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patent infringment?

Discussion in 'Electronic Design' started by Jeffery Tomas, Mar 1, 2012.

  1. I have a device that, by itself, does not infringe a patent, but does when
    the user uses it, it is still patent infringement?

    That is, by itself, it doesn't violate all the claims when made and in fact
    doesn't even have to be like the device in the patent, but can be(and is
    intended) to be used like the device in the patent.

    Here is very simple example

    Patent Claims

    1. A device that is square
    2. Said device in claim 1 has a round dot on it.

    My device is square but no round dot on it. I intend the user to put the
    round dot on it for similar reasons in the patent so the device will be used
    the right way but they don't have to and it will still function. My device
    is not exactly like the patent device but very close.

    The problem is, that the patented device uses some very general language and
    some things that are simply almost necessary. For example. Claim: The square
    is made out of wood. Well, there really is no other option. It can't be made
    out of metal, moth balls, cotton candy, etc... There are only 2 things that
    it can be made out of that will at all make it useful and the patent gets
    them both. It would be possible to make it out of the other things to get
    around the patent but then the device wouldn't be useful. Just take my word
    on it.

    Another example is claim 2. It is necessary for the dot because without the
    dot the device can't function in any useful way. (just take it for
    granted... this is just a silly example)

    It would be like patenting a bolt and the dots being analogous to the
    threads.. although at least that has a bit more alternatives. In my case
    there is no other way since either you put the dot on and the device works
    or you don't and it doesn't.

    I know the example is silly but if it take it only in the context I've given
    and don't try to add anything extra and think about the logic itself it
    shouldn't be too hard to answer.

    My guess is if I created my device and sold it I would get sued either
    way(since my device is better). Even though I created my device without any
    knowledge of the other and, while it is different it is also similar(but
    similar because there are very few ways to do it in the first place... and
    any engineer given the criteria would come up with a similar device). My
    device is better as it provides more utility but, again, had to follow
    certain fundamental engineering properties because it is the nature of the
    problem.

    In the patent one of the claims is the thickness of the square and they say
    "Approximately 0.0001 in to 1.5 in" but if the device was even anywhere
    greater than 0.2 in it would be useless(too thick for the user).

    The patent branches out a bit and covers many different variations of the
    device. It basically prevents any variations. Of course they did this to
    prevent competition. Unfortunately I've created a device, already have it
    done, that improves on the concept(again though, I didn't steal the idea
    because I didn't know about it until I started research the patents). Seems
    like my device may never see the light of day though. My only thought is
    that I could sale the device without the dot and let the user add the dot to
    it... even if that was possible it wouldn't be very viable as it is a bit
    difficult to add the dot(the average user would have to take it to a tech).

    In the original patent they talk about assemblies an patent all the parts of
    the assembly(although each part except what I have come up with is has been
    around for centuries). They created their device, to be built as one while I
    created mine to be easily inserted into the already existing assemblies.
    Mine was about economy while theirs is not.

    What gets me is that just about any engineer could come up with basically
    the same things if given just a few requirements and goals. The patent
    though prevents all these ideas by basically patenting how the device is to
    be used in another device(that isn't patented but is required to make the
    new device useful).

    Another simple silly analogy is patenting a battery by patenting the devices
    that will use it and using general enough language to get all the devices
    that will use it. If you could do that you could prevent any other similar
    batteries, from being used. In my case the main device(the thing actually
    created) consists of just a simple circuit board with a few common ic's with
    very basic function(like just simple sensors and a ic to read them).
     
  2. Ecnerwal

    Ecnerwal Guest

    Standard patent crap (as currently practiced). It all comes down to how
    deep are your pockets .vs. how deep are theirs - ie, you can take it to
    court and get the bogus claims invalidated, and see if there really is a
    patentable concept left at the end - but it will cost you, and generally
    the deeper pockets win. I, for one, am deeply disappointed with the
    state of the patent system in the US at this point in time. As far as i
    can tell, right now the best thing you can do with a patentable idea is
    to publish it as soon as possible to prevent it being (validly) patented
    by anyone else, unless you have a few million $ you want to fund a set
    of patent lawyers with.

