if I was willing to settle on behalf of Telesensory. I told him
that it was a nuisance and was taking time and that I would be willing to pay him a moderate amount,
just to be rid of the matter, provided that I could persuade other major manufacturers to do the same
(which I think could be done). He rejected my offer out of hand, which means that the battle will
continue.

We are hopeful, as are other companies who manufacture Braille displays, that this matter can
eventually be put to rest in some way which leaves all the parties feeling reasonably satisfied. However,
it is unlikely that can be accomplished if Breider continues to insist on an unreasonable royalty for a
product feature which all his competitors believe should not have been patentable and for which a patent was obtained only because the patent offices erred by dealing with an area in which they have little knowledge and where there was little published information to refute the unsupported claims of the applicant. In fact, when we have our day in court (which we will do if we are ever sued for infringement here in the United States), we intend to argue (1) that Breider was fully aware of the Baum Braille-Box at the time he filed his initial patent applications in the Netherlands and the USA, (2) that it was wrong of him not to disclose that information to the respective patent offices, and (3) that his patent ought to be invalidated on those grounds alone without more (although there are ample other grounds as well to invalidate the patent).

Cordially,
Larry Israel
Chairman/President/CEO
Telesensory Corporation

There you have Larry Israel's summary of the situation.

Here is the history as Jaap Breider described it to the Braille Monitor. Breider was a student in the
early 1980's studying psychology, particularly artificial intelligence and cognitive engineering. He is
blind, and he concluded that his work would be easier if he had a Braille display for his computer, so
he built one, and in February of 1984 he and a partner established a company in Holland which they
called Alva, Inc.

Breider conducted some experiments using other blind students at his university. He gave them
computer documents with spelling mistakes and timed them as they corrected the errors. He determined that, if there were a way to bring the cursor to the word requiring correction, the task could be completed much more quickly.

He took this idea to his partner, who designed and built the tiny switches beside each Braille cell
within a week. Breider, who has been in this country for several months, could not remember exactly
when this technology was patented, but he did not object to the January 23 date provided by Larry
Israel. He said that all the patent applications were submitted at approximately the same time. He has
not been able to confer with his attorneys about the May 5 decision by the European Patent Office, so
he was not willing to comment on the company's plans in the light of that decision. He did say that he
does not at the moment plan to rewrite the European patent because he does not believe it is necessary
since the court did not "take it off the table."

The obvious question to be answered is what date did cursor routing first appear and how generally
was the concept adopted? Will knowledgeable and experienced blind users now volunteer to prepare
affidavits about the dates they first had access to cursor routing and related points? Some people may
have manuals or data sheets that pre-date the Alva Patent and therefore clearly show prior art. Letters
or articles from 1985 might also help if they establish that the technique patented was either obvious or
used prior to January 23, 1986, a year before the patent.

One particularly thorny point is that the patent claims that the ability to keep one's hands on the
Braille cells while also activating a cursor-routing switch is an important characteristic. But, as Larry
Israel points out, "This was possible with the bar on a VersaBraille, which we considered logically
equivalent to the individual switches in a current cursor-routing arrangement, and the provision of a
switch next to each cell was an obvious extension and provided nothing innovative or new but was
simply an evolutionary growth in technology that many product developers saw at about the same time."

Readers who believe that they may have information that could assist in demonstrating that cursor
routing was available to users in 1985 should contact Larry Israel. Here is the text of the request he
makes:

Telesensory Corporation is spearheading a group of manufacturers of Braille products, including
Blazie Engineering and many others, who are organized to deal jointly with these patent issues, with the
goal of holding down the cost of these products for blind users worldwide. Any information you may
have can be sent to Larry Israel at Telesensory Corporation, 465 Bernardo Avenue, Mountain View,
California 94043, (e-mail: israel@telesensory.com). If you have documentary information, please send
Larry the best original copy you have and retain a copy for yourself. You should also let Larry know if
you are willing to have your name and occupation identified specifically in any information submitted to a patent office and if you are willing to sign an affidavit regarding your knowledge and information, if requested to do so."

Obviously no one wants to pay royalties for cursor routing to Alva. Deane Blazie commented that he
did not want to spend money on royalties that would just drive up the prices of technology for blind
users. Larry Israel agreed but pointed out that Telesensory is spending a few thousand dollars every
month in legal fees, along with management time and resources, on this case. As with most legal matters, the nuisance value makes it desirable to try to settle even unfounded legal claims. But since Breider continues to be unreasonable in Israel's opinion, it seems unlikely that the matter will be settled
anywhere but in court.

Rumors circulate suggesting that Alva is financially over-extended and that these royalties would be a
helpful augmentation to the company's income. While Breider agreed that money is always useful, he
categorically denied that Alva was in financial trouble. He admitted that 1995 had been a poor year for
the group, but he said that 1996 was quite good, and 1997 appears at this point to be very good
indeed. He says that several of his European competitors are in a much weaker financial position than
Alva.

He pointed out that in August of 1996 Alva purchased Berkeley Access, a division of Berkeley
Systems. Such an acquisition took money and could not have been made if Alva had not been in a
strong financial position. Alva has moved the sales and marketing part of the operation to new offices in Emeryville, California, and development and supervision to the Netherlands. The new entity in
Emeryville is now called the Alva Access Group, Inc. Among its other offerings, it is the only supplier
for Macintosh-access products (Inlarge and Outspoken for Macintosh). Alva is now working on
Windows 95 access using a refreshable Braille display.

When asked why it took Alva so many years to get around to pressing seriously for licensing
agreements with the other producers, Breider said that he was busy building his company and its
product line.

Breider is pleasant but cautious in conversation. He is convinced that this technology belongs to his
company, and he intends to get the royalties that rightfully belong to him. The American companies are
just as convinced that the technology was generally available before the Alva patent applications were
filed. It seems pretty clear that this disagreement will be fought out in court and that, whether it's large
licensing fees or fat lawyers' fees, blind consumers will be paying for the final resolution of this battle.