| Author |
Message |
Skybuck Flying
Guest
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 Posted:
Mon Aug 08, 2005 4:16 pm Post subject:
Re: Suppose a product was using a technology before a patent |
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"Joerg" <notthisjoergsch@removethispacbell.net> wrote in message
news:S2GJe.1778$zr1.1718@newssvr13.news.prodigy.com...
| Quote: | Suppose a manufacturer was producing some product which use technology Z
before a patent describing technology Z was filed.
The inventor sues manufacturer for patent infringement.
Typically, if the manufacturer has proof that it was produced before
then there is evidence of prior art. No chance for the inventor since he
invented something that already existed.
|
Yes, you right about this one ;) according to this website ;)
http://www.yale.edu/ocr/invent_guidelines/patent_vs_trade_secret.html
| Quote: | Usually it's the same if the disputed technology had merely been published
before filing. |
Ok, so you mean the manufacturer is using a secret technology before it was
published ?
Same outcome... since manufacturer is original inventor ;)
Bye,
Skybuck. |
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Roger Hamlett
Guest
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| Posted:
Mon Aug 08, 2005 4:16 pm Post subject:
Re: Suppose a product was using a technology before a patent |
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"Skybuck Flying" <nospam@hotmail.com> wrote in message
news:dd75qh$j9v$1@news5.zwoll1.ov.home.nl...
| Quote: | Hi,
I have a simply question really.
Suppose a manufacturer was producing some product which use technology Z
before a patent describing technology Z was filed.
The inventor sues manufacturer for patent infringement.
The manufacturers defense is that he was producing/selling the products
well
before patent application say 3 years.
The manufacturer claims the patent is invalid because he was selling
products using this technology long before the patent was filed. ( But
kept
it secret from competitors ;) )
Assuming both parties have capable lawyers ;) Who would win this lawsuit
the
inventor/patent holder or the manufacturer ?
I think if the manufacturer can prove that the products were produced
and
sold well before the patent filing he should win easily...
So this is just a reality check ;)
Does it work like that in reality or is reality screwed up lol ? :)
I would like to ask this question in a law newsgroup... but the closest
thing I found was law.court which seems kinda dead ?
Bye,
Skybuck.
The key is whether the previous use was 'obvious'. If the actual |
application was different, and details of how the work was done, have not
been published, then the patent can still succeed, _but_ a patent only
covers the uses for which it claims utility.
So if (for instance), you have a circuit design, that allows encryption of
a data pattern for voice transmission, and apply for a patent, for this
circuit and voice transmission, then a few years latter somebody tries to
disprove the patent, by pointing out that the same circuit was used for
video applications, before the application was made, the patent will still
be upheld, _but_ the patent will allways only apply to the uses for which
it was granted.
So, 'some product', has to change to being 'some product that performs the
same basic function', for the inventor to be able to sue in the first
place, and if the manufacturer of the other product has not 'published' in
some form, then _he_ has to prove that the design was implicitly obvious
in what the device did. If the system could have been achieved by a number
of different methods, he will fail in this. This is why 'publication' is
important in patent law. The design also has to be 'available to the
public'. So if (for instance), this was part of a telephone exchange, and
this was kept inside the buildings, and maintained by service companies
provided by the supplier, the product will not be deemed to be 'prior
art'. The same would apply to components inside a device, even if this
went on sale to the public, if the presence of these parts was not
obvious...
Best Wishes |
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Winfield Hill
Guest
|
| Posted:
Mon Aug 08, 2005 4:16 pm Post subject:
Re: Suppose a product was using a technology before a patent |
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Joerg wrote...
| Quote: |
Suppose a manufacturer was producing some product which use technology Z
before a patent describing technology Z was filed.
The inventor sues manufacturer for patent infringement.
Typically, if the manufacturer has proof that it was produced before
then there is evidence of prior art. No chance for the inventor since he
invented something that already existed. Usually it's the same if the
disputed technology had merely been published before filing.
|
But, if as Skybuck stipulated, the invention was secretly contained within
the product, not advertised or discussed by the manufacturer in brochures,
manuals, etc., and not apparent to a product user, or to one studying the
product, it's hard to see how it could be declared a publicly-disclosed
prior art, and used to overturn the new patent. This is one of the reasons
for open disclosure of inventions, or alternately for defensive patenting.
