In reply to comments by Robert England and Kei Ito:
>ImageSpace, the confocal software from Molecular Dynamics (MD) is a very
>powerful tool for confocal data handling. On a minimally configured SGI, -
>anything from a Personal Iris to an O2 - you get the leanest, meanest set of
>software functions which are totally relevant to the needs of the confocal
>community. POWER TO THE PEOPLE! ImageSpace has helped a lot of researchers
>maximise their investment in a CLSM by making it easy to get results from
>the data from their BioRad, Zeiss or Leica CLSMs. Investment in a cheap SGI
>and ImageSpace did the trick.
The merits of Imagespace are certainly not being contested, nor indeed
even discussed, in my comments. But they have no relevance to the merits
of the patent. As an aside, I would comment that it is only since they
stopped making confocal microscopes that MD have allowed Imagespace to be
used by owners of other confocal microscopes. Back in 1989 (or thereabouts)
Sarastro told me that I could buy Imagespace if I wished to use it with
EM sections, but if I used it with BioRad confocal images they would sue
me for infringing their patents!
>And yes, MD is trying to protect its intellectual property. MD shrewdly
>bought Sarastro's assets, and with it followed a rather precariously worded
>patent on 3D reconstructions of confocal datasets. In 1993, I think, MD
>reapplied for the patent. This doesn't seem to me to be a particularly bad
>behaviour. They were simply protecting their investment. Leica and Zeiss
>objected to the patent application. The objections could be interpreted as
>"it is too obvious". MD actually included these objections in the
>application, re-worked the section on prior art, and modified the patent to
>cover "the generation of 3D representations of confocal sections using a
>computer", or words to that effect. MD was granted the US patent no.
>4,631,581, Re 34,214 for this and the application was also accepted several
>months later by some official European patent office (in Munich, I believe).
>
>MD has completed negotiations with several manufacturers of confocal
>microscopes and/or software. In each case, the companies have recognised the
>strength of the patent (because, amongst other things, it includes the
>objections from Leica and Zeiss) and have closed the negotiation by
>licensing the technology from MD.
In every case I have heard of (and I cannot go into details here)
the parties concerned have been advised that (a) the patent could
not stand up in court and (b) they didn't have enough money to reach
this point against MDs financial resources, so they should settle
out of court.
>I don't see why people should have any problem with this. The whole concept
>of patents is to protect and encourage good ideas so that the right people -
>the individual, the small company - get rewarded for their innovation and
>hard work.
Too right. If the system worked that way it would be just great - and
MD would no longer have a patent on something with was both:
(a) obvious - most previous workers on confocal microscopes had stressed
the ability to obtain 3-D data sets from them and lots of 3D reconstruction
systems were already around (maybe not commercial, but neither were
confocal microscopes).
(b) previously published (by Ingemar Cox, absolutely no relation to me).
Unfortunately in the real world, if the small guy has a patent he can't
afford to sue the big guns who are infringing it, and if the big boys
have a worthless patent the little fellow can forget any hope of
successsfully challenging it.
>You as scientists realise that intellectual property must be
>protected as vigourously as material property.
The closest parallel to the present case is when Unisys suddenly decided
they had a patent on LZW compression (used in GIF images among other things).
They, likewise, decided to terrorise shareware and freeware vendors.
The scientists concerned (Lempel-Ziv and Welch) were not, as I understand
it, even aware that it had been patented and I don't think they received
a cent from it.
>If you spent 10 years
>developing a *unique* system for 3D imaging (many either do not know or have
>conveniently forgotten that the Sarastro was the only CLSM offering 3D
>imaging of confocal section series in 1987 and for a good number of years
>onwards),
Nobody is suggesting that any genuine intellectual property should be
infringed. Any unique features of Imagespace are covered by copyright.
But Robert's claims are not reasonable. BioRad had a simple stereo-pair
system from as long ago as I can remember - I'm sure at least as far
back as 1987. They had a full 3D system (Thruview) by 1989.
