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Lawsuit Leads to Reconsideration of Patent

October 9, 2009 • Darrell Shandrow Hilliker

The U.S. Patent and Trademark Office has re-examined a patent held by the maker of a screen reader for blind computer users in connection with an infringement lawsuit filed against a competing company. Reliable sources hailed the move as a significant victory for the defendant.

The Document Placemarker patent, held by Freedom Scientific, Inc., covers a specialized screen reading capability that allows a blind person to save their position on a Web page and return to the same place at a later time. The company’s Job Access With Speech (JAWS) screen reading software incorporates this feature.

In a July 15, 2008 complaint filed in the United States District Court, Middle District of Florida, Tampa Division, the self-proclaimed “world’s leading manufacturer of assistive technology products for those who are vision impaired” accused GW Micro, the maker of the competing Window-Eyes screen reader, of deliberate patent infringement, claiming their placemarker technology is the same as that described in the patent. According to court documents, Freedom Scientific is seeking an injunction requiring GW Micro to stop including the placemarker feature in their product, asks for significant unspecified financial compensation for the infringement and requests recovery of legal fees.

“I believe that this technology shouldn’t have been patented to begin with,” said Doug Geoffray, Vice President of Development with GW Micro, Inc. “It obviously was around way before what they’ve done. We have stated that our version, Window-Eyes 3.1 back in 1999, had previous position capability.”

The U.S. Patent and Trademark Office agreed. In a re-examination of Freedom Scientific’s patent, at the request of GW Micro’s attorneys, the office rejected all claims to the invention.

“A person shall be entitled to a patent unless the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States,” stated a published document describing the re-examination as the basis for the patent’s rejection on the grounds that the technology had already been invented.

The document also cited two existing patents and the availability of IBM’s Home Page Reader, a product employing place marker technology prior to the Freedom Scientific patent, in its reasoning behind the decision.

“We take that as a positive sign,” Geoffray said.

“It’s a victory,” said Dennis Karjala, Jack E. Brown Professor of Law, Faculty Fellow, Center for the Study of Law, Science, & Technology at Arizona State University’s Sandra Day O’Connor College of Law. “There’s no question that, if the re-examination decision is upheld, that’s the end of it. There is no patent.”

He said Freedom Scientific may still have some cards to play in this case.

“The patent owner in a re-examination proceeding may appeal,” Karjala said. “It goes to an appeals board within the Patent Office and then they can later seek judicial review. This thing could go on for awhile.”

According to the re-examination document, the Patent Office must receive a response from Freedom Scientific by Oct. 28 if it wishes to appeal the decision.

Karjala said the legal trend points to a probable GW Micro victory.

“Because the Supreme Court has been reviewing so many of their cases with an obvious eye to overturning them, the Patent Office is pretty sensitive now that they’re being accused of being too patent friendly,” said Karjala. “My guess is once you got a ruling by the examiner that the patent is invalid, I’d say the chances are pretty good it will be upheld by the board in the Patent Office. If it’s upheld by the board, the chances that a court would overturn it in this atmosphere are pretty slim.”

Freedom Scientific representatives declined to comment, citing the ongoing litigation.


  • The examiner cited Patent 6085161 describing the invention of a system for assigning and playing specific sounds when a Web page changes or the user encounters a specific Web page element such as a header or list. All of the claims in Freedom Scientific’s patent were rejected based on the positioning techniques described in this “sonification” system.
  • The examiner also cited Patent 7058887 describing a means of determining the position on a Web page according to user-defined settings, including the page’s domain. This IBM patent was referenced in the re-examination as clarification for the rejection of the sixth claim.
  • The examiner also referred to the IBM Home Page Reader Version 2.5 Manual.
  • Ex Parte Re-examination, Control Number 90/010,473, Central Re-examination Unit, U.S. Patent and Trademark Office. Visit the Patent Application Information Retrieval Web site and enter the specified control number to obtain this document. The Patent Office provides this document only in scanned image PDF, which is inaccessible to blind readers. An accessible copy of this document has been made available using Kurzweil K1000 Version 11.03 optical character recognition software.
  • An accessible copy of Freedom Scientific’s complaint was made available in the July 24, 2008 article about the lawsuit.

