Annotated Atari Depositions - Part 2

Today we continue with Nolan Bushnell’s deposition from January 13 and 14, 1976. In this part, Nolan discusses his various experiences with computer games at the University of Utah. This (when and if Nolan first saw Spacewar, when he got the idea for a video game, what kind of programming experience he had etc.) is one of the biggest bones of contention in the depositions as well as from a historical standpoint. Before getting into the details, then, it might be helpful to have a few dates in mind:

* Summer 1961 - Steve Russell, Wayne Wiitanen, and J.M. Graetz conceive of Spacewar
* January 1962 - Russell completes "bare bones" version of Spacewar
* May 1962 - Spacewar featured at MIT open house
* September 1962 - Russell completes updated MIT version of Spacewar
* Fall, 1962 - Russell moves to Stanford to join John McCarthy
* 1961 or 1962 (Fall?) - Nolan Bushnell begins studies at Utah State
* 1965 - David Evans accepts offer to come to University of Utah and establish the Computer Science department.
* 1964 or 1965 (Fall?) - Nolan Bushnell transfers to University of Utah
* 1966 - Ralph Baer begins working on what later becomes the "brown box"/Odyssey
* November, 1966 - Univac 1108 arrives at University of Utah computer lab
* 1968 - Ivan Sutherland comes to University of Utah to join David Evans in the Computer Science department
* March 18, 1968 - Ralph Baer files for patent on "Recording crt light gun and method"
* 1969 - Nolan Bushnell encounters Space war at the Stanford Artificial Intelligence Lab (SAIL)
* May 27, 1969 - William Rusch files for patent on "Television Gaming Apparatus"
* August 21, 1969 - Rusch, Baer, and William Harrison file for patent on "Television Gaming Apparatus"
* March 22, 1971 - Baer files for a patent on "Television gaming and training apparatus" (the "480" patent)
* August 10, 1971 - Baer's light gun patent granted
* November, 1971 - First Computer Space sales begin.
* June 27, 1972 - Atari is officially incorporated
* August, 1972 - Magnavox Odyssey released in North America
* ca mid-August, 1972 - First Pong prototype is placed on location at Andy Capp's for field testing.
* November, 1972 - Pong is "released"
* November 24, 1972 - Nolan Bushnell filed for patent on "Video image positioning control system for amusement device"
* February 19, 1974 - Bushnell's patent granted
* April, 1974 - Magnavox files its first patent infringement

Anyway, on to the depositions

MR.WILLIAMS. Q. Were you personally involved in any activities prior to December 31, 1969 relating to apparatus for playing of games which utilized cathode ray tube displays?

A. Yes, I was.

Q. What was the first such activity of any kind that you can recall?

A. I recall playing a game on a computer at the University of Utah.

Q. And that was the first activity of that nature that you can recall that you were involved in?

A, Yes on a cathode-ray tube.

Q. When did that occur?

A. I have been trying to pinpoint that. I think it was in the neighborhood of 1965. It was shortly after I came to the University of Utah.

[NOTE - The first question that may come up here is why the court spends so much time on this issue. You might think that it was just the court going over minutiae in mind-numbing detail, as they did with Nolan's employment history, but here the issue is likely more substantial.

At issue is exactly when Nolan got the idea for a video game and, more importantly, if he did so before Ralph Baer.

From a legal standpoint, I’m not entirely sure of the details of exactly what Atari’s claim was (if any). Were they trying to show that Baer’s patents were invalid due to Nolan’s “prior art”? Were they trying to show that Bushnell hadn’t violated Baer’s patents because he got the idea first?

We'll continue to discuss this as we go along, but I thought I'd mention a few things here.

First, the defendants in the various Magnavox lawsuits made numerous attempts to declare Magnavox’s patents invalid. The most common ways to invalidate a patent are to show that it was not original due to “prior art” (i.e. someone else did it first), to show that it was “obvious” (one requirement for a patent was that it had to be for something that is non-obvious), or to show that the patent application was improper. In the Magnavox cases, the defendants tried all three and more.  A number of proposed examples or prior art were brought forward, including Spacewar. We’ll get into specifics later on.

