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IBM pledges patent peace for interoperabilityIBM's recent patent pledge significantly lowers the bar for using their patents to implement software standards. Rather than specifying particular patents, IBM chose more than 150 different standards for interoperability, pledging not to assert any of their patents that are required to implement the standards. Along with the carrot of that pledge, there is also an implied stick for companies that might consider litigating over their own patents that are required to produce the standard. Software patents are generally problematic, but those which encumber technology standards can be especially so. When companies come together to form standards bodies, they have often agreed that implementations of the standard would be able to license any patents required, under so-called reasonable and non-discriminatory (RAND) terms. "Reasonable" is in the eye of the beholder, of course, and RAND terms have been used to lock out smaller companies from implementing patented standards along the way. Free and open source implementations are usually locked out, because "reasonable" terms almost always include royalties. Thus, RAND terms are usually discriminatory against free software. This has led some organizations, notably the World Wide Web Consortium (w3c), to move to an agreement that patents required to implement their standards be licensed on a royalty-free basis. This simplifies things, but requires some amount of bureaucracy as standards participants need to list relevant patents and create documents that state the nature of the royalty-free license. IBM's move circumvents all of that, by pledging not to assert patent claims against any implementation of the listed standards. The pledge not only covers free implementations, but competitive, commercial, closed source versions as well. The patents themselves do not need to be researched or listed as the pledge covers any that IBM has. It should be noted that this only applies to implementing the standards listed; IBM is not giving carte blanche to use their patented technology. The only caveat is that IBM will revoke the pledge for any implementor who asserts patent claims on a covered implementation - against IBM or any other party. For any of the standards listed, IBM is thus creating a "patent shield" for anyone who plays fairly, with the implication that unfair play - in the form of patent attacks - may be met with similar attacks from the rather extensive IBM patent portfolio. Because it is a pledge - not a license or agreement - projects or organizations that want to be covered by it need do nothing. There is no paperwork to file or license text to comply with. They will need to refrain from engaging their patent lawyers to attack others implementing the standards; this should be a constraint that most free software projects can live with. It is rather refreshing to see a company make a pledge that could plausibly reduce the amount of billable lawyer time required by technology companies. Patent lawyers may not agree, of course. The list of standards that are covered by the pledge is an impressive array of technologies, mostly web standards along with OASIS document format standards. The FAQ accompanying the pledge states that IBM will be evaluating additional standards for inclusion in the list. They clearly believe widely implemented standards are good for their customers:
IBM is making this Pledge to encourage broad adoption of open
specifications for software interoperability. Broad implementation of these
specifications can dramatically improve our customers' ability to
communicate data within and between their enterprises.
There is clearly a public relations aspect to this pledge, but one gets the sense that IBM truly does want to simplify the software patent landscape. They have, perhaps, the largest patent portfolio in the world, but they can also see the mess that software patents, especially patent trolls, are causing. If other companies make similar pledges, definite progress will have been made, at least for interoperability. Since it appears that software patents will be with us for a long time to come, at least in the US, any step forward should be cause for at least a bit of celebration. (Log in to post comments)
IBM pledges patent peace for interoperability Posted Jul 19, 2007 14:30 UTC (Thu) by clugstj (subscriber, #4020) [Link] I've had cause to investigate some non-software patents recently. I think it needs to be mentioned that "Software" patents aren't the problem. "Bad" patents are the problem! The majority of patents, software and otherwise, should never have been granted due to obviousness and prior art. Just pick a couple at random and read them. You'll see how absurd they are.
IBM pledges patent peace for interoperability Posted Jul 19, 2007 16:25 UTC (Thu) by RobSeace (subscriber, #4435) [Link] It's true that there certainly exist bad non-software patents, but I think lots of people feel there's simply no such thing as a GOOD software patent, while there might be some legitimately good non-software patents... Software is just such a different thing that patents simply don't make sense with it in the same way they do for physical inventions... The same can be said of other modern-day attrocities such as "business method" patents... Such virtual concepts just aren't on the same level as physical inventions, and shouldn't be protected in the same way... The way things are going, I expect someone soon to obtain a patent on thinking dirty thoughts, and then start suing everyone visting porn sites, or something... ;-) (Or, more realistically, patent a method of creating dirty thoughts in human males, and then suing all porn sites on the Net... For that matter, suing all females on the planet... ;-) Sure, there's plenty of prior art, but that's never stopped anyone getting a patent before... ;-))
IBM pledges patent peace for interoperability Posted Jul 19, 2007 17:00 UTC (Thu) by vmole (guest, #111) [Link] Just for the sake of argument, where does the RSA (public-key cryptography method) fall? There's really nothing physical about it, but it's hard to deny that it's a new creative work, and nothing at all like the "we'll do auctions, but, wait, here's the totally new original idea: we'll do them *online*" level of most software patents.