--
Thanks,
- Win |
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Skybuck Flying
Guest
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| Posted:
Mon Aug 08, 2005 4:16 pm Post subject:
Re: Suppose a product was using a technology before a patent |
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|
I have another question about patents.
On this website it says the following:
http://www.iabusnet.org/templates/main/articlesdisplay.cfm?ID=325
This text was probably copied from some kind of law text ;)
"
C. Defining the invention; possible stages of
"invention":
1. Conception: formation of a definite idea.
2. Research and development: diligence may be important if first to nceive
of an invention, but not first to reduce the idea of practice.
3. Reduction to practice: actual embodiment or practicing of the invention;
the filing of a patent application is considered constructive reduction to
practice since applications must describe an enabled, operative invention.
"
I wonder what this means.... especially number 3.
Does this mean a patent is only valid or accepted if the invention is
already being used ? (For example a prototype ?) Or are all three stages
allowed ? ;)
Bye,
Skybuck. |
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Keith Williams
Guest
|
| Posted:
Mon Aug 08, 2005 4:16 pm Post subject:
Re: Suppose a product was using a technology before a patent |
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In article <dd7n99$b6o$1@news6.zwoll1.ov.home.nl>, nospam@hotmail.com
says...
| Quote: |
"Keith Williams" <krw@att.bizzzz> wrote in message
news:MPG.1d6126bb46cbfbc5989b5e@news.individual.net...
In article <dd7it4$bt4$1@news5.zwoll1.ov.home.nl>, nospam@hotmail.com
says...
"Winfield Hill" <Winfield_member@newsguy.com> wrote in message
news:dd7f4a0ipe@drn.newsguy.com...
Joerg wrote...
Suppose a manufacturer was producing some product which use
technology
Z
before a patent describing technology Z was filed.
The inventor sues manufacturer for patent infringement.
Typically, if the manufacturer has proof that it was produced before
then there is evidence of prior art. No chance for the inventor
since he
invented something that already existed. Usually it's the same if
the
disputed technology had merely been published before filing.
But, if as Skybuck stipulated, the invention was secretly contained
within
the product, not advertised or discussed by the manufacturer in
brochures,
manuals, etc., and not apparent to a product user, or to one studying
the
product, it's hard to see how it could be declared a
publicly-disclosed
prior art, and used to overturn the new patent. This is one of the
reasons
for open disclosure of inventions, or alternately for defensive
patenting.
http://www.iabusnet.org/templates/main/articlesdisplay.cfm?ID=325
Let's see that text has a section about this:
"
Bars preventing U.S. patenting of patentable inventions:
2. Pre-invention conduct. before the applicant's invention, another:
a. has public use or knowledge of the invention in the U.S.;
"
I think the "bars" means here "rules"
Bar == obstruction
From Webster on-line:
2 : something that obstructs or prevents passage, progress, or action:
Yes so in this context something=rules or law ;)
|
No, a "bar" *is* the obstruction. "You're barred from obtaining a
patent if..."
| Quote: | as a : the destruction of an action or claim in law; also : a plea or
objection that effects such destruction b : an intangible or
nonphysical impediment c : a submerged or partly submerged bank (as of
sand) along a shore or in a river often obstructing navigation
|
--
Keith |
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Guest
|
| Posted:
Mon Aug 08, 2005 4:16 pm Post subject:
Re: Suppose a product was using a technology before a patent |
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|
This discussion is getting a bit muddled because several different, but
related, issues are being discussed.
Skybuck originally set up a scenario in which
- a manufacturer was secretly producing some
product which used technology Z before a
patent describing technology Z was filed;
and then
- the inventor sues manufacturer for patent
infringement.
(a) The manufacturer's defense is that he was
producing / selling the products well before
patent application; or
(b) The manufacturer argues the patent is invalid
because long before the patent application was
filed he was selling products secretly using
this technology.
Starbuck asked would win this lawsuit the inventor/patent holder or the
manufacturer? The trivial answer is - there's no way to know until
the judge or jury rules.
In order to give a more considered answer more facts are needed.
- In the scenario the "manufacturer was producing some
product which used technology Z". Is Z a process or
a material? If Z is a process, is it a method of
doing business?
