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Freedom Scientific Files Patent Infringement Suit against GW Micro
by Daniel B. Frye
Wednesday, February 4, 2009
The following is from the National Federation of the Blind’s Braille Monitor. It is quite comprehensive as far as it can be at this point.
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
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
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.