Claims Not Anticipated
AMP Report & Burks Article
Fraud on Patent Office
25 Other Patents & Apps.
SR-IBM 8/21/56 Agreement
SR-IBM Settlement of Interferences
SR-BTL 1961 Agreement
SR-IBM 1965 Agreement
Pending Application Royalties
Section 7, Clayton Act
Statute of Limitations
Infringement of ENIAC
Declaratory and Injunctive Relief
Order for Judgment
Table of Authorities
8. The AMP Report and Burks Article
- The AMP Report and the Burks Article were printed publications prior to the critical date.
- The AMP Report No, 171.2R, portions of which were copied into the ENIAC application, is a general description of the ENIAC machine. Its title indicates its purpose: "Description of the ENIAC and Comments on Electronic Digital Computing Machines."
- The AMP Report was prepared for the Applied Mathematics Panel of the National Defense Research Committee at the request of Dr. Brainerd of the Moore School.
- The report is sixty-eight pages in length, and includes a description of the ENIAC machine with drawings and appendices discussing the arithmetic operation, programming, and constructional data of the ENIAC machine.
- The report was jointly authored by Brainerd, Goldstine, Eckert and Mauchly.
- In excess of one hundred copies of the AMP report were printed, separately numbered, and distributed during or prior to March, 1946, to numerous persons skilled in the art at the time. This distribution was made with the approval of Army Ordnance.
- The persons receiving the AMP report represented or were affiliated with such institutions as Ballistics Research Laboratory, University of Chicago, Princeton Institute for Advanced Study, Los Alamos Scientific Laboratory, the National Academy of Sciences, University of Michigan, University of Vermont, RCA, New York University, and University of Pennsylvania.
- The AMP Report, as distributed, was marked "Restricted." However, this classification permitted dissemination of material to anyone for official purposed and was, at the time of the publication of the AMP Report, the lowest level of government security classification. In any even, the general principles of design and operational and functional characteristics of the ENIAC were declassified from military security by Army Ordnance on December 7, 1945, and the "Restricted" stamp failed to prevent actual publication.
- The ENIAC patent was, in substantial part, based upon and copied from the AMP Report. The report's stated purpose was "to give the reader a rather complete account of the general features of the ENIAC....", and had the intended effect. For example, one of its readers, Major Sterne, received "a much clearer idea of the working employment of the ENIAC." Sterne also stated that the report dealt "clearly with the theory of the design of digital computing devices," and the Court concurs in this contemporaneous comment.
- The Burks article, entitled "Super Electronic Computing Machine," is a seven-page description of the ENIAC machine having as its stated purpose "to explain how the ENIAC solves mathematical problems electronically." Included in this article are photographs of the layout of the ENIAC machine and of the initiating and cycling units. Also shown are the master programmer and accumulator, and a diagram of the actual connections between units of the ENIAC machine to solve a representative differential equation. Separate schematic diagrams of various logic gates (e.g., a flip-flop, "and" gate and "or" gate employing vacuum tubes) and of a typical ENIAC circuit showing the interconnection of two program control circuits with an accumulator, also are set forth and discussed in the article. The text of the article sets forth and discusses the basic ENIAC units including arithmetic units, the control units, and the input/output equipment.
- Although the Burks Article appeared in the July, 1946 issue of Electronics Industry (a date after the critical date), the credible evidence shows that the article was first published on June 25, 1946 before the critical date.
- The fact of publication of the Burks article on this date is evidenced, pursuant to 17 U.S.C. §209, by the certificate of copyright registration for the article which states: "This issue was published on the 25 day of June 1946" by the Guide Printing Company, New York, N.Y.
- Plaintiff has not, however, proved the readability of the claims of the ENIAC on either the AMP Report or the Burks Article.
- Honeywell did not prove that the AMP report describes to those skilled in the art how to make and use the invention disclosed in Claim 142 or any other claim of the ENIAC patent.
- The Burks Article was considered by the Patent Office and the patent examiner found that it did not anticipate the claims of the ENIAC patent application in interference.
- Honeywell did not prove that the Burks Article describes to those skilled in the art how to make and use the invention disclosed in Claim 8 or any other claim of the ENIAC patent.
- Honeywell offered no testimony to show readability of any of the claims of the ENIAC patent on the AMP report or the Burks Article.
- Honeywell did not meet its burden of proving that the inventive subject matter claimed in the ENIAC patent was anticipated by or obvious in view of the AMP report or that any claims of the ENIAC patent read on the AMP report.
- Honeywell did not meet its burden of proving that the inventive subject matter of Claim 8 or any other claim of the ENIAC patent was anticipated by or obvious in view of the Burks Article or that any of the claims of the ENIAC patent read on the Burks Article.