- The patent describes technology Z. Does it claim
technology Z?
- Do all the acts in this scenario take place within the
United States?
First, if the patent only describes but does not claim "Z", then there
is no infringement.
Now, addressing question (b): If the technology is a process secretly
conducted by the manufacturer and maintained as a trade secret, then
the use of the technology generally does not constitute prior art. See
35 USC 102, the list of prior art includes (i) known or used by others,
(ii) patented, (iii) published, (iv) on sale, and (v) patent
application filed. Clearly ii, iii, and v do not apply in this
scenario. Regarding (i), the courts have ruled that a properly
maintained trade secret is not considered "known or used by
others." (iv) is a bit more tricky, but again so long as the public
has no access to the technology, it should not be considered prior art.
So manufacturer's defense (b) should not prevail. Of course if the
"technology" escapes the four walls of the manufacturer the
situation is entirely different.
Now, regarding question (a): generally, in the United States, prior
use is not a defense to infringement. There is an exception however.
35 US 273 specifically provides an exemption for a method of doing
business:
It shall be a defense to an action for infringement with
respect to any ... [business] method in the patent being
asserted against a person, if such person had ... reduced
the subject mater to practice at least 1 year before the
... filing date of the patent... and commercially used
the subject mater before the filing date of the patent.
So, if the "technology" is a business method, the prior use defense
might work. I am not aware of case law defining "business method."
The exception has only been in the law for about 5 years.
None of the foregoing should be construed as legal advice; it just a
general discussion of patent law.
Richard Tanzer
patent agent |
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Alex McDonald
Guest
|
| Posted:
Mon Aug 08, 2005 9:24 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
Del Cecchi wrote:
| Quote: |
You ask for information then argue with the answer?
--
Del Cecchi
"This post is my own and doesn't necessarily represent IBM's positions,
strategies or opinions."
|
Newsgroup search on "skybuck flying"; 5,970 hits. Most of them
scattered across just about every newsgroup; a lot of them as erudite
as this recent one entitled "How to use a battery to kill
effectively?";
http://groups.google.co.uk/group/sci.electronics.design/msg/570e11245514b15b?dmode=source&hl=en
Oh dear. It's a troll.
--
Regards
Alex McDonald |
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Colonel Forbin
Guest
|
| Posted:
Mon Aug 08, 2005 9:43 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
In article <dd75qh$j9v$1@news5.zwoll1.ov.home.nl>,
Skybuck Flying <nospam@hotmail.com> wrote:
| Quote: | Hi,
I have a simply question really.
|
Simplistic (but often correct) answer:
He who has the most money generally makes the rules. |
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Dennis M. O'Connor
Guest
|
| Posted:
Mon Aug 08, 2005 9:55 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
"Del Cecchi" <cecchinospam@us.ibm.com> wrote ...
| Quote: | I remain skeptical ;)
Bye,
Skybuck.
You ask for information then argue with the answer?
|
He's a cross-posting troll. I've kill-filed him.
--
Dennis M. O'Connor dmoc@primenet.com |
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Skybuck Flying
Guest
|
| Posted:
Mon Aug 08, 2005 10:00 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
"Del Cecchi" <cecchinospam@us.ibm.com> wrote in message
news:3lpeg2F13n9klU2@individual.net...
| Quote: | Skybuck Flying wrote:
"Winfield Hill" <Winfield_member@newsguy.com> wrote in message
news:dd7ag506p1@drn.newsguy.com...
Skybuck Flying wrote...
Suppose a manufacturer was producing some product which use technology
Z
before a patent describing technology Z was filed.
The inventor sues manufacturer for patent infringement.
The manufacturers defense is that he was producing/selling the products
well before patent application say 3 years.
The manufacturer claims the patent is invalid because he was selling
products using this technology long before the patent was filed. (But
kept it secret from competitors ;) )
This would mean they didn't make a public disclosure of the invention
(unless of course the invention was apparent to anyone studying the
product, but you specified that it was kept a trade secret). So they
couldn't seek to invalidate the patent based on their secret info. I
Why not ?
It's no longer a trade secret, somebody else has re-invented it.
The manufacturer could step forward and disclose their trade secret.
The secret is in the products itself which is prove of prior art yet
nobody
noticed it ;)
By disclosing their trade secret they should be able to prove that they
are
infact the original inventors.
