| Author |
Message |
Rich Grise
Guest
|
 Posted:
Mon Aug 08, 2005 10:27 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
On Mon, 08 Aug 2005 10:42:53 +0200, Skybuck Flying wrote:
| 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 ;) )
|
Here's the rub. If the manufacturer was keeping the design a trade secret,
then they have no legal leg to stand on, and the patentor can go ahead and
go into production. If there's a legal battle, whoever has the most money
wins.
If Manufacturer _had_ _disclosed_ his art, then that is First Disclosure
and the patent will be invalid.
| Quote: |
Assuming both parties have capable lawyers ;) Who would win this lawsuit the
inventor/patent holder or the manufacturer ?
|
Whoever has the most money.
| Quote: | I think if the manufacturer can prove that the products were produced and
sold well before the patent filing he should win easily...
|
All he has to do is show that his invention was disclosed - this could
include sending it to the PO - it doesn't have to be released to the
general public.
| Quote: | So this is just a reality check ;)
Does it work like that in reality or is reality screwed up lol ? :)
|
Yes.
| Quote: | I would like to ask this question in a law newsgroup... but the closest
thing I found was law.court which seems kinda dead ?
|
I'm not a lawyer, but I play one on USENET. ;-)
Good Luck!
Rich |
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|
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Colonel Forbin
Guest
|
| Posted:
Mon Aug 08, 2005 10:42 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
In article <dd84fq$9pq$1@news1.zwoll1.ov.home.nl>,
Skybuck Flying <nospam@hotmail.com> wrote:
| Quote: |
Wieeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee
|
The crystal meth must be kicking in... |
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Keith Williams
Guest
|
| Posted:
Mon Aug 08, 2005 11:02 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
In article <DpMJe.52410$zY4.11379@tornado.ohiordc.rr.com>,
forbin@dev.nul says...
| 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.
|
From society's (read; government) perspective the idea of a patent is
education. The guilds weren't a pretty thing.
| Quote: | 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.
|
The intent is exactly the opposite. The intention is to foster
knowledge by enticing inventors to teach their art. In return they
receive a limited monopoly on their invention.
A wise man once wrote:
"To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries;"
| Quote: | 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.
|
There is a reason there are two parts of a patent. The "teachings" and
the "Claims". You don't get the reward ("claims") without cost
("teachings").
| Quote: | The prolonged fight between DeForest and Armstrong with respect to
radio technology should provide a valuable lesson.
|
Why? We have two inventors and a pile of money for lawyers. What's so
valuable about that lesson?
| Quote: | 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?
|
That's the way the cookie crumbles. How do you know "B" discovered it
"independently"? He may have falsified his notebook. Why does the
government care? The art has been taught by "A".
| Quote: | 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.
|
You mist the point of patents. The purpose is to *TEACH* the relevant
art. The exclusive license to practice the art is payment for those
teachings.
| Quote: | 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.
|
There is no such thing as fair. Is it fair that you get dealt a better
poker hand than I?
| Quote: | 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.
|
Capitalism is the worst system possible, except for all the others that
have been tried.
| Quote: | 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?
|
B can then patent this "much more efficient way". B may (or may not)
need a license from A to practice his art, but if it's that much better
A will want a license from B too.
| Quote: | 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?
|
As always, their employer. Note that patents don't mean squat when
national defense is at stake.
--
Keith |
|
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|
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Skybuck Flying
Guest
|
| Posted:
Mon Aug 08, 2005 11:30 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
"Colonel Forbin" <forbin@dev.nul> wrote in message
news:lQMJe.52530$zY4.10307@tornado.ohiordc.rr.com...
| Quote: | In article <dd84fq$9pq$1@news1.zwoll1.ov.home.nl>,
Skybuck Flying <nospam@hotmail.com> wrote:
Wieeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee
The crystal meth must be kicking in...
|
What that hell is that.. or did you mean math :P.
|
|
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|
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Skybuck Flying
Guest
|
| Posted:
Mon Aug 08, 2005 11:36 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
Keith Williams for a supposedly smart fella you dont show it at the moment.
This discussiong is totally irrelevant for this thread.
If you want to discuss what patents are all about than get the hell out of
MYYYYYYYYYY thread yess.
