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Re: Amazon Patents Getting Numbers Off a Check


From: Lee Hollaar
Subject: Re: Amazon Patents Getting Numbers Off a Check
Date: Sun, 25 Jul 2004 01:08:03 +0000 (UTC)

In article <address@hidden> Tim Jackson <address@hidden> writes:
>Lee Hollaar wrote on Sat, 24 Jul 2004 13:48:31 +0000 (UTC)....
>> 
>> Assuming that one is not immediately threatened by a patent, and needs
>> to invalidate it, there is a way to make a patent likely unenforceable
>> at the cost of some of your time and a little postage.
>> 
>> 35 USC 301 provides for an interesting procedure:
>
>[snipped details of how to place prior art in the Patent Office file]
> 
>> So, what good does that do?
>> 
>> Well, any time somebody is treatened by the patent owner, they are going
>> to review the file history of the patent (if they understand what they
>> are doing).  And there they will find the prior art you submitted along
>> with your explaination of why the patent is invalid in light of the
>> prior art.  And now they will know how to defend against the patent
>> and will take an appropriate response to the threat of the patent.
>
>If you are commercially aware businessman, you would be unlikely to 
>use this procedure.  Who does it help?  Only your other competitors, 
>who otherwise might not know of your prior art and be scared of the 
>patent.

The thing I was addressing was somebody who thought a patent was
invalid but thought that there were only expensive ways to challenge
it.  I pointed out one inexpensive way that might be used, for example,
by "open source software" proponents to address a patent that could
hurt them.

If you, instead, want to screw your competitors with somebody else's
bad patent, then conspire with the to get a license from them in
trade for you not disclosing the prior art.


>It's better for you if only you and the patentee know that the patent 
>is invalid, because that means that you will have less competition.
>
>> 
>> And, if the patent owner does file suit, it may be liable for sanctions
>> under Rule 11 for filing a suit when it knew (from the information that
>> you sent them) that the patent was invalid.
>
>You can achieve that effect merely by sending the prior art to the 
>patentee, without also sending it to the Patent Office.

That's making the big assumption that a person responsible for filing
an infringement suit actually saw the prior art, especially if it's
something that comes in anonymously (like you can submit prior art
to the patent office).  You'll probably impress the court more if
it's in the patent office file.


>> At least, they may think
>> twice about filing suit knowing that anybody reading the file history
>> will know that they are aware of the prior art and why it invalidates
>> the patent.
>
>Again, that only benefits your other competitors.

Well, if it keeps them from filing an infringement suit against you,
or even threatening one, it also benefits you.

But any time you invalidate a patent, or stop its owner from asserting
it, it benefits your competitors, too.


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