Of course, if Atari was trying to show that Baer’s patents were invalid or that Nolan didn’t infringe on them, they’d have to do a lot more than show that Nolan had merely played Spacewar at University of Utah. At a minimum, it seem he would have actually had to have had a patentable idea. He would not necessarily had to have built anything. Technically, to get a patent, you only have to describe something thoroughly enough that it could be built (though I should say that I am no legal expert). So if this is Atari’s strategy, this is only part of it.

Having said that, however, there are a couple of questions/issues.
First is that the 1965 date has been seriously called into question. Curt Vendel and Marty Goldberg made an extensive effort to vet the claim (along with various others) and the results (which you can read about here) don’t bode well for the 1965 date.

We will discuss further later, but the first question is: is the 1965 date important? Or, to put it another way, if Nolan was being less than forthcoming (and I’m not saying he was), why would he make up a date of 1965 instead of 1966 or 1967 or even 1969 (when no one doubts that he saw the game).

At first it might seem like this was an attempt to establish that Nolan started working on his game before Baer started work on the Brown Box in 1966.

I do not think this is the case, however, for a number of reasons.

First, as mentioned above, merely establishing that Nolan had played the game would be of almost no use from a legal standpoint.
Second, I doubt if Nolan could have known about the 1966 date at this point. AFAIK, it was never mentioned in any of the patent applications.

Another question is why the emphasis on Spacewar? If Nolan was going to make something up, couldn’t he have just claimed he saw some other game? (of course, if he really did play the game in 1965, it's a moot point).

One important thing about Spacewar is that it directly inspired Nolan to create Computer Space, but Magnavox’s lawsuit was surely over Pong, not Computer Space.

As we will discuss later, in regards to Baer’s patents, not just any old game will do. It had to have some specific features, as we shall see.

For the moment, let’s move on.]

Q. By shortly after you came to the University of Utah, how long a period do you mean by shortly?

A. I really don’t recollect. It was one of those things that I just didn’t think that much about it at the time. The University of Utah has a strong computer center, a graphics laboratory. The games that were programmed there and pretty much a common knowledge. I had a friend in the engineering department that I used to play chess with that said, “There’s some great games over at the computer center.” and we went over one night and played.

[Note - this is somewhat significant as it shows that Nolan was talking about the computer center at Utah’s graphics lab (as opposed to another lab on campus).

One issue here is that the University of Utah had just established its Computer Science department in 1965 and David Evans (who founded and ran the graphics lab) had just arrived that year. I’m not sure how much of a lab they could have had by the fall of 1965 and I don’t think the graphics program had really gotten started yet (I don’t think it really kicked into high gear until Ivan Sutherland arrived in 1968)]

Q. What as the friend’s name?

A. His name was Jim Davies, I think.

Q.  And you knew him through your work at the University of Utah?

A.  No.  I knew him through the chess club.

Q.  Do you know where Mr. Davies is located today?

A.  I have no idea.  I'm not really sure that Davies was his last name.  In fact, just a second.  I'm not sure that Jim Davies wasn't another guy. It's Jim something, and it started with a D, but I'm not sure.

Q. Do you recall when you last saw this individual that took you to the computer center?

A. It was during the academic year. He was a senior, I believe, at that time or a graduate student and I really don't know which. You know, a casual acquaintance. We used to have coffee together and talk about politics and philosophy and that sort of thing after chess and I think that he graduated and left the school year at that time.

Q. Could you describe the game which you saw on a computer at the University of Utah, this first game that you saw?

A. Yes, it was called Space War [sic].

[NOTE – Yes, I know that it’s spelled Spacewar or Spacewar! But I’m using the spelling used in the depositions.]

