PETE ANTONIAK SOLAR SYSTEMS SOFTWARE MR. ANTONIAK: My name is Pete Antoniak and I'm a professional engineer. I'm looking at the agenda today and see a lot of CEOs, chairmans of boards, and lawyers, patent agents, et cetera. I see very few engineers and software developers. COMMISSIONER LEHMAN: You can probably help us a little bit if you just make sure that that mike you're talking into __ MR. ANTONIAK: Can you hear me now? Everybody? Good. You see very few engineers, software developers. I develop educational game software. I also teach, consult and program for others in order to supply this software habit of mine. For the past ten years I've been making about a third as much of money as I was making as an executive for GTE Sprint, and I do this because I'm looking for the big payoff, developing the great American software. Approximately six years ago I started development of an educa- tional game concept that I thought was quite unique and I was to- tally aware that nobody else had4e anything like I was doing. I attended a seminar up in San Francisco, I believe by Prentice_Hall, in which I believe somebody from this panel or somebody from the Patent Office gave a talk and encouraged people like me to go ahead and get patents on our software. I was sent some brochures and literature and it seemed like a fairly friend- ly environment, I said, By golly, I'll do it. I'm the type of guy that repairs my own car and so I went to it. When I developed my program, and I can understand from people out there that, you know, I'm a little naive in this, I wanted a pro- gram that could make an educational game out of any type of ma- terial, any subject, any grade level and any language. Particu- larly I wanted a game that did not require the need of a key- board, no typing required. And I came up with a very interesting concept. My game used objects on the computer screen that represent abstract ideas and concepts. The player moves the ob- jects around on the screen to represent their relationships. Th8ncept I developed is simple, compelling and fun, and not only was there no prior art, but even to this day, and this is six years after development there still is nobody even doing anything like I'm doing. I have essentially no infringers. I purchased and read the book called Patent It Yourself by David Pressman, which is kind of a bible in this industry of people who are inventors like me. I also learned that David was a fellow_member of Mensa, lived in San Francisco and for a fee of seventy_five dollars a review, now one hundred, would review my application. I spent six months developing an application, writ- ing and rewriting it. He had about three or four times to review it and I sent it in as a patent application. My first office action came about six months later when all my claims were rejected on the basis of prior art. Now anybody in this business understands that this is very common. I was upset at the time, extremely upset, but have since come to understand that this is normal. I can't complain about this as I was told by somebody in the Patent Office, this is the way the game was played. However, what I can complain about is the fact that none of the prior art had anything to do with computers. I was confronted with such things as jigsaw puzzles, board games, card games, and classroom wall charts. One of the prior art patents was a few months short of one hundred years old. I spent a great deal of time writing responses, and it was very frustrating. It was un- believable to me that anyone could even connect my program with the prior art that was being used. I felt that there was some kind of a logic gap between me and the examiner. In the end the examiner maintained that my arguments were not persuasive enough and I got a final rejection. I phoned the examiner, and during the interview it came out that she was a mechanical engineer, did not have a computer and didn't know much about computers in general. She told me that her exper- tise was in games. I presented a logical set of arguments@get her to admit over the phone that the prior art she was using was absolutely not applicable to my claims. She then stated that she was sure that there was something out there, perhaps in child development books or something that du- plicated my computer game on a table, with three_by_five cards, a pencil and perhaps a teacher to look over as a referee or a judge. If she had the time she would find it. I said that a table was different from a computer in that a table could not know where those three_by_five cards were, whereas the computer screen did and could do instant evaluation well beyond the capabilities of a teacher. She said that I should explain that if I was to reapply. Well, essentially what I was doing defending an inven- tion that didn't exist but only in her mind and which she didn't really tell me about. She finally requested a different examiner. David Pressman also advised me to request a different examiner. He even made a few derogatory comments about my examiner being young and expDnced. This was the luck of the draw and I just had to live with it. I resubmitted, respectfully requesting a different examiner, waited six months, and the first Office action came back, and you guessed it, I had the same examiner. I went through another frus- trating round going back and forth. I felt sometimes like I was arguing with a brick wall and there was some sort of a hidden agenda that no matter what I said that I wasn't going to get a patent. After the final rejection the second time, I traveled to Crystal City, had an interview with the examiner and her supervisor. I arranged to use a computer store across the street from the Pa- tent Office and demonstrated my software. I quickly became aware, to my dismay, from the examiner's reaction to the program, that she really didn't even understand what it was that I had submitted, and