Suppose a product was using a technology before a patent ?

[glen herrmannsfeldt]

Del Cecchi wrote:
(snip regarding patents, trade secrets, and simultaneous invention)

So I could patent the formula for Coke Syrup? And then sue Coke for
infringing?

Or is there something different about product using "technology"? I
guess the ambiguity is the word "using".

I would say it is different in the degree of proof needed.

Say I buy some coke and do chemical analysis to determine the
formula. (If it were possible it would have been done by now).
I would determine the individual chemicals in a given sample,
but not necessarily the formula used by coke. Coke uses many
natural ingredients containing mixtures of chemicals where it would
be very difficult to identify the actual ingredient.

Another post regarded the plastic used in a golf ball. Identifying
a single chemical, even one as varied as a polymer, isn't so hard.
Much easier than the complex mixture that is Coke. It would,
then, be relatively easy to prove that two golf balls were made
of similar plastic than that two cola drinks were made from the
same formula.

-- glen

 

[Fred Bloggs]

In (a) the law says otherwise but then in your part (g) that could be an
exception.

http://www.uspto.gov/web/offices/pac/mpep/consolidated_laws.pdf

At page 102 (top left corner)

"
35 U.S.C. 102 Conditions for patentability; novelty and loss of right to
patent.

A person shall be entitled to a patent unless -

(a) the invention was known or used by others in this country, or patented
or described in a printed publication in this or a foreign country, before
the invention thereof by the applicant for patent, or
"

These are only conditions...

They are conditions for "loss of right to patent." Section a) refers to
a context of publication by print, patent, or some other means from
which a reasonable inference could be made that the invention is
well-known to practitioners of the art. The phrase "known by others"
does NOT refer to those select few who maintained secrecy of their
invention. The Miller analogy would be secrecy is to publication as
intelligence is to skybuck flying.

So a lawyer could say:

"The patent should not have been granted in the first place".

Really? And whose lawyer would say that? Certainly not the lawyer for
the applicant, so it must be the lawyer for the trade secret. Assuming
the application has passed muster with novelty, usefulness, and
non-obviousness, the attorney is then left with no recourse except to
paragraph g) subparagraph 2). Interference does not apply because no
patent exists for the trade secret.

But your text is from this section:

"
(g)(1) during the course of an interference conducted under section 135 or
section 291, another inventor involved therein establishes, to the extent
permitted in section 104, that before such person's invention thereof the
invention was made by such other inventor and not abandoned, suppressed, or
concealed, or (2) before such person's invention thereof, the invention was
made in this country by another inventor who had not abandoned, suppressed,
or concealed it. In determining priority of invention under this subsection,
there shall be considered not only the respective dates of conception and
reduction to practice of the invention, but also the reasonable diligence of
one who was first to conceive and last to reduce to practice, from a time
prior to conception by the other.
"

But this section is too complex for me to understand at the moment...
complex words and sentences and references to other sections...

Your inability to comprehend the words has nothing to do with the actual
law. All you need to concentrate on is "or (2) before such person's
invention thereof, the invention was made in this country by another
inventor who had not abandoned, suppressed, or concealed it." The
interference refers to conflicting rights between two patents. Since the
trade secret was not patented, there is no interference. But 2) does
apply in the case of a manufacturer who made no attempt to suppress or
conceal his invention and is actively using it. It is the concealment
that deprives the trade secret from recourse to a cause of action under
35 USC 102 (g). By its very definition, the trade secret was established
to suppress competition and maximize profits from its use. And what is
more, in order to defend a trade secret against misappropriation, the
holder must show proof of due diligence in protecting that secret- or
concealment under federal patent law- in order to have a cause of action
under state law for wrongful loss.

 

[Fred Bloggs]

You mist the point of patents.

That must be one of them there phone-etic misspellings ... but "mist" ?
See a dentist, toothless Bush supporter...

 

[Don Lancaster]

They are conditions for "loss of right to patent." Section a) refers to
a context of publication by print, patent, or some other means from
which a reasonable inference could be made that the invention is
well-known to practitioners of the art. The phrase "known by others"
does NOT refer to those select few who maintained secrecy of their
invention. The Miller analogy would be secrecy is to publication as
intelligence is to skybuck flying.



