Patent Law Question

TVP45, Good answer and, to expand your answer just a bit, protection of ones patentable idea during that one year period can be obtained by filing a relatively inexpensive provisional patent with the PTO.

Changes in U.S. patent law are also now being considered, including a change from a policy of "first to invent" to "first to file".

Possibly of help,

How does the infringer reliably show they drew the invention first.

Has their claim of being first occured by a means that cannot be corrupted.

Our way to dispelling that doubt is by registered posting drawing to self and remaining unopened.

That signed and dated letter opened by the judge dispells all doubt on originality.

I agree in that the idea is protect the first to have the idea and the patent system helps organize this. However, if a patent is issued and a real source of "prior art" is found, then the patent is compromised. Thus, someone showing this prior art can use this prior art regardless of the patent. In theory. Reality is another thing. Patents cost a lot so my company does not patent. Instead we publish. In this way we establish the idea in the public domain. In two cases patents were obtained several years after we published the ideas. Clearly the patent examiners did not do their homework and the patents were issued. So now what? Well, if you wanted to use the idea published in my company's paper you should be able to-but the company holding the patent may bring a lawsuit stating that you're using their patent. In an ideal world you would go to court and it would be clear that you have the right to use the idea published in the public domain. In this real world it will cost you LOTS OF MONEY to defend yourself in court and that's what the company holding the patent hopes for. In some cases it costs less to license the patent than fight it even if the patent was incorrectly issued.

So, in summary, showing the existance of prior art allows one to use this art regardless of any patents on it. Reality says that you're still going to have to pay a boatload in court to prove the prior art superscedes the patent or to invalidate the patent.

If the case is as clear cut as you state, I would ignore the possibility of infringing on their patent. Ignorance is free. In the event that they go after you for infrigement of their patent, I would have an attorney inform them of your "prior art" publication, and let them know that they risk loosing their patent if they pursue the matter.

Excellent we have been using this approach to establishing the ownership of idea and idea design by publishing on our site while withholding the intricate details of equipment/device designs. Of course, so long as we do not disclose the actual inticacies of the physical design, we continue to preserve our European options. Yet as a good measure we allow by publishing anybody else to take-off from the publication.

Good advice and a GA.

Establishing an indisputable date on the product to be patented can easily be accomplished by e-mailing the drawings and specifications to yourself.

jhammond, Thank for the Disclaimer even though as you stated your not a attorney. The intent of my Question ("As a patented inventor, now in litigation my attorney has informed me that one of my infringers stated they have a drawing not a patent, which proves they came up with a idea first and thats all they need to disqualify my patent in court? My Question, is this true and if so why do we have patents? My understanding is that all they have to show is a drawing and a attempt to sell and this would void my case.") is to create a discussion topic and hear others opinions. Obviously I have an Attorney who told me this, and gotten me $$. As a Inventor my mind is not obstructed and disoriented by the laws of Man, but by the Laws of Physics. You sure wasted your time with this one j... Most posters here I do consider competent in there opinion and value there input.

I can remember a TV programme not so long ago that tried to help people get their inventions manufactured. Their resident patent lawyer warned one applicant that his invention may not be patentable simply because he had demonstrated it to various people therefore the idea was 'in the public domain'.

Topper, this is one most valuable post.

I develop 3D engineering solid models and generate drawings from them that can be used to protect intellectual property. I was totally unaware of the "authenticated first drawing" concept and it's impact on patent disputes.

The thought that the Patent Office might implement a change in it's procedure seems problematic for some who I know who have concluded that by not patenting an idea, they are better insulated from theft of intellectual property and unlawful replication. I was puzzled by this attitude and wondered how they would defend ownership without a patent. Now I know

I learned a great deal from the dialogue your question generated.

Thanks to all who responded.

L. J.

There seems to be considerable (self) confusion about patents.
(with me previously included.)

After wasting a deal of time and money it will become apparent;
while the patent office will "try" to discover prior invention, their
search is seldom comprehensive. Patents have been booked-in
(from me) with several identical patents already accepted by them!
(even my patent agent "failed" to discover them!)

In fairness, there are thousands (millions) of "patents." However:
There is no incentive to discourage a patentee; everyone wants
the money; the pat. office, the lawyers, the patentee. (when selling)

In this regard I think the system does need a complete "re-write."
Perhaps where ideally, anyone simply states their claim (invention)
publicly, time proven (dated) and, from then on they have a valid claim.

With disputes easily settled; providing the date was / could be upheld;
and very little money would be required. (just for the self-posting etc.)
Patents should be for a very limited time, e.g. 5 years to encourage the
patentee to "get on with it" before the cover expires; and failing to do
so, does not cause problems for others after 5 years. (open season)

Financially this would not be good for the system. (what it's all about)
To me "patents" seem to be a money making creation which lives upon
the aspirations of dreamers; is regret ably over paid, while achieving
very little for a genuine modest inventor. No where near a good system.

I would advise; reply politely to the claimant to the effect that you have
a patent in good faith; are proceeding with your business in a lawful manner
and that any legal claims would be destructive financially to both of you.

Further; In the event that either win, the crippling fees would remain
unpaid; and which, on your side would be ignored and the company
placed in liquidation. Simply a Pyhrric victory, - IF a claim was successful.
Therefore you would sincerely advise the claimant not to proceed; please.

If that fails, make preparations to close (after a claim) and let the chips
fall where they may. n.b. This has worked for me in the past, which I
genuinely viewed as a spurious claim, and no more was heard.

Good luck!

jt.

Of all the things I hate, it's a fight; everyone pays, even the winner.

It seems to me that the drawing(s) of the infringer was on the public domain before your idea followed the patenting procedures and in this case somebody didn't do well his/her job about a prior patent search or to find out if it's not already on the public domain in which case you can't patent that idea. If the claimant is using this proof and he really can document that, the clear his/her target for me is that "someone" wants just to void your legal rights and to benefit from your patented idea. Your attorney obviously knows the reality once he had informed you, but if you are unsatisfied with his/her answer you definitely have and deserve the choice to consult another attorney specialized in patents rights.

I guess the thing I'm having a hard time understanding is, If someone has a idea, shows it to a buyer and asks "do you want to buy this", and they both say "no that sucks" and puts in his drawer thats just strong as a patent or even better. How am I or anyone else to know this. It sounds like the patent office has no right to issue a patent unless you go knock every single door in the world, show them your idea and ask if they ever thought of and wrote it down. In the future I'll just mail my idea to myself. .35 cents and envelope.... Who needs patent attorneys?

Get it notarized ($10) otherwise all you'll have is an envelope with a date stamp.

Question: Does the infringer has any notary witnessed confirmation or a NDA (Non Disclosure Agreement) with someone on or about that specific drawing and idea?

I won't know until the discovery in 2 months