Braille Monitor                                                    February 2009

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Freedom Scientific Files Patent Infringement Suit against GW Micro

by Daniel B. Frye

When two of the leading producers of access technology in the blindness field have differences that can apparently be resolved only in federal court, blind consumers deserve to know what is going on. How might the dispute affect this small market? Will the actions of either party influence consumer access to diverse, responsive, and competitive products in the U.S. and international blindness communities?

Mindful of the importance of access technology to blind people and curious about the rationale and implications of the row that has developed between Freedom Scientific and GW Micro, we are reporting what we have discovered at this stage of the argument so that our readers will understand the issues involved in this litigation. Here is what we know at the moment:

On July 15, 2008, Freedom Scientific--the company that developed and promotes the JAWS screen reader and the PAC Mate Omni as well as other blindness and low-vision products--filed a patent infringement lawsuit against GW Micro, a smaller access technology company known primarily for its rival screen-reading software, Window-Eyes. The Freedom Scientific lawsuit alleges that GW Micro has ”willfully infringed" and has "induced" others to behave similarly with respect to its U.S. Patent No. 6,993,707, issued on January 31, 2006, for a "Document Placeholder" by ”making, importing, selling, offering to sell and/or using within the United States computer software covered by this patent.” The case was filed in the United States District Court, Middle District of Florida.

As background, the Document Placeholder technology in question is the feature in both JAWS and Window-Eyes that allows a user to identify a particular place or bit of content on a Website and return to this same point on the Webpage (using a few simple key strokes) repeatedly while originally viewing the page or during subsequent visits. This technology is designed to make large and cluttered Websites more convenient and accessible for blind computer users.

Both Dan Weirich and Doug Geoffray, the two principal executives at GW Micro, agreed to be interviewed for this article on the condition that their attorney be present to offer them legal counsel during the exchange. Mr. Weirich began by insisting that GW Micro is not guilty of violating Freedom Scientific's document placeholder method patent. While the GW Micro answer filed in response to the lawsuit on September 29, 2008, denies the allegations of willful patent infringement and contains six legal affirmative defenses in response to the Freedom Scientific claims, we will focus here on the basic arguments that most blind computer users will understand.

First, GW Micro questions the very legitimacy of the document placeholder patent. Weirich told the Braille Monitor that this technology--albeit in a more primitive form--has existed and been used by various access technology companies since 1999, well before Freedom Scientific acquired its patent in January 2006. In their answer GW Micro suggests that Freedom Scientific may have misled the government in applying for this patent by alleging that this technology was new and innovative, when in fact some version of it had existed for almost seven years before the patent was issued. In the first GW Micro public statement about this lawsuit, issued on August 15, 2008, Weirich said, "As many of our users know, our screen reader--Window-Eyes--has had the capability of returning to a specific line within a Webpage since version 3.1, which was released over nine years ago, well before Freedom Scientific's alleged invention." Weirich went on to note, "The implication in a recent Freedom Scientific press release that GW Micro is benefiting from Freedom Scientific's investment at no charge is simply not accurate nor in line with GW Micro's tradition of success and fair play.”

Second, both Weirich and Geoffray point out that the method, design, and functionality of GW Micro's document placeholder feature are quite different from those in Freedom Scientific's JAWS product. According to Weirich, the technology that Window-Eyes relies on will allow the user of this screen-reading software to return to his or her place even on a constantly changing Webpage; GW Micro officials explain that the Freedom Scientific version of this technology relies on counting lines on a Webpage and may not be able to return to a specific location on a Webpage that is often updated. Further, Weirich and Geoffray emphasize that their version of the document placeholder technology has nothing to do with HTML tags; instead they rely solely on Windows MSAA tags to make their version of this technology function.

More important than GW Micro's technical legal defenses may be the sense of inequitable treatment to which Weirich and Geoffray feel they have been subjected. In discussing the basis and motivation for the lawsuit, Weirich said: "Both Doug and I have worked in the blindness access-technology field for over twenty years; GW Micro has been in business since 1990, and we had both worked for other companies before our time here. Throughout these years it has always been customary for access-technology companies to innovate and develop much of the same functionality in our blindness products. When returning from a tradeshow in July, I arrived to learn of the lawsuit. We had no preliminary discussions with Freedom Scientific about its concerns--no discussions, no warnings, no courtesy calls asking us to stop use of the technology, no indication at all was ever received from Freedom Scientific about this issue until the lawsuit arrived on our doorstep. I just had a neighbor share the news with me that a tree on the border of our property was dead. Similarly, I would have expected in a small market like the blindness access technology community that some collegial exchanges might have occurred before moving directly to litigation." Weirich went on to say, "One of the things about this lawsuit that troubles me so much is that we are all compelled to spend precious resources--precious resources that largely come from rehabilitation and other government funds--on this lawsuit. We at GW Micro would rather spend these resources on product development or other projects that will directly benefit our consumers."

