Re: Re: Re: Re: Re: Protecting patent

Subject: Re: Re: Re: Re: Re: Re: Protecting patent

Comments:
: Mr. Auslander, : I believe that we have the same opinion on this matter. Non-infringement and invalidity opinions from patent counsel are just what you've described--a study of a patent and the relevant prior art. : Your electric motor invention is a good example of the type of prior art that you would look for to "knock out" a competitor's patent. Your opinion to the client would be that the patent in question is likely to be held "invalid" by a U.S. court in view of an 1864 patent. Of course, no legal opinion from any lawyer is ever completely certain. Indeed, there are very few things that are completely certain in life. However, such legal opinions allow one to make the best possible business decisions when going to market with a product. : X. : HG, : : : A patent can be as broad as the prior art (e.g., other patents and references)will allow. It would be a good idea to get a "non-infringement" and/or "invalidity" opinion from a patent lawyer that would compare your product to the patented product. : : : In particular, an invalidity opinion could determine whether the patent in question is unreasonably broad (e.g., encompasses prior art structures). This is accomplished by trying to find prior art that pre-dates the patent in question. : : : X. : : : : : : : : : : : : Hi, hoping for some info regarding : : : protection of patent rights. I recall that it would be required that you actively protect your rights to a patented or risk losing the rights to the exclusive use? There is a manufacturer that owns a patent that was granted in '99 and broadened the patent this year. His revision will cover most currently distributed devices from many of his competitors and it is being said that he will sue them to halt production. Now my question is that because his old patent already covered most of his competitors devices and the patent holder did nothing to prevent them, could that mean he gave up his rights? Or could his revision give him new rights to now prevent his competitors from manufacturing the devices? I hope I made my question clear. Thanks : : : : : HG, : : : : : As far as I know, if a patentee (person receiving a patent grant) chooses not to exercise the right of "excluding others" from making, using, selling or importing the patented article or process into the U.S., it would NOT constitute an abandonment of the option of exercising that right on a later date. : : : : : Having said all of the above, however, there are two equitable defenses to patent infringement available for defendants in cases where the patentee does not (or waits too long) enforce his patent rights. The following is just a general explanation of the defenses. You should consult with your patent attorney for more detailed information that is specific to your situation. : : : : : The laches defense basically provides that if a patentee knew that others were infringing the patent and waited too long to sue for patent infringement, the patentee runs the risk of having damages barred up until the day the patent infringement suit was filed (i.e., patentee looses pre-filing damages). There is a presumption that a 6-year wait is too long. : : : : : The second defense is Equitable estoppel, which requires the patentee to know of a specific infringer that is infringing the patent and then act in a manner that reassures the infringer that the patentee is not going to sue for patent infringement, AND the infringer relies upon the patentee's actions to the infringer's detriment (the infringer would be materially harmed if the patentee is later permitted to assert a claim inconsistent with the patentee's earlier conduct). The patentee's damages are barred forever as to that specific defendant. : : : : : I hope this helps, X. : : : : @@@@@@@@@@@@@@@@@@@@2 : : : : Thanks for all the info... : : : : That is unfortunate. The patent in question is a very broad patent and will stifle development of improved devices. The patent holder had an approved patent dated a few years back but had updated it recently with an even broader coverage. We are afraid that their intentions are to control the market with a royalty charge to all his competitors. The patent is so broad I find it hard to comprehend how it could have been approved. It would be somewhat like Ford patenting cars with 4 wheels, doors that open outwards and run on gasoline. The patent holder says that he is actually only after a single competitor that they feel is copying their design but we are concerned that if they succeed they will use that ruling as a precedence for future cases against the rest of the industry. This could hamper future development and advancement. Could a patent cover such broad elements as say for example, a flashlight; a bulb, batteries and a switch. Or would it normally be a specific design of a flashlight? Thanks for your time... : : : : Dear X, : : The words' "broad patent" are meaningless without a study of the patent and knowledge of the pior art. : : There wouldn't be lawyers if the law was, "certain" or "broad". The situation has to be considered in detail. The electric light bulb does not come along new very often. : : I had a disclosure on an electric motor. I was shocked when the patent search show a patent from 1864 which anticipated it. : : The theory of the patent is to encourage inventors to disclose their invention, they get a limited monopoly for the life of the patent then the world can benefit. : : Some patents can be improved so that it may seem as if the patent term is longer that it actually is. : : M. Arthur Auslander : : Auslander & Thomas-Intellectual Property Law Since 1909 : : 3008 Johnson Ave., New York, NY 10463 : : 7185430266, aus@auslander.com : : ELAINE's Workshop® : : E arly L egal A dvice I s N ot E xpensive™ : : Reality Check®

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