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CriterionD
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Re: Deposing Patent Prosecution Counsel
« Reply #5 on: Dec 7th, 2007, 1:03pm »
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I am aware of Josh's point.  I'm just saying this is all technicality.  And while its good to promote any misconceptions and all if and when they exist, I still don't understand why it is inaccurate to say that a patent does not grant the "exclusive right to make, use, offer for sale, or sell."
 
Bauer & Cie. v. O'Donnell - this is old case law and perhaps there is newer case law which provides commentary.  But in this case, the Supreme Court cited that the right to make, use, or sell an invented article existed before and without patent law.  So, while patent law did not confer this right, it did make the existing right exclusive (and it would do so by conferring the right to exclude, obviously).
 
Obviously, nobody has ever had the unconditional right to make, use, or sell anything they wanted to.  Just like, a driver's license is cosidered to provide the right to drive, that doesn't mean it gives you the right to drive a stolen car.  
« Last Edit: Dec 7th, 2007, 1:09pm by CriterionD » IP Logged

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JSonnabend
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Re: Deposing Patent Prosecution Counsel
« Reply #6 on: Dec 10th, 2007, 12:59pm »
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Criterion, this is far from a technicality.  It's a substantive, significant distinction that you're simply missing.
 
In absolutely no way, shape or form does a patent give anyone the right to make, use or sell anything.  That's why patentability searches look very different than right to use searches.  
 
If you want to stick to the nitty gritty, can you tell me where in the patent statute the right to make, use or sell is expressed?  It's not.  Section 271 is quite clear: the patent grant gives the patentee a tool to stop others from using the claimed invention.  Period, end of story.
 
As for Bauer, go back and re-read what you wrote.  Sure, the right to make, use or sell something exists without patent law (regulatory and other legal prohibitions aside).  Unfortunately, what you're not understanding is that the patent grant changes that pre-existing right for anyone not licensed under the patent.  If someone else has a patent covering what my patent covers, then I can't make, use or sell the invention, can I?
 
Perhaps a quick example would help.  In 1907 or so, the Wright brothers invent and patent the airplane.  It claims a body, wings and an engine.  It's enabling.  Now, a year later, the Wrong brothers study the Wright brothers' patent and learn everything it teaches.  They then do some inventing of their own and determine that if the wing has a certain cross section, it's much more effective.  So the Wrong brothers apply for and receive a patent covering an aircraft having a body, wings with a specific cross section and an engine.  Can they make, use or sell their invention by virtue of their granted patent?  No, because doing so infringes the Wright brothers' patent.
 
- Jeff
« Last Edit: Dec 10th, 2007, 1:08pm by JSonnabend » IP Logged

SonnabendLaw
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CriterionD
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Re: Deposing Patent Prosecution Counsel
« Reply #7 on: Dec 10th, 2007, 4:57pm »
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on Dec 10th, 2007, 12:59pm, JSonnabend wrote:
Unfortunately, what you're not understanding is that the patent grant changes that pre-existing right for anyone not licensed under the patent.  If someone else has a patent covering what my patent covers, then I can't make, use or sell the invention, can I?
 

 
Jeff,
 
I do understand that one patented article can infringe another patent, and I have understood that if it hasn't been clear.  If anything I am simply prolonging an argument that has little practical point.
 
In terms of definitions, I guess what it comes down to is what is and isn't implied without being spelled out.  For example, I could say that my driver's license secures me the right to drive.  But it doesn't necessarily give me the right to drive a stolen car.
 
Anyways, I will quote the Supreme Court, from 1913, from Bauer -  
 
Quote:

The right to make, use, and sell an invented article is not derived from the patent law. This right existed before and without the passage of the law, and was always the right of an inventor. The act secured to the inventor the exclusive right to make, use, and vend the thing patented, and consequently to prevent others from exercising like privileges without the consent of the patentee.

 
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=nytimes&cour t=us&vol=229&invol=1
 
   
 
 
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Re: Deposing Patent Prosecution Counsel
« Reply #8 on: Dec 10th, 2007, 6:29pm »
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on Dec 10th, 2007, 4:57pm, CriterionD wrote:

 
I do understand that one patented article can infringe another patent,  

 
 
Are you sure this is true?
 
 
Regards,
 
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JSonnabend
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Re: Deposing Patent Prosecution Counsel
« Reply #9 on: Dec 11th, 2007, 7:56am »
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on Dec 10th, 2007, 4:57pm, CriterionD wrote:

 
Jeff,
 
I do understand that one patented article can infringe another patent, and I have understood that if it hasn't been clear.  If anything I am simply prolonging an argument that has little practical point.
 
In terms of definitions, I guess what it comes down to is what is and isn't implied without being spelled out.  For example, I could say that my driver's license secures me the right to drive.  But it doesn't necessarily give me the right to drive a stolen car.
 
Anyways, I will quote the Supreme Court, from 1913, from Bauer -  
 
 
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=nytimes&cour t=us&vol=229&invol=1
 
   
 
 

The thing is, this has substantial "practical point".  If an inventor begins selling his patented product, he can be sued for infringement and be found liable.  What's not practical about that?  It happens in the real world and affects businesses all the time.
 
As for the case you've cited, the language is not correct under current law (the case is from 1913 and the current patent statute is from 1952), so it's besides the point.
 
Really, you say you understand, but it's clear from your discussion that you're missing the true implications of the distinction being drawn.  
 
If the airplane example didn't sufficiently illustrate the point, substitute any computer or communications related technology instead.  You'll quickly see that having a patent doesn't mean you can sell what you've patented in real world situations.
 
- Jeff
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SonnabendLaw
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