Can Prior Art Actually Infringe On A Patent Filed After The Prior Art Existed?
from the definition-of-gall dept
We certainly are writing a lot about patents lately, but it's an important issue that still really isn't getting enough attention. Too many people seem to view the patent system as its idealized version -- without recognizing just how many problems it has once you dig a little deeper into how the system works. And, with courts often simply taking the side of the patent holder, it's only encouraging more ridiculous lawsuits that punish the true innovators. Take the case of Ben Jacobsen, a model railroad enthusiast who wrote some open source software to let you control your model railroad from your computer. Cool, but a fairly obvious implementation. Not so, according to KAM Industries, who scored a patent for a similar idea and are going after Mr. Jacobsen, claiming he owes them $203,000. This is calculated by their estimate that he owes them $29 (the commercial price of their software) for every download of his software. Beyond the obvious ridiculousness of assuming that every download would be a purchase, there's a much bigger problem with this claim. Jacobsen's software was released before KAM even filed for their patent. If that's not "prior art," I don't know what is. Informed of this, KAM says they don't see any prior art and will continue to press forward with the suit. It's fairly ridiculous that they would claim that software released before their patent was filed infringes on their patent but somehow isn't prior art. Of course, if the Patent Office actually looked at "obviousness" (as they're supposedly required to by law), it's hard to see how this patent should have been approved in the first place. In the meantime, we get yet another example of the patent system being used for the exact opposite of its intended purpose.
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First Post
YaY First Post
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too bad
I had the design for an in-car mp3 playing system based on a mini PC with a removable hard drive and needed to have all the plan for my freshman engineering project back in 1998. It would have been one of the first "ipod" car stereo systems around. It even had a 4" LCD screen for viewing winamp playlists. Ah...but too late now...or is it?!
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oooooooooooooooooooh, first post and that's the best you could do.
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Hilarious! Apparently if the true inventor can prove an earlier date, the KAM would've effectively sped up the invalidation of their patent.
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Idiocy
Not only is this "prior art" , it not even theoretical . He had a working prototype released to the public (for free) , while a patent can only be granted to a person that is the original inventor .
Just because someone chooses not to protect his IP , doesn't mean he should be penalized for it .
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Weird
I do not even understand why this goes to the lawsuit.
Can't someone tell KAM they're ridiculous and don't stand a chance and bounce them ?
Or is it too big an income source for lawyers for them to be this fast ?
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Turn-about's fair play
Perhaps he should sue KAM for infringement. They obviously stole his idea, since he developed it first. The patent office is so screwed up that he could probably apply for a patent and get it at this point, then the sparks would fly.
Seriously, you've got to kind of want this one to actually go to court, and hope that KAM gets bitch-slapped by some savvy judge. Like, a huge punitive penalty for bringing suit in the first place, awarded to Jacobsen, and revoke KAM's patent, and force them to pay Jacobsen for every copy of the software they've sold. Not likely, but that would be sweet.
Rob Miles
--
There are only 10 types of people in the world;
those who understand binary and those who don't.
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Three Issues Here
A) Prior Art - Sounds like this patient needs to be invalidated
B) Does the infringer have to charge to damage your business and should be be protected. Not as simple as some want to think. Easy to assume it is stupid in this case. But lets say one company started to giving away a product to damage a competitor whose business model was dependent. Free MP3 Player with Windows or maybe 1000 free song downloads that work on iPods to damage iTunes?
C) I am getting tired of this "The idea is too obvious to have a patent" lament. What about the glue on the note paper? (sticky notes) It wasn't obvious for decades.
This idea when it was new, deserved a patent. But the inventor didn't patent it and had publicly created and used the idea. So the patent is invalid.
The question is did the executives of KAM commit perjury when they filed and signed the patent papers?
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Re: Three Issues Here
A. Yes.
B. Say, Wha??? - Yes, that's what a legitamate patent is for to protect others from stealing your work and selling it to compete with you. however, MP3 was a licensable format so anyone could make a player legally, 1000 free songs for iPod would be illegal if they used Apple's patented encryptiion without paying royalty. This who point is confusing.
c.) Some ideas are too obvious to get a patent. The sticky notes guy didn't patent putting glue on paper, he patented putting a specific type of glue on the top edge of paper in a specific format. You can still legally market and sell glue on paper but it it's in the shape and format of a sticky note - it's patent infringment.
