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7. The First Draft Report

  1. The First Draft Report was a printed publication prior to the critical date, and was an anticipatory publication, and contains an enabling disclosure of the ENIAC.
    1. In 1944, Dr. John von Neumann, a mathematician of international distinction, was serving as a consultant with the Ballistics Research Laboratory of Army Ordnance. During this same period, he also was serving as scientific advisor and counselor to the Los Alamos Laboratories in nuclear weapons research matters.
      1. Dr. Herman H. Goldstine, of the Ballistics Research Laboratory ("BRL"), sparked von Neumann's interest in the ENIAC during a train ride which the two took to Philadelphia in late summer 1944. Almost immediately thereafter, von Neumann viewed the ENIAC two accumulator system in operation and became deeply involved in the ENIAC project, meeting frequently with Eckert, Mauchly, Burks and Goldstine.
      2. Von Neumann's dual roles of BRL and Los Alamos led him to recommend the use of high-speed computing machines as an aid to the computations of the Los Alamos Laboratories and to Dr. Edward Teller in particular.
      3. Goldstine and von Neumann agreed that a report should be prepared to summarize the general ideas regarding the art of high-speed automatic electronic digital computers discussed at the Moore School and, as a result, von Neumann prepared a document entitled "First Draft Report on the EDVAC". This First Draft Report was authored by von Neumann between February and June of 1945 and was a substantial and major part of the total report he intended to write.
      4. Von Neumann's First Draft Report, a comprehensive document of one hundred one pages, contains fifteen chapters, each having subsections, and deals in detail with the logical organization and makeup of a high-speed automatic electronic digital computer. Included in the report are definitions of report terminology and a chapter devoted to the procedure used by the author for discussion. Specific hardware was not detailed, in order to avoid governmental security classification and, in Eckert's and Mauchly's words, to avoid raising engineering problems which might detract from the logical considerations under discussion.
    2. Goldstine, with the approval of von Neumann, circulated a large number of mimeographed copies of the First Draft Report for the express purpose of making the knowledge therein publicly available to advance the state of the computer art.
      1. The purpose of early publication of the First Draft Report was to further the development of the art of building high-speed automatic electronic digital computers, and to advance scientific engineering thinking on this subject as widely and as early as feasible.
      2. After its completion in mimeographed form, the Draft Report, which was unclassified with the knowledge and approval of Army Ordnance, was immediately distributed to members of the technical staff of the Moore School, and thereafter, to other persons in the United States and England variously representing: the Ballistics Research Laboratory; the Princeton Institute for Advance Study; the Applied Mathematics Panel of the National Defense Research Committee; the Radiation Laboratory at the Massachusetts Institute of Technology; Scientific Computing Ltd. in London, England; United States Army Ordnance; the Computing Laboratory in Cambridge University in England; the Mathematics Institute at New York University; and the University of Chicago.
      3. The First Draft Report was a printed publication, within the meaning of 35 U.S.C. §102, by June 30, 1945, prior to the ENIAC patent critical date.
      4. The distribution of the First Draft Report had an important influence on the continuing development of electronic computers.
      5. The computing system described by von Neumann in the First Draft Report featured the use of the computer's high-speed memory to store not only numbers by operating instructions as well. Called "stored programming," this concept introduced new dimensions in the speed, flexibility and usefulness of automatic electronic digital computers.
    3. While the First Draft Report does not include a detailed disclosure of the specific hardware to mechanize the machine disclosed within the report, it does include a disclosure sufficient to teach one skilled in the art how to accomplish the logical control of a high-speed automatic digital computing system.
      1. Each of the logic elements (referred to as "organs") disclosed in the First Draft Report had existing physical counterparts and/or could have been constructed by the exercise of ordinary skill in the art at the time the report was published, before the critical date for the ENIAC patent. Experts in the field testified at trial that the report is, and was at the time of its publication, sufficient to enable persons skilled in the art to make and use the computer set forth in the report.
      2. Plaintiff's tutorial expert witness, Kenneth Rose, read and understood the First Draft Report and presented an in-court demonstration model of the stored program technique taught in the First Draft Report.
      3. The Court also heard the testimony of plaintiff's expert witness Paul Winsor, who studied the First Draft Report extensively with a view toward determining whether or not a computer could have been constructed at the time (1945) from the report's teachings. He examined the wartime technology available, when the report was published, to construct the elements referred to in the report. As a result of his study, Winsor concluded, and this Court concurs, that the report was sufficient to enable persons skilled in the art in 1945 to construct the computer set forth therein with the available technology. Moreover, documents written by persons concerned with the report, contemporaneous with its publication, corroborate this testimony. For example, ENIAC patent attorney Church commented on the First Draft Report:

      "I think the broad conception is there and to one skilled in the art it is sufficient to put them on the road of accomplishing a development."

      Von Neumann's attorney Townsend agreed, despite the fact that his conclusion prejudiced any possible patent rights his client might have sought. The Court credits this testimony.

    4. The claims of the ENIAC patent asserted in this suit are anticipated by or obvious in view of the First Draft Report. The Court reaches this finding through an independent study of the record, including the testimony of plaintiff's expert, Winsor.
      1. Claims 8, 9, 52, 55, 56, 57, 65, 75, and 78 are each anticipated by the First Draft Report.
      2. The inventive subject matter of "the Automatic Electronic Digital Computer" is either anticipated by or obvious in view of the First Draft Report.
    5. The finding that the First Draft Report disclosed the basic concepts of the ENIAC invention is supported by statements of those who considered the same issue prior to the time the ENIAC application was filed.
      1. The applicants for the ENIAC patent were informed before the ENIAC patent was filed, by Army Ordnance patent lawyers who prepared and prosecuted the ENIAC patent application, that the First Draft Report was barring publication. [See also Findings 13.31 et seq. herein]
      2. Defendants have admitted that by April 8, 1947, Eckert and Mauchly had been advised that the Army Ordnance patent lawyers considered the First Draft Report to be a printed publication within the meaning of the patent statute.
      3. On April 8, 1947, a meeting including the patentees, Eckert and Mauchly, and Libman (the principal active lawyer who prepared and filed the ENIAC patent application on behalf of Eckert and Mauchly) and Church (later an attorney of record for Eckert and Mauchly in the ENIAC application), was held to consider the impact of the First Draft Report on the patentability of inventions theretofore made by them. During this meeting, Church stated:
      4. "It is our firm belief from the facts that we have now that this report of yours dated 30 June 1945 is a publication and will prohibit you or anyone else from obtaining a patent on anything it discloses because it has been published more than a year and statute provides that if you don' t file disclosures within a year it constitutes a bar to patenting that device."

      5. During the April 8, 1947 meeting, Eckert admitted that the report was a barring publication, and it was clearly and unequivocally established, in the presence of the patentees Eckert and Mauchly and their patent lawyers Church and Libman, that the report was an enabling publication dated more than one year before the ENIAC patent application was filed.
    6. It is apparent from the distribution list of the June 30, 1945 First Draft Report that Mauchly was charged with the duty of delivering the report to the Army Ordnance Patent Department. The list also makes clear the report's relevance to Eckert's and Mauchly's patent matters. On the list, it is stated:
    7. "Dr. J. W. Mauchly (2) (to be given to patent lawyer and patent Dept. of Ordnance)"

      There is no evidence that Mauchly ever carried out this duty, and the First Draft Report did not come to the attention of the Army Ordnance until it was later submitted by von Neumann.

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