Really? And whose lawyer would say that? Certainly not the lawyer for
the applicant, so it must be the lawyer for the trade secret. Assuming
the application has passed muster with novelty, usefulness, and
non-obviousness, the attorney is then left with no recourse except to
paragraph g) subparagraph 2). Interference does not apply because no
patent exists for the trade secret.



Your inability to comprehend the words has nothing to do with the actual
law. All you need to concentrate on is "or (2) before such person's
invention thereof, the invention was made in this country by another
inventor who had not abandoned, suppressed, or concealed it." The
interference refers to conflicting rights between two patents. Since the
trade secret was not patented, there is no interference. But 2) does
apply in the case of a manufacturer who made no attempt to suppress or
conceal his invention and is actively using it. It is the concealment
that deprives the trade secret from recourse to a cause of action under
35 USC 102 (g). By its very definition, the trade secret was established
to suppress competition and maximize profits from its use. And what is
more, in order to defend a trade secret against misappropriation, the
holder must show proof of due diligence in protecting that secret- or
concealment under federal patent law- in order to have a cause of action
under state law for wrongful loss.

Sigh.
http://www.tinaja.com/patnt01.asp



--
Many thanks,

Don Lancaster
Synergetics 3860 West First Street Box 809 Thatcher, AZ 85552
voice: (928)428-4073 email: [email protected]

Please visit my GURU's LAIR web site at http://www.tinaja.com

 

[Skybuck Flying]

Hello Winfield,
patenting.

That often doesn't stick in a lawsuit. IIRC there was a company that
made golf balls from Surlyn or some kind of special plastics. They kept
the golf ball innards a secret but sold lots of these which constitutes
"noninforming public use". Then Dunlop engineered something similar,
filed a patent for the technology and subsequently sued. AFAIR Dunlop
lost and their patent was declared invalid because of prior noninforming
public use.

Wieeee, there is a god

 

[Colonel Forbin]

Hello Winfield,


That often doesn't stick in a lawsuit. IIRC there was a company that
made golf balls from Surlyn or some kind of special plastics. They kept
the golf ball innards a secret but sold lots of these which constitutes
"noninforming public use". Then Dunlop engineered something similar,
filed a patent for the technology and subsequently sued. AFAIR Dunlop
lost and their patent was declared invalid because of prior noninforming
public use.

There was also once a suit by a company called USL...

 

[Colonel Forbin]

Wieeee, there is a god

Wie is a minor. Hands off.

 

[Fred Bloggs]

Sigh.
http://www.tinaja.com/patnt01.asp

Much of what you say in those articles is absolutely true as it applies
to the Midnight Engineer crowd, however, taken in a general context, I
can find counter-example to many of your broad claims. For example, in
the article about "busting" any patent, you state:

"Show failure of due diligence–I’m not sure I follow this
potent busting tool fully, so do check this out with your
patent attorney. But as I understand it, slashing away at a
sudden target of opportunity is a no no. It seems you have to
aggressively police the industry for violators. You also have to show
continuous intent to both license and enforce.
Apparently if there has been significant and widespread
infringement of your patent in the past, and if you have
done nothing about it, you cannot suddenly single out any
one particular perp. Especially if they have been blatantly
(love that word) doing so for a long time.
Use it or lose it."

In this case we have the counter-example of the AmazonCom lawsuit
against Barnes & Noble claiming infringement of Amazon's *patented*
"one-button" something or another web ordering methodology. Barnes &
Noble was not the only known infringer, Amazon, and the industry in
general, were aware of several other infringers, but because B& N was
such serious competition, Amazon decided to single them out for
enforcement purposes. And Amazon won as you may recall.

My impression is that your audience is mainly hackers, and their focus
is on low level nerd stuff that they develop with no consideration of
potential market value. This is completely backwards and a waste of nerd
talent. You first have to define a market and then bound the nerds to
produce a solution. A good example of a small start-up, not far from you
actually, that did everything right is Ionatron. These people
transitioned a well-known phenomenon from near laboratory curiosity into
a fielded product in short order, and quite the working product it is:
http://www.ionatron.com/default.aspx?id=1

 

[Spehro Pefhany]

These people
transitioned a well-known phenomenon from near laboratory curiosity into
a fielded product in short order, and quite the working product it is:
http://www.ionatron.com/default.aspx?id=1

Seems like a worthwhile endeavor. How much of their stock do you own?


