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Question for someone who knows patent law: If the foam arrow already existed, how is it not prior art? And if the patent is invalid how are they not using the

by irixusr 11y ago

Question for someone who knows patent law: If the foam arrow already existed, how is it not prior art? And if the patent is invalid how are they not using the courts to bully a competitor out of business?

mcherm 11y ago
I am not a lawyer, so please take this for no more than what it is: an amateur commenting on his opinion of the law, not legal advice which it would be illegal for me to give you. If, indeed, foam arrows existed (and were publicly known, not some sort of trade secret) before the date that the patent was issued then that would make the patent invalid. There is a point in the legal process where the defendant is allowed to argue that the patent was invalid. Unfortunately, in many cases that point comes AFTER the defendant has already run out of money and been forced to concede the case. Using the courts to bully a competitor out of business is perfectly legal. For instance, if the competitor is illegally selling a product that uses your validly patented invention, then putting them out of business (and/or requiring them to obtain a license for the patent) is exactly what the law requires. Your application of the word "bully" simply means "to demand something which I think is unfair". Now, if the patent is NOT valid, then the whole argument falls apart, but as I mentioned, that comes up at a later point in the legal process.
- chris_wot 11y ago
  In this case they have raised the ire of the EFF. The playing field just got levelled.
ergothus 11y ago
I'm no lawyer, but... Prior art COULD invalidate the patent. (remember that patents tend to have broad descriptions ("foam arrow!") and narrow specifics ("with a head in this shape, attached in this manner") But invalidation that doesn't magically happen the moment prior art is found. Someone (Judge/USPTO) would have to rule that this IS prior art AND sufficient to invalidate the patent) So even if the judge in this case decides this is prior art and kills the patent, this isn't "using the courts to bully a competitor out of business", but instead using the courts as legally correct. (sadly) In recent history, we've seen a lot of cases where the courts trust and rely on the USPTO to rule correctly on patents, and the USPTO trusts and relies on the courts to test patents, so we end up with a lot of patents, a lot of cases, and a lot of lawyers getting paid.
josaka 11y ago
If the arrows were used or sold publicly earlier, they are (almost certainly) prior art. This doesn't necessarily mean the patent is invalid, though. Folks generalize excessively when discussing what a patent covers. You'd have to compare the patent's claims to the prior art arrows to decide if exactly what is claimed was done before.
vlehto 11y ago
I'd claim that you don't even need prior art for this stuff to not be enforceable patent. If specialist on the field thinks about shooting an arrow to human being and not injuring him/her, that technical solution they have is pretty obvious. That alone would be grounds to deny the patent at patent office. Unfortunately you can sue with unenforceable patent. It's just that you lose if the other guy has enough money. But in many cases the other guy doesn't have the money.

by irixusr 11y ago

mcherm 11y ago

I am not a lawyer, so please take this for no more than what it is: an amateur commenting on his opinion of the law, not legal advice which it would be illegal for me to give you. If, indeed, foam arrows existed (and were publicly known, not some sort of trade secret) before the date that the patent was issued then that would make the patent invalid. There is a point in the legal process where the defendant is allowed to argue that the patent was invalid. Unfortunately, in many cases that point comes AFTER the defendant has already run out of money and been forced to concede the case. Using the courts to bully a competitor out of business is perfectly legal. For instance, if the competitor is illegally selling a product that uses your validly patented invention, then putting them out of business (and/or requiring them to obtain a license for the patent) is exactly what the law requires. Your application of the word "bully" simply means "to demand something which I think is unfair". Now, if the patent is NOT valid, then the whole argument falls apart, but as I mentioned, that comes up at a later point in the legal process.

chris_wot 11y ago
In this case they have raised the ire of the EFF. The playing field just got levelled.

ergothus 11y ago

I'm no lawyer, but... Prior art COULD invalidate the patent. (remember that patents tend to have broad descriptions ("foam arrow!") and narrow specifics ("with a head in this shape, attached in this manner") But invalidation that doesn't magically happen the moment prior art is found. Someone (Judge/USPTO) would have to rule that this IS prior art AND sufficient to invalidate the patent) So even if the judge in this case decides this is prior art and kills the patent, this isn't "using the courts to bully a competitor out of business", but instead using the courts as legally correct. (sadly) In recent history, we've seen a lot of cases where the courts trust and rely on the USPTO to rule correctly on patents, and the USPTO trusts and relies on the courts to test patents, so we end up with a lot of patents, a lot of cases, and a lot of lawyers getting paid.

josaka 11y ago

If the arrows were used or sold publicly earlier, they are (almost certainly) prior art. This doesn't necessarily mean the patent is invalid, though. Folks generalize excessively when discussing what a patent covers. You'd have to compare the patent's claims to the prior art arrows to decide if exactly what is claimed was done before.

vlehto 11y ago

I'd claim that you don't even need prior art for this stuff to not be enforceable patent. If specialist on the field thinks about shooting an arrow to human being and not injuring him/her, that technical solution they have is pretty obvious. That alone would be grounds to deny the patent at patent office. Unfortunately you can sue with unenforceable patent. It's just that you lose if the other guy has enough money. But in many cases the other guy doesn't have the money.