BERKELEY ASSOCIATES vs. IBM --
$300 MILLION IS NOT PEANUTS

One day in early 1988 (at least 8 years later) I received a call from Chris Kilgour, who was still working at Honeywell. He had been contacted by IBM attorney Howard Weber, found due to his work with RAES, the General Electric online editor. Seemed they needed relevant witnesses in a suit brought against IBM by Berkeley Associates, who had designed a combined hardware-software system for document editing. I did not then connect with the name "Berkeley".

A critical part of the suit was expansion of the number of different characters that could be entered. Berkeley did it by a special key akin to the typewriter shift key. They claimed that their patent was infringed by the Alt Key on IBM's keyboard for their new PC. Kilgour said it was more like the escape key, in which case contact Bob Bemer, who invented that.

Kilgour referred the attorney to me while he was still visiting in Phoenix, and he asked for a meeting, which Honeywell kindly permitted on their premises even though I did not work there any more, and had left in less than convivial parting. I will not comment on what Honeywell perhaps hoped to gain by this generosity.

Attorney Weber apparently knew that Berkeley had former contacts with me, and feared that I might be committed to taking their side for that reason. I assured him most vehemently that I didn't give a damn for the outcome, but what I would do was tell the truth! That convinced him, and I was placed on the IBM list of potential witnesses, which by law had to be supplied to Berkeley.

When Berkeley Associates found my name on the list they were outraged. They had already gone so far as to send a male attorney to Phoenix to go over the meaning of escape sequences, and he was so cagey that I had no idea one way or the other of what their position was.

Now they flew in a female attorney from Houston to protest. She called beforehand, and I said I would pick her up at the airport, to make it easier to find my house. As we came back from the airport she remarked on how odd she felt to be sitting there with me, in a car with a license plate stating that I was the "Father of ASCII". When she was in college, she remarked, ASCII was taken as "a given", sort of having been there for all time.

I answered questions in detail, and to ask these she had to expose some of the Berkeley thinking and strategy. With that, I endeavored to convince her that their arguments were easily counteracted, and went so far as to send her, after her return, a document outlining why I thought so.

In 1988 April IBM flew me to JFK, where I was picked up in a white Lincoln limousine and taken to the best hotel in White Plains. It was an early reminder of the Y2K crisis to come, for the driver took pride in his odometer saying something like 40,000 miles on the 5 wheels it had, telling me that it was really 240,000 miles.

In the morning I went to a separate building allocated by IBM to its many patent and litigation matters. Howard Weber took me to see one Evan Chesler, an employee of the famous law firm of Cravath, Swaine & Moore of New York City, although he then actually worked full time at this IBM location. He began with a story about a rabbit and snake that bumped into each other in the woods because they were both blind. I can't retell it here, but it was uproarious, and put me at ease with this high-powered legal expert.

I was then shown to a fair-sized room. It had nothing by tables in it, and they were loaded with 20-30 boxes filled with papers. I was told that these were hard copies of all of the X3 microfiche that recorded all the actions of X3.2, the "ASCII Committee". Would I be good enough to, with my close previous connections and overall picture of the development of an agreed form of ASCII, search and find arguments IBM could use to defend in this suit?

Everyone left, to not spoil my concentration. I dug in, with a lot of distractions as this document or that brought back some undocumented memory. By late afternoon I had organized a trail of contributions that got me ever closer to some definitive proof. Then I found the "smoking gun". It was an X3.2 document of 1969 August, on proposals for "soft-copy controls". That is, the escape sequences proposed to be assigned to video terminals to move the cursor, change foreground and background colors, assign protective attributes to field, etc. It was marked as a contribution to the international standardization effort of ISO/TC97/SC2, and was not only shown as forwarded that month, but also had some ECMA standardizers listed as attending the meetings in which this document was created!

There I was, with a paper in my hand showing far more than the principle Berkeley was claiming to be infringed -- dated FOUR MONTHS before they, Berkeley, had submitted their patent! I whooped, and ran for Evan Chesler's office. It took a bit of explaining to show them exactly why this was the smoking gun, but the argument was unassailable.

Thus I clinched my spot as IBM's star witness in the suit. But that was not always an easy spot to be in. Berkeley's counsel demanded a deposition from me in Phoenix. Chesler and Weber flew out to guide me and outline what I would be getting into. They made it as pleasant as they could, utilizing the Presidential Suite at the Pointe Tapatio (close to my home), which was one of eight 5-star resorts in the U.S. They outlined possible strategies of the interrogator.

Now maybe that Berkeley interrogator's mother loves him, and even a few others. But nobody sitting in on that deposition could have. It was one of the most unpleasant times of my life. When your parents have raised you to be strictly honest, blatant accusations of your dishonesty begin to rankle after a short while. I got red in the face, and relearned the meaning of "hot under the collar".

In anticipation of a jury trial, I prepared a tutorial on the whole field of character sets and expansion. I've put it on this site, for there is much material that the computer-cognizant can use to explain such matters to the uninitiated. See "IBM - Explaining Coded Character Sets to a Jury".

Then I waited. Nothing happened. It turned out that IBM paid some amount of money to Berkeley for something or other, in an action that was definitely not publicized. One surmises that it was not a great amount, due to my unearthing the smoking gun. And a small payment is a better way for IBM to avoid a public relations black eye for gunning down a small business. See the Microsoft problems today.

A Lesson to be Learned

Berkeley's method utilized a special key, on the exterior. Thus it is inferior to the escape method. The power of ESC lies in the fact that it is itself a character in the basic set, and thus manipulable like any other character. Computers cannot logically manipulate external keys that otherwise leave no record.

In this respect, that is why stored programs are the ultimate -- the instructions can be handled as manipulable data. And so it is with ESC -- it really prefaces an instruction!