Start your own damn thread and harvest from it, thrive in it, glorify it.
Mister Colonin Forbidden is nothing but a trolll for posting a completely
off topic issue for this thread.
It's called diverting all attention to something else.. Though diverting
attention is not the most serious of usenet crimes/troll techniques as I
should no as master troll lol. (not true but what the heck :P heheheheheheh)
Colonil Pawell forbidden moterfucka is purely trying to were me, you, us
downnnn by discussing completely irrelevant, time consuming posts which we
probably can't even do anything about.
Now be gone, and let this thread die and rest in peace. =D
Bye,
Skybukckckck. wiee. :P just a small screaming little wiee. period. :P
"Keith Williams" <krw@att.bizzzz> wrote in message
news:MPG.1d616816b3529348989b63@news.individual.net...
| Quote: | In article <DpMJe.52410$zY4.11379@tornado.ohiordc.rr.com>,
forbin@dev.nul says...
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.
From society's (read; government) perspective the idea of a patent is
education. The guilds weren't a pretty thing.
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.
The intent is exactly the opposite. The intention is to foster
knowledge by enticing inventors to teach their art. In return they
receive a limited monopoly on their invention.
A wise man once wrote:
"To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries;"
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.
There is a reason there are two parts of a patent. The "teachings" and
the "Claims". You don't get the reward ("claims") without cost
("teachings").
The prolonged fight between DeForest and Armstrong with respect to
radio technology should provide a valuable lesson.
Why? We have two inventors and a pile of money for lawyers. What's so
valuable about that 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?
That's the way the cookie crumbles. How do you know "B" discovered it
"independently"? He may have falsified his notebook. Why does the
government care? The art has been taught by "A".
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.
You mist the point of patents. The purpose is to *TEACH* the relevant
art. The exclusive license to practice the art is payment for those
teachings.
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.
There is no such thing as fair. Is it fair that you get dealt a better
poker hand than I?
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.
Capitalism is the worst system possible, except for all the others that
have been tried.
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?
B can then patent this "much more efficient way". B may (or may not)
need a license from A to practice his art, but if it's that much better
A will want a license from B too.
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?
As always, their employer. Note that patents don't mean squat when
national defense is at stake.
--
Keith |
|
|
| Back to top |
|
|
Colonel Forbin
Guest
|
| Posted:
Mon Aug 08, 2005 11:43 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
In article <dd88j9$ipf$1@news5.zwoll1.ov.home.nl>,
Skybuck Flying <nospam@hotmail.com> wrote:
And BIFF begat B1FF, and so on... |
|
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|
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glen herrmannsfeldt
Guest
|
| Posted:
Tue Aug 09, 2005 12:16 am Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
Skybuck Flying wrote:
(snip)
| Quote: | It doesn't say "trade secret" it clearly says invention !!!
It doesn't say:
"
A person shall be entitled to a patent unless -
(a) the trade secret was known or used by others in this country,
"
It says:
"
A person shall be entitled to a patent unless -
(a) the invention was known or used by others in this country,
"
The invention which is claimed by a person CAN be known by others, namely
the trade secret holders !
It's the person who could not have known a probably kept trade secret !
However he is not the true inventor. The true inventor remains the trade
secret holder !
|
In many cases two people come up with the same idea independently.
In that case, the fact that one uses it as a trade secret doesn't
prevent another from having invented it first. As I understand it,
at some point it comes down to who can prove they invented it first.
-- glen |
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|
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glen herrmannsfeldt
Guest
|
| Posted:
Tue Aug 09, 2005 12:16 am Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
Del Cecchi wrote:
(snip regarding patents, trade secrets, and simultaneous invention)
| Quote: | So I could patent the formula for Coke Syrup? And then sue Coke for
infringing?
Or is there something different about product using "technology"? I
guess the ambiguity is the word "using".
|
I would say it is different in the degree of proof needed.
Say I buy some coke and do chemical analysis to determine the
formula. (If it were possible it would have been done by now).
I would determine the individual chemicals in a given sample,
but not necessarily the formula used by coke. Coke uses many
natural ingredients containing mixtures of chemicals where it would
be very difficult to identify the actual ingredient.
Another post regarded the plastic used in a golf ball. Identifying
a single chemical, even one as varied as a polymer, isn't so hard.