more importantly how it worked. This was moot, however, because just prior to the demonstration her supervisor had promised that if I were to resubmit again that I Hd get a different examiner. I resubmitted a third time, and again was rejected in the initial office action. However, the tone of the rejection is different. It was obvious that the new examiner had read the application and understood it. He pointed out discrepancies in grammar between the original application and the claims. He pointed out some tactical errors in the claims and he recommended ways to correct things. The prior art he introduced seemed more pertinent to the claim and the invention. I almost cried, not that I had been re- jected a third time, but because at least I had someone whose at- titude was not, "How do we get this guy out of here," but, "How do we get this application in proper order to be patentable." In the next two weeks I will submit a file wrapper continuation and start Round 4. The last thing my new examiner told me, howev- er, when I called him up, was that he is now under pressure be- cause of the Compton's fiasco, whatever you want to call it, and that he'd probably be thLng a lot more prior art at me. I'd rather take a stoic attitude about my experience with my Patent Office. I'd like to say that an easy patent that has not been exposed to a lot of prior art is not a patent that would stand up to a challenge; this has often been said, that if you get a pa- tent too easy you may have a problem with it later on. However, I believe that the type of prior art used in my case was so nonap- plicable as we go to the background, the experience of the exa- miner, that for all intents and purposes I am starting over, hav- ing wasted four years, many thousands of dollars in fees, approx- imately eight man months of my time that I could have been using in development, in marketing a product. My claims are not earth_shaking. They're not controversial. They only protect my program. I will note that even though, and I'd mentioned before, I haven't shown it to a lot of people, I'm al- ways aware of what's going out there, I've yet to find anybody that would be considered an infringer of my prodP I'm a little guy; I'm the inventor. I'm the software_equivalent of the inven- tor, and my bottom line in all this is that if the Patent Office is doing a good job __ I'm not recommending a lot of changes to the Patent Office __ it's just if they're doing a good job, you know, I would __ I would probably have a patent right now, or at least I would know I couldn't get a patent right now. Right now I've spent a lot of time on absolutely, you know, nonsensible things. And I kind of consider, like when I took Latin in high school, you know, it's one of those things to give you some dis- cipline. I can certainly write a claim. Jeez, you know, I can do very well. Matter of fact, as a member of the Software En- trepreneurs Forum I even had a conference about a year and a half ago in which we had the whole afternoon devoted to doing patents. I brought in a patent agent and we discussed these things. I'm pretty much up on it. However, I'd rather have a patent, rather have the, you know, the rights thereto, thaTmay attain to. Anyway, that's it, and that's my bottom line, and if I have any time left, I can entertain any questions. COMMISSIONER LEHMAN: Thank you very much, Mr. Antoniak. I would just say that the patent system is not set up to be a pro se sys- tem, and we have a lot of problems in that and we're here to help solve those. But part of being a good patent lawyer is to under- stand the art of lawyering, and oftentimes that involves making certain that your claims are drawn in such a way that you get to the right patent_examining group __ doesn't sound like your pa- tent originally went to Group 2300 __ and that it get to the right examiner, and I'm very sympathetic with your difficulties that you had, but I think that when one attempts to bootstrap their case and you try to do brain surgery self_taught that you're inevitably going to run into some difficulties, that are hard for us to try to address in the system. MR. ANTONIAK: Let me add that all along the way I was using a patent agent to review eXthing I set in. First it was Pressman and then it was a registered patent agent here in the Valley who has done software for the last twenty years. I looked to the Pa- tent Office like a pro se inventor. In reality, though, every- thing was checked and rechecked and gone over by a patent agent who gave sound advice. All along the line they were saying, "Yes. This is definitely patentable. Matter of fact, what's somewhat ironic is that when I submitted my thing to Dave Press- man the first time around, he said somebody else had also submit- ted something that he said was absolutely not patentable, and what he was surprised was he sent it in and got a patent right off the bat with very little problems. I've run into that indi- vidual because it turned out I know him anyway, and Dave was surprised that mine had such a hard time getting a patent. Again, the wording was right, everything was pretty much right, my logic was right. I think that the term pro se inventor, you know, have said, "Okay, here's a catego240 this guy the, you know, the profession- alism that you'd give perhaps a patent attorney who can call us on it." Now that's my, that's my personal judgment on this, and I could well be wrong, but this is an experience; a lot of emo- tions and a lot of energy's gone into this, and __ you know, what can I say? I've been __ I've been to Vietnam and I've learned a lot from that, too. So. COMMISSIONER LEHMAN: Well, I'm sorry you had that difficulty and I'm hopeful as a result of these hearings we'll get the problem fixed. Thank you very much. MR. ANTONIAK: Thank you. COMMISSIONER LEHMAN: Next I'd like to call Mr. Robert May from Ikonix Interactive, I believe.