Ryan,

I am writing this open letter to you in response to your article, AT&T: Wired News Is a 'Scofflaw' published June 13, 2006 by Wired News at http://wired.com and welcome the forwarding of this letter to any that may have interest in the following:

It is my belief that I have found information which has been accessible to the public since summer 2001 which challenges and may make moot AT&T's claim of trade secrecy regarding at least a portion of the 140 pages of documents submitted as evidence under seal in the class action suit filed January 31, 2006 by the Electronic Freedom Foundation (EFF) against AT&T on behalf of their customers for allegedly "participating in a secret and illegal government program to intercept and analyze vast quantities of Americans’ telephone and Internet communications, surveillance done without the authorization of a court and in violation of federal electronic surveillance and telecommunications statutes, as well as the First and Fourth Amendments to the United States Constitution." http://www.eff.org/legal/cases/att/ (this link is an excellent resource regarding this case)

Your article reports the June 12, 2006 AT&T filed opposition to the May 23, 2006 motion of Lycos, Inc. and Wired News for orders permitting intervention and unsealing documents.  In the filed opposition, AT&T neither confirms nor denies that the 8 of 30 pages (Klein Documents) stamped "AT&T Proprietary" published by Wired News on May 22, 2006 can be compared to the sealed evidence, but rather leaves such determination up to the Court.  However page 9 lines 13 -16 of the filed opposition reads, "AT&T also has a genuine interest in protecting its trade secrets. AT&T has developed technology for splitting and cross-cutting fiber optics. While not the sort of stuff that sells newspapers, that technology has commercial value, and it is technology in which AT&T has a substantial lead over its competitors.38"

The context of this statement is made with respect to footnote 38 which reads, "Wired says: “There is no ‘market’ for information on how to install splitters in a fiber optic network. The information in dispute here has no commercial value; rather it is simply embarrassing to AT&T . . . .” Wired Motion at 11. That simply is wrong. AT&T has a substantial lead over its competitors in such technology and uses it to make money in ways that have nothing whatsoever to do with the subject matter of this litigation."

By this admission of AT&T, one can infer or deduce that at least a portion of the subject matter under seal that AT&T claims trade secret regardless of whether the seal includes the 8 published "AT&T Proprietary" pages or not, more specifically pertains to "developed technology for splitting and cross-cutting fiber optics" and "information on how to install splitters in a fiber optic network".  A few observations about such trade secret claims are in order.

The technology disclosed from the published Klein Documents including the 8 published "AT&T Proprietary" pages pertain to how fiber optic signals are split in conjunction with LGX bay panels for the purposes of monitoring near all Internet backbone data traffic in support of the Government’s warrantless wiretapping program.  Such information cannot be considered trade secret in light of the fact that substantially the same technology had already been published July 10, 2001 by the Government in the form of U.S. Patent 6,259,850 (the “850 patent”) issued to Lucent Technologies, entitled, Crossconnect module having monitoring provisions. (A Link to a PDF copy of the '850 patent)

When the '850 patent is read by one of ordinary skill in the art, one would clearly be enabled with the know-how to make the modifications necessary to split and monitor optical signals without undue experimentation thereby independently accomplishing the same result in a manner similar to that which is disclosed in the 8 published "AT&T Proprietary" pages.  Review of the patent abstract, for example, provides a strong indication that the patented technology is substantially similar.  Upon further review, the '850 patent discloses, particularly in Figure 4 and its associated specification, how this technology can be specifically integrated into an LGX panel (see col 4 lines 20-28).  In summary, the so called proprietary technology of AT&T has already been available to the public making the AT&T claim that Wired News leaked trade secret information moot.

If anything, AT&T, might consider being more concerned of the potential of possible infringement upon the ‘850 patent to Lucent, who may very well have the legal right to exclude AT&T from making, using or selling, the invention as set forth in the claims.  Though there is the possible consideration that, if the United States Government is found to infringe a patent, the patent holder has a remedy for damages in the United States Claims Court. The Government may use any patented invention without permission of the patent holder, but the patent holder is entitled to obtain compensation for the use by or for the Government.

As you are well aware, Wired News is not the only media organization to have filed a motion to intervene and unseal these documents.  On May 17, 2006 other media organizations including San Francisco Chronicle, the Los Angeles Times, the Associated Press, the San Jose Mercury News, Bloomberg News and USA Today joined in the common interest of unsealing these documents into the public domain on behalf of the public and had also filed a similar motion to intervene and unseal.  This was followed by a June 2, 2006 filing of an AT&T memorandum in opposition to the motion of these media organizations stating, "The Press adds nothing to the mix. Its papers say nothing that the parties and the existing amici have not already said."

What the media organizations seems to need is a fresh approach toward arguing the trade secret aspect of this case.  I believe disclosure of the '850 patent can be used as a new matter of fact regarding such an alternate approach to the trade secret argument.  Ideally, I would have attempted to make the Court aware of this newly discovered information directly in the form of an amicus curiae brief, but stand alone in the 11th hour without the resource or experience to be truly effective by exercising this means at this time.  Due to the scheduled hearing date of June 23, 2006 (regarding order granting Lycos and Wired hearing on motion to intervene and the Government’s motion to dismiss under the State Secrets Privilege, for example) and the deadline of June 19, 2006 for the submission of new information, the only action I can realistically take is sending this open email letter to you along with carbon copies to legal representatives of those entities or parties of interest and others similarly situated.  By so doing, this new information can at the very least be brought to the court of public opinion and also brought to a lesser degree of separation toward its possible admission to the Court via those entities that may use this information in any filings with the Court before the Monday deadline.  Let it be known that I am not a party to this case and that I am both available and willing to help bring this new information before the Court if there are those reading this letter that do recommend such an amicus brief should be filed in my name or on my behalf in light of the above information and can further refer or have the expertise and time resource available to help make it so.

Please keep in mind that this public information is the best I could find without access to the sealed documents.  Even if such legal representatives do not find reason to use the argument that I have proposed, the alternate approach that I have presented may at least give those sources “close to the litigation” that have copies of AT&T confidential documents such as the plaintiffs, their counsel, their retained experts and consultants, and Mr. Klein fresh ideas for finding other patents or published literature or any prior art that may read on any other so called "trade secrets" under seal before the Monday deadline.  Further let it also be known that I have provided patent reporting services in one form or another since 1993 and am available to be retained as an expert under signed confidentiality and non-disclosure agreement by any such sources in order to provide prior art search services in an attempt to find additional information supporting this argument with respect to all of the confidential documents under seal in its entirety.

In the event that the information that I have disclosed above becomes of further use or relevance with respect to any future reporting on this, I do humbly ask that reference be made to my blog GEN-ERIC Patent News as the source of this information wherein a copy of this open letter is soon to be posted.  I invite your thoughts and comments on this and am interested in feedback from any and all who may read this open letter.

Lastly, as a dedicated reader of Wired since spring of 1993, I wish to extend kudos to you and Wired regarding the ongoing coverage of this story and case.  The articles shown below that you have written have been quite eye opening to say the least and has helped me gain a greater appreciation and understanding of this case and how it affects the public and one's fundamental rights.  Your writing does make a difference, for I would have never have come up with this alternate approach if it were not for the article you had posted earlier this week and do look forward to the stories from you that are yet to come. I can only hope that this reply might somehow help make a difference as well.

Best Regards,
Eric

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