Patents - discussion of issues

[Zen~]

Vapian, that was a really good reference, and an interesting read. It pretty clearly cites a few situations where simply marking a product with Patent Pending fails to meet the standard required to establish damages in the event of an infringement.

But it ALSO points out the importance of public notice as well as the need to contact people who may potentially infringe by virtue of the fact they may not be aware of the patent... pending or otherwise!

A couple of things which are worthy of note...

1) It is not a requirement to mark a patented device at all. If a device is NOT marked, damages are calculated from the time of notification which can be satisfied by sending a letter informing them they are infringing on a patented device that is unmarked.

2) If a device IS marked properly with the patent number, then damages are calculated from Day One, as the assertion of intellectual property ownership is marked right on the item in question.

Now, the thing that puzzles me most is when an inventor files for a patent, then provides notification, that ANYBODY that is not directly involved would get bent out of shape over it.

Whether we like it or not, Patents and Trade Secrets are the two best ways to protect the interest of the inventor. With Patents, the inventor must disclose what they are doing... with Trade Secrets the inventor must HIDE what they are doing. When an inventor posts his ideas on an international forum such as ECF that Inventor has lost the ability to protect their invention via trade secrets, that part is obvious, But JUST because an inventor posts his ideas in public, this does NOT mean that nobody else had a similar idea that chose to NOT disclose what they were working on. This is where inventors lab notebooks come into play in establishing the date of the origination of their idea. Inventor's Notebook

In any given industry, similar inventions seem to pop up nearly simultaniously and there has been quite a bit of reserach as to why this happens: It occurs when there is a NEED in the marketplace for new solutions to appear. HUNDREDS of inventors individually work on ideas that have "Market Pull"... in other words, the market is ready and willing to buy new ideas that improve on the status quo.

The ECF Modders forum is filled with threads that really serve to define just how much market pull there is, and many nice solutions appear to have started there. BUT, this does not constitute proof that nobody else, anyplace else in the world, isn't working on the same problems without even knowing ECF exists. Should a posting date on ECF be used as evidence of a date of origination for an idea? Some say yes, others say no... I say it depends on the circumstance! I'm of the opinion that in the absence of an inventors notebook stating the process involved in the development of the patentable idea, complete with details of tests and improvements from the "spark of genius" right on through the prototypes, then it's probably a collaborative work and an open source project.

 

[MadmanMacguyver]

Well I have personally decided for the most part to keep my opinion to myself anymore on this subject...I have stated at points already my opinions on the standing of points 2 and 3 of Roly's last post...I appreciate that people have tried to keep this thread civil...the insults and other reprehensible behavior to me is disgusting...if there has been any this thread I haven't seen it. lets keep it that way...this thread is both educational and necessary.

Edit I must say I do consider point 5 a VERY important issue since the truth is much of the last 2 years of PV tech advances came from the modders forum in one form or another...

* I am not discounting but including blanket all modders type subforums on other sites(many of which I have read trying to catch up and avoid working on something already in development)

 

[BuzzKill]

Humm good stuff Vapian and Zen~ , in any case this stuff when it comes down to it is Lawyer Land not a forum COURT. BUT discussing how patents work and all of the intricacies involved id good , there are many dates / design dates . idea dates etc, these can be set in stone in several ways , one is a Provisional Patent Application , most people do not know that these exist and they are not always noted on an application so an application may seem to have a LATER DATE ! !!

As far as ECF having anything to do with any patents IMO they have No business being involved , IF they feel that a vendor in violating any rules of ECF then they have the right to ban them but as far as being involved there is no reason to do so , it actually just opens ECF up to liability claims but that is ECF;s call.

 

[BuzzKill]

BTW modders the CHINESE are watching and copying your designs on a daily basis ! so if you post it iyou may see it in a few months,.

Also we have NO way to stop Chinese imports of USA patented designs / devices , our only recourse is to file an injunction in court to stop the product from entering the USA or go after the distributors of those products.

The clothing/fashion industry deals with this on a daily basis.

Just look at all of the knock offs in Fashion.

We are just another market that deals with these issues all the time , just because we are new does not isolate us from these issues and business dealings.

 

[mj64]

There's the stunning sentence for many........

"BUT, this does not constitute proof that nobody else, anyplace else in the world, isn't working on the same problems without even knowing ECF exists"

I think this is the comprehension problem for many in understanding the difficulty with 'claiming' an idea. This idea SEEMS to run afoul of Occam's razor, but it is really very likely to happen often when you look at the market forces to which Zen refers. A quick study of the history of some of our must stunning inventions shows us that this has happened many times in a much less connected world than our own. Take a quick look at the history of radio. Who invented it? Marconi? Really? You sure?

