If it's more than one "invention" the patent examiner will simply split it into multiples. BTDT, got paid for all. ;-)
The problem is that the courts assume the USPTO are experts. You have to prove otherwise.
When in doubt, bluff.
Sorry, but you're wrong on all counts. Phil is exactly correct. He's been around this block a few times.
If you can get the claim accepted, go for it.
Don't be an ass.
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I'll reply to both of your posts here.
In order to obtain a US Patent, you will have to navigate four hurdles: Your invention must have some useful purpose (utility), be novel (new), be non-obvious to a person of ordinary skill in the art (POSITA), and not be a member of a limited number of restricted classes (think: military restrictions, etc..)
Your questions generally relating to small changes in construction likely cannot pass the non-obvious bar. For example, "inventing" a device that uses transistor circuits to replace vacuum tubes circuits probably is not patentable. However, there are exceptions. If the changes have some heretofore unrecognized advantage, or even an unappreciated advantage, then the change may not be obvious after all. But that approach is generally an uphill climb. The advantages had better be significant and of great commercial value, etc.. to have any hope. At best, the unrecognized/unappreciated advantage is but one of several factors in any attempt to rebut the USPTO's presumption of obviousness.
If you file this thing, it sounds to me like you're pretty much assured of getting a USPTO rejection for obviousness (i.e., a "103 rejection") in your first office action. If there really is only one way to do it, then be definition it is obvious (to a POSITA). Furthermore, your statement that "just about any engineer could come up with basically the same things if given just a few requirements and goals" speaks volumes about the obviousness of your proposed invention.
Your idea may actually be highly useful, novel and not in a restricted class - and yet still be obvious to a person of ordinary skill in the art. In short: not patentable.
I agree with the other poster that the Nolo Press book is a good place to start your research.
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I think you're getting a bit confused. The USPTO will absolutely grant you a patent that infringes someone else. An invention can be useful, novel, non-obvious and not restricted class AND STILL infringe on the rights of another patent. The two are not mutually exclusive. The USPTO does not care about infringement.
If your invention was A-B-C-D and someone else invented A-B-C-E, then that someone else might infringe your rights (at least on A-B-C).
You're making that up. When two patents or applications cover the same invention, it's called "interference", not "infringement". A patent is a property right--the idea is to persuade inventors to put their inventions into the public domain, eventually, rather than going to their graves with the secret. (Sometimes the secret is actually valuable.) To persuade them to do that, the government grants them the exclusive use of their invention for a period of 20 years from the date of filing. It's up to them to enforce it, as in other civil matters. USPTO folks are usually hard working and honest, IME, much like other folks.
Interference is normally an administrative matter rather than one for the courts, though the courts may be called upon to settle the hard ones. For instance, Prof. Garrett Moddell of the University of Colorado and I have completely separate patents on what is apparently the same device, a waveguide-integrated tunnel junction modulator for optical interconnection that uses plasmonic nanoantennas. His issued first, but mine has an earlier filing date. That's a good example of patent interference, and if the device ever becomes economically important, it'll make for some interesting conversations between CU's lawyers and IBM's.
Cheers
Phil Hobbs
-- Dr Philip C D Hobbs Principal Consultant ElectroOptical Innovations LLC Optics, Electro-optics, Photonics, Analog Electronics 160 North State Road #203 Briarcliff Manor NY 10510 845-480-2058 hobbs at electrooptical dot net http://electrooptical.net
Dern! your original posting did not get copied; dunno what happened.
Anyway, you said "any engineer given the criteria would come up with a similar device" WRT your "patent" idea. In that case, if one adheres to the law / criteria, your idea then IS OBVIOUS to anyone skilled in the art and so fails to be patentable, dot or no dot. Now, if you had a few tens of millions of dollars to spare, make an obscure write-up, pass it thru a good patent atty to tweak wording for muddiness WRT similarities of what exists, and go for it. Make millions sell like crazy, advertise the Russian RegUS (von) PatOff and since you keep it in litigation with the PTO nobody can say what is / isn't covered. When the s* hits the fan, bail out the next day. Better yet,if you see it coming,sell all rights etc as best possible and go to the Bahamas.
"Provable better" does not mean shit. One can have a valid patent on something that is extremely impractical to make, or is stupid to make, or (fill in the blank). Finding a unique and heretofore unrealized method of making a wetter spitball does not allow a patent on the spitball as the generic patent was already awarded or is elapsed or is public domain. BUT the specific METHOD would seem to be patentable. Kapish?
No, it's not in my nature.
Just remember... This is a part of the US government we are talking about. I question a lot of what goes on these days and have opinions. Some may be true, some not, but I smell a rat.
Maybe it's just me that smells ?
Thanks, boB
Incorrect. I've drafted, prosecuted, and litigated several.
Why are you ignoring the advice of everyone? You are wrong. Clearly so, since many or even most claims are mutually exclusive. Look at a few patents, see if it is even *possible* for all claims to be true simultaneously!
A single claim can include several clauses which all have to be true for an infringement to occur. But each numbered *claim* stands alone.
(I am not an expert, but the people you are arguing with know a lot more about it than you do!)
