|
|
Author |
Topic: Infringement (Read 3656 times) |
|
JSonnabend
Moderator
Senior Member
Posts: 2251
|
 |
Re: Infringement
« Reply #5 on: Nov 5th, 2007, 10:56am » |
 Quote  Modify
|
on Nov 2nd, 2007, 1:15pm, DJoshEsq wrote:
Actually, if true, that "does" do it. See 35 U.S.C. 102
|
|
Well, section 102 is awfully big, care to point to a specific sub section? For that matter, tell me what I'm missing here. If the application claims priority to an application with a priority date before the OP's use, how would his use still invalidate the patent?
- Jeff
|
|
 IP Logged |
SonnabendLaw
Intellectual Property and Technology Law
Brooklyn, USA
718-832-8810
JSonnabend@SonnabendLaw.com
|
|
|
DJoshEsq
Full Member
Posts: 104
|
|
Re: Infringement
« Reply #6 on: Nov 12th, 2007, 1:21pm » |
Quote Modify
|
"I can only prove that I manufactured and sold the item TWO YEARS before their patent APPLICATION date."
35 U.S.C. section(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.
|
|
IP Logged |
D. Joshua Smith, Esq.
Registered Patent Attorney
McDonald Hopkins, LLC
Cleveland, OH
216-348-5400
|
|
|
Isaac
Senior Member
Posts: 3472
|
|
Re: Infringement
« Reply #7 on: Nov 12th, 2007, 3:53pm » |
Quote Modify
|
on Nov 12th, 2007, 1:21pm, DJoshEsq wrote:| 35 U.S.C. section(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States. |
|
Does the "date of application" as recited in 102(b) include the effective filing date? Or instead do you use 120 to establish an application has the same effect as if filed on the effective filing date. That's the semantic point being argued here.
Since we don't know what the OP means by "patent APPLICATION date" I don't think a mention of the effect of priority claims under 35 USC 120 would be out of order.
|
| « Last Edit: Nov 12th, 2007, 3:54pm by Isaac » |
IP Logged |
Isaac
|
|
|
JSonnabend
Moderator
Senior Member
Posts: 2251
|
|
Re: Infringement
« Reply #8 on: Nov 13th, 2007, 8:18am » |
Quote Modify
|
on Nov 12th, 2007, 3:53pm, Isaac wrote:
Does the "date of application" as recited in 102(b) include the effective filing date? Or instead do you use 120 to establish an application has the same effect as if filed on the effective filing date. That's the semantic point being argued here.
Since we don't know what the OP means by "patent APPLICATION date" I don't think a mention of the effect of priority claims under 35 USC 120 would be out of order.
|
|
It's the priority date that's important, as we all know, not the application date. While Isaac is correct that we may be arguing semantics, Josh's response is problematic for two reasons.
First, at least in my experience, practitioners are careful to distinguish between application date and priority date. The OP might have been speaking loosely, of course, but we don't know that (hence my cautious response).
Second, Josh's response pushed my buttons because it was definitive. That's imprudent, particularly when we don't have all the facts (e.g., what did the OP mean by "application date"? Did the OP, a layperson, even know to look for a priority date?). If the OP had walked into Josh's office and he had given the same advice based on the same information, he'd be flirting with malpractice.
It seems that Josh has only been practicing for about two years. I don' t imagine he's counseled many clients directly without a partner looking over his shoulder. He'll learn to more properly advise clients, I'm sure, but I want to make sure he doesn't learn how to do that here at some poor OP's expense.
- Jeff
|
| « Last Edit: Nov 13th, 2007, 8:20am by JSonnabend » |
IP Logged |
SonnabendLaw
Intellectual Property and Technology Law
Brooklyn, USA
718-832-8810
JSonnabend@SonnabendLaw.com
|
|
|
|
|
Forums
Help
Search
Members
Calendar
Login
Register
Reply
Send Topic
Print