Re: Re: Can we be sued for infringement?

Subject: Re: Re: Re: Can we be sued for infringement?

Comments:
: : 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 The "First Inventor Defense Act of 1999" : : 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 : Dear Mr. Musker, : You really hit it well. There are two factors that I didn't see, the question of validity and claim breadth. : Even on the short side negotiation tactics might save the day. : M. Arthur Auslander : Auslander & Thomas-Intellectual Property Law Since 1909 : 505 Eighth Avenue, New York, NY 10018 : 212-594-6900, fax 212-244-0028, aus@auslander.com : ELAINE's Workshop (sm) : E arly L egal A dvice I s N ot E xpensive

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