Q. Could you describe how Space War was played?

A. Gee, don't you know by now? It's a rocket ship game in which you fire missiles at the other rocket ships. In some versions there is a sun and in sun versions there aren't, and I don't remember whether this one had a sun or not. It turns out having a sun with gravity is one of the tougher programming problems.

[NOTE – I love Nolan's smart aleck answer here. As mentioned above, by this time Magnavox’s lawyers had likely discussed the details of Spacewar ad nauseum.]

Q. On this first occasion when you saw this game you just walked into the computer center and the game was being played at that time?

A. No. We went in the graphics lab and the guy said to the fellow that was there, "Can we get some time to play Space War?"  And the guy said, "Sure," and something happened and a few minutes later Space War came up on the screen.

Q. And the game was played on a computer, you say?

A. It was played--

Q. Using a computer?

A. Yes.

Q. What kind of a computer was it being used?

A. I'm not sure. That's one of the things I can't put the time on it. It was either a Univac 1108 or an IBM 7094. The University of Utah changed computers while I was there and I'm not sure which one it was, really.

[NOTE – As discussed in the link above, this appears to be a major problem with Nolan’s claim. The Univac 1108 didn’t arrive until November of 1966. The lab did have an IBM 7044 (not a 7094) but that supposedly didn’t have a graphical display. The university also had a PDP-8 that was used as a graphics buffer for the Univac and it had both a vector and a raster terminal but the vector terminal didn’t arrive until November, 1966 either. Vendel and Goldberg consider it unlikely that a raster port of Spacewar had been created. In addition, they claim that the PDP-8 was almost entirely dedicated to actual research.

On an interesting side note, Sperry Rand/Univac actually had a major factory in Salt Lake City that employed over 2,000 people in the late 1960s. It was initially known as Sperry Utah Division but later renamed UNIVAC Salt Lake City.]

Q. But you believe it was one of those two?

A. Yes. I tend to think it was the Univac 1108.

Q. You said the University had changed computers while you were there. Did they change from a Univac 1108 to an IBM 7094. or vice versa?

A. No. You never change in that direction. It changed to an 1108.

[NOTE – This part is true. The University did indeed replace the 7044 with a Univac 1108.]

Q. I think we are going a little more deeply into your recollection of the game Space War.

A. Okay.

Q. You say there were rocket ships?

A. Right.

Q. How did the rocket ships appear on the screen?

A. In a side view rockets. When you pushed a button a missile issues from the nose, travels across the screen. If you hit the opponent’s rocket ship it explodes and you score a point.

Q. Can the play control the position of the rocket ship?

A.  Yes, they can.

Q.  How does it do that?

A.  This one was a four-button model.  You push bombs to rotate your rocket ship right, counterclockwise or clockwise.  If you pushed one button it would rotate clockwise, and if you pushed the other button it would rotate, clockwise.  Then you had a thrust button which would give acceleration and the direction that the rocket was pointed or deceleration as the case may be.  The other one was the first missile button.

Q.  Where were the buttons located?

A.  They were in a little box it was about this (indicating).  It was hooked somewhere into the bowels of the machine.

Q.  Did each player have a box?

A.  Yes.

Q.  How many players were there?

A.  Two.

Q.  You when a torpedo hit a rocket there was the explosion.  How did the explosion appear on the screen?

A.  I think it says, "Bang," or "Boom," or something.  I've seen several versions of this and I'm a little fuzzy which version the first one I saw was.  But I believe it said Bang, and then the rocket ship disintegrated.  Or turned into a series of dots and the rocket ships would start again from opposite corners of the universe.

[NOTE – This is another interesting claim. The original version of Spacewar didn’t print “Bang” or “Boom” or anything else on the screen. In fact, I’m not sure I’ve ever heard of a version that did (though I haven’t really looked into the issue). Nor does it seem to me that this would have been a trivial addition. It would be interesting to see if any of the Stanford versions of the game had such a feature and, if so, if it was original to them.]

