TIM BOYLE EXECUTIVE DIRECTOR MULTIMEDIA DEVELOPMENT GROUP MR. BOYLE: Good morning. My name is Tim Boyle and I represent the Multimedia Development Group. I'm the acting Executive Director of that Group. The Multimedia Development Group is a market_ development orient- ed trade association. It's located in San Francisco. Our members are primarily interested in the software side of thisLustry. We represent about 4OO companies that build the software for mul- timedia titles. These include about 2OO multimedia developers and publishers, 5O technology companies, about 15O service pro- viders, including accountants, public relations firms, marketing research firms, and over 25 law firms. We also represent 2O to 25 educational, nonprofit and governmental organizations. Our mission is to help the emerging multimedia software companies become commercially viable by facilitating the communication between the parties who develop, fund, service, sell and, in your case, regulate these titles. I would like to thank you for the forum and we appreciate the fact that you are soliciting our opinions. I'd like to address three points today. The first is the need to stimulate the creative processes in this industry and the commercial structures that support them through an equitable code of intellectual property. Secondly, the need for this code to meet the digital challenge by distinguishing between wPis a patentable invention and a copy- rightable creation. And finally, some suggestions for your consideration, such as the possibility of incorporating some of the precepts of academic science into the work of the Patent Office, in particular the concept of peer review. I'd like to start by saying that we support patent protection for inventions that integrate software with other elements. I would also like to let you know that the furor over the Compton's New Media patent claim comes in part from our community. While we note with pride that Compton's New Media is a member of our or- ganization and we wish to see their creations appropriately pro- tected, the majority of our members believe that the ideas at is- sue in that claim are better protected by copyright rather than patent. Compton's Multimedia Encyclopedia is a very clever and extremely innovative use of the new vocabulary of digital communications. As such, it represents a unique and creative arrangement of fun- damental elements that constitute tTnew vocabulary of the artist and the author in the digital age. Graphical screen elements, windows, buttons and such, search and navigation methodologies, multiple views of databases, are part and parcel of this new vocabulary. It is their use in the ex- pression and representation of ideas that creates value, and this value, our membership believes, must be protected. We look to the Patent Office to identify, understand and protect the funda- mental concepts of this new media. These concepts properly be- long in the public domain because they are the alphabet, the building blocks of our new media. The multimedia developer community has a vested interest in pro- tecting their intellectual property from unfair copying or in- fringement and to ensure that the concepts on which they are based can be freely exchanged. We believe that one can only properly assess the patentability of a work after reviewing that work in the context of all the work which has gone before it. There was a much simpler task in the induXal age and this is now much more difficult in the information age that we're moving into. How would theatre have developed if the concept of plot were owned by someone? I mean William Shakespeare never could have afforded a license. It is the innovator and society who will suffer if we fail to protect the novel ideas or fail to recognize the obvious in this new media. I'd like to close with a few suggestions that we have for the Of- fice. The first is opening up the patent application process. The current process has been characterized as "secretive". We would like to see that characterization changed. We would also suggest peer review. In academic science a discovery is accorded recognition only when it has passed the test of peer review. If you'll remember "cold fission". That was taken care of by the scientists. We recognize that there is a problem that open review presents for inventions with great commercial potential, but there are other members of our industry who have put forward a numbe proposals in that regard. Our organization endorses the general concept of peer review as an important element in the evaluation of software patent applications. And the third and final suggestion is building a definitive li- brary of prior art. The Multimedia Development Group has pub- lished a call for prior art and we would like to offer your Of- fice access to any an all materials that we received. We would like to establish an ongoing relationship to ensure that your Of- fice has access to any prior art it requires. The Multimedia Development Group's purpose is to represent the interests of the multimedia community and to grow this industry. We would like to extend our hand to assist you in gaining access to and understanding the needs of that community. We would like to have as strong a relationship with our Patent Office as the one enjoyed by the metal fabricating inventors of the industrial age. That Patent Office created the basis for the most explosive economic growth that the world had ever see`nd this Patent Office has the opportunity to dwarf that achievement by creating the basis for a global information economy. Thank you for your time. COMMISSIONER LEHMAN: Thank you very much. By "peer review" do you mean that we would have like a panel of multimedia __ say we had a multimedia patent application __ we would have a panel of multimedia developers who were actual developers out there who we would convene somehow or other or we would send around the patent application to them the way in an academic setting they might send around a paper? If you were a biochemist, you know, and you were about to publish a paper in science, the editor sends it around to three other scientists to look at it and to make comments and corrections. Usually the author of the original paper doesn't even know it, who the people are. Is that the kind of thing that you're talk- ing about? MR. BOYLE: That is one way to go about it and I would want that reality factor in there. The other method is a scholastic reviewdt not in the traditional, old school sense. We have a school, San Francisco State Univer- sity, that is providing 5O courses and training over 9OO students a semester in multimedia. They have a group of people, many of them our members, who understand this. That school or an insti- tute of that type, and there are many around the country, would be very happy to act as the agent to tell you what had happened in the past. COMMISSIONER LEHMAN: Well, I think part of what you're talking about there is better communication, better education of our Exa- mining Corps, and more fluid and constant communication between the Examining Corps and the people in it with people who under- stand these industries. MR. BOYLE: Right. COMMISSIONER LEHMAN: Now, for example, we could send some people from the Examining Corps out to attend this course that you just described. I think one of the things __ and I don't want to open up, you know, an unmanageable floodgate here __ but I think these hear- ings are a very formalized kinh procedure, but I like to think of them as sort of the beginning of the process since it's so clear that we need to have better communication with our customers. That will solve some of our problems right there, if we just kind of have better communication with them, and that's why I think that we're going to have to. I mentioned Mr. Goldberg was here and I think on an informal basis, we're not like a court, you know, you can only hear us in a hearing room, we can have informal contacts with industries and people and I encourage those of you who are in the room to get to know some of the Patent Office people who are here and sort of start to develop where you bring us into your peer group a little and we'll try to cooperate with that. Obviously, we have to be doing our job, we can't be running around the country on junkets all the time, but we __ but it's important for us to develop better means of communication. Of course, electronic communication, Internet style of communica- tion, too, is an importantlt of that. Anyway, I appreciate your comments and I have a little better understanding what you mean by "peer review". MR. BOYLE: And I also would suggest that opening up the Patent Office electronically as widely as possible is going to give you access to that community. And you have many trade associations and professional development societies that would be happy, that are looking forward to working with you. And I think everybody understands that we're on __ that this is the beginning of something new. My favorite is that the theme song of multimedia is "Something's happening here, what it is ain't exactly clear", and that is the state we're in. Thank you. COMMISSIONER LEHMAN: Thank you. Next I'd like to ask Mr. Ronald Laurie, Attorney at Weil, Gotshal & Manges, a prominent member of the intellectual property bar, to step forward.