Surely that has to count for something in court :)
Preferrably invalidating the patent :D
suppose they could use the pre-existing invention in their product to
protect their right to continue manufacturing that product, but they
might be prevented from incorporating the patented technology into
another product or even from substantially improving and rebranding the
original product. This is one reason the trade-secret approach is bad.
I remain skeptical ;)
Bye,
Skybuck.
You ask for information then argue with the answer?
|
A possible answer... don't know if it follows the law and is legal ;)
| Quote: |
--
Del Cecchi
"This post is my own and doesn’t necessarily represent IBM’s positions,
strategies or opinions.” |
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Skybuck Flying
Guest
|
| Posted:
Mon Aug 08, 2005 10:00 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
"Alex McDonald" <alex_mcd@btopenworld.com> wrote in message
news:1123518250.523820.310230@g44g2000cwa.googlegroups.com...
| Quote: | Del Cecchi wrote:
You ask for information then argue with the answer?
--
Del Cecchi
"This post is my own and doesn't necessarily represent IBM's positions,
strategies or opinions."
Newsgroup search on "skybuck flying"; 5,970 hits. Most of them
scattered across just about every newsgroup; a lot of them as erudite
as this recent one entitled "How to use a battery to kill
effectively?";
http://groups.google.co.uk/group/sci.electronics.design/msg/570e11245514b15b?dmode=source&hl=en
Oh dear. It's a troll.
|
"I don't believe trolls" :)
Skybuck Flying :)
| Quote: |
--
Regards
Alex McDonald
|
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Guest
|
| Posted:
Mon Aug 08, 2005 10:09 pm Post subject:
Re: Suppose a product was using a technology before a patent |
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Skybuck -
Chaper 2100, especially section 2132, of the Manual of Patent Examining
Procedure (MPEP) provides a good explanation of the terms in 35 USC 102
(prior art). The MPEP provides the relevent case law. The MPEP is
available on the patent office (USPTO) web site.
Richard |
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Colonel Forbin
Guest
|
| Posted:
Mon Aug 08, 2005 10:14 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
In article <dd7dh4$tvf$1@news5.zwoll1.ov.home.nl>,
Skybuck Flying <nospam@hotmail.com> wrote:
| Quote: |
Why not ?
It's no longer a trade secret, somebody else has re-invented it.
The manufacturer could step forward and disclose their trade secret.
The secret is in the products itself which is prove of prior art yet nobody
noticed it ;)
By disclosing their trade secret they should be able to prove that they are
infact the original inventors.
Surely that has to count for something in court :)
|
The patent and copyright systems are protectionist legislation intended to
try to enforce some degree of fairness over profit from intellectual
property and innovation. Nobody ever claimed they were perfect.
The obvious point of patents is to protect an inventor who has
invested a great deal of capital to develop an idea into an invention
with some practical use which might be sold at profit from scalpers
who simply copy the design without having to invest any of the R&D
capital and can thus undercut the price of the inventor who needs
to recover these costs through sales.
At this level, it's the same notion as forbidding the counterfeiting
of money. Why earn it when you can just print what you need?
Someone said the notion of patents was to encourage inventors to
disclose ("open source") their inventions, but I do not believe this
to be the case. The system is merely an artifact of a capitalist
economic system intended to serve as a check on free market exploitation.
If there is any "purpose" to the patent law, it is to encourage invention
in the first place by providing some degree of insurance that an inventor
will have the first shot at profiting from the invention.
The prolonged fight between DeForest and Armstrong with respect to
radio technology should provide a valuable lesson.
The philosophical issue of fairness remains open. If party "A"
invents something which is later completely independently discovered
and developed by party "B," should B be denied the opportunity to
profit from his invention simply because A discovered it first?
The general gist of patents is to deter copying, so it clearly falls
short in such a case. B did not copy A, yet B may not be able
to profit merely because A was first to register his invention.
A free market mentality would say, let the market decide, but
that clearly isn't "fair" because it often simply depends on who
can undercut the other on price.
Thus the system can never be universally fair.
That's why lawyers get paid so much.
No human society has ever fully resolved the notion of how to fairly
reward human labor and inventiveness.