IBM pledges patent peace for interoperability Posted Jul 19, 2007 17:56 UTC (Thu) by RobSeace (subscriber, #4435) [Link] Absolutely, it's a new creative work of significant complexity and value... But, is it deserving of patent protection? I don't know... I personally would have to say no, because like all software, it's just a virtual concept of a way of doing things... In some sense, it's a direct reflexion of the original programmers' thoughts at the time... Yes, so is a blueprint for a physical invention, I suppose; but, the difference is patents on physical objects have long been understood to only cover that particular implementation, not the entire concept as a whole, locking out all other potential competitors with their own different ways of doing the same things... While software patents have tended to be interpreted over broadly, applying to anything that even vaguely resembles the original concept, regardless of underlying implementation...
I think software belongs more in the realm of literary works than physical inventions... Which is probably why it has copyright protection, I suppose... And, that, I think is a perfectly appropriate protection for it... (Well, aside from the current ridiculously long copyright lengths, but those negatively affect all copyrighted works, too... It may be worse for software, where the world tends to move much faster than for other things, though...) To attempt an always flawed analogy, it'd be as if a writer could patent the concept of writing sci-fi novels, and sue anyone else who writes their own... Or, even more narrowly focused, if one could patent the fundamental ideas of say "Star Trek", and then sue anyone who created books/shows/movies which contain future human societies together in any kind of Federation-like alliance with alien societies, or which have starships exploring alien worlds on a regular basis, etc... It's a silly idea, but that's really what software (and "business method") patenting usually boils down to...
(And, yes, I write software for a living... I'd never even contemplate patenting any programming ideas I've thought up... Not to mention it's hard to really say any programming idea is ever truly "yours" to begin with, because so much of what we do is built on the backs of many many others before us... Would I have come up with that nifty hack unless I had seen some other bit of nifty code at some previous time in my life? And, if I came up with it, how many others would come up with the same idea presented the same situation? That's another thing the patent system has seemingly lost lately: the concept of rejecting "obvious" patents... Or, maybe they just don't understand what constitutes "obvious" in the software realm... *shrug*)
IBM pledges patent peace for interoperability Posted Jul 19, 2007 18:13 UTC (Thu) by vmole (guest, #111) [Link] but, the difference is patents on physical objects have long been understood to only cover that particular implementation, not the entire concept as a whole, locking out all other potential competitors with their own different ways of doing the same things... The RSA patent didn't prevent people from implementing other PK techniques. While software patents have tended to be interpreted over broadly, applying to anything that even vaguely resembles the original concept, regardless of underlying implementation... That's not an argument against software patents, that's an argument against idiot patent examiners and courts. Well, "idiot" is usually not the correct term. The problem is that we've had an explosion in a field that is poorly understood by the people who are supposed to regulate it, and have provided a huge incentive for those who do understand it to abuse their knowledge by lying to the regulators.
IBM pledges patent peace for interoperability Posted Jul 19, 2007 19:43 UTC (Thu) by RobSeace (subscriber, #4435) [Link] > The RSA patent didn't prevent people from implementing other PK techniques.
No, but it prevented anyone for developing a compatable algorithm which accomplishes the same thing even of one's own personal from-scratch implementation... That's the problem... Especially if it manages to get itself established as some kind of standard which people are expected to follow in order to effectively interoperate with others who are using it and expect everyone else to be doing so as well...
> That's not an argument against software patents, that's an argument against
True, it's merely an argument against software patents as currently implemented in widespread practice in the US... Maybe it could theoretically be done in a better way, but I'm not convinced any method would be truly acceptable... It could certainly be a LOT better, at the least, however... But, fundamentally, I still don't think software fits with the entire notion of invention patenting...