But again I'll say, I can't conceive how ECF would take a side in this struggle. Because there isn't a 'correct' side to take. The only logical solution I can see is to attempt to define and instruct what the act of posting something here without legal protection can mean. Advocating for e-cigarette use as a reduced harm alternative does not mean advocating AGAINST businesses, whether they be small or large.

 

[Vapian]

I do not think it has ever been ECF's intent to "take a side"; I think they are getting dragged into it by others who may be threatening them with legal action. At least I think that was implied earlier. ...

 

[BuzzKill]

I do not think it has ever been ECF's intent to "take a side"; I think they are getting dragged into it by others who may be threatening them with legal action. At least I think that was implied earlier. ...

I hope that is not the case because that just means that " they " are totally un-informed about how patents work and the patent process ( not uncommon at all ) threatening ECF is ridiculous , they have nothing to do with any of this issue they are a portal not a governing organization .

Assume that someone took ECF to court , what would be the damage ??

I posted a ATTY design , I did not apply for a patent and it is their fault for not telling me to ?????

The complainant needs to address the patent applicant NOT ECF .

I hope this is not the case that would SUCK and set a horrible precedence .

 

[Zen~]

The only logical solution I can see is to attempt to define and instruct what the act of posting something here without legal protection can mean.

That's the key, I think...

Many people think they understand the Patent process... In fact, they believe in their hearts they have a firm grasp of ramifications. I'm sure in some cases this may be true, but based on what I see here in this thread it would appear many do not. I'm not saying this to insult any of the fine people in this thread, I'm saying it because it needs to be said.

What most people fail to see is that a patent is an exclusionary right. A Patent does not grant the right to use or sell an invention or an improvement on a prior invention... It grants the right to EXCLUDE OTHERS from doing so without first obtaining permission. This permission can be granted free of charge, or fees can be negotiated, but permission is needed to proceed or civil penalties may be rewarded.

In some cases, having this exclusionary right does not, however, necessarily give the patent holder the right to move forward and sell their device or design without restriction. There are a whole lot of patents that have been granted on improvements to prior art! A quick study of the evolution of the mouse trap will show that literally THOUSANDS of patents have been awarded that improved the state of the art.

When an inventor patents an improvement, legally, they can ONLY manufacture the improved product with the permission of the patent holder of the original design, his agents, or assignees, if the patent is still in force. But here's the interesting part... the patent holder of the IMPROVEMENT can exclude the original patent holder from using the improvement unless a licensing fee is paid.

And licensing fees are a part of the whole process... an important part! The group I work with has helped over 4500 small businesses commercialize their inventions, or helped to transfer their technology to the Department of Defense. These companies have done in excess of 2.5 BILLION dollars in business, much of which is licensing income...

With that being said, I'd like to state, however, that I STRONGLY oppose the use of the term "extortion" when discussing licensing fees, and the use of such derogatory terms should not be tolerated. A patent holder has been granted the absolute right to charge for the use of his innovation. Accusing a person of extortion is libel, and allowing it to happen exposes the person making the accusation, and ECF to legal action from any party harmed by the libelous act.

And it's not very nice, either, and this is a great discussion to be having at this point in the development of eCigs as an industry... it would be a shame to have the thread go away because people can't play nice.

 

[mj64]

I do not think it has ever been ECF's intent to "take a side"; I think they are getting dragged into it by others who may be threatening them with legal action. At least I think that was implied earlier. ...

That is a puzzling statement to me. I know Roly said it, I don't dispute it. However, if ECF has any real liability it is due to positions it has already taken, without any real agreement with its users. They don't need our input to figure out how to disclaim. They can disclaim by changing their policies and becoming a message board only. Message boards don't establish trusts to hold patents.

 

[BuzzKill]

That's the key, I think...

Many people think they understand the Patent process... In fact, they believe in their hearts they have a firm grasp of ramifications. I'm sure in some cases this may be true, but based on what I see here in this thread it would appear many do not. I'm not saying this to insult any of the fine people in this thread, I'm saying it because it needs to be said.

What most people fail to see is that a patent is an exclusionary right. A Patent does not grant the right to use or sell an invention or an improvement on a prior invention... It grants the right to EXCLUDE OTHERS from doing so without first obtaining permission. This permission can be granted free of charge, or fees can be negotiated, but permission is needed to proceed or civil penalties may be rewarded.

In some cases, having this exclusionary right does not, however, necessarily give the patent holder the right to move forward and sell their device or design without restriction. There are a whole lot of patents that have been granted on improvements to prior art! A quick study of the evolution of the mouse trap will show that literally THOUSANDS of patents have been awarded that improved the state of the art.

