Patents - discussion of issues

[rolygate]

Please see this post:

http://www.e-cigarette-forum.com/fo...s/219996-patents-issues-surrounding-them.html

This thread is open for discussion on these issues.

 

[mj64]

I think there are a number of more local issues to ECF that should be addressed first. At the very least some text needs to be written and stickied that address and enlighten that designs and ideas that are posted to ECF generally have no legal protection at all without some specific actions to enable them. The act of posting a unique concept, design, or idea to an internet forum without doing something to establish rights needs to be better understood\cautioned about\spelled out here.

 

[Odell]

I am not an attorney.

Having said that I was employed by a company some time ago that competed with a larger company that held a patent on a piece of equipment that we also redesigned and marketed. The larger company filed patent infringement against our company. The hitch was that the product the larger company patented had already been built by an end user of this particular type of product ("modded" so to speak). The larger company had basically seen the "modded" piece of equipment and filed for a patent based on that knowledge. Our attorneys then went about proving that the larger company had knowledge of that "mod" and threatened to accuse the larger company of fraud in the application for the patent which is a federal offense. When realizing that they had committed patent fraud and perjury the larger company then settled with the company I was working for to the tune of high 5 figures (quite a sum 30 years ago).

I hope that was somewhat clear, it's an abbreviated telling of the story.

Here may be the salient questions:

If a mod was developed in a forum and was publicly known and utilized by the members of that forum and others, is any resulting patent a valid patent? Has there ever been a legal challenge to any patent derived from the work of the modding community?

The point may be that any mod developed on an open forum may not have the ability to be defensibly patentable. You can patent it, but if you initiate a lawsuit to defend against infringement, it would very possibly be thrown out of court.

It occurs to me that the holder of any patent that has been applied for and granted must state on the patent application that it was their idea (whether they are a corporation or an individual) and they have no knowledge of any prior public use of the specific concept. I also think that if that statement is signed and the signatory had knowledge of prior public use that is a federal offense.

But like I said, I'm not a attorney.

 

[MadmanMacguyver]

from my studies in patent law you cannot patent "Previous Art" done by someone else that is publicly displayed(that essentially becomes "Public Domain")...correct me if I'm wrong...

I believe that is the TRUE reason for all the hullabaloo over some recent patent arguments...with good reason IMHO...ECF should not be a trawling ground for manufacturers to steal ideas of budding inventors...but that also makes the case for Protecting Your Work...that is just good business practice...

Thank you Roly for attempting to create an outlet/information source for those Budding inventors...I actually have a device I produced when I was younger that may or may not be still in use by others so I have a little experience in this but many others may/do not...and I saw the need for this but have none of the skills/social niceties to broach the subject properly...

 

[rolygate]

I think there are a number of more local issues to ECF that should be addressed first. At the very least some text needs to be written and stickied that address and enlighten that designs and ideas that are posted to ECF generally have no legal protection at all without some specific actions to enable them. The act of posting a unique concept, design, or idea to an internet forum without doing something to establish rights needs to be better understood\cautioned about\spelled out here.

That sounds about right. It could be that an edit to the announcement post on patents would be enough, or maybe something new is needed.

As you say, people don't realise that if they come up with a totally new idea, someone could grab it up. The last thing we need is Big Corp blocking sales of something we need.

 

[MickeyRat]

I'm with mjmetz. There's no doubt in my mind that if you have an idea and post it on here, it's in the public domain. Also once it's posted on here, no one can patent it including the person that posted it.

 

[Praxeologist]

I am not an attorney - just a person with an interest in IP law.

Roly, to the best of my knowledge, at least in the US, the GPL is for use in copyright and cannot be applied to the other areas of IP (patents and trademark). With copyright, you can simply declare your work to be under a less restrictive license. Patent is more difficult to apply defensively. It is also expensive because there is cost to acquiring and to defending the patent, and also because the the of the registration process. Applicants of patents are discouraged from reviewing existing patents before applying for them. This is on the advice of counsel, though I can only speculate on the reasons. The USPTO does not carefully vet before assigning patents either. There are countless instances of overlapping or functionally identical patents assigned each year. Any disputes must be settled through tort. Some ideas that could work are being explored by the anti-patent patent attorney, Stephan Kinsella.

Mick, prior art is certainly an arguable defense, but it doesn't often stop the patent from being issued. You can spend a lot of time and money arguing that case, which is why many companies just pay the requested extortion fee.

 

[Praxeologist]

Further to my previous post, you could certainly GPL a specific plan or instruction document, but the license model applied to that work has no bearing on the validity of a patent claim.

 

[ScroungerLee]

What about Patent Pending? During my one involvement in getting a patent for a software concept my companies attorney indicated that this phrase is used as soon as a patent is applied for and may offer some protection. I just don't remember what that protected. Perhaps it was a protection against someone else applying for a patent on the same thing?

Comments?


Lee

 

[BuzzKill]

I would respond but I would get banned for discussing business in the wrong area !

maybe next time .

BTW ECF is a forum , what business they have getting into patent issue's is beyond me ???? you actually open the forum up to legal issues that it has nothing to do with.

 

[mj64]

Actually I was interested in what Mike might have to say, until he said it. Thanks for bringing some angst into a peaceful discussion. Perhaps ECF needs to quit having any sympathy at all for all the knock-down drag-out fights that keep occurring over this and just ban everybody participating.

