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Old 31st January 2011, 01:21 PM   #41
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Studies have shown that financial reward does not motivate, and is actually a DIS-incentive for this kind of "think up something new and great" challenge.
Financial reward does not motivate? So every single person here absolutely loves their job and there is nothing else they would ever want to do besides the job they have right now? Nobody on here took the job they have because of the pay? Surely nobody who considers themselves to be musicians have any other jobs because financial motivation would be the only possible reason to not continue playing music for free right?


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I fought a patent suit that had no merit for a year. I had the stone proof of prior art, and I had the inventor of the prior art on retainer to testify. Still, the proceedings crept along, draining money. It cost the company where I was CTO over a million bucks, and was instrumental in us finally going belly-up. We had a great product, and the crew was honestly like a family. A good family. So I am not without prejudice.
You never had a hope of winning because you did not have a case. I don't know a lot about patents but one thing I do know is that you can't patent an idea or a drawing or plans for building anything. You have to build it first. It doesn't matter if you drew it first. Whoever builds it first has the legitimate claim to the patent. Otherwise Leonardo Davinci would own the patent for nearly everything. But he has no legitimate claim to them because he didn't build them.

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There are companies that exist for no other reason than to collect these sorts of patents on the cheap and then sue unsuspecting users of the technology often into bankruptcy. It's how they make their money without bringing any real value to the market. (These companies generally don't seem to be into licensing their patents either..)
Actually the reason you must build something before you can patent it is to prevent that from happening. The following is from the US patent website :

Quote:
Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.
A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine.
Now I am not a lawyer but I believe that means you have to build it before you can patent it.

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I have to disagree with that. An absolutely ideal situation is for a little guy to get a patent, then have it infringed by a megacompany who makes billions from it. He'll have lawyers tripping over themselves to take that case on contingency.
That is exactly the way I understand it. The only right a patent gives anybody is the right to prevent other people from marketing the product which really means if they do they will have to pay you bigtime IF you take them to court and win. If you own the patent and they market it then it is an open and shut case. You don't need the best lawyer to win. But that is the only right a patent gives you. If you patent something and don't market it they will revoke the patent before it otherwise would expire. Exact same thing with a trademark.

As I understand it the only possible way to challenge a patent (not win but just challenge) that somebody else already has is to prove that you had been marketing the same product for some time before they applied for their patent. Whether or not you would win I have no idea but I suspect probably not.
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Last edited by Peckerwood; 31st January 2011 at 01:24 PM.
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Old 31st January 2011, 01:46 PM   #42
DF96 is offline DF96  England
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I can't claim to be an expert on US law, but I suspect that patent law requires that a device be in principle buildable but not necessarily actually built. Building it is 'proof by construction' that it is buildable, in case someone challenges you on the grounds that it is not buildable. Building it can never be proof that you were the first to build it, because you are seeking to prove a negative (that nobody built it earlier) and negatives are notoriously hard to prove.

My understanding is that in principle something is unpatentable if someone has already thought of it and either claimed it via patent or put into the public domain. You don't necessarily have to make money from it. However, the patent office searches might not be particularly diligent as they seem to leave this to people challenging patents. It may be (I'm not sure) that European patent offices are better in this respect than American ones. Trivial or blindingly obvious patents tend not to be granted in Europe. Maybe this is 'state control' vs. the 'free market'?
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Old 31st January 2011, 02:24 PM   #43
SY is offline SY  United States
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Originally Posted by DF96 View Post
I can't claim to be an expert on US law, but I suspect that patent law requires that a device be in principle buildable but not necessarily actually built.
You are correct. Reduction to practice law changed some years ago.

The biggest difference between the US and European system (besides the European system's hideous expense and complication to discourage individual inventors) is that in Europe third parties can bring up prior art during the examination process. Not so here- one has to wait until after the patent is issued (whereupon it is legally presumed valid) and literally make a federal case out of it, an unbelievably expensive and lengthy process.
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Old 31st January 2011, 02:44 PM   #44
DF96 is offline DF96  England
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Yes, it seems in Europe our masters prefer both big government and big commerce. At times they actively discourage small firms from competing for business (e.g. see the IR35 tax rules in the UK, which allow tax to be charged on the income the tax man 'deems' an independent consultant to have received, on the false assumption that most of his fees from clients go straight into his pocket - large firms are exempt).

