I have questions which I have not yet seen addressed on this point,
despite the amazing bandwidth dedicated to the problem...
 
Here is my (probably faulty) interpretation of the situation....
 
Apparently the single worrisome aspect of the patent is the application
of 3D reconstruction to confocal data sets. They can legitimately (as
far as patent law goes) target confocal manufacturers who bundle 3D
software in their systems because then there is firm evidence that the
3D capability is intended for use (solely) with confocal data sets.
 
HERE IS MY FIRST POINT: Based on the prior usage of 3-D reconstructions
in high voltage EM and other imaging modalities, I do not think that MD
has any hold on freeware distributors: for the simple reason that 3D
reconstruction of images by their software does NOT have to be
restricted (or targeted) to confocal data sets. In other words, MD will
not be able to make a firm case that the software is intended for use
only with confocal systems unless the freeware distributor states it as
such. All of us with confocals have other imaging modalities avaliable
as well, so we will use it for numerous analyses. So the question is if
the software has the CAPABILITY to be used for confocal sets, is it
enough to step into MD's patent domain?
 
MY SECOND POINT RELATES TO A COMMENT BY DAVE HANZEL: He stated the hope
that "freeware authors make some effort to see that their software is
only used on licensed hardware". First of all, since freeware tends to
diffuse through secondary distributors (i.e. neighbors, colleagues and
friends), I think this is an unrealistic expectation. However is there
even any legal obligation to know what the intended use of a product is?
I often see disclaimers about "the seller makes no warranty about the
suitability of this product for uses intended by the purchaser" (or some
such legal text). Is it the responsibility of the seller or buyer?
 
I think it is time for the confocal list group to get the University
lawyers involved: otherwise we are just whistling in the breeze and will
start wasting time on the listserve. Have any of the freeware
distributors in this group inquired about these two questions, or would
they be willing to inquire at their home institutions? I am certainly
going to check on the word here at Hopkins with our pros, but we need
multiple opinions from both the US and abroad.
 
Chip
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M.H. Montrose, Ph.D.
   Johns Hopkins University             tel: 410-955-9681
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