Marking Products as Patented: Many manufacturers mark their products as patented by listing the associated patent number on the product or its packaging. The marking serves as constructive notice to potential infringers — allowing a patentee to collect damages for infringement even if the infringer had no actual knowledge of the patent. There have also been a few cases where marking was important to support a plaintiff’s willful infringement allegations. From a non-rights-based perspective, marking a product as patented may create additional consumer goodwill by suggesting that the marked product is innovative and that the design is the valuable property of the manufacturer. The markings may also tend to deter would-be competitors.
Marking is not without risk. The Patent Act provides a cause of action against those who “falsely claim that their products are patented.” The false-marking cause of action is termed a qui tam action because the action may be taken by any private individual on behalf of the government. A successful false-marking claimant must prove two elements: first, that an unpatented article has been marked as patented; and second that the marking was done with intent to deceive the public. Clontech Labs. Inc. v. Invitrogen Corp., 406 F.3d 1347, 1352 (Fed. Cir. 2005).
Rather than calling for damages or compensation, the false-marking statute calls for a fine of “not more than $500 for every … offense.” 35 U.S.C. 292. In the recent case of Forest Group v. Bon Tool, the Federal Circuit held that the “offense” relates to each article that has been falsely-marked. Thus, the fine against a manufacturer that sells a batch of 1,000 tubes of lip-gloss would have an upper limit of $500,000.
Patent Reform: In her recent article, Professor Winston (Catholic U) has argued that the rules of false-marking should be shifted to place more of a burden onto the patentee to avoid false marking. Winston would ease the proof necessary for to prove “intent to deceive the public.” Some manufacturers are requesting patent reform that goes the other way. I have heard of three potential changes being suggested: (1) clarifying that the listing of expired patents is not actionable; (2) limiting the standing to only particular individuals who have been harmed (such as competitors) or otherwise eliminating qui tam enforcement; and (3) overruling the Forest Group decision as a way to limit damages.
The Harm of False-Marking: I am working on a project to understand how the false-marking fine should be calculated. Notably, the fine could be based on any of (1) compensation for the harm caused to the public by the false-marking; (2) disgorgement of the false-marker’s profits due to the false-marking; or (3) punitive damages based on the culpability.
Related Posts:
Ned writes, “Any person with any common sense will know that what I am saying here is true. But more than this, I been at the center of it and can tell you that what I am saying is true.”
Except of course you forgot that the people you’re arguing with don’t actually have any common sense.
IANAE writes, “NAL, it must be a long time since the first year of law school. Let me explain. No, there is too much. Let me sum up.”
I just LOVE a good “Princess Bride” allusion!
a plain view is provided at link to filewrapper.com
That’s Ms. Law to you now, Hobbes. Now that you’ve shown what a big meanie you are, that is.
Noise, I don’t expect that you can imagine my consternation at seeing the comment above associated with the undersigned pseudonym. I simply can’t begin to understand why someone else would even think to append my pseudonym to such a comment. I fear, nay, I’m all but certain, that the reputation that I have striven to cultivate here at our “Trainwreck” is irreparably damaged.
Hobbes, I think NAL was pretty (C)lear: “to make a judgment based on integers not involved in the calculus of either the right transgressed or the actions of the transgressors is where conflation occurs.”
Or maybe not. Methinks Noise is off her meds again.
Does anyone actually know what any of this is supposed to mean?
Near as I can tell, it’s supposed to mean “once I know what right of mine was infringed, that’s all the information I need to calculate the remedy”.
Once you know who punched you in the face, you can use that information to calculate your medical bills.
From NAL’s posts of last night and early this morning:
Why should the value of a negative right be different when the only integers are a transgressor and my negative right to keep that transgressor from making something? This calculus should be blind as to my making something or not, because my right is blind to my making something or not.
…
How do you add integers in a correlation that are not found in the actual right?
Does anyone actually know what any of this is supposed to mean? Are you sure that you’re arguing with a sane person?
“equity,”
Read Ebay Noise.
“I’m pretty sure a court would let me keep and bear arms as a result of any suit I brought where that was infringed…”
Thousands of cases say otherwise.
He would be entitled to a remedy at law- monetary damages calculated on a reasonable royalty. It is highly unlikely that the ebay factors would favor an equitable injunction, as none would lend much weight, if any, to the inventor’s subjective idiosyncracy.
Re: The Second Amendment: What kind of arm? What extent of infringement? By the federal or state government?
The Second Amendment is not black and white either.
Now bridge this to my question about Consitutional Rights – you have never answered what courts would do about your particular Right to bear arms.
They’d probably decide that no matter how many guns you have, you still don’t get an injunction against patent infringement without a showing of irreparable harm.
how would you value ((v)alue for remedy’s sake) the hypothetical that an inventor who loves his invention so very much that he wants absolutely no one to have it and has obtained a patent for the sole purpose of the exclusive right.
I wouldn’t. First of all, serves him right for making his invention public. Second of all, “pursuit of happiness” doesn’t entitle you to catch it, only to the chase.
Just for jakes, lets say that this inventor is incredibly wealthy and spent 4.5 Billion dollars developing his invention.
So what? That’s not his damages. His invention is still developed even if someone infringes his patent.
the inventor does not want money.
If he doesn’t ask the court for money, he won’t get money. That doesn’t mean he’s entitled to get an injunction, legally change the infringer’s first name to “Jerk”, or any other remedy he may subjectively desire. If every plaintiff got everything he asked for, we wouldn’t need judges.
I’m pretty sure a court would let me keep and bear arms as a result of any suit I brought where that was infringed…
Just like any court would recognize your exclusive right to make/use/sell if it were infringed. But that’s the right, not the remedy. You wouldn’t have much to complain about if you got the cash value of the gun they took away, unless your gun happened to be unique.
good baby steps IANAE.
Now bridge this to my question about Consitutional Rights – you have never answered what courts would do about your particular Right to bear arms.
In essence, the statement of “You don’t “have a right to your right”” fails miserably at this abstraction.
While I do not expect a reply to the above (at least not one different than on the gargantuan thread), how would you value ((v)alue for remedy’s sake) the hypothetical that an inventor who loves his invention so very much that he wants absolutely no one to have it and has obtained a patent for the sole purpose of the exclusive right. He is the ultimate NPPP. How do you determine an appropriate remedy? no product, no licensing. Just for jakes, lets say that this inventor is incredibly wealthy and spent 4.5 Billion dollars developing his invention. Obviously, the points above reagrding (1) and (2) are trvial and let’s assume that they are perfunctionally met.
What then the remedy? The invention is priceless, the inventor does not want money. Is the remedy strictly one of equity, or one of law (herein the tie to the oft evaded Constitutional (R)ight question).
Does the hypothetical NPPP have a right to his (R)ight?