Voxel View has its origins at about the same date as Imagespace. Many
other 3D products in use by the confocal community go back to similar
dates. I remember that in 1989 Peter Shaw at John Innes had a really
brilliant system running on an Ardent Titan (remember them, computer
buffs?) connected to his Biorad.
>and found that people were interested in buying it, wouldn't you
>want to stop the microscopy giants from muscling in on your territory and
>making profit through plagiarism? When pharmaceutical companies go to court
>to protect a drug, or even a drug delivery system (e.g. Losec), nobody gets
>up in arms, they just buy shares...
I think the real reason for the problem is precisely that people
were not interested in buying it .....
>MD is *not* stopping anyone from creating or developing software for, or
>profiting from, confocal data processing. As long as you negotiate with MD
>to licence the technology (and the licensing fee is probably based on a
>proportion of the *sales* or *profits* made - i.e. freeware is excluded),
>then the company can go about its business undisturbed.
This statement is clearly false. As the correspondence to this group has
shown, freeware programmers worldwide are being targeted by MD. More
details below.
>Finally, I find this community's vitriolic reaction to MD's efforts to
>protect its patent most disturbing.
This seems to be based on a total misunderstanding of the reason for this
reaction. There are lots of patents in the confocal world, most of
which cause no such grief. (We may see a battle over 2-photon, mind you ..)
Initially Sarastro only regarded their patent as covering the combination
of confocal microscopes and 3D software. Their only battle was with
vendors of such systems. At that time they didn't seem to have much
interest in licensing - their only aim seemed to be to limit the market
by preventing other makers from offering such a system. This approach,
anti-competitive though it may be, didn't arouse much comment in the
general confocal community.
Recently, MD have decided to interpret their patent in a way that
(a) any confocal microscope which generates 3D data sets is viewed by
them as infringing, even if no 3D reconstruction software of any sort
is included, and
(b) any third-party software which can reconstruct confocal data (even
if it has been on the market longer than Imagespace) is viewed by them
as infringing.
These interpretations go a lot further than Sarastro's original claims,
which were themselves regarded as unlikely to stand up in court. But
they are enforced not by use of the legal system but abuse of it -
enforcement based entirely on the inability of small defendants to pay
to defend themselves.
>It is clear that many have
>misinterpreted MD's actions as an unjustified attack on the individual's
>right to freely create and distribute software. This assumption is
>incorrect, it has never happened.
On the contrary, his is exactly what they are doing. Ironically, the type
of project development they are now stomping on is precisely the type
of work which gave them Imagespace.
>Then, on this premise, some have gone so
>far as to suggest boycotting MD's other products. This is hysterical.
On the contrary, it's the only defence the little guys have against
these bully-boy tactics.
>It is obvious that there are many who are uninformed of the situation,
> and are jumping to conclusions.
Only too well informed, I'm afraid ....
Kei Ito writes:
>I also found this disturbing. To blame MD, we need evidence that MD is
>really harassing individual programers who just want to offer good
>freeware. Without this, we shouldn't go too far.
To which I would quote this message from Michio Ono (broadcast to
his mailing list, so I hope he won't mind):
>Attention!
>I received one mail from Molecular Dynamics. They wrote in the mail that my
>CLSM Artist confocal software might be infringing their patent (Molecular Dy
>namics' United States Patent No. Re. 34,214 entitled "Method and Apparatus f
>or Microphotometering Microsope Specimens). Because I can't understand which
>functions are infringing the patent, I have erased CLSM Artist from my inter
>net sites. They have not still said that mrc2M is infringing it. But I think
>that you had better not write about mrc2M when you write a paper.
>Michio Ono
It's pretty unambiguous, isn't it.
>All opinions expressed here are my own.
>regards Robert England
But I see no statement of your affiliation here .... Don't
I remember you as having some connection with Sarastro/MD ??
I have no connection with any of the companies mentioned here except
as a customer and user of the products of some of them. All opinions
expressed in this letter are entirely my own.
Guy Cox
Dr. Guy Cox, | ooOOOOOOoo
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Univ of Sydney | ### OOO| | | | | |OOO ###
NSW 2006, | ### OOO | | | | | | OOO ###
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