    Unless, of course, it's suitable for being treated as a proprietary
    secret, and staying that way when someone else can buy your device and
    try to reverse engineer it. Not the case here from what you've said.

    Or, just have a Chinese factory pump out a few million of the things.
    They don't seem to be affected by the concept of intellectual property -
    of course, that applies to yours as well as theirs.
     
  3. wrote in message
    I'm sorry but that proves you don't know how a patent works.
     
  4. "Phil Hobbs" wrote in message news:...
    Of all claims!!! It only takes one claim not to hold to not infringe.

    My main issues have to do with the language. It is very general in some
    cases and very specific in others. My device, depending on how you define
    things, can clearly be made to not have some claims met... and hence should
    be patentable.

    For example, at least from my limited and very recent knowledge on patents,

    suppose a device has a claim "Is made out of wood" and no other claims
    pertaining to the composition(Such as metal, plastic, etc....) and you make
    your device out of metal... then your device is different and does not
    infringe.

    This is why the patents tend to make many claims like "Is made out of X"
    where we have a claim for each material it can be made out of. This way, it
    prevents anyone from using possible materials to get around the patent.

    But in some claims they use dimensions "Thickness is approximately between X
    and Y". It would seem to me that if your device is outside this then you do
    not meet the claim and hence are not infringing... except it uses the term
    approximately... which leaves it open and hence they could easily sue you
    and probably win if that is the only difference.

    All I know is my idea provably better simply because it has more things than
    the other device... but otherwise is very similar simply because of the
    constraints put on such devices. My device, at least how I did it, is
    different in some regards and I need to find out if those differences are
    enough or not. The biggest problem is that the patent under discussion
    includes the "assembly" and many of the claims are about the assembly...
    even though the assembly by itself has existed for centuries. All it takes
    is a minor modification of the assembly to use the device... but the claims
    in the patent are almost exclusively about the assembly.

    For example. The assembly is made out of wood.. One of there claims is "The
    assembly is made out of wood or plastic". Another claim is "The assemble
    will have holes in it". This may or may not be true of the common assembly
    but you have to add holes to it if you want to use the device(mounting holes
    or whatever).

    There is only 2 claims out of about 50 that have anything to do with the
    actual device I created and which is rather unique. All the others describe
    how the pre-existing assembly is and/or interfaces with the device... but
    only 2 or 3 of these actually have anything specific with the device.

    It seems as if they basically patented the assembly instead of the device
    which then prevents any such device from being used since it has to use the
    assembly... but they did it in a very subtle way since the assembly cannot
    be patented.
     
  5. Nico Coesel

    Nico Coesel Guest

    Again asking questions you already know the answer for?
     
  6. Again asking questions you already know the answer for?

    Sounds like you are getting confused... I didn't ask what a patent was or
    how it worked but about specific details. Essentially how far reaching a
    claim.

    Anyways, I can see you not interested in logic nor facts...
     
  7. I'm sorry Phil but you don't seem to know much about patents either. Just
    about every resource I have read has mentioned that you have to infringe on
    ALL the claims. See my other post for single reference. THINK ABOUT IT!!!
    If you were right then a single patent could cover everything. The claims
    are all logically AND'ed together to form the complete patent.

    Else I could add a single claim to some valid set of claims "... the device
    exists" and by your logic it would then patent all devices that exist...
    whether or not they actually infringed on the other claims or not.

    Have you even read any patent claims before? If you were right then you
    would see just how absurd it would be. "Claim X: The device is made of
    wood". By your logic all devices then made out of wood, regardless of what
    they are would infringe on such a patent.
     
  8. It is my understanding that the patent system is not about proving patents.
    They simply create a "legal" date of an invention that can be used to
    "prove" when it was invented.

    The people reading and granting patents don't know everything and most don't
    know much except patent law. So how are they suppose to know that some gizmo
    isn't a complete piece of junk or completely obvious?