I’m pretty sure a court would let me keep and bear arms as a result of any suit I brought where that was infringed…
To the extent I can parse NAL’s post of 10:46 PM, I think “Anyone else” answered it pretty well. Not that I think it will convince NAL, but I have nothing to add.
NAL, it must be a long time since the first year of law school. Let me explain. No, there is too much. Let me sum up.
Suppose you have a right. Your right is that nobody but you is allowed to sell (let’s say) a particular item.
If someone sells that item without your permission, you go to court. The court essentially requires that you answer these questions three: (1) what right do you assert? (2) what facts establish a violation of that right? (3) how much were you harmed by that violation?
The answers to (1) and (2) follow the patent. They are the same for everybody. Any assignee, practicing or not, asserts under (1) the same claims with the same construction, and the same statutory exclusive right to the claimed invention. The facts of (2) relate to the accused infringer, and are also independent of the patentee. Points (1) and (2) are what give you a cause of action. Having stated your cause of action, we move on.
Now we get to (3). That’s where you establish your entitlement to remedy. This is where the answer is different depending on who you are. If you get punched in the face, you’ll suffer more harm than if Mike Tyson gets punched in the face. Same right, same infringement, different plaintiff, different damages, different remedy. A non-practicing entity usually loses only royalties, but a practicing entity can also lose market share, goodwill in its brands, and a host of other things. The extent of those losses depends on the company’s actual size, the quality of its brands, the competitive nature of its market, and so forth. Some of those damages are either difficult to quantify or difficult to remedy with money, which is why the practicing entity may be entitled to an injunction. Same right, same infringement, different plaintiff, different damages, different remedy.
You don’t “have a right to your right”, in the sense that you are not entitled to a remedy that is the same as your right. You are entitled to a remedy that compensates you for the loss of your right. The loss of your right only proves that you are generally entitled to an appropriate remedy, nothing more.
malcolm,
I do not expect the nuance of my question to penetrate your persistent shield of ignorance, thus I am not asking you, nor do your fluff comments matter to the discussion.
With all due respect – stfu
Anyone else,
(1) – except my point was NOT to remedy per se – you also have fallen to what IANAE jumps to – Too quick to judge are you both. You want to remedy, but what are you supplying remedy for? I am asking you to consider just what right is being transgressed – it is a negative right, a right that is not dependent on whether the holder of that right does anything but own the property. Therefore, the point in (2) is questioned – as the specific right transgressed does NOT relate to actual practice by the holder of the patent right.
I am trying to separate the answer provided (3) from the question I am actually asking. To say I am conflating simply ignores the question I am asking. Again, the focus is not on remedy per se – it is on what the remedy is for – to make a judgment based on integers not involved in the calculus of either the right transgressed or the actions of the transgressors is where conflation occurs.
The point of (4) is why is the argument based on such conflation. How do you rationally jump to include integers not involved?
(5) does not answer the question I am asking.
Under (7) we both agree that “Transgressed rights correlate with the remedy.” – I have no problem with this – I get remedy! The problem you are ignoring is that the rights transgressed are negative patent rights – which by law are the same regardless of PPP or NPPP status. How do you add integers in a correlation that are not found in the actual right?
Answer the question I presented – not the question you want to answer. Maybe it would be less brutal if you read more carefully, rather than jump to answer a question I am not asking.
end italics
Gadangit.
A1Else: IANANE has cogent argument- an NPP or NPE has been (typically) less damaged than one practicing a patent, so the remedy should reflect that. This is a common concept of remedies.
Makes sense to me.
NAL: Perhaps I need to use a (V)alue and a (v)alue as well!?
Why not just learn to write coherently?
Based on Noise’s last post:
YOU, noise, have conflated right vs. remedy, as you suggest IANANE has.
(1) “There are not separate patent rights handed out based on who is receiving them.”
Yeah, that’s what was proffered: “…the remedy depends on what value was lost to the owner of the right.”
(2) “Given that the right itself does not change – cannot change – on what basis does anyone have the right (ouch) to place a value to be charged to a transgressor of my right something different depending on whether I make product or not?”
Exactly what was suggested: “…the remedy depends on what value was lost to the owner of the right.” Noise, you’re basically arguing: “You’re wrong, because you’re wrong!” Ever studied remedies?
(3) “Remember – the patent right is a negative right – it is not, in law, a right to make something – it is only a right to prevent others. Why should the value of a negative right be different when the only integers are a transgressor and my negative right to keep that transgressor from making something?”
IANANE suggests, not the “right,” but “…the REMEDY depends on what value was lost to the owner of the right.” Conflation….
(4) “This seems to be a fundamental break in logic. It seems to say that I do not have a right to my right.”
The break is in YOUR limited perception. Right does not equal the same remedy for all, per the suggestion.
(5) “The Supremes were very clear on that. The right is not the same thing as the remedy for violation of that right.”
That is what IANANE said.
(6) “neither the violation, nor my right itself have anything to do with whether I make product or not.”
Yeah, as is clear, YOU have conflated right vs. remedy, as you (wrongly) suggest IANANE has.
(7) “From the core conceptual basis, the negative rights of the patent cannot correlate with something I technically do not have the patent right to do.”
AGAIN, “YOU have conflated right vs. remedy, as you (wrongly) suggest IANANE has.” Sure they can, it’s anomalous to suggest otherwise… Transgressed rights correlate with the remedy.
(8) “the problem is that the right transgressed does not in fact change due to the status of the holder because patents only come out in one flavor”
One more time: “YOU have conflated right vs. remedy, as you (wrongly) suggest IANANE has.” No, the right does not change; IANANE is talking about the REMEDY.
IANANE has cogent argument- an NPP or NPE has been (typically) less damaged than one practicing a patent, so the remedy should reflect that. This is a common concept of remedies.
You are brutal.
IANANE,
for someone who is so careful to make a distinction between right and remedy – you seem to be conflating the two.
You start out ok:
“The right should have the same scope as it passes from owner to owner,…”
And I can momentarily even accept:
“…Similarly, the remedy depends on what value was lost to the owner of the right.
But you lose my point of distinction by ignoring what the actual right is of a patent, and the fact that that actual right is the same no matter if the patentee is an PPP or a NPPP. There are not separate patent rights handed out based on who is receiving them.
I could get into the (R) or (r) discussion – but I am trying to keep this on a level you will deal with. Perhaps I need to use a (V)alue and a (v)alue as well!?
Given that the right itself does not change – cannot change – on what basis does anyone have the right (ouch) to place a value to be charged to a transgressor of my right something different depending on whether I make product or not? Remember – the patent right is a negative right – it is not, in law, a right to make something – it is only a right to prevent others. Why should the value of a negative right be different when the only integers are a transgressor and my negative right to keep that transgressor from making something? This calculus should be blind as to my making something or not, because my right is blind to my making something or not.