When an inventor patents an improvement, legally, they can ONLY manufacture the improved product with the permission of the patent holder of the original design, his agents, or assignees, if the patent is still in force. But here's the interesting part... the patent holder of the IMPROVEMENT can exclude the original patent holder from using the improvement unless a licensing fee is paid.

And licensing fees are a part of the whole process... an important part! The group I work with has helped over 4500 small businesses commercialize their inventions, or helped to transfer their technology to the Department of Defense. These companies have done in excess of 2.5 BILLION dollars in business, much of which is licensing income...

With that being said, I'd like to state, however, that I STRONGLY oppose the use of the term "extortion" when discussing licensing fees, and the use of such derogatory terms should not be tolerated. A patent holder has been granted the absolute right to charge for the use of his innovation. Accusing a person of extortion is libel, and allowing it to happen exposes the person making the accusation, and ECF to legal action from any party harmed by the libelous act.

And it's not very nice, either, and this is a great discussion to be having at this point in the development of eCigs as an industry... it would be a shame to have the thread go away because people can't play nice.

Very well said Zen~ !! good info and opinions.

 

[BuzzKill]

That is a puzzling statement to me. I know Roly said it, I don't dispute it. However, if ECF has any real liability it is due to positions it has already taken, without any real agreement with its users. They don't need our input to figure out how to disclaim. They can disclaim by changing their policies and becoming a message board only. Message boards don't establish trusts to hold patents.

everything that has been posted on ECF is either archived or HERE now or in archives on he web , I do not know what is going on behind the scenes , I am sure it is a boat load of fun however.

 

[MadmanMacguyver]

Actually...I believe a lot of those problems would be solved by simply reading and having a legal understanding of the ECF TOS statement...This IS a PUBLIC forum...anyone can register and look around...hence anything posted should be considered public domain unless you have squirreled away documentation of prior art...due to my understanding of what I read before I clicked AGREE I have never posted anything I considered needing protection...

too many people nowadays simply click agree without reading what they are agreeing to....heck you could be signing away your firstborn people...reading is fundamental...

* without cluttering by quoting ...good speech zen...

 

[mj64]

Pulling forward a few of Roly's questions.

1. How can the smaller western firms that have invented or developed new products protect themselves from big corp grabups.

2. How does the modding community feel about patents on things that were in essence community developed, and how can those new products be protected.

3. Is it right for one firm to claim a patent on something that someone else may have suggested or even worked on.

4. How will licensing be done among the small manufacturer community; will it be accepted; will it be affordable.

5. Can someone who patents a product and will not license it at an affordable rate, remain a member of the community.

6. What will the ECF involvement be when two firms start a fight to the death here.

 

[Zen~]

1. How can the smaller western firms that have invented or developed new products protect themselves from big corp grabups.

Simply put... Smaller western firms need to protect their IP

2. How does the modding community feel about patents on things that were in essence community developed, and how can those new products be protected.

I can't speak for the community, only for myself as a member of the community. This community can be very myopic, failing to see that ECF represents a tiny percentage of the vaping community at large and the modders forum represents a small percentage of ECF members.

I recently met a fellow vaper that has been using eCigs for two years and has never been to this or any other vaping site. He had never heard the term "vape". He buys pre filled Njoy cartos at the gas station and did not know cartos can be refilled. He is a member of the majority out there... We are the minority that turned vaping into a hobby and/or income stream.

I know of only one way to prove that an innovation was community developed, and that is with the dates on the threads. But to answer the question cited in #2 above, if an inventor has an innovation that predates the community efforts then the question becomes moot.


3. Is it right for one firm to claim a patent on something that someone else may have suggested or even worked on.

This has to be decided on a case by case basis. If the firm claiming the patent was in on the development and they filched the credit for it, that's wrong. If they were not aware of a solution in progress and can also prove an earlier date, then it's fine by me...


4. How will licensing be done among the small manufacturer community; will it be accepted; will it be affordable.

These are going to be situational in nature. Affordability is subjective.

5. Can someone who patents a product and will not license it at an affordable rate, remain a member of the community

This person has the right to refuse anybody a license agreement. They should not be shunned for exercising their rights.

6. What will the ECF involvement be when two firms start a fight to the death here.

Nobody should be allowed to fight here... What happens presently when things get unruly?

 

[Creniker]

As far as ECF having anything to do with any patents IMO they have No business being involved , IF they feel that a vendor in violating any rules of ECF then they have the right to ban them but as far as being involved there is no reason to do so , it actually just opens ECF up to liability claims but that is ECF;s call.

So ECF should sit back and let the ball roll?