Best regards,
Spehro Pefhany

 

[Joerg]

There was also once a suit by a company called USL...

IIRC that was was settled.

Regards, Joerg

 

[Joerg]

Hello,

Wieeee, there is a god

There always was. Some people believe in Him, some don't. (I do)

Regards, Joerg

 

[Rich Grise]

Hello,


There always was. Some people believe in Him, some don't. (I do)

An atheist is just a guy who has plonked God. ;-P

Cheers!
Rich

 

[Joerg]

I remain skeptical

A possible answer... don't know if it follows the law and is legal

You should take statements in newsgroups like this as hints, often quite
valuable hints. It's not advice. Then take what you heard and present it
to a good patent attorney. That's were you get actual advice.

Regards, Joerg

 

[Ken Taylor]

An atheist is just a guy who has plonked God. ;-P

Cheers!
Rich

God isn't dead - He just got the Hell out of here.

Ken

 

[Nick Maclaren]

You should take statements in newsgroups like this as hints, often quite
valuable hints. It's not advice. Then take what you heard and present it
to a good patent attorney. That's were you get actual advice.

Now, that's good advice


Regards,
Nick Maclaren.

 

[Skybuck Flying]

Hmmmmm

http://www.techweb.com/wire/ebiz/168601146

Apple in trouble ?

"
Did Microsoft Invent The iPod?


By TechWeb News

If you think Apple Computer's Steve Jobs invented the technology behind the
Apple iPod, don't bet your 60GB, 15,000-song model on it.
According to the U.S. Patent and Trademark Office, patent applications that
cover much of the technology associated with the iPod were submitted by
Microsoft, which has been on a patents tear recently filing thousands of
patents.

If the patents hold up on appeal, Apple could be accountable for royalties
on the spectacularly successful iPod. Jobs and others associated with Apple
filed for patents covering the technology in October, 2002, but that
application was rejected by the patent office last month. AppleInsider.com
reported the rejection this week.

Apple won't take the matter lying down. "Apple invented and publicly
released the iPod interface before the Microsoft patent application cited by
the (patent) examiner was filed," said an Apple spokesperson in a statement.
Apple also noted that the firm has received other patents for technology
relating to the iPod and in addition has other patents pending on the iPod.

The documents in the Patent Office do not mention the iPod by name. The
documents describe a "portable, pocked-sized multimedia asset player" that
can manipulate MP3 music files.

Microsoft's claim appears to center on the work of John C. Platt, a senior
researcher in the Knowledge Tools Group at Microsoft Research. According to
media reports, on behalf of Microsoft, Platt applied for the patent in May
of 2002 some five months before the Apple filing. Platt's application was
rejected in December 2004, but he amended it in April of this year and
Microsoft's pending patent was subsequently approved.

According to a citation on "Platt's home page, he and other colleagues at
Microsoft developed a paper in the 2001-2002 timeframe discussing AutoDJ, "a
system for automatically generating music playlists based on one or more
seed songs selected by a user."

Apple's iPod dominates the MP3 player market. The NPD Group has reported
that Apple has shipped nearly 22 million iPods. Predictions that Apple's
strength in the MP3 market would slip haven't borne out, and Apple accounts
for about 75 percent of MP3 players sold in the U.S.

So far, Microsoft hasn't been able to dent the Apple iPod dominance,
although the software giant has said it is working on music playing devices
that it plans to introduce later this year.

"

 

[John Fields]

So far, Microsoft hasn't been able to dent the Apple iPod dominance,
although the software giant has said it is working on music playing devices
that it plans to introduce later this year.

---
Bill Gates and Steve Jobs are cut from the same cloth and they only
differ in what they want to keep secret.

Gates is an Intel freak and Jobs goes for Motorola. Different
address space mentalities, same goals.

 

[keith]

...and how successfull they've been.

Gates is an Intel freak and Jobs goes for Motorola. Different
address space mentalities, same goals.

Gates isn't an intel freak at all. M$ and I$ have never gotten along that
well together, and the SJ thing is another stick in Billy's eye.

....and who cares which end of the egg is cracked?