I simply cannot make sense of your statement: “The “right to maintain the exclusive nature of what is patented” does not entitle you to maintain the exclusive nature of what is patented.” This seems to be a fundamental break in logic. It seems to say that I do not have a right to my right.
Your follow on statement does not add light:
“The Supremes were very clear on that. The right is not the same thing as the remedy for violation of that right.” as neither the violation, nor my right itself have anything to do with whether I make product or not. From the core conceptual basis, the negative rights of the patent cannot correlate with something I technically do not have the patent right to do.
I get your position of “money as an answer to remedy” – the problem is that the right transgressed does not in fact change due to the status of the holder because patents only come out in one flavor (my choise would be chocolate-rasberry – oops ice cream time).
Ned It is clear that many here simply have not worked inside a large company at any level of responsibility.
Does McDonald’s count?
“Now, multiply that by 10,000 – the number of patents many large companies have. Now do you begin to see the problem? 10,000 people just handling marking? Ridiculous.”
Super Strawman to the rescue!
Willy Nilly? You really do not have a clue.
When a patent application is filed, it may be related to just one product. But, as the years go by, the number of products that include the invention may expand, and then at a later time, begin to recede. Such is the life cycle of most inventions. But, due diligence requires that one know that a patent is covering a product before it is marked. If a company has 500 products, all of which could employ the patent, it would take any individual a long time to determine whether the patent is or is not in each. But, as I said, this is a moving target depending on how soon new products emerge.
It gets real complicated.
Now, with respect to a given product and a specific issue, such as quality and safety, this is a whole different issue. Here each product may have its own set of quality and safety personnel who would be intimately familiar with that product, but have nothing to do with other products. No one person would have responsibility for all products, except at a senior management level.
It is clear that many here simply have not worked inside a large company at any level of responsibility.
DA, no. But keeping up with a company’s products can be a full time job. That is the problem.
You should consider also that with big companies, a large portion of the patent applications are prosecuted by outside attorneys who know nothing at all about the company’s products.
“10,000 people just handling marking?”
Sounds like you’re suggesting that there should be one person monitoring each patent marking (of the hypothetical 10,000 patents). That’s kind of amusing. Did 10,000 different people write these 10,000 patents in this fictional scenario?
Ned But more than this, I been at the center of it and can tell you that what I am saying is true.
Well, I wonder what it is you think you are saying. Because marking is not “actually harder the larger the business entity” as you asserted. It may be more difficult for an entity, regardless of its size, to keep up with its responsibilities if it filing patent applications willy nilly. But that has nothing to do with “large” or “small.”
You could just as easily argue that it’s “harder” for a large car manufacturer to meet safety standards. And you would be wrong in that instance, too.
DA, you think of only one half of the equation and make a lot of assumptions about large entities that are not true. No one has unlimited money to hire unlimited staff for anything. Second, even if a patent attorney knows what is in a patent, he or she does not know what’s in the company’s products. The larger the company, the more products, and, in many cases, the faster the turnover in products. Without a searchable database, and they do not exist in this fashion, it is impossible for anyone to know what is in each and every one of a large company’s products.
So we are left with a large research project for every patent to determine which products are covered by the patent. That takes time. And, by the time the project is finished, months later, it has to be repeated because the company’s products may have changed completely in the meantime.
Now just think on that. It might require some mid level functionary full time just to keep up with the marking requirements of just one patent. Now, multiply that by 10,000 – the number of patents many large companies have. Now do you begin to see the problem? 10,000 people just handling marking? Ridiculous.
Next you haven’t even begun to address the problem caused by licenses and cross licenses. Even if one tried to mark one’s own patents on every covered product, how could you also mark the patents of your cross licensed competitor on your own products? Why is this required, you ask? Because you have to be willing to do it yourself if you ask your partner to do it for you.
Any person with any common sense will know that what I am saying here is true. But more than this, I been at the center of it and can tell you that what I am saying is true.
To Ned –
The more patents a large company applies for and obtains, the more staff they use including attorneys. Some large companies have legions of attorneys working on their patents alone (in-house and out). You’re telling me they can’t add one more small matter to their task list? They wrote the patent application, they prosecuted it. They know exactly what the scope is because they wrote it, including any claim amendments. If we’re talking expired patents, we’re talking about one more docket entry which is conceptually identical to the 3 maintenance docket entries. You’re telling me you don’t have time to plan for an event 17-20 years ahead of time? How did you plan for maintenance fees – just cross your fingers and hope?
Ridiculous or a flat out lie.
DA, trust me, it is much easier for the small firm than the large entity. I have been there and done that for both.
As to voluntarily living by the rules of the game, some rules are impossible to follow with any economy. Such is the marking requirement generally for the large entity; other than for certain products such as chemicals, drugs; and, where product list is small and relatively stable. I think here of toothpaste; the large entity can hardly track all the products covered by his portfolio of thousands. Since one cannot just splash a brochure with all one’s patents, that would be false marking, one just has to give up.
Then there are the cross licenses.
I think marking is actually harder the larger the business entity. If I have ten patents and five products, I can pretty much know which patents cover which products. But as an entity grows and the product list expands, who can tell what products are covered by which patents. That would require an assessment of whether each product contained all the elements of at least one claim. No easy task in the large corporation.
Boo hoo hoo hoo hoo!!!!!!!!!!
“That would require an assessment of whether each product contained all the elements of at least one claim. No easy task in the large corporation.”
So impose that complicated burden on small inventors and the rest of the “public”? If a business chooses to participate in the patent game, it should be prepared to undertake the burden of its rules (which, under current law, don’t allow for the externalization of such burdens). Very simple.
Of course, the patentee that is also making/marking the product is best poised to know whether its own patent covers its own product. Hardly sounds burdensome at all.
Noise, I think marking is actually harder the larger the business entity. If I have ten patents and five products, I can pretty much know which patents cover which products. But as an entity grows and the product list expands, who can tell what products are covered by which patents. That would require an assessment of whether each product contained all the elements of at least one claim. No easy task in the large corporation.
Add to this is that many large companies, if not most, engage in cross licensing. Cross licenses do not have marking requirements, which practically means that if the licensed party is selling any product covered by the patent there can be no damages. As a result, large companies already exist in a world of no damages where marking is a wasted effort.
The world of marking works most effectively only with drugs and chemicals and the like; and with small businesses that have few products and patents. Marking here is relatively straight forward and simple. Beyond that, marking simply is not possible — which effectively strips the large entity of any effective way of preventing deliberate piracy.
The requirement for marking, imported from an era long vanished, and for a purpose long forgotten, clearly operates in a discriminatory fashion for no apparent good purpose. We really need reform here, not in the way being proposed here by making it worse, but by abolishing both the requirement for marking and the penalties for false marking.
