5 ms·

Be careful. If you comment on a patent that ends up being granted, and then you violate it, you'll have a hard time claiming that it wasn't willful infringement

Be careful. If you comment on a patent that ends up being granted, and then you violate it, you'll have a hard time claiming that it wasn't willful infringement.

dllthomas 14y ago
Agreed. I also wonder/worry about the following: 1) Someone comes up with something. 2) I'm doing something similar, and post links to journal articles and whatnot. 3) Given 2, I assume that it's not going to be granted, and carry on. 4) It is granted, now I am infringing. Is my infringement "willful"? That could make "trying to patent things that shouldn't be patentable" even more lucrative (treble damages!).
- pc86 14y ago
  I don't know why you got downvoted, that seems like a reasonable question to me. My uneducated opinion is that that would be willful infringement. It would be your responsibility to see if the patent is granted, and if it is to cease whatever you're doing that could infringe. Note: this isn't what I agree with, just my understanding of how it is currently. IANAL Edit: I think ceasing any potentially infringing activity after you learn the patent is awarded would quash any notion of you willfully infringing and would allow you to say "I stopped as soon as I had to, but here's why I shouldn't have had to in the first place..." if it ever got to that point.
  - jared314 14y ago
    Is there an existing automated way to watch a patent? So you can get a notification if it is granted, rejected, etc.
    - pc86 14y ago
      Not to my knowledge; there may be a resource through the USPTO.
- wtallis 14y ago
  If your journal articles predate the invention (or, after we switch to first-to-file next spring, predates the filing), then it's always better to disclose the prior art. However, before you carry on under the assumption that your prior art will kill the application, you have to study the specific claims of the patent. The patent as a whole, and the title in particular, have no legal force. Infringement is determined on the basis of specific claims of the patent. You will have to understand those individual claims in order to assess whether you have prior art that fully anticipates them (in which case, you can carry on in relative safety). If your prior art doesn't fully anticipate the claims of the patent, then you should change what you're doing to be outside the limitations of the patent. Otherwise, you may find yourself having to argue that parts of the patent are obvious in light of the parts that were anticipated by your prior art, and that's a tougher argument to make. If the USPTO issues an overly-broad patent, then you're in for an expensive legal battle no matter what.
  - dllthomas 14y ago
    Details of how to look at a patent are useful, but you don't really speak to my actual question. If I look at a the patent and, in my professional opinion as a developer, believe that the prior art I post covers all the claims of the patent, can I get slapped with treble damages for operating under the belief that my prior art will kill it while it is still patent-pending?
    - wtallis 14y ago
      You can only get slapped with treble damages if your opinion about your prior art was wrong, but that's no surprise. I'm not seeing where willfulness has anything to do with it, since it isn't mentioned in the section that allows for treble damages: "35 USC § 284 - Damages Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court. When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. Increased damages under this paragraph shall not apply to provisional rights under section 154 (d) of this title. The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances." http://www.law.cornell.edu/uscode/text/35/284 http://www.law.cornell.edu/uscode/text/35/284
zem 14y ago
once people catch on to that, i think they will simply end up leaving anonymised comments.
pan69 14y ago
How can you comment on a patent that hasn't been granted yet? I.e. when it was posted it wasn't a patent. Also, if it was posted/discussed in a public forum before the patent was granted doesn't that violates the validity of the patent?
- rabidsnail 14y ago
  I assume all of the stuff that gets posted to this site is "Patent Pending".
- droithomme 14y ago
  The USPTO publishes patent applications. When the public comments on them, pointing out obvious prior art (something I have done), the patent office sent a form letter telling them that such input was not permitted. The appropriate way to challenge a patent was to wait for it to be approved, and then spend tens of millions of dollars challenging it in court, assuming you had tens of millions of dollars and many years. The new system allows random members of the public with an interest to point out prior art.
droithomme 14y ago
> If you comment on a patent that ends up being granted... This is not really a big deal, comment anonymously. Problem solved and we have yet another reason to preserve anonymous speech.

