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Patent Information

Two quotes by attorney David Pressman,
author of the book
Patent It Yourself concerning patent misconceptions

"Common Misconception: That which you do in your own home or for your own personal use will not infringe a patent that is otherwise applicable.  Fact: While “home infringement” may be difficult to detect,nevertheless it is a form of infringement that is legally actionable and can subject the infringer to paying damages and/or an injunction prohibiting further infringement."

"Common Misconception: If you change a patented product a fixed percentage, say 20%, you won’t be an infringer. Fact: The amount you’ll have to change a patented product to avoid infringement is not subject to quantitative analysis, but rather is determined by the breadth of the patent’s claims."

 

An insight on the United States Patent system
and the Lindsay Graver Point Patent

 by
Michael Artemis

I am hoping to shed some light on the area of patent law. I would like to provide some information on intellectual property and more specifically information on the United States Patent system.

First, innovation is a cornerstone of our American way of life and is supported by the high priority our founding fathers placed on it. For example, in drafting the U.S. Constitution the framers empowered congress to provide protection for inventive activity. This was so important to the framers that it appears in Article I, Section 8, Clause 8 of the Constitution. This section of the Constitution provides in relevant part:

“The Congress shall have power to…promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”

Please note that this “legislative empowerment” was not an amendment or after thought to the framers, but rather a primary issue under consideration. Why is this important? Because, the Lindsay patent is “promoting the progress of science and useful arts” as envisioned by the Constitution. This progress is brought about in the trade off between the inventor and the Government. The inventor discloses the invention in exchange for a limited duration exclusionary right granted by the United States Patent Office. For example, this graver geometry has been disclosed to the public and in time will enter the public domain. However, until the expiration of the patent, Mr. Lindsay has an exclusionary right to exploit the invention and prevent others from doing so. This is the basic principle of patent law.

Now, the converse of the patent system is trade secret. In this form of intellectual property protection, the inventor never discloses the invention and if the inventor can keep it secret the protection could conceivably last much longer than a patent - possibly indefinitely.

A classic example of trade secret protection is the formula for Coke a Cola. This form of IP protection is not as beneficial to the public and does much less in promoting technological advancement because the invention may never become public knowledge or enter the public domain. Correspondingly, in the future other inventors will not be able to build upon the subject matter of the invention. Also, if the trade secret leaks out of the inventor's control the inventor has little or no recourse because as a rule the one year statutory bars have typically run on the invention.  (More on the statutory bars later).

Thus Mr. Lindsay and other innovators have a choice to make when engaging inventive endeavors. They can seek patent protection or exercise trade secret protections. However each has benefits and detriments. The balancing of the pros and cons could be a rather lengthy discussion that I will defer until a latter time. For the present discussion, it is fair to say that the engraving arts will benefit from this patent, as now everyone has access to the information and in the future, improvements can be built upon the knowledge that Mr. Lindsay has put forth. I personally would like to thank him for sharing and not concealing the knowledge by way of trade secret as my engravings have benefited tremendously.

Second, I will address specific issues. Some of these issues are tremendously complex; however I will do my best to summarize.

The statutory bars are an area of constant litigation and the standards are hotly debated in court. There are two primary statutory bars, the first being public use of the invention and the second being on-sale activity. A patent applicant is required to file his U. S. patent application within one year of such activity. Courts have frequently taken divergent positions on interpretations of public use, on sale activity, etc.

When the Patent Office issues a patent, it is cloaked with a VERY powerful presumption of validity.  Basically, the presumption is a major obstacle to a defendant and a source of much concern, worry and agony. So why is there such a presumption? Well law has developed that supports, and considers the Patent Office the experts in granting patents and courts will defer and respect the Patent Office’s decision to grant the patent. In light of this, the Patent Office is charged with the responsibility of determining if an invention meets all the legal requirements for a patent and unless there are some overwhelming reasons to reverse the Patent Office’s decision, a court avoid reversing the Patent Office determination.

The following comments are aimed at addressing some common conceptions in patent law.

Field testing and public use:  In some circumstances, field testing may be considered an exercise in reduction to practice and enhanced development of the invention and if done to verify and refine the invention this may not be considered a public use. Additionally, when the use is performed under confidentiality with the inventor public use is less likely. As I stated earlier, these issues are not typically hard-and-fast rules but are debatable areas and left to the courts to decide.

Use of the invention prior to the issuance of the patent and continued use after the patent issues: Once a patent issues, the exclusionary rights are granted to the patent owner and provide the patent owner a right to exclude the making, using, selling…. See in part:

“35 U.S.C. 271 Infringement of patent.

(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefore, infringes the patent.
(b) Whoever actively induces infringement of a patent shall be liable as an infringer”

Another area of concern for a potential infringer is a possible charge of bad faith, willful and wanton infringement of the patent.  A court may increase a damage award in such circumstances as a punitive manner to punish an infringer for severe acts of indifference towards the patent laws.  If facts and circumstances surrounding an infringing use support a claim of willful infringement, a defendant may be liable for treble damages.  See in part:

“35 USCS § 284 Damages:

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 [35 USCS § 154(d)].”

Assertions of prior knowledge and the priority date: The Lindsay patent has a priority date of September 17, 2002. However, the actual date of invention could be much earlier than that and the patent would still be valid so long as there was no statutory activity that would toll the relevant bars, as discussed above. Correspondingly, although someone may claim to have seen what they consider the same invention years ago, if the alleged prior invention was not documented or publicly available, it may not qualify as prior art with respect to the invention.  The Patent Office is charged with the responsibility for making this type of determination.  Keep in mind that the patent issued only after a through examination by the United States Patent Office. This is the agency courts consider the foremost experts in determining novelty, obviousness, etc. Alleged Infringers will typically argue that the invention was already known but this line of argument is very difficult to support, let alone use to invalidate a patent.

I have provided some basic information regarding the United States Patent System.  Additional information and guidance may be found at the United States Patent and Trademark Office web site: http://www.uspto.gov. This official web site for the USPTO has a vast array of information and I encourage other engravers to visit the site.  

Also, there is a very nice inexpensive ($4), little handbook that provides a wealth of information on the U.S. Patent System. The book is published by Dover Publications, Patents and How to Get One, A Practical Handbook, ISBN: 0-486-41144-3.


Free public license agreement for use of the Lindsay graver geometry

Lindsay graver point geometry introduction

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