Because this place is more then just a message board, and we all know it. You've seen the other forums out there, that are just "message boards". There is clear cut rules here for the most part, and in a way, the ECF does govern what goes on here, they just don't do it in a way that ruins open discussion (until it gets out of hand). Thats why so many people enjoy the ECF. They handle stuff when it gets out of control.

They DON'T choose sides. They moderate. They try to work things out with getting there own opinions involved (as far as I've seen)

And if they didn't feel like they were at risk already, do you think they would have opened this discussion? There not doing this to "choose sides". There doing this because problems are arising. They want to see what we as a community thinks, and to see if we can come up with a solution.

 

[Creniker]

5. Can someone who patents a product and will not license it at an affordable rate, remain a member of the community

This person has the right to refuse anybody a license agreement. They should not be shunned for exercising their rights.

And I would disagree with that, only because this forum functions as a community for the most part. Its not perfect, but it has been doing a great job. If that person were to alienate a whole community, a community that he supposed belongs to, then he has no business here.

Just my 2 cents.

 

[BuzzKill]

And I would disagree with that, only because this forum functions as a community for the most part. Its not perfect, but it has been doing a great job. If that person were to alienate a whole community, a community that he supposed belongs to, then he has no business here.

Just my 2 cents.

You are assuming that ECF is a business and they are BUT they are not involved in this issue ,lt is NOT their business , they mat chose to get involved but they really would not have a say legally , whether you agree or not is not the point in this situation regarding ECF, as far as the patent application goes it is 100% legal and was applied for in a totally legal way and time frame , I do not want to go over this with a NON PATENT LAWYER you do NOT understand what is really happening , until you do this is all just BS and mis information on the interwebs AGAIN.

ANyhow I stand behind my Patent application and Provisional Patent application ( this is what matters PPA date !!! )

 

[Timtam]

Come on now people, we are a forum, which means everyone has the ability to post their opinion/thoughts/views/questions on any topic they want. Respect your fellow members or you won't be around here much longer.

 

[MadmanMacguyver]

Actually the question of a reasonable license fee vs outright holding someones attempt to generate and sell a DECENT mod and whether a patent owner simply charges a reasonable fee vs trying to crush any competition is a valid point and argument...

I don't subscribe to the consistent tormenting nor trashing you or any other Patent app holder Buzz but it is a valid point...

most of the recent(in the past 2 yr) advances in PV tech came from a free exchange of ideas...not hostile behavior nor quick grabs for power/money.....

if we want these same QUICK/rapid advancement to continue we need to solve THAT problem and get past it...me I just muddle along and fact of the matter is if I had started vaping about 6 mo earlier I would have put a patent on a pot bearing PV design before you...( not starting a fight here just making a point)

We need to protect ourselves from the TRUE enemy per se not fight amongst ourselves...

We need to remember one thing IS important above all else...WE ARE STILL A MINORITY DESPITE OUR VASTLY AND RAPIDLY GROWING NUMBERS...there is nothing BT BP and many other unnamed (although we all know who they are)groups would love than to see our movement/tech die out because of infighting and simple refusal to work with each other instead of against...

we MUST work together or we have already lost...just because of a favorable ruling in the spring doesn't mean we won't have to go underground or be severely restricted in our work tomorrow next week or next year --add infinitum...nor do we know that we aren't slowly killing ourselves...we just don't know the future...

@ buzz I know you are getting a bunch of crap over your patent app... but plz relax...if you get approval for it, so be it...but getting majorly defensive doesn't help you...nor anyone else...

And as for those going after him...whats done is done...nothing we say or do here will really affect the outcome of his application...the one thing that may have had any affect existing here on this forum was Retireds thread...the history of VV...(and yes buzz I am still a bit irked about you and the other side of public opinion said thread. it was a good subject for a thread IMHO...and both sides behavior was loathsome)

 

[Creniker]

You are assuming that ECF is a business and they are BUT they are not involved in this issue ,lt is NOT their business , they mat chose to get involved but they really would not have a say legally , whether you agree or not is not the point in this situation regarding ECF, as far as the patent application goes it is 100% legal and was applied for in a totally legal way and time frame , I do not want to go over this with a NON PATENT LAWYER you do NOT understand what is really happening , until you do this is all just BS and mis information on the interwebs AGAIN.

ANyhow I stand behind my Patent application and Provisional Patent application ( this is what matters PPA date !!! )

1. Why are you blowing up on me lol? Are you assuming Im talking about you? I didnt say i was, you grouped yourself into what I said. 2. Never once did I say ECF was a buisness. I said it was a community, which I think for the most part is true, and if certian individuals decide that they want to hinder it by deciding who will sell what (theoretically) then I would say they have made a decison that they no longer want to be part of the community. No need to take so much offense.