Q.  You say it said "Bang." What said "Bang"?

A.  It printed out "Bang" on the screen.

Q.  Over a relatively small portion of the screen or across the entire screen?

A.  I have seen it both ways.  I believe that this was a small "Bang" in regular, you know, say, quarter-inch high characters.

Q. You said that the rocket ship disintegrated. What do you mean by disintegrated?

 A. I think it just turned into some dots. You know, it’s one of those things.

 Q. Did the dots go off in different direction, or did the dots stay in the same spot that the rocket ship had before it disintegrated?

[NOTE – This may seem like more pointless minutia, but it is actually far from it. This touches on the issue of exactly what the Magnavox patents actually covered. The 507 patent, for example, covered “an apparatus for generating symbols upon the screen to the receiver to be manipulated by at least one participant, comprising a means for generating a hitting symbol and the means for generating a hit symbol, including means for ascertaining coincidence between said hitting symbol and hit symbol and means for imparting a distinct motion to said hit symbol upon coincidence" (emphasis mine). In other words, Baer’s (on in this case, Rusch’s) patents covered detecting when two objects on the screen touched one another and when one object (such as a paddle) imparted motion to another (such as a ball) under player control. This goes far beyond just ball-and-paddle games. While this might seem overly broad to modern readers, two things should be borne in mind. First, Baer’s patent was a “pioneer patent” and was thus supposed to be interpreted broadly. Even more important, however, is that, as simple as they might seem today in the age of software, things like “ascertaining coincidence” between objects and “imparting motion” were far from trivial in the late 1960s, when they had to be achieved using hardware to control the signal from a standard TV set.

So plaintiff’s lawyer here appears to be trying to establish whether or not Spacewar involved “ascertaining coincidence” or “imparting a distinct motion”. This issue came up repeatedly (and I mean repeatedly) in the various trials. For the most part (IIRC), it was ruled that Spacewar did not involve these things. Though on at least one occasion the judge ruled that it did (though he still ruled that it did not invalidate Baer’s patents). Similarly, with the issue of vector vs. raster, for the most part, the court held that, as a vector game, Spacewar was not germane to the Baer patents (again, however, on at least one occasion, the judge ruled that the vector/raster distinction was irrelevant). Baer’s patents only covered producing images on a raster display, which uses entirely different than doing do on a vector display.]
  A. I don’t remember.

 

Q. While the rocket ship was disintegrating, did the dots or whatever appear to keep on moving with the same velocity the rocket ship had before?

A. I don’t remember.

Q. What kind of a display was used in connection with the games you saw?

A. I really don’t know. There’s a screen. I think it was a 12 to 14-inch screen.

Q. Was it a rectangular screen or a circular screen?

A. I really don’t remember.  I think the viewing area for this game was rectangular. Now, whether that was housed in a circular tube or a square tube, I don’t remember.

Q. What do you mean by the viewing area?

A. Well, you would fly off the screen up and you would enter the bottom, but you wouldn’t really fly off the screen, you’d just see half of your rocket ship disappear and the other half would come up through the bottom.

Q. Was this operation you described of flying off the top of the screen and coming on the bottom, was that common to all versions of Space War that you saw?

A. Later than that I’ve seen one which, you know, there was essentially a boundary that you had to stay inside of and in some of the versions if you hit the boundary the rocket ship

<2 pages missing>

 Q. When you first aw this Space War game in this first session that you’re talking about, did you play the game yourself?

A. Yes, I did.

Q. Did you play it with another person?
 

A. Yes.

Q. Do you know who that other person was?

 A. It was Jim Davies, but I don’t think that’s right. Jim D.

Q. Did you play with anybody else at that time during this first occasion that you saw the game?

A. Yes. I played with a graduate student who was there.

Q. Do you know his name?

A. No, I don’t. It was his baby, the graduate student’s. He was kind of a custodian, I think, of that particular Space War game.

