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More FUD, and double-edged at thatMore FUD, and double-edged at thatPosted May 14, 2007 17:06 UTC (Mon) by lmb (subscriber, #39048)In reply to: More FUD, and double-edged at that by NigelK Parent article: Microsoft takes on the free world (CNN)
The question it does raise though is that, if they know which patents are affected, why they are not contacting the supposedly infringing parties after they as patent holders have become aware of it. Does that not make a potential law suit rather more difficult if they have to explain why they "tolerated" such for months and years?
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tolerance Posted May 14, 2007 20:12 UTC (Mon) by rfunk (subscriber, #4054) [Link] Patents don't work like that. While trademarks must be protected or else lost, patentviolations may be freely ignored without diminishing your power to enforce when you want to.
tolerance Posted May 14, 2007 20:37 UTC (Mon) by lmb (subscriber, #39048) [Link] Thanks for clarifying that. It confirms my opinion about the usefulness of patents as they are; they seem to be designed by someone in love with smoke, mirrors and FUD. Sigh.
tolerance Posted May 14, 2007 20:57 UTC (Mon) by khim (subscriber, #9252) [Link] Not really. Patents are created to better protect inventor. Inventor can be single person and if s/he has no resources to monitor all firms in existence - it's Ok. If someone is using your patented invention without patent - you can collect money for old violations easily. But if you do know about violation and do nothing - you effectively Ok this usage (Rambus DDR patents). You can change patent policy at any time - but again even this way has limitations (see Phillis CD patents for example). In short: once you've declared that you know that someone is violations your patent - better to act quick.
tolerance Posted May 14, 2007 20:49 UTC (Mon) by khim (subscriber, #9252) [Link] There are differences and there are similarities. You can sit as long as you wish on your patents without losing them - but only if you can cite good reason for doing so (ignorance is good reason). Once you have a list - clock is ticking. After some time old violations can be declared too old, but new ones will be upheld. See Unisys and GIF fiasco: old violations were forgiven easily (Unisys had no real choice due to Doctrine of Latches), but new versions of the same programs required patent license. If Microsoft's patents are real and valid then each day of delay is costing them money.
request for disclosure Posted May 15, 2007 0:28 UTC (Tue) by stephen_pollei (guest, #23348) [Link] Also people have repeatable and publicly been requesting that microsoft identify what patents they think are being infringed35USC287: TITLE 35--PATENTS PART III--PATENTS AND PROTECTION OF PATENT RIGHTS CHAPTER 29--REMEDIES FOR INFRINGEMENT OF PATENT, AND OTHER ACTIONS Sec. 287. Limitation on damages and other remedies; marking and notice. says "(3)(A) In making a determination with respect to the remedy in an
action brought for infringement under section 271(g), the court shall
consider-- (i) the good faith demonstrated by the defendant with respect to
a request for disclosure, ...
(B) For purposes of subparagraph (A), the following are evidence of
good faith:
(i) a request for disclosure made by the defendant;
(ii) a response within a reasonable time by the person receiving
the request for disclosure; and
(iii) the submission of the response by the defendant to the
manufacturer, or if the manufacturer is not known, to the supplier,
of the product to be purchased by the defendant, together with a
request for a written statement that the process claimed in any
patent disclosed in the response is not used to produce such
product.
The failure to perform any acts described in the preceding sentence is
evidence of absence of good faith unless there are mitigating
circumstances. Mitigating circumstances include the case in which, due
to the nature of the product, the number of sources for the product, or
like commercial circumstances, a request for disclosure is not necessary
or practicable to avoid infringement.
(4)(A) For purposes of this subsection, a ``request for disclosure''
means a written request made to a person then engaged in the manufacture
of a product to identify all process patents owned by or licensed to
that person, as of the time of the request, that the person then
reasonably believes could be asserted to be infringed under section
271(g) if that product were imported into, or sold, offered for sale, or
used in, the United States by an unauthorized person. A request for
disclosure is further limited to a request--
(i) which is made by a person regularly engaged in the United
States in the sale of the same type of products as those
manufactured by the person to whom the request is directed, or which
includes facts showing that the person making the request plans to
engage in the sale of such products in the United States;
(ii) which is made by such person before the person's first
importation, use, offer for sale, or sale of units of the product
produced by an infringing process and before the person had notice
of infringement with respect to the product; and
(iii) which includes a representation by the person making the
request that such person will promptly submit the patents identified
pursuant to the request to the manufacturer, or if the manufacturer
is not known, to the supplier, of the product to be purchased by the
person making the request, and will request from that manufacturer
or supplier a written statement that none of the processes claimed
in those patents is used in the manufacture of the product.
(B) In the case of a request for disclosure received by a person to
whom a patent is licensed, that person shall either identify the patent
or promptly notify the licensor of the request for disclosure. "
so they need to disclose what they claim is being infringed or the remedies they try to obtain might be limited.
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