Much easier than the complex mixture that is Coke. It would,
then, be relatively easy to prove that two golf balls were made
of similar plastic than that two cola drinks were made from the
same formula.
-- glen |
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|
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Joerg
Guest
|
| Posted:
Tue Aug 09, 2005 12:17 am Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
Hello Winfield,
| Quote: | 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.
|
That often doesn't stick in a lawsuit. IIRC there was a company that
made golf balls from Surlyn or some kind of special plastics. They kept
the golf ball innards a secret but sold lots of these which constitutes
"noninforming public use". Then Dunlop engineered something similar,
filed a patent for the technology and subsequently sued. AFAIR Dunlop
lost and their patent was declared invalid because of prior noninforming
public use.
Regards, Joerg
http://www.analogconsultants.com |
|
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|
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Fred Bloggs
Guest
|
| Posted:
Tue Aug 09, 2005 7:33 am Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
Keith Williams wrote:
| Quote: | You mist the point of patents.
|
That must be one of them there phone-etic misspellings ... but "mist" ?
See a dentist, toothless Bush supporter... |
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Colonel Forbin
Guest
|
| Posted:
Tue Aug 09, 2005 8:15 am Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
In article <GAOJe.2660$zr1.227@newssvr13.news.prodigy.com>,
Joerg <notthisjoergsch@removethispacbell.net> wrote:
| Quote: |
Hello Winfield,
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.
That often doesn't stick in a lawsuit. IIRC there was a company that
made golf balls from Surlyn or some kind of special plastics. They kept
the golf ball innards a secret but sold lots of these which constitutes
"noninforming public use". Then Dunlop engineered something similar,
filed a patent for the technology and subsequently sued. AFAIR Dunlop
lost and their patent was declared invalid because of prior noninforming
public use.
|
There was also once a suit by a company called USL... :) |
|
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|
|
Skybuck Flying
Guest
|
| Posted:
Tue Aug 09, 2005 8:15 am Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
"Joerg" <notthisjoergsch@removethispacbell.net> wrote in message
news:GAOJe.2660$zr1.227@newssvr13.news.prodigy.com...
| Quote: | Hello Winfield,
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.
That often doesn't stick in a lawsuit. IIRC there was a company that
made golf balls from Surlyn or some kind of special plastics. They kept
the golf ball innards a secret but sold lots of these which constitutes
"noninforming public use". Then Dunlop engineered something similar,
filed a patent for the technology and subsequently sued. AFAIR Dunlop
lost and their patent was declared invalid because of prior noninforming
public use.
|
Wieeee, there is a god ;) :)
|
|
| Back to top |
|
|
Colonel Forbin
Guest
|
| Posted:
Tue Aug 09, 2005 8:15 am Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
In article <dd9gnl$2tc$1@news5.zwoll1.ov.home.nl>,
Skybuck Flying <nospam@hotmail.com> wrote:
| Quote: |
"Joerg" <notthisjoergsch@removethispacbell.net> wrote in message
news:GAOJe.2660$zr1.227@newssvr13.news.prodigy.com...
Hello Winfield,
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.
That often doesn't stick in a lawsuit. IIRC there was a company that
made golf balls from Surlyn or some kind of special plastics. They kept
the golf ball innards a secret but sold lots of these which constitutes
"noninforming public use". Then Dunlop engineered something similar,
filed a patent for the technology and subsequently sued. AFAIR Dunlop
lost and their patent was declared invalid because of prior noninforming
public use.
Wieeee, there is a god ;) :)
|
Wie is a minor. Hands off. |
|
| Back to top |
|
|
Joerg
Guest
|
| Posted:
Tue Aug 09, 2005 11:17 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
| Quote: | There was also once a suit by a company called USL... :)
|
IIRC that was was settled.
Regards, Joerg
http://www.analogconsultants.com |
|
| Back to top |
|
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Joerg
Guest
|
| Posted:
Tue Aug 09, 2005 11:18 pm Post subject:
Re: Suppose a product was using a technology before a patent |
|
|
Hello,
| Quote: | Wieeee, there is a god ;) :)
|
There always was. Some people believe in Him, some don't. (I do)
Regards, Joerg
http://www.analogconsultants.com |
|
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