IBM pledges patent peace for interoperability Posted Jul 19, 2007 20:07 UTC (Thu) by vmole (guest, #111) [Link] No, but it prevented anyone for developing a compatable algorithm which accomplishes the same thing even of one's own personal from-scratch implementation... That's the problem... Yes, that's exactly how patents work. If you object to that, you object to the whole patent system, software, hardware, whatever (which is certainly a valid position to take, don't get me wrong, but you need to be aware that is what you're doing.) If I patent a widget which makes coin sorting 30x more efficient, and I manufacture that widget by casting aluminum, you can't get around my patent by milling the same widget from steel. If that keeps you from being compatible, that's too bad. You can license the patent, or you can develop your own coin sorter that uses a different widget. The real problem, of course, is that compatibility and inter-operation are vastly more important issues in the networked software world than in coin sorters. Nobody really objects that the parts from the ABS system on your Mercedes won't interchange with those in my Ford. We're used to that. But free software, if it is to interact with the proprietary world, absolutely requires the ability to re-implement existing algorithms. Patents are fundamentally at odds with that.
IBM pledges patent peace for interoperability Posted Jul 19, 2007 20:40 UTC (Thu) by RobSeace (subscriber, #4435) [Link] > If I patent a widget which makes coin sorting 30x more efficient, and I> manufacture that widget by casting aluminum, you can't get around my patent > by milling the same widget from steel.
No, but what I can do is create my own widget that works to gain precisely the same 30x efficiency advantage as yours (or maybe slightly less/more) from scratch (and which is implemented in a different manner than your patented implementation), and which is a drop-in replacement for yours in any coin-sorters on the market...
Changing the metal but still using the patented blueprints to construct it would be roughly comparable to directly taking the patented source code and simply changing the formatting and passing it off as your own... Or, perhaps just using a different brand of compiler to compile it, and passing off the resulting binary as your own...
Reimplementing a patented algorithm from scratch with your own source code is something much different... You're drawing up your OWN blueprints and building your OWN implementation of the widget from scratch, and simply trying to make it work as much like the patented widget as possible...
See, I think the actual WHAT that gets patented differs greatly between classical physical inventions vs. software or business methods: with physical inventions, essentially the blueprints (aka HOW you build it) are protected; with software, the end product of WHAT gets built is protected instead, with anything that functions similarly considered infringing, despite never referencing the original's "blueprints" (aka source code, which BTW, never even is required to be disclosed, as far as I know, while disclosing HOW to build has always historically been a disclosure requirement for physical inventions)...
Oh, and as for your second paragraph: I agree 100%! ;-)
IBM pledges patent peace for interoperability Posted Jul 19, 2007 21:15 UTC (Thu) by vmole (guest, #111) [Link] No, but what I can do is create my own widget that works to gain precisely the same 30x efficiency advantage as yours (or maybe slightly less/more) from scratch (and which is implemented in a different manner than your patented implementation), and which is a drop-in replacement for yours in any coin-sorters on the market... Only if your new widget doesn't work like my patented widget. But that's what re-implementing the RSA algorithm does. Reimplementing a patented algorithm from scratch with your own source code is something much different... No, it's not. Patents protect the idea, not the implementation, not the construction process ("blueprint", if you will). It doesn't matter how you came up with the implementation, if it's the same algorithm, then you are violating the patent. Even if you come up with the whole thing from scratch ("Wouldn't it be cool if you could distribute *half* of your encryption key, and still maintain privacy and authentication? I wonder how I could do that..."), if it's patented, you lose. Fair? Maybe not, but that's how it works in the US.
IBM pledges patent peace for interoperability Posted Jul 19, 2007 22:06 UTC (Thu) by RobSeace (subscriber, #4435) [Link] > Only if your new widget doesn't work like my patented widget.
What do you mean by "work like"? If it performs the same task, but doesn't use the same implementation, then I don't believe it IS infringing... Unless the software patent mentality has infected the world of real-world physical invention patents, as well... In other words, you can't patent your magic coin-sorter and prevent any other coin-sorters from being made... Or, even merely ones as efficient as yours... Even if they perform the exact same functional task as yours do, in an indestinguishable way to an end-user, as long as they don't use your patented method of actually doing it... Admitedly, IANAPL, so maybe I don't really grok physical patents, but I'm pretty sure they don't work like software patents do... As a real-world example: I imagine there's a patent on the Segway, but if someone else were to come up with their own unique method of creating a 2-wheeled self-balancing scooter which was implemented entirely differently, then I'm pretty sure they wouldn't be in any trouble creating and selling it as a competitor product... Ie: you can't patent the entire concept of a 2-wheeled self-balancing scooter, but merely your particular implementation of one...