The Heart of Accessibility Evangelism

September 8, 2007 • Darrell Shandrow Hilliker

I think we all recognize that, in many cases, there simply is not a strong bottom-line business reason for companies (either assistive technology or mainstream) to work hard on making sure their technologies function in ways that are in the best interests of all users, including those of us whom happen to be blind. There are, thus, only two major levers available to us in our advocacy efforts. The first involves the fact that, in our society, accessibility is simply the right thing to do. This approach involves the “heart” of accessibility evangelism. The second approach involves making a business case for accessibility based on the application or presumed applicability of one or more disability rights laws such as the Americans with Disabilities Act or Section 508 of the Federal Rehabilitation Act. In this rather rough approach, accessibility is ultimately forced as an alternative that is less expensive than continuing to ignore our needs.

In the case of screen readers, the economic incentive is simply to ensure the product works with Internet Explorer, Microsoft Office and the Windows operating system. Any additional capabilities, especially with respect to custom job related applications like and Siebel, is viewed as icing on the cake. Precious little effort is expended on the part of assistive technology companies to ensure the usability of many customer relationship management (CRM) and other similarly critical application infrastructures required in today’s workplaces. How many jobs do you know about where use of e-mail, spreadsheets, web browsing and word processing are all that’s required in order for a qualified employee to conduct the duties of the position?

Most mainstream technology companies claim there’s little or no real business incentive to make their products and services accessible to us. After all, blind people represent less than a percent of the world’s population and there’s just not enough money in it for companies to justify the expense. Only the possibility of legal action or the presumed applicability of some Federal laws make the expense of accessibility less than the potential loss of business from government agencies.

As we all can see, the current state of affairs remains bleak. It has been this way for a long time now, yet the problem may accelerate due to the ever-widening gap between the capabilities of increasingly sophisticated and visually oriented mainstream technologies with respect to the rather limited nature of current screen reading technology for the blind. My apologies if this offends, but it is, ultimately, the truth against which I would invite any credible challenge.

As we continue to advocate for mainstream technology companies to reasonably accomodate our needs for equal access to the technologies in our daily lives, on the job and in the classroom, we must also simultaneously advocate for our assistive technology companies to focus on innovation, rolling out screen readers that can meet the challenge of the current and future world of technology, much of which continues to be developed by people who have absolutely no inclination toward accomodating us. It is wonderful when assistive technology and the mainstream computer industry can work together, meeting one another halfway in order to provide access, but the days of screen reader developers relying on this approach have been numbered for quite sometime in all but a precious few cases.

As we insist on innovation which will permit us to continue learning and making a living, we are going to have to devise new methods of accessibility advocacy. Our approaches must convince the decision-makers in the technology industry that at least one of the following statements is true:

  1. Conscience dictates that delivering accessibility is simply the “right thing” to do.
  2. The presence or absence of accessible technology often makes the difference between whether or not a blind person is able to fill a particular position in a company or take advantage of an educational opportunity.
  3. It is better to help blind people than it is to hurt, ignore or otherwise leave us out in the cold.
  4. Accessibility is a good thing to do from a media or public relations perspective.
  5. Accessibility can represent an “interesting” project to undertake from a development point of view.
  6. A small increase in the customer base will result when products and services are made accessible to blind computer users.
  7. Blind customers of companies who take the effort and time to address our needs tend to be among the most loyal portion of the company’s overall customer base.
  8. Sighted people who care about what happens to their blind colleagues, friends and relatives may prefer doing business with companies who do the “right thing” with respect to accessibility.
  9. Religion may indirectly dictate that blind people should be afforded equal access to information.
  10. The laws in several nations of the world directly or indirectly mandate a certain level of accessibility for people with disabilities.

It is important to note that only four of the items (customer loyalty, increased customer numbers, laws and public relations) on this “accessibility evangelism top ten” list can be said to relate directly to business considerations. The rest relate to the heart. What does a person believe to be the “right thing” to do with respect to their emotional make up as well as their logical mind? Should we devise ways to shame those who would ignore us into doing the right thing? Would a person ignore the needs of their spouse, relative, close friend or colleague should they become blind? How would such a person want to see their blind spouse treated? Wouldn’t they insist on reasonable accomodations? Should we place a bit more emphasis on the “heart” of accessibility evangelism? Your thoughts are welcome as always in the form of a comment to this article.

Freedom Scientific and Serotek Reach Agreement to End Lawsuit

June 7, 2007 • Darrell Shandrow Hilliker

We here at Blind Access Journal are very glad this matter has finally been settled in a manner that permits both Freedom Scientific and Serotek to continue their business operations and retains the ability of innovators in the field to provide the products and services we must have in order to participate in the world of technology alongside our sighted peers. This news calls for celebration!