    They simply make sure the patent can be used legally. Then, if someone wants
    to challenge the patent in a court of law later on, they can...
    unfortunately like everything else lawyers get there hands on, it costs a
    lot of money. I've read it costs around 500k and up to challenge a patent.

    One way is to do away with such a system... Let competition determine who is
    the best. Unfortunately this favors big business. Another way would be to do
    a better job at defining the patent specification... from what little
    research I've done it seems as long as you write something up in a certain
    formal way you will get your patent. It doesn't matter if the language is
    somewhat vague or it's claims are complete lunacy... as long as they follow
    a certain patent logic the it will pass.
     
  9. Nico Coesel

    Nico Coesel Guest

    Nope. Hint: quaternions
    Pay for a patent lawyer and hope you didn't waste your money.
     
  10. Don Y

    Don Y Guest

    Hi Jeffery,

    First of all, DEPENDANT claims can largely be ignored. They exist
    mainly as a stopgap in case some element of the INDEPENDANT claim
    ON WHICH THEY DEPEND is later ruled invalid/prior art/etc.

    When trying to avoid infringement, you focus on the *independant*
    claims.
    The key words here are "of a claim". A patent can make MANY claims
    of which *many* will be dependant (i.e., ignored for this discussion).
    Yes. The role of the patent examiner is to get the applicant to
    refine his claims as tightly as possible. The role of your patent
    lawyer is to get those claims to be as GENERAL as possible!

    The examiner wants to add lots of qualifications to your claims.
    The attorney wants to *eliminate* them.

    E.g., "A shovel is a device for removing dirt" is how the examiner
    would like to see it worded.

    "A shovel is a device for moving material" is how your attorney
    wants it worded!

    The examiner's wording would allow someone else to patent a
    "snow shovel" without infringing.

    The attorney's wording would consider a *bulldozer* to be an
    infringement!
    In general, patents only make sense if you have the pockets to
    defend them. I believe the terms are way too lengthy. Nowadays,
    patents should fade away much quicker as all they do is present
    hurdles that you *will* find a way around (perhaps that's fostering
    the goal of innovation?) Patents are a throwback to a day when
    people based their *careers* on single ideas AND where it was
    easier to deal with infringement.

    Imagine if someone could turn out 1,000,000 cotton gins from their
    "garage" and distribute them, overnight; accept payment almost
    anonymously and "disappear" into the countryside before the
    authorities could mount their horses...

    How would *you* deal with YOUR "cotton gin" invention in that
    scenario?
     
  11. Guest

    If it's more than one "invention" the patent examiner will simply split it
    into multiples. BTDT, got paid for all. ;-)
    The problem is that the courts assume the USPTO are experts. You have to
    prove otherwise.
    When in doubt, bluff.
     
  12. Guest

    Sorry, but you're wrong on all counts. Phil is exactly correct. He's been
    around this block a few times.
    If you can get the claim accepted, go for it.
    Don't be an ass.
     
  13. Why are you ignoring the advice of everyone? You are wrong. Clearly so,
    since many or even most claims are mutually exclusive. Look at a few
    patents, see if it is even *possible* for all claims to be true
    simultaneously!

    A single claim can include several clauses which all have to be true for
    an infringement to occur. But each numbered *claim* stands alone.

    (I am not an expert, but the people you are arguing with know a lot more
    about it than you do!)

    [...]
     
  14. Don Y

    Don Y Guest

    Hi Jeffery,

    I'm revisiting this subject -- avoiding the minutia of of the previous
    legalese arguments -- to focus on a different, though highly related,
    aspect. (and hoping not to get diverted to still more legalese)

    Claim 1 is too silly to be even a simple example.

    But, an example with a similar appeal might be worth pursuing.
    (I am not even bothering to look into the exact nature of
    the countless? patents that are probably in place but, rather,
    speculating on a hypothetical case with real world items).

    ASSUME <somebody> -- let's say Apple, just for the sake of
    argument -- had patented a "Personal Media Player" (e.g., iPod).
    [I am guessing such a patent, if it ever existed, is no longer
    in play as PMP's have become ubiquitous and offered in a
    variety of manufacturer's, etc.]