What if A invented an idea, but had a really crappy implementation,
but B independently (or not) implemented the same idea in a much
more efficient way?
The case of Teller vs. Ulam is another excellent example. Evidently
Ulam first came up with the notion of radiational coupling as the
way to create the hydrogen bomb, but Teller developed the concept
into a workable design. Thus, who should "own" this dubious piece
of intellectual property? |
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Skybuck Flying
Guest
|
| Posted:
Mon Aug 08, 2005 10:23 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
"Colonel Forbin" <forbin@dev.nul> wrote in message
news:DpMJe.52410$zY4.11379@tornado.ohiordc.rr.com...
| Quote: | In article <dd7dh4$tvf$1@news5.zwoll1.ov.home.nl>,
Skybuck Flying <nospam@hotmail.com> wrote:
Why not ?
It's no longer a trade secret, somebody else has re-invented it.
The manufacturer could step forward and disclose their trade secret.
The secret is in the products itself which is prove of prior art yet
nobody
noticed it ;)
By disclosing their trade secret they should be able to prove that they
are
infact the original inventors.
Surely that has to count for something in court :)
The patent and copyright systems are protectionist legislation intended to
try to enforce some degree of fairness over profit from intellectual
property and innovation. Nobody ever claimed they were perfect.
The obvious point of patents is to protect an inventor who has
invested a great deal of capital to develop an idea into an invention
with some practical use which might be sold at profit from scalpers
who simply copy the design without having to invest any of the R&D
capital and can thus undercut the price of the inventor who needs
to recover these costs through sales.
At this level, it's the same notion as forbidding the counterfeiting
of money. Why earn it when you can just print what you need?
Someone said the notion of patents was to encourage inventors to
disclose ("open source") their inventions, but I do not believe this
to be the case. The system is merely an artifact of a capitalist
economic system intended to serve as a check on free market exploitation.
If there is any "purpose" to the patent law, it is to encourage invention
in the first place by providing some degree of insurance that an inventor
will have the first shot at profiting from the invention.
The prolonged fight between DeForest and Armstrong with respect to
radio technology should provide a valuable lesson.
The philosophical issue of fairness remains open. If party "A"
invents something which is later completely independently discovered
and developed by party "B," should B be denied the opportunity to
profit from his invention simply because A discovered it first?
The general gist of patents is to deter copying, so it clearly falls
short in such a case. B did not copy A, yet B may not be able
to profit merely because A was first to register his invention.
A free market mentality would say, let the market decide, but
that clearly isn't "fair" because it often simply depends on who
can undercut the other on price.
Thus the system can never be universally fair.
That's why lawyers get paid so much.
No human society has ever fully resolved the notion of how to fairly
reward human labor and inventiveness.
What if A invented an idea, but had a really crappy implementation,
but B independently (or not) implemented the same idea in a much
more efficient way?
The case of Teller vs. Ulam is another excellent example. Evidently
Ulam first came up with the notion of radiational coupling as the
way to create the hydrogen bomb, but Teller developed the concept
into a workable design. Thus, who should "own" this dubious piece
of intellectual property?
|
You you troll lol :D
Not meeeeeeeeeeeeeeeeeeeeeeeeeeee
Youuuuuuuuuuuuuuuuuuu are thezzz trolllll |
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Skybuck Flying
Guest
|
| Posted:
Mon Aug 08, 2005 10:26 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
"Dennis M. O'Connor" <dmoc@primenet.com> wrote in message
news:1123520125.499791@nnrp1.phx1.gblx.net...
| Quote: | "Del Cecchi" <cecchinospam@us.ibm.com> wrote ...
I remain skeptical ;)
Bye,
Skybuck.
You ask for information then argue with the answer?
He's a cross-posting troll. I've kill-filed him.
|
I know you... I thought you were a big fat troll... with your unary
encoding. Hahahahaha.
The fact is you mis-interpreted my universal coding you dumb fuck ! lol.
Go read it again !!!!!!! ;) :P
Wieeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee
It's good to rule :)
Oh yes I see... you setup the newsgroups to alt.flame again...
Not falling for that one again ;)
Wieeeeeeeeeeeeeeeeeeeeeeeeeee
Lol, I am gonna leave it !
LET THERE BE FLAMEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE =D
Bye,
Skybuck. |
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