> No, it's not. Patents protect the idea, not the implementation
That goes against everything I've ever heard regarding physical patent law... Perhaps you're right, but I'm not sure I believe you... If you're right, then why don't more people patent entire classes of inventions, then? Eg: why isn't Ford the only auto company on the planet? (Besides any patents they had long being expired... ;-)) Or, why isn't TiVo the only DVR available? Etc... If, after all, you're the first to come up with a unique idea for a type of product, and physical patents are as broad as you say, why would you ever allow any competitors to come up with their own different competing products of the same basic type??
What you describe sounds exactly like software patents, but not what I've always thought physical invention patents were like... If you're right, then I dislike both, and think both are horribly detrimental... However, if you were right, then I can't imagine how our free market economy hasn't yet collapsed because of it... Nor, can I imagine why so many companies aren't jumping on the instant monopoly bandwagon to drive out all potential competitors in their new markets... Surely they can't all have suddenly developed a sense of decency?? ;-)
IBM pledges patent peace for interoperability Posted Jul 19, 2007 22:35 UTC (Thu) by vmole (guest, #111) [Link] What do you mean by "work like"? If it performs the same task, but doesn't use the same implementation, then I don't believe it IS infringing... The problem is that software is not hardware, and my use of "implementation" seems not to be your understanding. Lets assume my coin-sorting widget has a certain shape, and operates in particular way (say, the coin hits the widget, and depending on how far the widget tips, deposits it into the correct bin). The shape is based on certain expectations about how big (US) coins are, how much they way, what the coefficient of friction is, etc. Now, you come along, and having never looked at my widget, or my patent, but just knowing the same physical properties of coins as I did, you design a similar widget. If it looks like mine, or works like mine, within whatever limits I've been able to get a patent for, you lose. FWIW, I'd guess that the first person to invent a coin-sorter *could* have gotten a patent on coin-sorters. Now that coin-sorters have been around long enough, you can only patent *improved* coin sorters. Likewise, the RSA people got a patent on the RSA algorithm. Not on PK cryptography, but on the algorithm, the math. It doesn't matter whether your write your own code from scratch, if you implement the RSA algorithm, you violate that patent. If that's not the case, then patents are no different than copyright. (And maybe, in the math/software world, that's what *should* be the case. But it's not.)
IBM pledges patent peace for interoperability Posted Jul 19, 2007 23:21 UTC (Thu) by RobSeace (subscriber, #4435) [Link] > The problem is that software is not hardware,
Unless it's firmware... ;-)
> and my use of "implementation" seems not to be your understanding.
Yes, I kind of suspect we must have a definition problem...
> Now, you come along, and having never looked at my widget, or my patent,
Right... But, the software-world analogy to that (IMHO) would be someone else coming up with the exact same program idea independently and just happening to code things up the same way as the patented method... That's an issue, certainly, but not one I was really talking about...
My issue is when you KNOW about the patented invention and wish to design a competitor product which operates in a similar manner (preferably a completely indistinguishable, if not superior, manner to an end-user, despite a completely different implementation under the hood)... In your coin-sorter widget example, it'd be me creating a widget shaped differently, based on other different observations about physical properties and behaviors, but yet ultimately achieving the same end results (coins sorted properly and as quickly) as your model... And, my widget would be able to transparently replace your widgets, so that all coin-sorter manufacturers would be able to buy my (slightly cheaper) widgets which do the same job to replace yours...
And, I think the software equivalent of that case is something like WINE or SAMBA... They should be perfectly legal; and, so far, thankfully, MS hasn't really even tried to mess with them (despite a few vague empty threats now and then)... But, from my understanding of how software patents are generally applied, MS really COULD go after them, if they so chose to (assuming MS has relevent patents on the tech they are trying to be compatible clones of, which I'm sure they must)... So, are you saying you'd be able to go after me in the above coin-sorting widget scenario as well, simply because I produced a compatible product and stole your business, even though I did so in my own completely unique manner?? Or, do you not buy WINE/SAMBA as equivalent examples of that in the software world?