Q. What do you mean by the term custodian?

A. I don’t know. He just seemed very knowledgeable and—you know like it was not Jim’s. Jim had just played it, saw it, knew the guy. Brought me in.

Q. Do you know if the graduate student was the one who wrote the program?

A. I had a feeling he was, though I don’t believe he ever said so.

Q. did the graduate student have the program in his possession at the time?

 A. I don’t know.

 Q. Do you know what form the program was in at that time?

 A. No, I can’t

 Q. Was it necessary for that particular graduate student to be present before somebody could play Space War at that particular institution?

 A. I don’t know.

 Q. After this first session when you saw Space War shortly after going to the University of Utah that your next activity with relation to the apparatus for playing games using a cathode-ray tube display?

 A.  Well, it was about, Oh, somewhere around a year later and one of my fraternity brothers got involved in the computer center a little bit more introduced me to several of the people and we got talking about the games and I thought would be kind of fun to learn how to program games.

[NOTE - Note that Nolan here says that after encountering Spacewar (if he did so), he didn't have any more involvement with computer games for a year. He makes this point more explicitly later.]

Q.  You say this is approximately a year after you saw Space War game for the first time?  Who

A.  Yes.

Q.  Did you see any Space War games between the first time that you saw it and the time approximately a year later when your fraternity brother got involved in the computer center?

A.  No, I didn't.

Q.  What did you do as a result of your thinking that it would be fun to program games?

A.  Well, I asked for a listing of the current Space War game, I think I wanted to understand how they had done what they had done, you know, and made some modifications.

Q.  Who did you ask for this?

A.  Randall Willey.

Q.  Who was Randall Willey?

A.  He's a fraternity brother.

Mr. Herbert: How do you spell Willey?

The Witness: w-i-l-l-e-y, I think.

Mr. Williams: Q. Do you know where Mr. Willey is located presently?

A.  I think he's in New York or Washington.  He works for the Navy in their computer operations.

Q.  You mean in New York City?

A.  I'm not sure.  I haven't really kept in touch with him.

Q.  When was the last time you saw Mr. Willey?

A.  I think when I left Salt Lake is the last time I saw him.

Q.  What fraternity were you and Mr. Willey in, do you remember?

A.  I was a Pi Kappa Alpha.

Q.  Does the Pi Kappa Alpha have a national headquarters?

A.  Yes.  It's in the south somewhere.  We were supposed to know that as pledges.  I don't remember.  I think it's in Virginia.

Q.  Do you get any kind of directory of the membership in pi Kappa Alpha?

A.  No, I don't.

Q.  Do you have any kind of directory of that fraternity?

A.  No.

Q.  Do you know if one exists?

A.  I think probably they do.  You know, I get letters from them occasionally putting the bite on me for money, which I think is the main function of alumni.

Q.  You said you asked Mr. Willey for a listing of the current Space War games.  The duties of the listing?

A.  He told me where I could get one.  He directed me to a guy and he gave me a listing.

Q.  Who was the guy?

A.  I don't remember.

Q.  In what form was listing when you received it?

A.  It was a printout.

Q.  Was in the English language?

A.  Oh, no.  It was in FORTRAN.

[NOTE - I actually found that kind of funny, but it's probably just me. On a more serious note, this is another possible problem. Goldberg and Vendel were unable to find any evidence of a FORTRAN version of Spacewar at University of Utah or anywhere else in this timeframe. I don't have access to all their evidence, so I can't say that no such version existed or that some anonymous programmer couldn't have ported it, but at present, the claim is uncorroborated.] 

Q.  At the time you received this printout, what prior experience had you had with computers?

A.  I had had a couple of classes.  I think I had had EE-75 and EE-175 at the time which was an electrical engineering programming class.