 

[rolygate]

Oh well...

I don't start something up like this for fun, there are going to be several reasons behind it - believe me, I don't need the work.

No matter how problematic things are just now, it can only get worse.

@Buzz
I guess people just don't realize how much work ECF does or the problems we get. For example, in many inter-Supplier trade disputes, we are the first people dragged into it.

Example: Supplier A has a problem with something advertised on ECF by Supplier B. Supplier A's attorneys first threaten ECF before anyone else. Or, people spill over fighting everywhere on the site about this and that, and we have to try and police a riot. So there is a workload in it for us, with many of these disputes. If we didn't have to get involved - we wouldn't.

@Prax
True, no doubt. Just trying to get a discussion going. In the end a Trust is probably the best idea. There will be things developed that should be patented in order to stop others patenting them and holding exclusive rights. This is going to become an issue at some stage.

 

[mj64]

The trouble with patents, Roly, is that even if they were effective, which they are not very, is that they are expensive to deal with and country-specific. I think the only practical solution in the future MIGHT BE open-source hardware licensing, however this awaits court challenges that will be just as awful as the patent suits that occur frequently.

I actually lean more towards the 'stay out of it' point of view in a way in that I think that ECF should promote more awareness of the fact that information on this site become public domain, and what that means, and prohibit posting any designs or instructions for making something that has rights withheld. I don't really even see a general statement anywhere on ECF (I could be mistaken) as to whether ECF proclaims to own the content here or whether it is considered public domain material, or whether posters can retain rights, etc....

 

[rolygate]

ECF has the right to publish anything posted here freely and indefinitely, by reason of our ToS.

It's an interesting question whether we 'own' any intellectual property rights in any design or other materials published here first. I'd have to take advice on that. If it would help to protect an inventor from having their design poached by a third party, then we could adjust our ToS to suit. We are certainly not interested in owning someone else's design - but if we can help them protect their design against others then it's worth thinking about.

As you say, though, in the end it's all about how much money you have to defend your rights in court. We could probably help defend the occasional action, but not frequent attacks. Depends if you can get costs or not if you win this kind of case. If you can't get costs from the other party then it limits what you can do, although we could run a fundraising drive to help someone out.

 

[mj64]

Ah, the TOS. Knew that had to be hiding somewhere. Found it, and read it. A painful read as most are, but it attempts to preserve rights of individual contributors while dispensing limited rights of publication to ECF. I'd suggest laying out a number of scenarios where an idea or device has been posted to ECF and the individual has different established rights then attempting to decide who has rights to what after publication and application of that TOS. That would be hurdle #1 in my opinion.

 

[Iluvthearmy]

This is a pretty interesting read, but I'm not educated on the subject of copyright law at all. I was only wondering if it's really as big of an issue as this is turning into. I've seen company after company copy each others juices, I own 2 of the same exact style box mod from 2 different companies, and I can't tell the difference between most cartomizer brands. I'm not trying to belittle the issue I'm only concerned that we may be hitting a well traveled road with this one and that it may lead to a loss of interest in the subject of modding all together which seems like it could sour further innovation. Just 1 more example- I mix my own juice normally, but I'm now in a position that doesn't allow for it so I buy it from someone who profits by doing the exact same thing I was. Is there really a problem?
Don't take this as an attack, I'm genuinely curious if I'm the only person that feels like this is getting out of hand.

 

[rolygate]

There are a couple of issues: ECF tends to get pulled into disputes even though we don't want to be, and there are more of these disputes than you think. But mainly it's because some very useful stuff has been invented that could easily be grabbed up by others so that the trade and therefore the community are locked out.

Look at the useful stuff that has been invented and/or developed by modders: 5 volt mods, 6 volt mods, variable voltage, tanks. Regardless of whether this stuff is common property or not, someone can get a patent. After that they can decide to license it or lock it down. Then you have to fight in court, one way or the other. It's just easier for the trade or community to patent something themselves, first.

In the end maybe it is all a grey area and depends on money but it's kind of like securing your computer and doing backups, it makes a lot of sense to do the work before you find out it's too late.

 

[Iluvthearmy]

I see your point. But would it still be infringement if say I decided to make a perfect clone of a patented product for personal use? Or to even post designs for said device in the forum(and I have no financial gain from it)or would that be publishing them and get the forum dragged in again? Probably a dumb question, I'm just afraid we could lose a great wealth of knowledge and ideas if that were the case and we couldn't freely discuss designs.

 

[Java_Az]

I see your point. But would it still be infringement if say I decided to make a perfect clone of a patented product for personal use? Or to even post designs for said device in the forum(and I have no financial gain from it)or would that be publishing them and get the forum dragged in again? Probably a dumb question, I'm just afraid we could lose a great wealth of knowledge and ideas if that were the case and we couldn't freely discuss designs.

Yes it would be, You are taking/ infringing someone else's Intellectual property. But if your just making it for yourself you really don't have to worry i doubt they are going to sue you. But if you take your reversed engineered plans of someone else's idea and post them open source. You could for sure land your self in court.

 

[Iluvthearmy]

Ok, so then this could become an issue to threaten not only a modder or 2, but the entire modding community at large. Hope this can work out to everyone's benefit because the company this is mainly aimed at does make my favorite devices, but I'd hate to see the community go under. Thanks for the responses.