I have a device that, by itself, does not infringe a patent, but does when the user uses it, it is still patent infringement?That is, by itself, it doesn't violate all the claims when made and in fact doesn't even have to be like the device in the patent, but can be(and is intended) to be used like the device in the patent.Here is very simple examplePatent Claims1. A device that is square2. Said device in claim 1 has a round dot on it.My device is square but no round dot on it. I intend the user to put the round dot on it for similar reasons in the patent so the device will be used the right way but they don't have to and it will still function. My device is not exactly like the patent device but very close.The problem is, that the patented device uses some very general language and some things that are simply almost necessary. For example. Claim: The square is made out of wood. Well, there really is no other option. It can't be made out of metal, moth balls, cotton candy, etc... There are only 2 things that it can be made out of that will at all make it useful and the patent gets them both. It would be possible to make it out of the other things to get around the patent but then the device wouldn't be useful. Just take my word on it.Another example is claim 2. It is necessary for the dot because without the dot the device can't function in any useful way. (just take it for granted... this is just a silly example)It would be like patenting a bolt and the dots being analogous to the threads.. although at least that has a bit more alternatives. In my case there is no other way since either you put the dot on and the device works or you don't and it doesn't.I know the example is silly but if it take it only in the context I've given and don't try to add anything extra and think about the logic itself it shouldn't be too hard to answer.My guess is if I created my device and sold it I would get sued either way(since my device is better). Even though I created my device...

Huh?Violating any claim is enough to infringe.If you have a distinctly novel method or means for achieving a similar result,which does not depend on or incorporate the patented material, you're golden.If your device is square, it infringes claim 1.Not exactly square? You just said that it was.I'd suggest "Patent It Yourself," Nolo Press, or consulting a patent atty. Ideally, read up on the basic principles, then talk to the lawyer. That'llclear up the confusion.-- Cheers,James Arthur

patent infringment?

Mar 01, 2012 43 Replies

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Don Y 14 years ago

OK, but see your reply to #3. Why does the cell phone "probably NOT" infringe but the PC "may or may not"?

[Hold your comments 'til later...]

Again, it's still a *PC* -- though possibly looking a lot more LIKE a PMP. I.e., it still has no *set* functionality that would allow you to claim it's a "firmwareless PMP". E.g., a PMP doesn't have (hardware) support for a keyboard, printer, etc.

IMO (IANAL), it is this "separate utility" that gets the PC, stylized PC, etc. "off the hook" -- that was the case I was trying to identify in #1 and #2.

#3 I considered to be "probing the limits" of that distinction. I.e., it starts to look less "general purpose" at this point.

This was intended to push #3 even further. "The defendant not only makes a product that is a veritable clone of ours -- without the firmware -- but also offers the firmware to those very same customers!"

[Like selling unloaded guns and ammunition -- yet claiming you don't sell LOADED guns... (lets not get into a "gun" discussion, here)]

Consider how incredibly *practical* it is, nowadays, to distribute firmware:

Buy device. Download

formatting link

Plug device in to PC. Copy device.firmware to X: Unplug device.

How does this interfere with the *spirit* of the law?

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Phil Hobbs 14 years ago

Whatever it is, it's probably an infringing device, unless the lawyer screwed up.

But in the previous cases, it isn't separate--you're supplying both.

It depends on how the patent is written.

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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Don Y 14 years ago

Lower the effective *value* of patents. Have shorter terms so the technology moves into the public sector faster.

When you (artifically) change the value of something, you distort the extent to which people will work to preserve, work-around or *cheat*. It also gives "holders" no real incentive to push NEW products/ideas into the mainstream (market) unless they know they are about to lose some exclusivity from expiring protections.

I've worked at (and with) firms that very deliberately went through a cost-benefit analysis of releasing a new product that would compete with an existing product (of their own) and intentionally sat on the new product until they see sales drop -- or, a competitor entering the field (which, sometimes, can be too late).

In fast moving fields, there's really no excuse to rely on these sorts of protections for "generations" (when you define a "generation" based on how quickly that *field* evolves).

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krw 14 years ago

So there is no incentive to research anything but short-term projects. No incentive at all to expand technology, just tweak what you have.

Except that 20 years is a blink of an eye to a corporation. That's 20 years from filing, not from commercial use.

They're fools. Their competition will eat their lunch if they don't do it themselves.

So you think there should be a variable exclusivity period? Who decides what the period should be? You? Obama?

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