(St. Petersburg, Florida, and Minneapolis, Minnesota – June 4, 2007) Freedom Scientific and Serotek jointly announced today that they have reached an agreement whereby Serotek has agreed that it was inadvertently infringing Freedom Scientific’s federally-registered trademark.

“It is unfortunate that we had to take this action,” said Lee Hamilton, President and CEO of Freedom Scientific, “but trademarks are valuable corporate assets, and they must be protected, or they are lost. This agreement accomplishes that, and we have agreed to dismiss the lawsuit. As part of this agreement, Serotek has agreed not to use our trademark or any other trademark that is similar.”

“We are pleased with the settlement agreement,” said Mike Calvo, CEO, Serotek. “We will be renaming the FreedomBox and other affected products and services in a separate announcement in the near future.”


See the Freedom Scientific and Serotek Agreement press release for public confirmation of this wonderful news.

My Thoughts on the Relationship Between Vocational Rehabilitation Agencies, Consumers and the Blindness Assistive Technology Industry

June 1, 2007 • Darrell Shandrow Hilliker

It seems to be the unfortunate truth, at least here in the United States of America, that there exists a relationship between the blindness assistive technology industry and the system of state Vocational Rehabilitation agencies that does not usually include the consumer. The Vocational Rehabilitation agency is the customer, so the industry listens by and large to the agency rather than the consumer receiving the products or services they need in order to live, learn and work. The assistive technology companies have no business incentive to do anything contrary to the desires of their high-dollar agency customers. The Vocational Rehabilitation agencies, with perhaps a handful of small exceptions, do not tend to listen to their clients and put their recommendations into practice. It is ultimately up to the consumers of assistive technology within the blind community to make a positive difference. Here are some thoughts on the hard decisions that need to be made and the things I believe need to happen in order to radically change the relationships between assistive technology companies, consumers and the agencies:

  • Consumers need to fully research and take full responsibility for their assistive technology acquisitions, whether that be accomplished through relatives, service organizations, Vocational Rehabilitation or their own financial resources. This research could be conducted through Tech Act centers, the International Braille and Technology Center and other blind community resources. We must exercise due diligence to determine which technologies will meet our needs and desires. Even when the funds being spent are not our own, we must do all we can to responsibly act as though it is our money on the line. After all, isn’t the purpose for obtaining and learning to use assistive technology to better our lives through education, business ownership or gainful employment?
  • Vocational Rehabilitation should ultimately help only with aspects of education and employment that impact the person’s disabilities. For example, VR should not fund the individual’s tuition, which is a cost shared by people with and without disabilities. VR should, however, fund expenses such as the hiring of readers and the purchase of duplicate books required in order to reproduce them in accessible formats. From an assistive technology point of view, VR should not purchase computers, but should purchase Braille displays, note takers, screen readers and other items specific to the needs of the blind or visually impaired consumer.
  • The ability to receive Vocational Rehabilitation services should be based largely on the severity of the disability and its relationship to their perceived functional limitations in employment rather than on income. Even people with high incomes combined with disabilities pay taxes into this system and, thus, should be able to receive the same service levels.
  • A lifetime amount of funding should be set aside for the individual receiving service to be spent by that individual in a responsible manner. The individual should do the spending themselves, which could be capped at a maximum annual rate. Once the funds have been spent, there should be no more funding granted to that individual, without exception. I am essentially advocating a voucher program. The Vocational Rehabilitation agencies could devise a comprehensive, vendor-neutral list of suppliers through which consumers could contact in order to directly spend their VR funds. If a Vocational Rehabilitation client wanted to purchase JAWS, they could contact Freedom Scientific or an authorized dealer to make that purchase against the remaining funds in their VR account. Similarly, they could contact a Code Factory dealer to directly use their funds to purchase MobileSpeak Pocket for their Smart Phone, or contact Serotek to acquire RIM for use on their new job. The bureaucracy would be totally removed.
  • The Vocational Rehabilitation counselor’s role should switch from one of ultimate control to one of advisor.
  • The success of counselors and other Vocational Rehabilitation “professionals” should be based on much more than just entry-level employment. For example, their case closure scores should be higher if they help a consumer earn a job that pays significantly above minimum wage. This would serve to encourage these professionals to do more than the bare minimum for their clients.
  • Consumers should also be held accountable. If a consumer is receiving assistance with college related expenses, but that consumer is consistently earning poor grades, then there should come a point where that college related funding is suspended.
  • Services ought not always be provided to the “lowest common denominator” of consumers. If a consumer is deemed incompetent (unable to manage his or her own affairs) by a qualified entity such as a court of law, then that person’s legal guardian should be involved in their Vocational Rehabilitation case. In all other situations, consumers should always be treated as competent adult individuals.

