From: thad@hammerhead.com (Thaddeus J. Beier)
Date: Wed, 6 Dec 95 13:24:11 PST
To: cypherpunks@toad.com
Subject: Roger Schlafly's court hearing today
Message-ID: <199512062111.NAA01734@hammerhead.com>
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Roger Schlafly had a brief hearing this morning in Judge Williams
federal court on summary judgements with respect to the validity of
the various public key patents, and alleged anti-trust and unfair trade
practices.  Bob Wells and I were the only pro-tossing-the-patents out
people there, although sometimes-cypherpunk-meeting-attender Whit Diffie
was there as well.

The judge said right at the outset that he would not be making a decision
today, that he wanted guidance from Roger and the other sides lawyers about
the relevant issues, to help him wade through the tremendous amounts of
documentation provided.  I suppose that this could be expected, but the
issues here seemed to me, at least, to be relatively clear-cut.

There were basically four issues to be discussed, the Diffie-Hellman,
Hellman-Merkle, and RSA patents, and these unfair trade practices.
The judge had only allocated an hour for this discussion, and then
showed up 20 minutes late, which proved inadequate.  Still, I thought
that everyone was remarkably clear and concise with their answers, and
the judge asked reasonable questions.

First discussed were the unfair trade practices, where the lawyer for
what used to be PKP dragged in a lot of dirty laundry from the past,
describing why Roger got interested in this in the first place.
I don't understand what the complaint here was, the PKP lawyer said
that since Roger didn't have a product, what was he complaining about,
anyway?  It seemed like an odd defense to me, but again, I don't know
exactly what Roger's complaint was.  Roger agreed with the judge that
yes, everything he wanted to say was in his submission.

Next discussed was the Diffie-Hellman patent.  Roger stated that he had
four clear instances where the an "enabling disclosure" was made about
Diffie-Hellman; three were presentations to large audiences, and one
was a pre-print of the famous "New Directions in Cryptography" paper.
Roger actually had the viewgraphs that Diffie used in his presentations.
These disclosures were all made more than 1 year before the patent was
filed, which is the limit in the US.  The lawyer from CalCan (something
like that) handled this one.  He said that the law specifically mentioned
publication, and that none of these was a publication.  I'm not sure
what the law says, and Roger disputed the claim that that is what the
law says.  Disappointingly to me, it appears that neither Diffie or
Hellman have any recollection of when, to whom, or how many preprints
of the article were sent out.  It's terrible how the law seems to cloud
people's minds, isn't it?  What little I do know about patent law
tends to support Roger on this one, I think that it should be an open
and shut case, but we'll see.

Then we came to the Hellman-Merkle patent, which basically claims all
of public-key cryptography.  Roger's claim here was that the mechanism
described doesn't work, because knapsacks don't work, that is, the
invention is supposed to make generation of the decryption key infeasable,
by a very specific description of infeasability in the claims of the patent.
(10^30 arithmetic operation necessary)  Well, that's not true.

The same lawyer for the other side took this on two different ways:
1) that nobody knew that knapsacks were insecure at the time that the
   patent was filed, how could the patent be found invalid based on something
   that happened later

2) and some variations (dense, iterated knapsacks) might still be secure.

Roger presented an analogy.  Say someone was able to persuade the patent
office that a drug cured cancer, and so he was able to obtain a patent on
it.  Later, it was found that the drug killed everybody who took it.  Should
the patent be valid, if it really didn't do what it said that it would?
Roger could have gotten melodramatic, and said that bad cryptography could
really kill people, and has many times, but he didn't; as I said, everybody
was remarkably concise and to the point.

Even so, we were out of time here, not having discussed the RSA patent
or the Schnorr patent at all.  The judge said that he will call another
hearing if he feels that it is required.

I thought, in my incredible naivete, that it went really well for Roger,
although I didn't have time to hang around and ask him how he thought it
went.  I think that his arguements are good, and if the law is sensible
he will prevail.

thad
-- Thaddeus Beier                   email:  thad@hammerhead.com
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