There are implicit penalties for “false marking.” See the Milgo cases where the patentee was determined to have committed fraud on the court by advancing an infringement theory that was not consistent with the way they were marking. The fraud, a form of patent misuse, rendered the patent unenforceable.
Moreover, the NPE to the extent they have large entitly licenses are typically in the same position as the large entity, their licensee. The large entity will often refuse any marking requirement in their license. Thus such NPEs must give actual notice in order to collect damages.
But woe to any entity that agrees to mark but does not. If the NPE cannot collect damages because of the failure to mark by the licensee, the licensee may be obligated to compensate the NPE in damages for breach of contract.
The “right to exclude” has the same value regardless of whether the property holder is a PPP or a NPPP
No it doesn’t. The right should have the same scope as it passes from owner to owner, but the value of the right depends on what you do with it. Similarly, the remedy depends on what value was lost to the owner of the right.
The “right to maintain the exclusive nature of what is patented” does not entitle you to maintain the exclusive nature of what is patented. It entitles you to a remedy when someone else makes an unauthorized use of what is patented. The Supremes were very clear on that. The right is not the same thing as the remedy for violation of that right.
If you can’t make a case for a particular remedy, you don’t get the remedy. If I punched Mike Tyson in the face, he probably wouldn’t be able to show the same quantum of damages as I could if he (inevitably) punched me in the face. We both have the same right not to get punched in the face, and I’d argue that his face doesn’t even have a whole lot of intrinsic value, but that’s not the question. The question is what harm the individual has suffered and can show that he will suffer in the future.
Whether you’re claiming a sum of money or an injunction or whatever else, you have to justify that you are entitled to that particular remedy.
“they just have a harder time”
Which no doubt underscores a creeping prejudice – since the rights of a patent are negative rights, how are those negative rights affected differently regardless of whether the entity owning the property is a PPP or a NPPP?
Mind you, I am not talking strictly about remedy, including lost market share which has obvious implications for those with goods – I am talking explicitly about the right to maintain the exclusive nature of what is patented.
The “right to exclude” has the same value regardless of whether the property holder is a PPP or a NPPP (if it helps, think of the NPPP as a licensor to a highly selected and carefully controlled number of PPP’s).
As I have mentioned, “trolls” are not necessarily a bad thing – in fact, they can be a very good thing.
They’re a bad and scary thing for the “people” who pour all the money into the legislative process. Even so, they currently enjoy the same treatment under the law as every other patentee, they just have a harder time showing grounds for an injunction because those grounds are less likely to apply to them.
I would suggest that congress has a strong public policy preference favoring competition in unpatented products. If a product is falsely marked, it inhibits that competition. If it is unmarked, it may freely be copied without fear of damages.
I’m sure that policy made good sense 163ish years ago, when old-timey products were covered by a single patent and that patent was otherwise impossible to find, especially if you lived far from DC. You would never have any knowledge of a patent that wasn’t marked. It was an exciting time to own a factory, and everyone was encouraged to manufacture whatever they could, as long as it didn’t bear the P-word stamped on the bottom.
Even forgetting for a moment that anybody can now search patents online, the entire commercial landscape of the country has changed. It’s no longer the wild west, where you had to plant a flag or put a sign on anything if you wanted to reserve the rights you already had. What we need to fix is the pervasive mentality that copying someone else’s stuff is okay unless he tapes a lawyer’s letter to every article listing all his patents and copyrights in Appendix A.
Mr. Hobbes,
Could you tell me on what basis would a value judgment on what any person may rightfully do with their justly owned property have to do with efficacy of the patent statute?
I ask this in the light of the normal quid pro quo – the government has its quo (often well before a patent is granted), and the inventor has his quid. Once that exchange occurs, the property can rightfully be bought and sold according to the general laws of the land. Too much government intervention (especially after the quid pro quo has been reached) is simply a recipe for disaster – especially for Patent Law.
An important sub-question is just WHOSE value is underscoring the judgment. As I have mentioned, “trolls” are not necessarily a bad thing – in fact, they can be a very good thing. Isn’t it amazing how this point is so neglected?
When you open the door for such “value judgments”, what sneaks through that door is the value of graft and influence peddling – surely valuable to members of Congress as the special interest groups spend and spend.
Ned,
Your views are interesting and touch upon your earlier position that perhaps marking shouldn’t be an option at all. How would you handle a rebuttal that forcing marking is not within the power of the Patent Act? Or, an economic rebuttal that small firms may be disadvantaged by the requirement to mark?
IANAE asked, “What is the public policy behind the requirement to mark to collect damages and the false marking statute?”
I haven’t researched it, but I would suggest that congress has a strong public policy preference favoring competition in unpatented products. If a product is falsely marked, it inhibits that competition. If it is unmarked, it may freely be copied without fear of damages.
Which means, of course, is that even if I have knowledge of the patent, if I copy an unmarked product, I should be fully protected against any charge of willful infringement.
As to the difference in treatment between PPP and NPPP, I think patent law is the wrong place to make value judgments on how someone should be able to treat their perfectly owned property.
I must not have been clear, Noise. Sorry, I seem to have trouble communicating clearly lately. By “difference in treatment,” I meant the difference in treatment under 35 USC 287(a), as interpreted by the courts. I don’t pretend to have any expertise outside the realm of patent law, but I think it’s impossible to escape value judgments even in that tiny area of the law, when one is considering the efficacy of a statute or the possibility of a change.
Do you find it curious at all that our resident patent abuse crusader misses this line of reasoning as well?
I’m not sure who the “resident patent abuse crusader” is, but if he/she is like me perhaps he/she is simply incapable of detecting a “line of reasoning” in your comments, NAL.
I often detect errors, self-congratulatory wanking, and misleading statements in your comments, but rarely any “lines of reasoning.”
trollification is done for ulterior motives
What is Judge Rader’s ulterior motive?
Mr. Hobbes
Let’s wait for Dennis to post a thread dealing with any of the particular points being considered under “patent reform”. I do not think a global comment would merit justice to any individual issue under consideration.
As to the difference in treatment between PPP and NPPP, I think patent law is the wrong place to make value judgments on how someone should be able to treat their perfectly owned property. Egads – I think IANAE and I agree on this matter.
To me, the trollification is done for ulterior motives. It is telling that the de-nukification aspect of the so-called “trolls” causes such fright to those holding the highest number of worthless patents.
Do you find it curious at all that our resident patent abuse crusader misses this line of reasoning as well?
Yes – there are issues between practicing entities and NPP’s – those that merely hold their rightful property and those that produce – but focusing only on those issues misses the forest for the trees.
If you don’t mind, Noise, can we talk about these trees for a moment? I’m quite interested in your thoughts on the difference in treatment between product-producing patentees (PPPs?) and non-product-producing patentees (NPPPs?). Since the topic of this thread is “patent reform,” does the current statute represent good public policy, in your view?