[...]-- John Devereux
Correct. Each claim stands on its own(*), effectively its own, separate patent. For infringement, every element of a given claim must be present; that's what's confusing our OP.
(*) excepting dependent claims, technically, which incorporate earlier claims by reference.
-- Cheers, James Arthur
Hi Jeffery,
I'm revisit> I have a device that, by itself, does not infringe a patent, but does
Claim 1 is too silly to be even a simple example.
But, an example with a similar appeal might be worth pursuing. (I am not even bothering to look into the exact nature of the countless? patents that are probably in place but, rather, speculating on a hypothetical case with real world items).
ASSUME -- let's say Apple, just for the sake of argument -- had patented a "Personal Media Player" (e.g., iPod). [I am guessing such a patent, if it ever existed, is no longer in play as PMP's have become ubiquitous and offered in a variety of manufacturer's, etc.]
Several cases present themselves:
1) Someone writes some code for a PC (i.e., a general purpose device) that effectively provides the same functionality covered by the PMP patent(s) 2) Someone packages that code WITH a "stylized" PC effectively turning it *into* a PMP. 3) Someone develops and sells a "device" (that sure looks a lot like that PMP! -- perhaps, literally, an "iPod clone"!) sans firmware with the full knowledge that firmware images to convert this device into a functional PMP (NOT copyrighted images by the original patent holder) exists AT ARM'S LENGTH -- maybe even providing a pointer to those resources or a "service provider" that could install them for the customer. 4) Same as #3 but the device seller writes and maintains those images (but doesn't sell them "bundled" with the "device")Opinions on how each of these would be handled, legally?
[Note this is a spin on the OP's comment that "the user ADDS the dot to the device"]
May or may not infringe, depending on what he does with the code and on how the original patent is written. Could also be a target for a continuation patent with the original spec plus a new set of claims drafted so as to clobber it.
Probably infringes, unless the attorney who drafted the original patent was lazy or incompetent. (There are good ones and bad ones, of course.)
Probably induced infringement, unless the device can plausibly be presented as having separate utility, i.e. apart from the music player use. A cell phone probably wouldn't infringe.
Probably the same as #2.
Cheers
Phil "still not a lawyer" Hobbs
-- Dr Philip C D Hobbs Principal Consultant ElectroOptical Innovations LLC Optics, Electro-optics, Photonics, Analog Electronics 160 North State Road #203 Briarcliff Manor NY 10510 845-480-2058 hobbs at electrooptical dot net http://electrooptical.net
I have a couple of extra questions....
In the end, doesn't it really come down to the decision of either a judge or a jury after all the lawyers have argued their clients' cases ? ???
And have those of you that have been involved in patent infringement cases noticed that the side who had the most money, (or spent the most money on the case), had finally succeeded in winning the case ??
Thanks, boB
If one side has much better lawyers than the other, or one side runs out of money, then that will make a difference, sure.
But I worked on one case where the plaintiff was much bigger than the defendant, and still lost because its case didn't stand up. The case settled with an undisclosed settlement, but the lawyers for the defence were very very happy, so I imagine that the plaintiff had to pay the defendant's legal costs. (There was one other case that settled, but I don't know what the terms were.)
Cheers
Phil Hobbs
-- Dr Philip C D Hobbs Principal Consultant ElectroOptical Innovations LLC Optics, Electro-optics, Photonics, Analog Electronics 160 North State Road #203 Briarcliff Manor NY 10510 845-480-2058 hobbs at electrooptical dot net http://electrooptical.net
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If your device does not infringe a particular patent, but does infringe when used as intended, then the patent holder can sue you for contributory infringement. Does your device have any non-infringing use?
The other bad thing about such a device is that any customer who buys your device is also buying a lawsuit. This is bad for your business.
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The claims in a patent start at a high level of abstraction, and then work their way down to greater and greater specificity.
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eYou need a patent attorney to advise you if the patent's claims read on your device. But it sounds like your device has non-infringing uses, which would be a defense to contributory infringement.
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Such claims are usually dependent claims, so if you were to use a different material, your device would probably infringe the independent claim from which the wood claim depends.
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Then you would be liable for contributory infringement, because the device cannot be used without infringing.
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d eYou're trying to import an aspect of copyright law. Patent law doesn't care if you had actual knowledge of the other device or not.Copyright law cares if you had access to the original.
If any engineer would solve the problem the same way, then your patent would fail for obviousness. But consider that what may be obvious to you might not occur to anyone else.
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Inventions typically are improvements on existing inventions. Whether you have the right to practice the earlier inventions or not, you can still patent improvements on them.
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This may still be novel enough and non-obvious enough to be patented.
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You could try getting a method patent to cover this novel, unforeseen use of the device.
That's the real sad part about patents I think.
Welcome to the patent world!!
-- Michael Karas Carousel Design Solutions http://www.carousel-design.com
It's, perhaps, a flaw in the legal system, itself. The same holds for any civil case and even criminal, for that matter. Your solution?
You're patents are mostly owned by employers, right? So many people say that individuals shouldn't bother with them. I suppose it just depends on how good the idea is.
-- Reply in group, but if emailing add one more zero, and remove the last word.
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