> Likewise, the RSA people got a patent on the RSA algorithm. Not on PK
Yeah, and there's a big part of the problem: you really shouldn't be able to patent MATH! In fact, isn't that (or wasn't it?) specifically excluded from patentability? I mean, yes it was very clever and undoubtedly a lot of work to come up with, but I'm not aware of many mathemeticians getting patents on their new clever algorithms... Perhaps I'm just really out of it, and that's the thing to do now... I mean, what makes RSA patentable, but not A^2+B^2=C^2? (Aside from the inventor of the latter being dead... ;-)) Is there are certain complexity threshold? I'm sure some of the stuff coming out of professional mathematicians can get excedingly complex... Is it just the fact that RSA can be used in software for a functional purpose? Lots of other math is used all the time in software (video games alone would go bankrupt from all the royalties they'd have to pay for their use of fancy math algorithms in their graphics routines!)... I just don't get it...
IBM pledges patent peace for interoperability Posted Jul 19, 2007 23:51 UTC (Thu) by vmole (guest, #111) [Link] So, are you saying you'd be able to go after me in the above coin-sorting widget scenario as well, simply because I produced a compatible product and stole your business, even though I did so in my own completely unique manner? If you made a better widget without violating my patent, then you're okay. If not, then not. See, the thing is that the *process* by which you came up with your new widget is irrelevant to the patent. In particular, reading the patent and deliberately avoiding its claims is legitimate: if part of my patent is a claim on a particular slot of circular cross-section, and yours uses a slot with rectangular cross-section, then you're okay on that particular claim. (I believe the Vorbis devels did this w.r.t. the MP3 codec patents.) It's completely different from clean room engineering device drivers (or SAMBA, or WINE), where the goal is avoid copyright infringement. But you can't really discuss patent infringement without talking about specific instances of a patent, and the alleged infringement. For example, didn't MS attempt (suceed?) in claiming a patent on how long file names were converted to 8.3 names? If so, and if SAMBA implemented that method, then they would be violating that patent. Doesn't matter if they read the specification or just analyzed a bunch of different names.
IBM pledges patent peace for interoperability Posted Jul 20, 2007 10:30 UTC (Fri) by RobSeace (subscriber, #4435) [Link] > For example, didn't MS attempt (suceed?) in claiming a patent on how long> file names were converted to 8.3 names?
Yes, I recall hearing about that a while back (though, I think they may have been denied)...
> If so, and if SAMBA implemented that method, then they would be violating
Right, and I wasn't saying it matters (with regards to patents) whether they clean-room reverse-engineer something either... What I think SHOULD matter (but doesn't with software, at least) is the actual implementation... The code... The way it's written... HOW it does what it does... Because, to me, that's equivalent to the shape and special design of your coin-sorting widget... It's the very thing that makes it a unique creation which works in its own unique manner; even if it happens to produce equivalent results to the original work it was trying to copy... There are many different ways to write code to perform the same end task... And, the chances of any two implementations being exactly alike, without one having read the code of the other, is extremely unlikely (at least for any problem of reasonable complexity)... They may take roughly the same approach, and may perform nearly all of the same actions, but they will surely be unique in HOW exactly they do it all... In precisely the same way as my redesigned widget is unique from your patented design, yet performs exactly the same function...
Do you see what I'm getting at, now? I guess what I'm really saying is that patent claims on software may be too overbroad, in that they seem to protect a much more general and vague high-level concept of how to reach the end goal, rather than specifically and narrowly focusing on just the actual method that the patented program uses... It would be as if you could claim a method on sorting coins by any manner, and prevent ANY competitors from making widgets... I don't beleive they allow that, and you have to actually fully describe in detail your specific manner of sorting coins, and what makes it so special and unique and worthy of patent protection... And, then, JUST that method of doing things is protected... But, with software, they don't do that... To do that, one would need to submit the actual source code (since THAT is the detailed description of how exactly you do things), and only that particular design would be protected, and anyone else would be free to come up with a different design that accomplished the same task...