Lionel,
Whether you hire me or not misses the point – marking is not for lawyers. It is to be the “ready indicator” of the status. It IS the status.
Your line of thought as to checking examiner references is thus pointless (and yes, of course examiner references are checked – perhaps you missed the exchange between IANAE and I on a related subject of citing law in Office Actions).
“hurts no one” – such a subjective comment is easily balanced (and has been balanced) by those holding contrary views. The Law feels differently than you.
My maxim deals with the Law. I understand that people have a hard time dealing with that – that’s OK.
“hard” on the patent owner” – so what? The expediency gained by avoiding the alternate routes of notice more than make up for the “hardness”. Yes – there are issues between practicing entities and NPP’s – those that merely hold their rightful property and those that produce – but focusing only on those issues misses the forest for the trees.
Malcolm,
Including the expiration date is a reasonable solution.
The only issue I can see with it would be where the object and/or the packaging is sufficiently small to preclude a large marking, although I would think it would be possible to include a booklet that lists the patents and an asterix next to the patent notice stating where the expiration dates may be found.
NAL,
“You neglect element two of my maxim:
The mark IS the status, not an invitation to find out the status.”
Seriously? Remind me to never hire you as my attorney.
Do you never check Examiner’s references either?
An admin can check this information quickly. You cannot be serious.
Marking with an expired patent hurts no one. And False marking itself, does de minimis harm.
If I falsely mark, I lose willful infringement, let’s leave it at that.
Strong/weak, I don’t know, but can’t you see Ned’s basic point that the current system is hard on the patent owner?
…or the patent is defeated in court?
…or the patent is dedicated to the public?
The even simpler solution (and current law), is that the mark IS the status. There is no need to make it more complicated.
If you see patent pending – that’s what the status is. If you see patent, that’s what the status is.
It doesn’t matter how easy it has become to check status, or how convoluted it is to check adjusted patent length (as we have seen – the Office routinely got this wrong). The key is that the mark is not an invitation to check status.
For people who have trouble calculating patent term:
Go to Google and start typing “patent expiration”
As soon as you get to “patent e” you find what you want.
I can’t believe that is too much effort for someone interested in copying a marked product.
And re the suggestion to mark a patent expiration date: what happens when the molds are made early in the patent term and later the Patentee decides not to pay the last renewal?
When a patent expires, a patentee should be under no obligation to clear inventory, replace molds, change packaging, or otherwise remove historical markings from the item.
One easy solution is to mark the article with the patent number and the expiration date.
Re-post to fixe line breaks:
“From a non-rights-based perspective, marking a product as patented may create additional consumer goodwill by suggesting that the marked product is innovative”
* Which is almost certainly false, thus indirectly misleading marketing.
“For a lay member of the public, calculating the expiration date of a patent is not easy. Most here claiming otherwise I’m assuming are patent attorneys who – by that very definition – are “experts” in patent laws.
Many lay people I’ve spoken with […] think patents can be renewed after expiration, for example (even picked up and renewed by another entity if the original patentee “lets” the patent go expired). And, some of these people are actual inventors or would-be inventors.
I’ve had at least one client that was threatened by a competitor with an expired patent. I’ve seen still other situations where companies don’t make a particular product because they’ve seen “patent pending” marked on the product they would like to copy.
Like it or not, these issues do have an impact in the business world.
/Different Anonymous
* The public needs to be informed bet since patents apply to everybody.
What if you happen to figure out a nice way to reassemble some household objects, post an image on Flickr and get sued? Or if you sell it to a neighbour – you could end up spending years to deal with it. And what about the idea that people has that abandoned patents can be repatented? The existance of it alone is just dangerous!
Threatening others with invalid patents should be comparable to drinking and driving – voilá, there’s another revoked drivers license. Repeated offence equals permanent driving ban (which would mean no more dealing with patents).
“Patent pending” alone marks are bad, since they discourage healthy competition. I think that pending patents also should have unique numbers for referral to the application, so that competitors would know what to avoid/be able to ask for a license early on.
“I don’t think patent law has the answer (or even should) for people at this level of misunderstanding. If these people are concerned with patents, they should educate themselves on the very basics of patent law and seek legal advice for the more complex aspects. […]
It’s hard to explain basic patent concepts to an Actual Inventor sometimes, but a little bit of careful reading can be illuminating.
“I’ve seen still other situations where companies don’t make a particular product because they’ve seen “patent pending” marked on the product they would like to copy.”
That’s the intended effect of the marking provision, surely.”
/IANAE
* How would they educate themselves? I don’t see anybody trying to explain it to people. I would like education about it in school, because it is nearly becoming as important to understand as math. (And I’d like to include copyright here)
And who would ask for legal advice about something they don’t know if they’re willing to even spend a few hours on their idea? How likely is it that you could just explain your idea to a laywer and get an easy-to-read paper with all legal issues explained for free?
And that intended effect is extra bad for competition since the patent applications almost always are impossible to find (and understand).
“And to repeat my question above, so what exactly is the harm as it relates to failing to remove an old patent from packaging? In concrete terms? The consuming public is going to purchase Bunn coffee machines over a generic because there are old patent numbers stamped on the bottom? Please. Oh wait, maybe Company B is going to refrain from checking the date of the patent and thereby refrain from putting their article into commerce? Again, please.”
/pong
* So you didn’t know that’s how everybody else sees it? Ask any random person on the street about if they’d prefer a patented product over a non-patented, and how likely they are to make use of an idea they have come up with if they knew somebody has patents on something similiar.
You’ll be surprised.
I’ve heard arguments like “since Linux is free, it must be bad, why aren’t they charging money for it otherwise?”, and it’s exactly the same with patents. This is bad.
And I’d easily do +1 to the suggestion about putting expiration dates next to the numbers, as mentioned before.
“As for the other examples you mention (the ones I’ve posted above) – why would a layperson’s ignorance matter? I too have spoken with people who think they can “get a patent” on their catchy new slogan. But I keep coming back to the lack of harm from an expired patent. They layperson as you note may have trouble calculating patent term without asking someone more experienced, should they desire to do so. But by lay person at least I think you mean general member of the public, who is not a competing business person. So what is the import of the patent expiration to this lay person?”
/pong
* It matters because they are the big masses. Isn’t law also supposed to reflect the society? And if you know that people have no idea about how the world really works, it soo much easier to fool them.
And as said before, patent marks should have expiration dates as well. Arguments for why can be found above.
“Some companies that mark with expired patents also advertise in places – such as on a website – that their product is innovative, new, better, etc. because it is “patented” (even when there is no longer a subsisting patent). Why do you think the marketing departments do this? Because it works for some percentage of the consuming public.”
/Different Anonymous
* Such as 50-90%.
