3 ms·

"We've requested in open letters that any group believing we are infringing to inform us so that we make take immediate corrective action." This is nice, but d

by oweni 17y ago

"We've requested in open letters that any group believing we are infringing to inform us so that we make take immediate corrective action." This is nice, but does it really protect them? It seems that a patent holder has more incentive to take a wait-and-see approach.

ubernostrum 17y ago
It seems that a patent holder has more incentive to take a wait-and-see approach. This runs the risk of allowing a laches defense, which patent holders probably would like to avoid.
- lurch_mojoff 17y ago
  Are there actually any cases in which laches had been successfully invoked in a patent dispute? For what I understand, unlike trademarks, patents don't have a provision that you should protect them or enforce them. In fact that's why defensive patent portfolios work, isn't it?
  - ubernostrum 17y ago
    Laches doesn't invalidate a patent; it simply allows you to defend yourself in the particular case you raise it in. Laches is a form of estoppel, which is geared around the basic idea that if you do something I could sue you over, and you can show that: 1. I did something which gave you a reasonable belief that I wouldn't sue you, and 2. That was the only reason you went ahead and did it, then 3. I don't get to turn around and go after you, because it was really my actions which created the situation. In a laches defense, you show that the person suing you for patent infringement knew you were doing or were going to do something which infringed, and deliberately waited to come forward with their claims so as to do the most possible damage to you. You argue that, had you known about their claims earlier, you would have done something different, and so it was their inaction which led to the current situation. This doesn't stop the patent holder from going after other people, so long as they do it in a timely manner; the patent is still valid and can still be enforced. It also doesn't automatically stop future claims against you; it's expected, now that you're aware of their patent, that you'll work out some licensing deal to avoid future infringement. But it can throw out their current case against you, or at least throw out the massive back damages you'd owe from infringement over the period when the patent holder didn't bother doing anything.
    - guelo 17y ago
      "Laches doesn't invalidate a patent" I disagree. In Symbol Technologies Inc. v. Lemelson Medical, the courts declared Lemelson's submarine patents unenforceable under the doctrine of prosecution laches.
      - ubernostrum 17y ago
        The Lemelson case was a rather extreme example; normally, a laches defense only applies to a specific defendant or defendants in a specific case. With the Lemelson case, the court explicitly noted that it was doing something extraordinary, and went to some lengths to explain how that situation differed from a typical laches case.
  - guelo 17y ago
    IANAL, but a quick googling turned up a couple of cases. http://www.patentlyo.com/patent/2008/10/laches-and-equi.html http://www.patentlyo.com/patent/2008/10/laches-and-equi.html http://www.patentlyo.com/patent/2008/08/inventorship-di.html http://www.patentlyo.com/patent/2008/08/inventorship-di.html Apparently cases called Aukerman and Scimed established a precedent of 6 year for invoking a patent claim. "[A] delay of more than six years after the omitted inventor knew or should have known of the issuance of the patent will produce a rebuttable presumption of laches."

by oweni 17y ago

ubernostrum 17y ago

It seems that a patent holder has more incentive to take a wait-and-see approach. This runs the risk of allowing a laches defense, which patent holders probably would like to avoid.

lurch_mojoff 17y ago
Are there actually any cases in which laches had been successfully invoked in a patent dispute? For what I understand, unlike trademarks, patents don't have a provision that you should protect them or enforce them. In fact that's why defensive patent portfolios work, isn't it?
- ubernostrum 17y ago
  Laches doesn't invalidate a patent; it simply allows you to defend yourself in the particular case you raise it in. Laches is a form of estoppel, which is geared around the basic idea that if you do something I could sue you over, and you can show that: 1. I did something which gave you a reasonable belief that I wouldn't sue you, and 2. That was the only reason you went ahead and did it, then 3. I don't get to turn around and go after you, because it was really my actions which created the situation. In a laches defense, you show that the person suing you for patent infringement knew you were doing or were going to do something which infringed, and deliberately waited to come forward with their claims so as to do the most possible damage to you. You argue that, had you known about their claims earlier, you would have done something different, and so it was their inaction which led to the current situation. This doesn't stop the patent holder from going after other people, so long as they do it in a timely manner; the patent is still valid and can still be enforced. It also doesn't automatically stop future claims against you; it's expected, now that you're aware of their patent, that you'll work out some licensing deal to avoid future infringement. But it can throw out their current case against you, or at least throw out the massive back damages you'd owe from infringement over the period when the patent holder didn't bother doing anything.
  - guelo 17y ago
    "Laches doesn't invalidate a patent" I disagree. In Symbol Technologies Inc. v. Lemelson Medical, the courts declared Lemelson's submarine patents unenforceable under the doctrine of prosecution laches.
    - ubernostrum 17y ago
      The Lemelson case was a rather extreme example; normally, a laches defense only applies to a specific defendant or defendants in a specific case. With the Lemelson case, the court explicitly noted that it was doing something extraordinary, and went to some lengths to explain how that situation differed from a typical laches case.
- guelo 17y ago
  IANAL, but a quick googling turned up a couple of cases. http://www.patentlyo.com/patent/2008/10/laches-and-equi.html http://www.patentlyo.com/patent/2008/10/laches-and-equi.html http://www.patentlyo.com/patent/2008/08/inventorship-di.html http://www.patentlyo.com/patent/2008/08/inventorship-di.html Apparently cases called Aukerman and Scimed established a precedent of 6 year for invoking a patent claim. "[A] delay of more than six years after the omitted inventor knew or should have known of the issuance of the patent will produce a rebuttable presumption of laches."