IBM pledges patent peace for interoperability Posted Jul 21, 2007 20:19 UTC (Sat) by cortana (subscriber, #24596) [Link] To attempt an always flawed analogy, it'd be as if a writer could patent the concept of writing sci-fi novels, and sue anyone else who writes their own... Or, even more narrowly focused, if one could patent the fundamental ideas of say "Star Trek", and then sue anyone who created books/shows/movies which contain future human societies together in any kind of Federation-like alliance with alien societies, or which have starships exploring alien worlds on a regular basis, etc... It's a silly idea, but that's really what software (and "business method") patenting usually boils down to... Careful now... check out Knight and Associates - Storyline Patents & Plot Patents ;)
IBM pledges patent peace for interoperability Posted Jul 21, 2007 21:12 UTC (Sat) by RobSeace (subscriber, #4435) [Link] Oh, god, how disturbing... To quote Marvin the Paranoid Android, "Funny, how just when you think life can't possibly get any worse, it suddenly does"... ;-)
IBM pledges patent peace for interoperability Posted Jul 19, 2007 20:58 UTC (Thu) by njs (guest, #40338) [Link] "New creative work" is not enough to be patentable -- for instance, math is traditionally not patentable. Imagine if Euclid were alive today, and could have patented what's known as the "Euclidean algorithm" (basically *the* way you can find common divisors of two numbers), or even, say, the process of factoring (he's the one that proved numbers have unique prime factorizations, certainly a significant creative contribution!).
You can't really "code around" to avoid basic observations about the structure of the integers.
Question is where RSA falls. More even than most software patents, it's basically just an observation about the properties of some equations, albeit more complicated ones than Euclid used...
IBM pledges patent peace for interoperability Posted Jul 19, 2007 23:48 UTC (Thu) by socket (guest, #43) [Link] Agreed.. and I think it's similar for patents related to genetics research. Should the first observer of a natural phenomenon (say, some gene causing some sequence of proteins to do something) be granted the privilege of requiring anyone else that makes use of the knowledge of that natural phenomenon to pay royalties to the first observer?
The word "invention" suggests a creation, a work of intellect, rather than the observation or discovery of natural processes. Any sane patent system should set a high bar, requiring patent applications to make an argument for why the subject covered by the patent exists because of the patenter's *human* effort and not because of an observation of the facts or behavior of already existing systems.
In fact, the patent system in the US already makes a requirement of this sort. And, like the requirement for being "non-obvious," the patent office doesn't seem to actually care about such requirements. I suspect that nearly *any* patent application filed with all the right paperwork, signatures, and fees gets passed these days.
Sometimes it almost seems like the patent system we currently have might be good enough, if the USPTO would only just do their jobs competently.
IBM pledges patent peace for interoperability Posted Jul 20, 2007 0:33 UTC (Fri) by giraffedata (subscriber, #1954) [Link] any sane patent system should set a high bar, requiring patent applications to make an argument for why the subject covered by the patent exists because of the patenter's *human* effort and not because of an observation of the facts or behavior of already existing systems. You cover one of the two reasons for patents, but the other (the original one, by the way) applies to mere observations too. You cover the patent as an incentive to invest in inventing something; the other purpose is an incentive to disclose something already invented. If someone observes something that no one else has observed before, even if it was serendipitous, society has an interest in giving him a patent on it. Without the patent, he may not tell us what he observed, and we won't be able to use it for any amount of royalties. With the patent, he'll disclose his observations and sell us the right to use them. Ideally, I think to get a patent an invention should have to be something that could reasonably be kept secret. RSA is an example of something that could not have been kept a trade secret. The public got nothing in exchange for the patent because the inventor would have disclosed it for free. Sometimes it almost seems like the patent system we currently have might be good enough, if the USPTO would only just do their jobs competently. Yes. I've always thought that if the obviousness test were actually applied, everything would be fine. No need to create a special classification for software.
IBM pledges patent peace for interoperability Posted Jul 26, 2007 12:26 UTC (Thu) by anandsr21 (guest, #28562) [Link] The thing is that Copyright exists for software. There is no need for the patent system. You should not be allowed to have both for the protection of the same thing. Actually the two apply to very different things. Patents to hardware, and Copyrights to software.
IBM pledges patent peace for interoperability Posted Jul 31, 2007 22:18 UTC (Tue) by Wol (guest, #4433) [Link] The RSA patent should never have been granted. The EXACT TECHNIQUE had been in use for about 7 years before Rivest et al *re*-discovered it and applied for the patent.
GCHQ at Cheltenham (the UK secret service) were using it routinely at the time the patent was applied for.
Cheers,
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