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Anonymous
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Posts: 53
Re: Program
« Reply #5 on: Sep 17th, 2007, 12:57pm »
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Thanks again everyone.  Would the fact that there exist a few DIFFERENT software programs from different companies suggest that the method of electronically scoring a cross country meet itself is not patented?
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MattB
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  mbycer   MBycer
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Posts: 127
Re: Program
« Reply #6 on: Sep 17th, 2007, 2:08pm »
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There could be a patent that is either ignored or licensed by the various companies.
 
Also, the use by many suggests that a broad patent to cover "scoring a cross country meet" will not be patentable as anticipated by others.
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Matthew L. Bycer
Registered Patent Attorney
http://www.bycer.com
http://www.cvglaw.com
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Re: Program
« Reply #7 on: Sep 17th, 2007, 11:11pm »
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I generally agree with you, Jim, and I agree with your advice as the practical way in this specific situation.  But I disagree with your generalization that nobody gets a freedom-to-practice opinion.  My clients get them all the time.  And they cost $25k+ each time.  If we have to dig into an invalidity opinion on a problem patent, that can easilty run $100k+.
 
Before a company sinks multi-millions of dollars into product development, they often want to know if there are any patents out there that they would infringe if they follow a particular design.  And until the recent Seagate case, having a freedom-to-practice opinion was almost required to avoid treble damages from a willfulness charge.
 
For an individual to go to that expense for a home-use, non-commercial product is, like you advise, way too much.  S/he is likely at very low (but not non-existent) risk using the program.  There really are no damages that a patentee would get.
 
But to advise that companies needn't do a freedom-to-practice check before using a product and to assert that nobody does that because it is just not practical ignores the realities that many, many companies deal with every day.  For these companies it is usually *not* a bad idea to go looking for potentially problematic patents and do something about the design while they still can, or avoid partnering with a company, or at least confront the business risk of going forward.  The ostrich approach is not always the best policy.
 
It certainly is practical and necessary to spend $50k+ to avoid a multi-million dollar lawsuit that could have a severely negative impact even beyond the loss of millions of dollars.
 
But I do want to reiterate that I think your advice is practical and realistic under the scenario presented.
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JimIvey
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  jamesdivey  
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Re: Program
« Reply #8 on: Sep 18th, 2007, 5:51pm »
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Well, I've seen similar opinions but in very limited scope -- and usually qualified up the whazoo about scope limitations.  And, they ought to be qualified up the whazoo.  I've seen/done such opinions for known IP in a specific competitor's portfolio, in a specific technology, limited to the results of a search, etc.  I've never seen or heard of or believe in the existence of a "freedom to practice" opinion that covers all US patents across all technologies and any future patents that might issue subsequently.  A truly comprehensive evaluation that obviates any future analysis is simply impracticable and not done as far as I know.
 
On the other hand, I suppose that, if a client first offered the product/service for sale prior to June 5, 1994, then you'd have a pretty good idea that there wouldn't be any surprises forthcoming.  The very long pendencies currently being seen and the automatic term extension bringing us more or less back in line with 17-year terms from the date of issue, you might still face a submarine patent, despite my proclamation elsewhere that such patents were long extinct.
 
The universe of potential patent pitfalls is just too vast for any truly comprehensive assessment.  However, that doesn't mean that more limited assessment isn't useful -- and many do want such limited assessment.
 
Regards.
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James D. Ivey
Law Offices of James D. Ivey
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