If some of these ideas were implemented, I’m rather certain I could guarantee the relationship between assistive technology companies, consumers and Vocational Rehabilitation agencies would change radically for the better. After all, despite the agencies, it would ultimately be the consumer making the purchasing decisions, thus compelling those companies to listen to us directly.

My Thoughts on Altruism Versus Commercialism in the Assistive Technology Industry

May 30, 2007 • Darrell Shandrow Hilliker

I’m just taking a quick few minutes to pen my (probably oversimplistic) thoughts on the need of companies doing business in the blindness assistive technology industry to balance the benefits and consequences of their actions to the blind community (altruism) versus their need to turn a sufficient profit to make doing business worthwhile to their investors.

  • It is my belief that the initial reasons for creating businesses in this field are altruistic. The people involved in starting the business really want to see blind people succeed using the new company’s technology. There are many reasons for this desire. For instance, maybe one of the company’s founders has a spouse, child or other close relative who happens to be blind or visually impaired. It may also be the case that the company is founded by one or more blind persons who feel they can do better than the current state-of-the-art or a category of assistive technology is needed which currently does not exist. In either case, the initial reasons for getting started are usually grounded in a desire to help the blind.
  • Being businesses, it ultimately becomes important for the company to justify its existence to its creditors, investors, government agencies and especially its blind and visually impaired customers. Doing this means providing a product or service that customers will buy at a price that allows the company to pay its debts, satisfy its investors, pay its employees, continue development and support of existing products and do the R&D required to introduce new products. I recognize that accomplishing all of these important tasks is an incredibly tight balancing line.
  • Who are the customers of our blindness assistive technology industry players? Are they blind and visually impaired consumers? Are they large government agencies, such as Vocational Rehabilitation, that may be required by law to purchase assistive technology? What are the requirements of these different customers? Does the customer need assistive technology that meets their needs to gain access to the world, does the lowest bidder get the nod, is there a contract in place that requires purchase of only certain technologies regardless of the consumers needs or desires? These questions have a huge impact on the actions of the AT companies. Companies that acquire the bulk of their business directly from blind consumers are going to tend to offer payment plans, keep prices low, operate in an extremely efficient, lean manner and provide the highest levels of customer service and support. For these smaller players, blind and visually impaired people are their bread and butter. The positive and negative things blind people say about them on blogs, mailing lists, consumer organization conventions and other forums will tend to have a direct and immediate impact on their behavior toward those customers. Unfortunately, companies who do the bulk of their business with government agencies, large private sector companies or anyone other than blind consumers may tend to develop a different focus. This will naturally involve meeting the agency, company or organizations stated requirements, which will be represented by rather dry factors like price and technical specifications. When these large, high-dollar customers leave out the blind consumer in their own decision-making processes, their purchasing decisions from our blindness AT companies may cause those companies to switch their focus and priorities away from the blind consumer, perhaps without even recognizing that this has happened.
  • Why do smaller companies often tend to be more innovative than the larger players? The smaller companies like Serotek do not have the same level of name recognition within the community of the large high-dollar government agencies and other organizations that purchase the bulk of assistive technology products. Instead, their bread and butter are the blind and visually impaired consumers themselves. As blind people, we have certain accessibility needs, which we would like to have met by one or more of the players in the industry. Different people have different needs. That’s why there is a choice of products. Reasonable people who care about what happens to the blind and visually impaired know intuitively that a one-size-fits-all approach does not work for anyone. So, by nature, the smaller companies who deal more directly with us are going to inherently take more direct actions to meet our stated needs and desires. I think this is just basic business sense between companies and their customers. Unfortunately, this process becomes seriously warped when the customers are anyone other than the people who directly need or want assistive technology products. It seems, over the years, that as an assistive technology company matures and gains that name recognition within the community of its high-dollar customers, the needs and desires of the people for whom the products are designed in the first place go to the wayside, replaced by and large with the legal and dry technical requirements stated by people who are not blind and whom usually have no idea how the technology is used out here in the real world.