“But by lay person at least I think you mean general member of the public, who is not a competing business person. So what is the import of the patent expiration to this lay person?”
A lay person is a potential inventor. […] As one example, the cost of investigating the patent label for a small inventor could push that inventor over budget […] New inventions can be subservient to existing patents and therefore an existing patent (or patents) may discourage an inventor from seeking patent protection and therefore eventually giving his/her invention to the world.
Some patent labels I’ve seen have included as many as 31 expired patents […] most firms WILL charge someone to investigate such a label.
Then there is the issue of mistakes […]
The fact is, all types of false marking potentially cause some sort of harm. Sometimes the harm is greater than others (and sometimes it will never be known – someone actually deceived is least likely to be discovered) but that is why the statute allows for a variable monetary penalty.”
/Different Anonymous
* 1: The giving-the-invention-to-the-world are both less bad AND less likely than that the invention never is made.
2: 31? That’s almost evil. Expiration dates should be mandatory here.
3: It is difficult to know for sure how false patent related marketing affects things, but I’m certain it’s not improving anything.
And I would also like a central ownership database for patents (similiar to the stock market?), an easy way to mass-license them, shorter terms, better reviews, higher requirements, easier and cheaper ways to challenge patents, etc…
Ouch, Notepad (proprietary) replaced my line breaks in a horrible way… 🙁
“From a non-rights-based perspective, marking a product as patented may create additional
consumer goodwill by suggesting that the marked product is innovative”
* Which is almost certainly false, thus indirectly misleading marketing.
“For a lay member of the public, calculating the expiration date of a patent is not easy.
Most here claiming otherwise I’m assuming are patent attorneys who – by that very definition –
are “experts” in patent laws.
Many lay people I’ve spoken with […] think patents can be renewed after expiration, for
example (even picked up and renewed by another entity if the original patentee “lets” the patent
go expired). And, some of these people are actual inventors or would-be inventors.
I’ve had at least one client that was threatened by a competitor with an expired patent. I’ve
seen still other situations where companies don’t make a particular product because they’ve seen
“patent pending” marked on the product they would like to copy.
Like it or not, these issues do have an impact in the business world.
/Different Anonymous
* The public needs to be informed bet since patents apply to everybody.
What if you happen to figure out a nice way to reassemble some household objects, post an image
on Flickr and get sued? Or if you sell it to a neighbour – you could end up spending years to
deal with it. And what about the idea that people has that abandoned patents can be repatented?
The existance of it alone is just dangerous!
Threatening others with invalid patents should be comparable to drinking and driving – voilá,
there’s another revoked drivers license. Repeated offence equals permanent driving ban (which
would mean no more dealing with patents).
“Patent pending” alone marks are bad, since they discourage healthy competition. I think that
pending patents also should have unique numbers for referral to the application, so that
competitors would know what to avoid/be able to ask for a license early on.
“I don’t think patent law has the answer (or even should) for people at this level of
misunderstanding. If these people are concerned with patents, they should educate themselves on
the very basics of patent law and seek legal advice for the more complex aspects. […]
It’s hard to explain basic patent concepts to an Actual Inventor sometimes, but a little bit of
careful reading can be illuminating.
“I’ve seen still other situations where companies don’t make a particular product because
they’ve seen “patent pending” marked on the product they would like to copy.”
That’s the intended effect of the marking provision, surely.”
/IANAE
* How would they educate themselves? I don’t see anybody trying to explain it to people. I would
like education about it in school, because it is nearly becoming as important to understand as
math. (And I’d like to include copyright here)
And who would ask for legal advice about something they don’t know if they’re willing to even
spend a few hours on their idea? How likely is it that you could just explain your idea to a
laywer and get an easy-to-read paper with all legal issues explained for free?
And that intended effect is extra bad for competition since the patent applications almost
always are impossible to find (and understand).
“And to repeat my question above, so what exactly is the harm as it relates to failing to
remove an old patent from packaging? In concrete terms? The consuming public is going to
purchase Bunn coffee machines over a generic because there are old patent numbers stamped on the
bottom? Please. Oh wait, maybe Company B is going to refrain from checking the date of the
patent and thereby refrain from putting their article into commerce? Again, please.”
/pong
* So you didn’t know that’s how everybody else sees it? Ask any random person on the street
about if they’d prefer a patented product over a non-patented, and how likely they are to make
use of an idea they have come up with if they knew somebody has patents on something similiar.
You’ll be surprised.
I’ve heard arguments like “since Linux is free, it must be bad, why aren’t they charging
money for it otherwise?”, and it’s exactly the same with patents. This is bad.
And I’d easily do +1 to the suggestion about putting expiration dates next to the numbers, as
mentioned before.
“As for the other examples you mention (the ones I’ve posted above) – why would a layperson’s
ignorance matter? I too have spoken with people who think they can “get a patent” on their
catchy new slogan. But I keep coming back to the lack of harm from an expired patent. They
layperson as you note may have trouble calculating patent term without asking someone more
experienced, should they desire to do so. But by lay person at least I think you mean general
member of the public, who is not a competing business person. So what is the import of the
patent expiration to this lay person?”
/pong
* It matters because they are the big masses. Isn’t law also supposed to reflect the society?
And if you know that people have no idea about how the world really works, it soo much easier to
fool them.
And as said before, patent marks should have expiration dates as well. Arguments for why can be
found above.
“Some companies that mark with expired patents also advertise in places – such as on a
website – that their product is innovative, new, better, etc. because it is “patented” (even
when there is no longer a subsisting patent). Why do you think the marketing departments do
this? Because it works for some percentage of the consuming public.”
/Different Anonymous
* Such as 50-90%.
“But by lay person at least I think you mean general member of the public, who is not a
competing business person. So what is the import of the patent expiration to this lay person?”
A lay person is a potential inventor. […] As one example, the cost of investigating the patent
label for a small inventor could push that inventor over budget […] New inventions can be
subservient to existing patents and therefore an existing patent (or patents) may discourage an
inventor from seeking patent protection and therefore eventually giving his/her invention to the
world.
Some patent labels I’ve seen have included as many as 31 expired patents […] most firms WILL
charge someone to investigate such a label.
Then there is the issue of mistakes […]
The fact is, all types of false marking potentially cause some sort of harm. Sometimes the harm
is greater than others (and sometimes it will never be known – someone actually deceived is
least likely to be discovered) but that is why the statute allows for a variable monetary
penalty.”
/Different Anonymous
* 1: The giving-the-invention-to-the-world are both less bad AND less likely than that the
invention never is made.
2: 31? That’s almost evil. Expiration dates should be mandatory here.
3: It is difficult to know for sure how false patent related marketing affects things, but I’m
certain it’s not improving anything.