    Several cases present themselves:

    1) Someone writes some code for a PC (i.e., a general purpose
    device) that effectively provides the same functionality
    covered by the PMP patent(s)

    2) Someone packages that code WITH a "stylized" PC effectively
    turning it *into* a PMP.

    3) Someone develops and sells a "device" (that sure looks a lot
    like that PMP! -- perhaps, literally, an "iPod clone"!) sans
    firmware with the full knowledge that firmware images to convert
    this device into a functional PMP (NOT copyrighted images by
    the original patent holder) exists AT ARM'S LENGTH -- maybe even
    providing a pointer to those resources or a "service provider"
    that could install them for the customer.

    4) Same as #3 but the device seller writes and maintains
    those images (but doesn't sell them "bundled" with the "device")

    Opinions on how each of these would be handled, legally?

    [Note this is a spin on the OP's comment that "the user ADDS
    the dot to the device"]
     
  15. [This followup was posted to sci.electronics.design and a copy was sent
    to the cited author.]


    Welcome to the patent world!!
     
  16. Guest

    It's, perhaps, a flaw in the legal system, itself. The same holds for any
    civil case and even criminal, for that matter. Your solution?
     
  17. You're patents are mostly owned by employers, right? So many people say
    that individuals shouldn't bother with them. I suppose it just depends on
    how good the idea is.
     
  18. Don Y

    Don Y Guest

    Hi Phil,

    OK, but see your reply to #3. Why does the cell phone "probably NOT"
    infringe but the PC "may or may not"?

    [Hold your comments 'til later...]
    Again, it's still a *PC* -- though possibly looking a lot more
    LIKE a PMP. I.e., it still has no *set* functionality that
    would allow you to claim it's a "firmwareless PMP". E.g.,
    a PMP doesn't have (hardware) support for a keyboard, printer, etc.
    IMO (IANAL), it is this "separate utility" that gets the PC,
    stylized PC, etc. "off the hook" -- that was the case I was
    trying to identify in #1 and #2.

    #3 I considered to be "probing the limits" of that distinction.
    I.e., it starts to look less "general purpose" at this point.
    This was intended to push #3 even further. "The defendant not only
    makes a product that is a veritable clone of ours -- without the
    firmware -- but also offers the firmware to those very same
    customers!"

    [Like selling unloaded guns and ammunition -- yet claiming you
    don't sell LOADED guns... (lets not get into a "gun" discussion,
    here)]

    Consider how incredibly *practical* it is, nowadays, to distribute
    firmware:

    Buy device.
    Download http://StuffIsUs.TV/product/device.firmware
    Plug device in to PC.
    Copy device.firmware to X:
    Unplug device.

    How does this interfere with the *spirit* of the law?
     
  19. Don Y

    Don Y Guest

    Lower the effective *value* of patents. Have shorter terms
    so the technology moves into the public sector faster.

    When you (artifically) change the value of something, you
    distort the extent to which people will work to preserve,
    work-around or *cheat*. It also gives "holders" no real
    incentive to push NEW products/ideas into the mainstream
    (market) unless they know they are about to lose some
    exclusivity from expiring protections.

    I've worked at (and with) firms that very deliberately went
    through a cost-benefit analysis of releasing a new product
    that would compete with an existing product (of their own)
    and intentionally sat on the new product until they see
    sales drop -- or, a competitor entering the field (which,
    sometimes, can be too late).

    In fast moving fields, there's really no excuse to rely on
    these sorts of protections for "generations" (when you define
    a "generation" based on how quickly that *field* evolves).
     
  20. Guest

    So there is no incentive to research anything but short-term projects. No
    incentive at all to expand technology, just tweak what you have.
    Except that 20 years is a blink of an eye to a corporation. That's 20 years
    from filing, not from commercial use.
    They're fools. Their competition will eat their lunch if they don't do it
    themselves.
    So you think there should be a variable exclusivity period? Who decides what
    the period should be? You? Obama?
     
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