Be careful. If you comment on a patent that ends up being granted, and then you violate it, you'll have a hard time claiming that it wasn't willful infringement.

dllthomas 14y ago

Agreed. I also wonder/worry about the following: 1) Someone comes up with something. 2) I'm doing something similar, and post links to journal articles and whatnot. 3) Given 2, I assume that it's not going to be granted, and carry on. 4) It is granted, now I am infringing. Is my infringement "willful"? That could make "trying to patent things that shouldn't be patentable" even more lucrative (treble damages!).

pc86 14y ago
I don't know why you got downvoted, that seems like a reasonable question to me. My uneducated opinion is that that would be willful infringement. It would be your responsibility to see if the patent is granted, and if it is to cease whatever you're doing that could infringe. Note: this isn't what I agree with, just my understanding of how it is currently. IANAL Edit: I think ceasing any potentially infringing activity after you learn the patent is awarded would quash any notion of you willfully infringing and would allow you to say "I stopped as soon as I had to, but here's why I shouldn't have had to in the first place..." if it ever got to that point.
- jared314 14y ago
  Is there an existing automated way to watch a patent? So you can get a notification if it is granted, rejected, etc.
  - pc86 14y ago
    Not to my knowledge; there may be a resource through the USPTO.
wtallis 14y ago
If your journal articles predate the invention (or, after we switch to first-to-file next spring, predates the filing), then it's always better to disclose the prior art. However, before you carry on under the assumption that your prior art will kill the application, you have to study the specific claims of the patent. The patent as a whole, and the title in particular, have no legal force. Infringement is determined on the basis of specific claims of the patent. You will have to understand those individual claims in order to assess whether you have prior art that fully anticipates them (in which case, you can carry on in relative safety). If your prior art doesn't fully anticipate the claims of the patent, then you should change what you're doing to be outside the limitations of the patent. Otherwise, you may find yourself having to argue that parts of the patent are obvious in light of the parts that were anticipated by your prior art, and that's a tougher argument to make. If the USPTO issues an overly-broad patent, then you're in for an expensive legal battle no matter what.
- dllthomas 14y ago
  Details of how to look at a patent are useful, but you don't really speak to my actual question. If I look at a the patent and, in my professional opinion as a developer, believe that the prior art I post covers all the claims of the patent, can I get slapped with treble damages for operating under the belief that my prior art will kill it while it is still patent-pending?
  - wtallis 14y ago
    You can only get slapped with treble damages if your opinion about your prior art was wrong, but that's no surprise. I'm not seeing where willfulness has anything to do with it, since it isn't mentioned in the section that allows for treble damages: "35 USC § 284 - Damages Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court. When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. Increased damages under this paragraph shall not apply to provisional rights under section 154 (d) of this title. The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances." http://www.law.cornell.edu/uscode/text/35/284 http://www.law.cornell.edu/uscode/text/35/284

zem 14y ago

once people catch on to that, i think they will simply end up leaving anonymised comments.

pan69 14y ago

How can you comment on a patent that hasn't been granted yet? I.e. when it was posted it wasn't a patent. Also, if it was posted/discussed in a public forum before the patent was granted doesn't that violates the validity of the patent?

rabidsnail 14y ago
I assume all of the stuff that gets posted to this site is "Patent Pending".
droithomme 14y ago
The USPTO publishes patent applications. When the public comments on them, pointing out obvious prior art (something I have done), the patent office sent a form letter telling them that such input was not permitted. The appropriate way to challenge a patent was to wait for it to be approved, and then spend tens of millions of dollars challenging it in court, assuming you had tens of millions of dollars and many years. The new system allows random members of the public with an interest to point out prior art.

droithomme 14y ago

> If you comment on a patent that ends up being granted... This is not really a big deal, comment anonymously. Problem solved and we have yet another reason to preserve anonymous speech.