And I would also like a central ownership database for patents (similiar to the stock market?),
an easy way to mass-license them, shorter terms, better reviews, higher requirements, easier and
cheaper ways to challenge patents, etc…
The only times I’ve seriously struggled to come up with a US expiration date were in cases involving pre-1995 terminal disclaimers, and where the patent in question had printed on the face of it an exact termination date that you could tell was based on “17 from issue” of the parent, and 17 from issue was less favorable than “20 from priority”.
Because of PTO rulemaking during GATT adoption, for a disclaimer providing a date certain the patentee was held to that date despite the change in the law that would have given additional term. But a disclaimer that did not state a date certain entitled the patentee to the full extended term of the parent (no matter what the PTO may have printed on the patent itself). Of course, I was completely ignorant of this until I had reason to try to dig it up.
So I had a couple of instances of having to explain to a client that the term expiry/disclaimer date printed on the patent in question was (in the longest case) actually off by about a year and a half.
A tempest in a teapot.
You cannot infringe an expired patent. An edible soft-serve ice cream up carries a patent number. Curious about the history of the cup, I looked it up to see when the patent issued. The patent was directed to protruding structural elements that prevented one cup from being jammed into another while stacking. At the time, (decades ago), I was an engineer, i.e., I could count. Adding 17 to the year of issuance gave a date in a prior decade.
Even then I knew I could not infringe that patent and would not be liable for using those structural elements in an ice cream cone of my making.
When a patent expires, a patentee should be under no obligation to clear inventory, replace molds, change packaging, or otherwise remove historical markings from the item.
Markings do provide a clue to where to find the basic enabling information to make or use the object of an expired patent. As long as the marker has no hope of using t
he markings as a vehicle of enforcement, I don’t see the harm.
Joe-on-the-Street cannot be harmed by these markings. If he were interested in creating a similar article, he’d know where to look. He could find out when the monopoly ends.
I think this is just another scam for drumming up business during a dry spell. Now, if a (former) patentee tried to hang a client for practicing an expired patent, the defendant has good reason to balk, and should have a club to dissuade such misuse.
Otherwise, the courts should not murk up the patent seas with any more mental flotsam.
It seems to me that existing competitors of those who falsely mark may benefit from the false marking because it might scare off potential new competitors, particularly patent-un-savvy inventors.
Assume A and B sell competing widgets, and A falsely marks their widget as patented. The false marking is more likely to dissuade a new competitor from entering the market, than to somehow cause damage to B. If B is competing with A, they already should know what the patent landscape is. Given that scenario, competitors would actually benefit from false marking because less competition results in higher prices and less pressure for innovation.
Clients don’t come wanting to know about the expiration…. They come with an Idea.
PING!
Quote – “Mr. Hainline then represented Gillette in a case challenging Sonicare’s core advertising claim of cleaning with sonic waves beyond the tips of the bristles. He developed the scientific evidence showing that there was no efficacy to the sonic claims and prepared and filed a Lanham Act claim challenging these
claims. Mr. Hainline also prepared a patent false-marking case and presented it to Sonicare’s parent, Philips. The case then settled, and Sonicare ceased making sonic cleaning and beyond-the-bristle claims. Thereafter, Gillette’s Braun Oral-B
regained its position as the number one power brush with dental professionals, which Sonicare had assumed.”
Curiously, the Gillette lawsuit alleges that Gillette’s Oral-B products are falsely marked. What do you think Gillette asked for in damages from Philips?
DC – “A client comes to you wanting to know the expiration dates of three patents held by a competitor. How much would you charge to provide a complete answer? ”
How about gratis for a current client?
pong:
Yes – Gillette razors are already part of the pending Procter and Gamble lawsuit (which deals with expired patents as well as patents which allegedly never covered the marked products).
Adobe has already been sued as well.
By hourly rate – no set rate, because each one can be different.
What if it’s the proverbial impecunious garage inventor and he needs an estimate?
“Hypothetical: A client comes to you wanting to know the expiration dates of three patents held by a competitor. How much would you charge to provide a complete answer? I ask because I always struggle with calculating patent expiration dates.”
By hourly rate – no set rate, because each one can be different.
D.A. “Point being, I don’t believe 70 patents actually cover any of its razors. ”
I’d have to agree that I have my doubts also, which is why I concluded with “book `em”.
For that matter, isn’t P&G (nee’ Gillette) involved in one of these suits? Not the ones just filed, but one of the older ones? Maybe by the same lawyer Pequignot (sp?) who is suing Solo Cup. Wonder if it’s over one of these “over-marked” razors.
In any event, I see allowing old numbers to remain (e.g., through inertia, ignorance) as being different in type than actually affixing numbers that don’t cover.
Point being, I don’t believe 70 patents actually cover any one of its razors.
Is that what you meant to say?
It’s probably a safe bet that many of their patents cover at least one of their razors. Either way, if you’re going to design your own non-infringing razor, you still need to get around all the patents on the list, not just the ones they’re actually using.
As much as it hurts to get a list of patents on a razor-sharp blade, it hurts more to get it on lawyer’s letterhead.
Hypothetical: A client comes to you wanting to know the expiration dates of three patents held by a competitor. How much would you charge to provide a complete answer? I ask because I always struggle with calculating patent expiration dates.
Point being, I don’t believe 70 patents actually cover any of its razors. But submit that list to [insert big firm name] and ask them how much they’ll charge to give you a design around opinion.
IANAE, Hobbes, D.A. – 70 on a razor? 56 on Adobe? (list below). Thanks. I guess these guys are just out of my league. I’m into simple widgets and keep them to the 5 most relevant or less.
Book `em, Dan-o.
U.S. Patents 337,604; 338,907; 371,799; 454,582; 4,667,247; 4,837,613; 5,050,103; 5,185,818; 5,200,740; 5,233,336; 5,237,313; 5,255,357; 5,546,528; 5,625,711; 5,634,064; 5,729,637; 5,737,599; 5,754,873; 5,781,785; 5,819,301; 5,832,530; 5,832,531; 5,835,634; 5,860,074; 5,929,866; 5,930,813; 5,943,063; 5,995,086; 5,999,649; 6,028,583; 6,049,339; 6,073,148; 6,185,684; 6,205,549; 6,275,587; 6,289,364; 6,324,555; 6,385,350; 6,408,092; 6,411,730; 6,415,278; 6,421,460; 6,466,210; 6,507,848; 6,515,675; 6,563,502; 6,604,105; 6,639,593; 6,701,023; 6,711,557; 6,720,977; 6,748,111; 6,754,382; 6,771,816; 6,842,786; 6,857,105; 6,894,704; 6,934,909;
Gillette has at least 70 patents marked on some of its razors.
At least that explains why the razors have so many blades. They need the space.
Hey lets understand Genius and the moment. We that invent have our moments. And just like a start up company not all succeed. Stop worrying about succession. People that dream, they dream on and on. One hit wonders fall into the fold.