When we asked Weirich and Geoffray what they thought had really motivated this lawsuit, they were both at a loss to give a definite answer. Weirich speculated that perhaps GW Micro's increasing success and market share in the screen-reader competition may have proved threatening to officials at Freedom Scientific. Weirich added that he knows nothing about Freedom Scientific's finances, but he suggested by implication that perhaps troubles on this score may have motivated the lawsuit.

In closing, Weirich asked that the Braille Monitor report that "GW Micro is not going anywhere. We plan to stick around and provide quality services and products to our customer base. This lawsuit is just a bump in the road. This legal action will not prevent us from making further enhancements to Window-Eyes."

Lee Hamilton, president and chief executive officer of Freedom Scientific, declined the Braille Monitor's repeated requests to be interviewed for this article. We even offered to conduct Hamilton's interview in the presence of Freedom Scientific's attorneys, but this did not sway his decision. In a December 19 email response to our interview request, Hamilton offered the following:

Thank you for the invitation, which I received on Tuesday of this week, to contribute our perspective to your forthcoming article. As you can appreciate, it was necessary to seek advice from our legal counsel before responding, and I have only just received that advice.

As you are aware, when it was clear that this issue might become a matter of public interest, we published a press release outlining our need to protect our investment in research and development for the benefit of our shareholders and customers. I understand you have a copy of that press release. Our legal counsel has advised that it would be imprudent for us to comment further at this time. It is my belief that our press release provides a clear summary of our reasons for taking the action we have, and this should be useful in balancing your article.

As you will no doubt be aware, we have a close and highly valuable working relationship with the NFB. This is manifested in our regular meetings with the International Braille and Technology Center and our active participation at NFB state and national conventions. We value the NFB's role and function highly. Please be assured that we are not offering any further comment to any media on this matter at this time; in no way is this a refusal to speak specifically to an NFB publication on the matter.

In the absence of any further comment from Freedom Scientific about its lawsuit, we reprint the press release that it offered when the action was first announced. Here it is:

Freedom Scientific Files Patent Infringement Suit

(St. Petersburg, Florida — July 24, 2008) Freedom Scientific has taken steps to protect one of its patented technologies by filing suit against GW Micro, Inc., according to Dr. Lee Hamilton, president and CEO of Freedom Scientific.

“Freedom Scientific invests more in research and development than any other company in the blindness technology industry,” said Dr. Hamilton. “We have a talented, experienced team of developers and testers, many of whom are blind themselves. They develop innovative solutions to the access issues faced by those with vision impairments and then turn those ideas into products that make a difference. Along the way, Freedom Scientific files patents to protect the investment it makes in developing new technologies.”

Freedom Scientific follows the standard business practice of filing patents for good reason. Not filing for and then enforcing patents would stifle innovation. If Freedom invests resources into developing new technologies only to find that other companies can benefit from our investment at no charge to them, then there would be no incentive to invest. Those with vision impairments would be the poorer for that in terms of independence and employability.

This practice is by no means new in this industry. Freedom Scientific itself already pays for the use of patented technologies pertaining specifically to assistive technology.

There you have the press release. At present this lawsuit remains at the preliminary stages of litigation. The parties have not yet even commenced discovery. Motions from both parties have been filed in a battle to determine the federal venue in which this case will be tried. GW Micro would like the case moved to the federal district court in Indiana; Freedom Scientific continues to urge that the case be tried in the federal courts in Florida.

We will report further developments in this case as they emerge. In the meanwhile it will be for consumers to draw their own inferences and conclusions about the ethical and legal positions that Freedom Scientific and GW Micro have espoused and adopted in this case. Is GW Micro being subject to legal bullying tactics from a larger and more powerful player in the blindness access-technology field? Is Freedom Scientific genuinely working to champion the cause of creativity and innovation for the long-term benefit of blind consumers by suing its primary competitor in the screen-reading software industry for infringement of its patents? Only time will tell.  

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