  • Why do the larger companies seem to take actions that are viewed as attempts to eliminate the smaller players? Well, obviously, this is a huge, muddy question, but I think it ultimately comes down to money. As a company grows, it needs more resources. Product sales drive the need to hire more employees, acquire larger facilities, gather more investment, take advantage of loans and other credit opportunities and do all the things a business must do in order to meet the customers’ demand for more product. As technology advances, products must be maintained and new products must be devised to meet the evolving needs of customers. While all this goes on, the company must constantly strive to support all its existing customers. Just as it seems to be with individuals, the acquisition of more and more wealth results in the spending of more and more money to expand that success. Things move along rather nicely in most cases so long as the assistive technology company’s customers remain largely from the blind and visually impaired consumer base. But government agencies and other large players have a great deal more money to throw around than the typical blind consumer. The more money a customer is able or willing to spend on something, the more willing the provider is going to be to do all they can to meet that customer’s needs. This is just another one of those unchangeable business constants. Those with the gold ultimately make the rules, whether we like it or not. It isn’t going to be changing anytime in the near or even distant future. This has a lot of implications. Innovation costs money and other resources and “necessity is the mother of all invention”. It seems like the larger players in our industry are innovating only when it is deemed necessary by their high-dollar customers, rather than by blind and visually impaired consumers who may need innovative technologies in order to educate themselves, obtain or retain their employment, live their daily lives, etc. For instance, why does it seem that one company appears to have fallen behind the curve with respect to Windows Vista and now seems to be struggling to catch up to other players in some areas? Most large businesses and government agencies wait at least a year before implementing a new operating system. Did this company feel they had more time before they had to innovate, in order to spare the expenditure of resources until it came time to meet the needs of their high-dollar customers? Did it jump because it was surprised when some of those large customers said they were moving to Vista sooner than expected? Did the smaller players decide to innovate faster and take Vista more seriously because some of their blind customers said they needed access to that operating system to keep their jobs or just because they wanted to buy a new computer that no longer offers support for Windows XP? Was all of this just too much? Did they decide to start filing lawsuits, make threats and do other underhanded things to some of the blind community consumer activists and smaller players in the field to allow them some time to catch up and hold onto that coveted big business?
  • Why litigate rather than innovate? Why is there a lawsuit over an aledged trademark violation that has been happening for almost seven years? I’ll say just this much on this direct subject. There are a lot of questions coming from all over the blind community as to Freedom Scientific’s supposed motives for filing this lawsuit. I’ll just state what I believe to be a foregone conclusion should Freedom Scientific win all it requests in the case. If the case goes to trial and Freedom Scientific wins, then Serotek will no longer be a going concern. It is that simple. Whether intended or not, an important player will have been unceremoniously deleted from the field. It is just that simple, boys and girls!
  • Why do we as a blind community have so little impact on not only the mainstream world around us but also the assistive technology industry? I’m afraid the reasons for that are simple as well. We have at least a 70 percent unemployment rate. While a lot of discrimination and misunderstanding do exist on the part of employers, I strongly believe that much of the problem is simply that most blind and visually impaired people make the choice to take their Social Security checks, public housing and other government-provided welfare benefits and sit home. They aren’t getting an education, volunteering or even trying to acquire gainful employment. I played the TLC song “No Scrub” on my show on ACB Radio Interactive the other night for a reason! If most of us are just subsisting, then we don’t have enough money to spend in order to significantly impact the business decisions made by our assistive technology companies, let alone insist that mainstream technology companies make their products and services more accessible to us.
  • Why does it seem the two largest blindness consumer organizations in the United States are hesitant to weigh in on the Freedom Scientific Versus Serotek case? I’m afraid I must come to the conclusion that this organizational paralysis simply has just about everything to do with the fact that Freedom Scientific donates sizable sums of money to these organizations, whose leadership can’t be blamed for not wanting to bite the hand that feeds them.

As you can obviously see by now, this article has become something of a stream of consciousness on my part concerning my thoughts on the assistive technology industry for the blind and visually impaired. I do believe I have one idea that could start us on a path to a rebirth of the blindness assistive technology industry in a way that would meet the needs of all the small and large companies as well as blind and visually impaired consumers. This is going to be controversial, but here it comes anyway. Have I ever shied away from controversy on this blog or otherwise in the blind community? The idea is simply this: Two thirds of the senior management of all companies doing business in the blindness assistive technology industry should meet the definition of legal blindness and of course should be otherwise qualified to hold their positions. These management teams should also equitably represent the full spectrum of legal blindness from highly partially sighted to totally blind. It is my long held belief that only competent blind and visually impaired people from our community can correctly assess our needs and take positive actions that really benefit the blind and visually impaired. As always, your comments are highly encouraged.