However, it must be embarrassing to watch the US patent office issuing silly patents and know you can do nothing about it. They ought to have a process whereby something which is obviously trivial or already well known to anyone working in the field (e.g. in a standard textbook?) cannot be patented. I suppose in theory this is already the case, but there is no mechanism for augmenting the subject knowledge of the patent examiner.
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Old 31st January 2011, 03:04 PM   #45
jcx is online now jcx  United States
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google is your friend:

IP Law Blog: Challenging Patents - Short of Litigation

shows several ways to challenge US patents/applications

maybe not as effective as you could wish for
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Old 31st January 2011, 03:33 PM   #46
SY is offline SY  United States
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IP Law Blog: Challenging Patents - Short of Litigation

shows several ways to challenge US patents/applications
Only practical if YOU are already a patent holder or applicant where there is an interference. Otherwise, it's down to re-examination, which, as I mentioned, is expensive, complex, and very restrictive.
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Old 31st January 2011, 03:34 PM   #47
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an unbelievably expensive and lengthy process.
Yes, I'm sorry if my "Texas jury" comment made no sense to non-US folks. It is common practice to file lawsuits in Texas due to a cultural bias toward the "little" guy. Last weeks news...

"A federal jury in Texas on Jan. 28 ordered Johnson & Johnson and a subsidiary to pay $482 million in damages to an inventor who claimed the health care giant infringed on his patent for a cardiac stent."
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Old 31st January 2011, 04:04 PM   #48
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Default Patent Enforcement - What to do and what not to do

Some good info here IndustryWeek : Patent Enforcement

Eric.
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Old 31st January 2011, 04:08 PM   #49
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Man I so want to contribute my opinion to this but I currently can't due to some ongoing stuff.

Last edited by PedroDaGr8; 31st January 2011 at 04:13 PM.
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Old 31st January 2011, 05:27 PM   #50
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Scott any jury is liable to do anything in any state. You never know what a jury will do. You never know what some but not most judges will do either but what they do will likely be somewhat in accordance with the law where juries seem far too often to make their decision based on whether or not they like you. Also to be in federal court that had to have already been decided and then appealed buy a Texas state court. Also it could get appealed again and then if accepted go before the US Supreme court which would not surprise me one bit. That is if you are sure it was a federal court.

One thing I firmly believe is that Texas is by far the worst state in the US when it comes to getting a new trial or an appeal (if you are a defendant). Proof that you were innocent almost never gets anybody a new trial. Also this is the only state in the US where criminal cases cannot be taken to the state supreme court. There are people in prison right now (not 30 years ago) who were proven innocent by DNA PLUS the guilty person confessed and is in prison who still can't get a new trial or an appeal or even if they do it will be 5 or 10 or 20 years before it comes to trial. It is nearly always a federal court who orders a new trial for anybody convicted by Texas and Texas fights them all the way every time. Once a case is settled they don't want to hear about it again.

I bet prosecuters in every state privately say stuff like "Anybody can convict a guilty person but a good prosecuter can convict an innocent person". In Texas there are actually some who say that in public and I am not joking.

I should have mentioned the quote I posted is from the US Patent website which is only the most important one but by no means worldwide authority. The decision made in court on a US patent will affect its litigants more than any other countries unless it happens to be over a product that sells more outside the US than inside the US.

A question. Is there a "European Patent" that is binding anywhere in Europe or are their a bunch of them from different countries?

A point nobody has made that would concern me is that if I had a truly great and original product would the patent office deny me the patent and then patent it themselves? Would they say they never received it and patent it themselves? I do have faith that if it were a stupid and unprofitable idea they would probably give me the patent with no trouble. But if it were a great idea I just would not trust them because I don't have enough faith in humanity. I tend to think if they can get away with doing something they likely will do it and I am not anywhere near a total pessimist. I have just found from experience that if I always think that anybody will likely do whatever they think they can get away with I will end up being right more often than not and so I am all about playing the best odds possible or what I believe are the best odds possible.
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Last edited by Peckerwood; 31st January 2011 at 05:39 PM.
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