I always wonder about the DNA guy. If he had been truly compensated for what he “REALLY” did, where we would be today. His story is the saddest of all. Who knows where Science would have gone. That is why these new startup Companys that “REALLY” cares about individual ideas, and what they will get in the end of that idea. Only realising what the next idea from that same Inventor may bring to them. And not the flash money they’ll make from a one hit wonder, or the bait and switch Then they will be shutting down the big brain they could have capatilized on over and over.
This new start up Company realising inventors are usually very big dreamers and Capital is all that is between what they need to dream. Why should a small inventor have to come up with the Capitol also. Isn’t it somewhat similar in the BIG world?
Gillette has at least 70 patents marked on some of its razors.
“By the way, I don’t advocate ANYONE mark 31 (or 21, or 11) patents on a product. Seriously, why would one need to list 31 patents? Unless the product itself is an agglomeration of a bunch of independently-patented parts, I guess. And I’m not sure how one would word that to make correct, anyway.”
pong, go check out the “About” tab under the “Help” menu on your whatever Adobe Acrobat product you’re using – click the “Patent and Legal Notices” button. Is there anything incorrect about the wording there? I doubt anything more complicated is required.
Different Anonymous, I haven’t read all the entries in this thread, so I somehow missed “this propaganda that they are helping competitors”. Rather, the explanation I have seen given is the very real reason that a patentee selling a product is at a huge disadvantage cf. a patentee with no product.
The patentee with no product can capture all 6 years of past damages. The patentee with a product can’t, unless s/he marks the product with the patent. Or unless s/he sends a threat letter once s/he becomes aware of the infringement, in which case s/he’s already lost some damages and puts her/himself at risk of DJ.
That’s the ONLY reason I know of why patents are marked on product.
Do you recommend people draft and file patent applications in ignorance of the prior art?
Almost nobody is completely ignorant of the prior art. Many people who develop a product have some idea of the problem they’re solving in the most common prior design. Sure, there may be some other prior art lurking out there, but it might be more expensive to search for it than to fully describe your idea in an application to allow flexibility in later amendments, let the PTO search it, and hope for the best.
Seriously, why would one need to list 31 patents?
How many patents do you think cover the various parts of a Prius? An iPhone?
I’ll give you a hint: a list of patent numbers is more likely to fit on the Prius.
Before someone writes the obvious – to obtain pre-notice damages – yes, for that reason too.
It would be nice if people would stop pretending on here that they don’t know why people put patent numbers on products. Smart in-house counsel – if they actually believe this propaganda that they are helping competitors by leaving expired patent numbers on products – would take them off. How many of you are in business to help your competitors?
Different Anonymous, I’ve read your explanation but it still seems to come down to, “inventor is better off ignorant of the relevant prior art”.
Do you recommend people draft and file patent applications in ignorance of the prior art?
If an inventor is improving an old product, knowing which old patents directly relate to that old product is the best possible information with which to be armed when it comes time for the inventor to file his improvement patent.
Otherwise, s/he’ll file the improvement patent application that is sure to be fatally under-written when it comes time to defend its patentability as against the relevant prior art.
By the way, I don’t advocate ANYONE mark 31 (or 21, or 11) patents on a product. Seriously, why would one need to list 31 patents? Unless the product itself is an agglomeration of a bunch of independently-patented parts, I guess. And I’m not sure how one would word that to make correct, anyway.
You need to call yourself Ironsides. And good luck with that.
Thanks, Sarah.
If a small inventor sees 31 expired patents on a product, not only does it look intimidating, but it will also cost them significant money (in label evaluation costs) to figure out that their invention won’t be subservient and therefore is worth pursuing.
If that product is covered by 31 valid patents but unmarked, it will cost that small inventor even more when his business fails.
At least this way he knows where at the PTO to find the owner’s manual for the product he’s copying.
“What in the world does an expired patent marking have to do with what you’ve written?”
Everything.
A patent number marked on a product is supposed to indicate that the marked product is protected by a patent. See the actual language of 287 which I shouldn’t even need to cite to – I know this is understood to most, even laypeople (even some children):
“Patentees…may give notice to the public that the same is patented, either by fixing thereon the word “patent” or the abbreviation “pat.”, together with the number of the patent…”
If a small inventor sees 31 expired patents on a product, not only does it look intimidating, but it will also cost them significant money (in label evaluation costs) to figure out that their invention won’t be subservient and therefore is worth pursuing.
If the small Inventor has a good Idea, he will and can get help. A little Capital goes a long way. all it will take is another genius Inventive problem solver like many of the Ideas that pass before him to decide what will go.
Another Start up company realized. I need to be on that Train.
Maintenence Fees need to be abolished. The PTO needs to rely on the front end Fees. […] And if the PTO can lower the fees for the smaller Independent Inventor, that would be a good thing.
Part of the reason filing fees are so low is because of maintenance fees. That’s a good thing for independent inventors. If they later find themselves on the hook for maintenance fees, it will be because they already have a commercially successful product and can much more easily afford the cost than they could at the time of filing.
Also, independent inventors who are trying to build a business around a single patent shouldn’t be relying on marking. Firstly, they shouldn’t be copying old products if they’re inventing a new one. Secondly, they need to do a proper clearance search anyway, because an injunction will destroy their business whether or not they’re on the hook for past damages.
Different Anonymous: “As one example, the cost of investigating the patent label for a small inventor could push that inventor over budget for what would otherwise be an affordable effort at obtaining patent protection. New inventions can be subservient to existing patents and therefore an existing patent (or patents) may discourage an inventor from seeking patent protection and therefore eventually giving his/her invention to the world. “
Wholly Conflations, Batman!
What in the world does an expired patent marking have to do with what you’ve written?
Whether the patent is marked on the product or not, it still stands as prior art.
Are you seriously suggesting that the small inventor is BETTER OFF IGNORANT of the older patent?
Ironically, re these suits and arguments, if any member of the public wants to copy a product or product feature for a product of its own, what could be BETTER assistance for doing that than EXPIRED patent numbers marked on the product! It is vastly easier and cheaper to check off those than a difficult, expensive, and often incomplete infringement or “right to use” search on the product, and the product manufacturor may well be a licensee rather than the patent owner. As a recent CAFC decision demonstrated, just copying a product without doing any patent investigation is still dangerous.
Maintenence Fees need to be abolished. The PTO needs to rely on the front end Fees. If I think My Patent is worth the cost then I should have to pay for the Right. And if the PTO can lower the fees for the smaller Independent Inventor, that would be a good thing.
To the MOON mooney! You give nothing but dog poop to this Site. Why do you even bother, You seem to sit and wait for (what you consider) a crack in someones armor. And lately you seem to be atacking all sides. You need to call yourself Ironsides. And good luck with that.