Q.  By classes do you mean courses covered in that periodical?

A.  Yes.  There were also engineering-related or computer-related problems in some of the other classes.

Q.  Do you recall what the subject matter of EE-75 was?

A.  It was introduction FORTRAN.

Q.  Any particular version of FORTRAN?

A.  I don't remember.

Q.  What was the subject matter of EE-175?

A.  It was an upper--you know, it was continuing course.  I think it's FORTRAN and I think we got into a little bit of Algol.  The listing may have been Algol.  I'm not sure.  If I could pin the time, because I obviously didn't know how to read Algol before then.  But it was a computer language.  I think it was FORTRAN.

Q.  You didn't know how to read Algol before when?

A.  Before EE-175. I think it's EE-176. It's the later-on computer language.

Q. So you think that you received the computer listing after you had completed the EE-175 course?

A. I just don't know.

Q. But you had at least completed the EE-75 course?

A. Oh, yes. You play in that country, you have to know the language.

Q. What did you do with the listing after you received it?

<2 pages missing>

Space War program as we talked about?

A. I personally really didn't do that much. It was a very complex program. It was, quite frankly, a little bit better than--you know, it took a little better capability than I had at the time.

[NOTE that here Nolan is candid about his modest programming abilities at the time.]

Q. This was the Space War program?

A. Yes, Space War, and there were some other--you know, it was primarily the modifications of Space War but there were some other things that--we took out gravity and tried a flying game, you know, in which the thing as more like a jet. That wasn't quite as much fun as Space War.

[NOTE - Okay, now we have something more than just playing the game. Nolan says he actually made some modifications to it. Again, however, I don't think this would have had much bearing on the issue at hand since Spacewar wasn't his game. As mentioned earlier, it was also deemed irrelevant to the Baer patents, but this had probably not been established at this point In any event, if it were deemed relevant, it seems that Nolan's modifications would have had to made it so in order for them to be germane.]

Q. I guess I don't understand what the flying game was all about.

A. Well, in the Space Wars you always had free fall so that you could point in the opposite direction than you were traveling and then if you pushed the thrust button it would slow you and pretty soon you would move back in a different direction.
If you're taking the flying algorithm, then you're moving in a direction wherever you are pointing. But that's a very simple modification to the program.

Q. Did you do anything else to the program during that work?

A. I don't really remember which things we played there and which things I played later than that. I know that I can remember the first things that I did--you know, it was not really any big deal at the time. It was just a lot of fun to do it and it took a certain amount of dedication to get up at 2 in the morning to go in and get some free computer time. So it wasn't one of those things you did a whole lot.

Q. but all of the activities during this quarter were on the Univac or the IBM 7094?

A. Right.

Q. With the same displays we have testified about previously?

A. Right. We did a lot of things with just playing around with the computer in terms of I can remember we did some really interesting designs, just making designs on the screen, you know. You put in a polar coordinate equation and trace it out and you'd make some pretty designs. There was an interesting one that we did in which they had a round ball, they called it a mouse. You could program it so that you could rotate a cube in any direction and try some of those modifications. But there were very--you know, they were more toys really or using it as a very expensive sketch.

Q. It was not a game as such?

A. No. I mean, we did games, but we also just did other things having to do with the computer itself.

Q. Following the quarter which you were testifying about, what was your next activity relating to the--

[NOTE again that Nolan seems to be saying here that after the quarter in question, he didn't have much, if anything, to do with computer games until he saw them at Stanford in 1969. As to what other games he might have programmed at Utah, we'll be going over that in some detail soon.]

A. It would have to be at the Artificial Intelligence Laboratory at Stanford after I came to California.

Q. When was that?

A. It probably was in the middle of '69.

Q. What was your first activity relating to the playing of games at the AI lab?

A. Oh, Space War.

Q. It was Space War?

A. Right.

Q. What kind of machine was Space War played on at the AI lab?

A. I think it was a PDP-6 or a PDP-10. That was on an XY display.

Q. While you were at the University of Utah did you record any of the work that you did relating to the playing of games on a

<2 pages missing>

To be continued...

In the meantime, here's another Atari document. In this case, it's the royalty agreement between Midway and Atari.