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Patent Office won't have Y2K fix answer by year's end

While advocates praise an order by the government to re-examine a controversial patent on a popular Year 2000 software fix, officials say a final judgment won't happen before the end of the year.

While advocates praise an order by the government to re-examine a controversial patent on a popular Year 2000 software fix, government officials say a final judgment won't happen before the end of the year.

In an unexpected move, the U.S. Patent and Trademark Office (PTO) this week said it would take another look at the patented fix called Dickens2000, named after the patent holder Bruce Dickens.

The Information Technology Association of America (ITAA) yesterday termed the decision by the PTO "courageous."

Though the organization claims to take no position as to the merits of the patent itself, the ITAA said the move will help companies stay focused on fixing and testing systems in the final run up to the rollover event.

Patent officials made the decision after some information came to light that was not considered when the patent was originally granted, according to a statement from the Patent and Trademark Office.

With the new information, patent officials need to determine whether the software fix is genuinely new, and not an obvious fix--a key criterion for awarding patents, according to the department.

Y2K: The cost of
fear As previously reported, aircraft manufacturer McDonnell Douglas received the patent for a software technique called "windowing" that is used to correct computer code that could be affected by the year 2000 glitch. The company handed the patent over to the software's inventor, Bruce Dickens.

Dickens, now president of a company called Dickens2000, said he will license the patent for an up-front fee and subsequent royalty payments. After the date change, licensing fees will increase substantially for firms that don't agree to the initial offer.

"We applaud the courageous decision of the USPTO commissioner in directing a reexamination of the Dickens2000 patent," ITAA president Harris Miller said in a statement. "There were substantial questions of validity that this formal and deliberate process will now resolve. ITAA has been proud to have been a part of the public discourse in calling a number of 'prior art' documents to the attention of the Patent and Trademark Office. With this move by the USPTO, we hope that attention can now be redirected to more immediate and productive readiness issues."

Bill Cray, a lawyer representing Dickens from the California-based law firm Levin and Hawes, said his client appreciates the patent review. "Bruce welcomes the opportunity to re-examine this, to clear up all the squabbles going on. This is an opportunity to strengthen his patent."

Experts say decisions by the PTO to review patents that are already approved are rare.

"Patent reviews are rare if not nonexistent," Giga Information Group analyst Kazim Isfahani said.

Jeffrey Neuburger, a patent law attorney at New York-based Brown, Raysman, Millstein, Felder & Steiner, said there is a 50-50 chance that the PTO will narrow or overturn its original decision.

"But if they do re-examine and reaffirm the patent, then the patent is very, very strong," Neuburger said.

Lawyers for Dickens say they are prepared to use legal action to enforce payments from Fortune 500 companies that have used software fixes based on the now-patented technology. Soon after the patent was announced, letters went out to U.S.-based firms in an attempt to procure lump-sum payments for previous use of the technology. Giga Information Group expects Dickens will seek payments ranging from $50,000 to $100,000 from firms that have used the Y2K fix.

Windowing is the most popular of several techniques used to allow software to recognize a year as a four-digit field. A typical windowing fix ensures years entered as 00-29 represents 2000 through 2029, and years entered as 30-99 represent 1930 through 1999.

Dickens' attempt to collect fees and royalties from companies could deal a financial blow to thousands of firms. Analysts say that roughly 90 percent of Fortune 500 firms have used some form of windowing to fix their computer systems.

"I know of a number of industry groups who have stated their concern about the patent," Isfahani said.

The Dickens windowing patent was issued in 1998. Analysts have discovered information on the fix from IBM, which referred to the technique in pamphlets as far back as 1991.

Isfahani said there is overwhelming evidence in the industry that windowing was used on a widespread basis as far back as 1990. "The fact that the Patent Office is re-examining the patent is indicative" that the office could change its earlier decision, he added.

With just nine days left until the date change, Isfahani said the decision to re-examine the patent was a good one. "It needs to be decided now either way so organizations know what to expect," he said.

But a decision by the PTO before the end of the year is out of the question, said Gerald Dost, senior legal advisor for the PTO. "There is a two-month period in which the patent holder has to complete his comment on the decision to re-examine. We then move to examine the merits to either eject or give an allowance. There is no way it would get done by the end of the year because it would be inconsistent to waive the two-month period."