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kim
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negotiation/ question on intent
« on: Nov 9th, 2007, 10:09am »
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have a pending application for a certain concept/ method thats saturated the market that its in. I do have an attorney however im interested in several people opinions on this matter. my application should issue from the first response no later than Dec. one of said potentially infringing companies decided that they would attempt at assignment with me. they came with a very low number for purchase, i had said i would be agreeable not that i would be daft. they have been on notice aswell as nine others since 04'
 
question 1) what was the intention of the negotiation  
 
my beliefe is that they were hopeful that i couldnt quantify the value and would be willing to take it , and or they thought that i would come down in assignment price .
 
question 2)
 
does thier offer lend to the credibility of my claims and thier
potentially infringing product as they are willing to deal with me at all?
this company is the number one in their industry, though nine others potentially infringe aswell.
 
any thoughts on the matter would be appreciated. also after i let them know where i was at , they continued to discuss contract terms and repeatedly asked if i was still willling to negotiate , though our numbers of fair are as far off as earth and pluto. Im only asking for a small % of one years earnings less than the 6+ billion they have reported to have earned since implementation back in 04' im being more than fair here as im just tired of the whole deal meanwhile i'm not willing to negotiate something less then whats remotely fair as this transaction will follow me in my future endeavors.
questions and comments appreciated.
 
thanks for any time! Roll Eyes
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DJoshEsq
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Re: negotiation/ question on intent
« Reply #1 on: Nov 12th, 2007, 11:53am »
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Unfortunately, this is one of the most difficult aspects of patent law.  There are many, many things to consider while negotiating, especially if your patent hasn't issued yet.
 
1) will the patent be valid
2) will the competitor's product infringe - literally or DOE  
3) will there be design arounds
3) do you have international protection
4) do you have the means/will to litigate
 
These are just some of the issues.  An experienced attorney should be able to give you an idea of the strength/value of your patent.  However, other parties may have prior art or other arguments as to why your patent is invalid.  At a minimum, an experienced attorney should be able to help you craft creative terms that could be amicably to you as well as the competitor.
 
Back to your original question, there are many reasons why a company would negotiate prior to issuance.  A pending application can allow the company to draft claims covering other competitor's products.  In addition, the company may rather have its attorneys prosecute the application rather than your attorney.  Most companies will spend $10,000 obtaining a patent, so initial offers below $50,000 may be worth it to mid to large sized companies.
 
**Make sure you file a continuation application!  
« Last Edit: Nov 12th, 2007, 11:54am by DJoshEsq » IP Logged

D. Joshua Smith, Esq.
Registered Patent Attorney
McDonald Hopkins, LLC
Cleveland, OH
216-348-5400
kim
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Re: negotiation/ question on intent
« Reply #2 on: Nov 12th, 2007, 1:19pm »
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well..  
as far as whether or not there is infringement at this point i believe its a shutout, not only is their product similar its exact.  
 
If this company came with a number however do you think they came with the highest they were willing to pay or will there be a counter to my offer and how long shall i expect it to take them , or were they just waiting to see if i'd change my mind ?
 
 
as far as litigation goes i have had several law firms that handle litigation offer their services at the time of issuance so thats of minimal concern to me , i was hopeful that we could all part as cooperating parties but so far im not sure as to there intention , this company also blatently ignored myself aswell as my council upon the first letters of notice and didnt seem even remotely interested in playing ball untill now as my first response has been filed and my claims should either issue or not within the next month or so. Most people tell me to wait as the money on the table is significant just for that one company alone however , I just wanna be done with it and dont understand there theory in dragging it out . Im being more than resonable as Im only asking for a small % of one years earnings , where as licensing alone is 5 times the amount of earnings - expenditures where there are little to none and then a % of that is what the fee breaks down to , correct..? so im abashed that they dont see the reason to settle now.
 
Im pretty sure they wouldnt have entertained my realm of reasoning if to them it was that far fetched right?
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DJoshEsq
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Re: negotiation/ question on intent
« Reply #3 on: Nov 12th, 2007, 2:04pm »
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Negotiations are case specific.  A patent attorney should be able to figure out the value of your patent to this company.  It is a complex issue though.  Are they going to be licensing from you?  What happens if your patent is later determined invalid?  Are they seeking an exclusive license?  
 
Without stepping on anyone else's toes, your patent attorney should be able to give you this advice.  If you don't know what the value of the patent is to the company then you don't know what is a fair offer.
 
Of course, most people negotiating would not begin negotiations with their best offer.
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D. Joshua Smith, Esq.
Registered Patent Attorney
McDonald Hopkins, LLC
Cleveland, OH
216-348-5400
kim
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Re: negotiation/ question on intent
« Reply #4 on: Nov 12th, 2007, 5:49pm »
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as far as exclusivity they said they wanted assignment which i take as purchase for the patent indefinatly.
 
their tax documents attribute 2 billion annually to this specific method, and several attorneys have made mention that there isnt much room for interprtation when it comes to what there doing and what my claims cover. all and all , and any instance where they stopped producing said product or .. allowing access to the claims that are pertinent would eliminate there " potential infringment" however seeing as this is catering to a mode of service for a specified amount of time and provides a benefit durring a specific time frame I'm affraid that any change would hurt thier customer base aswell as cause a potential class action law suit.. i dont think they can levy their way out of it,  
 
so going by the fact that they have earned 6 + billion since implementation , and 2 billion annually settling for a small % seems like it'd be worth their time.. God knows what could happen If litigation were involved. I do know that purchase for pending applications are rare ,  
however the fact that they are talking to me shows that this could be a devestating blow to their company if they dont plan ahead..  
what does patent insurance cover for, do they take in consideration the odds of issuance and possible treble damages aswell as competition in these areas? and whats the typical payout for said insurance?  
not only does their own reported earnings work against them , but its ( this method ) thier whole marketing campaighn.  
( please excuse the spelling errors) also without having to go through a whole patent evaluation process is there a way to determine value without the major expense, seems as though everyone wants to be a hero when the claims issue , though not a second sooner.. lol i guess i could wait, with help like that who needs investors.Smiley
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