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Re: Can we be sued for infringement?
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Posted by David C Musker on July 27, 2000 at 06:39:11:
In Reply to: Can we be sued for infringement? posted by Sam Smith on July 25, 2000 at 17:45:29:
Dear Mr Smith, Which country are you in? The answer depends a lot on this. Some general advice - don't say any more about the case on this list or any
other public forum - see a lawyer first. In Europe (and almost everywhere else in the world), you can carry on doing
anything you did before the first date of filing (which we call the
"priority date"). And if you made public sales before then, that will
knock out the patent as well. Life is more complex in the US, because of the so-called "first to invent"
principle (which actually doesn't help the first person to invent very
much, unless he/she filed a patent application, which you didn't). There,
the issue may be whether you sold product or disclosed before the
patentee's "date of invention" - which could be up to one year before he
filed for the patent. There was a recent law change which went some way to getting the same thing
in the US (the American Inventors Protection Act of 1999, I think) - here
is a summary from the USPTO Website of the relevant bit (but note that it
only applies to business patents - it may not cover your product): <Subtitle C provides a defense against charges of patent infringement for a
party who had, in good faith, actually reduced the subject matter to
practice at least one year before the effective filing date of the patent,
and commercially used the subject matter before the effective filing date.
The defense is limited to methods of "doing or conducting business."Establishment of the defense does not invalidate the subject patent. The subtitle is effective upon enactment but does not apply to any pending
infringement action or to any subject matter for which an adjudication of
infringement, including a consent judgment, has been made before the date
of enactment.>>
You say that
1 - you were on the market in March 1999 and
2 - the patent was issued in March 2000, and
3 - you were on the market before the patent was applied for If I read this right, it implies that: 4 - the patent was applied for after March 1999 - i.e. it took less than a
year to issue. Now this is possible, but pretty rare - are you sure that
you are actually looking at the application date and not the issue date? And even if you are, it seems pretty likely that they'll have a date of
invention before their filing date (people often, invent before filing!) So, as I say, don't answer this with any further information - talk to a
lawyer (and make sure it is a lawyer who knows what they are talking
about).
David C Musker
European Patent Attorney
R G C Jenkins & Co
www.jenkins-ip.com
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