For my next patent I plan on patenting the process of removing oxygen from a gas using an organic sac which will facilitate the removal of oxygen from gas using a semi-permiable membrain. Related patents will include the removal of carbon dioxide from a liquid using same method and a liquid distibution system that uses and organic pump to deliver oxygen rich liquid to other locations.
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You didn't list all the facts
You said the product came out prior to the patent application. That doesn't matter, if KAM can document that they invented it first (notarized journals, etc.) Also, all of this would have had to take place within a year from KAM's initial invention.
Quit ragging on patent trolls and patent lawsuits. Some of us are braniacs, not businessmen. Should we not be able to profit from our incredible ideas?
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Re: Idiocy
So if a patent can only be granted to the original inventor, then in this case shouldn't KAM's patent be transferred to Mr. Ben Jacobsen and the charges reversed for the damages (scaled to KAM's revenues from said invention, of course)?
That should be the penalty for using the courts for patent extortion when you've overlooked prior art in the first place.
Well, that and then electric shock torture maybe...
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wouldn't this make a great sopranos episode....
this sounds like corporate racketeering to me....someone call out the feds.....
In the case of stickynotes(tm), they were not the first to put glue on paper and attach it to pad, they were the first to do it with a relatively low adhesive for the purpose easiy and repeated removal for the purpose attaching to multiple surfaces. In this case the actually tech wasn't patented, rather the methods/implementation and intended use.
Now, this case it may fall under that same umbrella, but the part that stinks of racketeering is that they are attempting to receive revenue for something that existed before their patent. With this kind of thinking if were to create a novel way of turning grapes into juice and fermenting in a bottle, then I should be able to go recoup revnues for past 1000 yrs. To be honest, I not sure if their patent claim is legal or not, but I do know it's not ethical.....which means nothing anymore.
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no...let's keep ragging on patent trollers
Let's not stop ragging on Patent Trollers, let's turn up the heat......
I don't think anyone here has anything against TRUE inventors/inventions/patents. Trollers are another beast entirely, their like crack dealers...theres one on every corner and they do absolutely nothing to help the community. Trollers are nothing but greedy bastards that rape, pillage and extort the very flawed patent system.
Look at the recent MS patent lawsuit regarding ActiveX, a possible legitimate lawsuit I might add, but just think how bad it could have gone? Imagine if the changes MS made forced you fill out a form everytime you used one? It would have been ugly..same goes with the GIF(??Disappered now didn't it) Lawsuits, it could of made thing really ugly.
Trollers don't invent anything they simple ride the wave that others created. It's hurts the inventors, and it hurts consumers.
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Re: You didn't list all the facts
Isn't that exactly what this article is all about? Showing how 'businessmen' are trying to stick it to a 'braniac'?
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Re: You didn't list all the facts
>> Quit ragging on patent trolls and patent lawsuits. Some of us are braniacs, not businessmen. Should we not be able to profit from our incredible ideas?
In a word, No.
Patents are to protect _inventors_ - defined as "people who invent things". Not to protect people who dream up ideas and never do anything about it but sit on their arses and call in the lawyers when someone else makes something profitable with it.
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Counter Sue
Counter sue them for 100% of their revenue (not profit). Make sure a jury, not a judge, decides the case.
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Re: Re: Idiocy
Definitely. That's what patents are for.
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KAM = Thieves
This is out and out attempted theft.
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Re: You didn't list all the facts
>> You said the product came out prior to the patent application. That doesn't matter, if KAM can document that they invented it first (notarized journals, etc.) Also, all of this would have had to take place within a year from KAM's initial invention.
This is very important information missing from this story. Everyone is assuming that KAM is wrong from an incomplete article. They may be wrong and they may not be. Without all the information this article is useless.
Also, was Mr. Jacobsen profiting from his software? It says people were downloading his software, but it does not specify if it was free or purchased.
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Re: Re: You didn't list all the facts
Well, it was some strange thing called Open Source on this underground "Sourceforge" website, but i dunno.
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Re: Re: You didn't list all the facts
Patents are to protect _inventors_ - defined as "people who invent things". Not to protect people who dream up ideas and never do anything about it but sit on their arses and call in the lawyers when someone else makes something profitable with it.
Just because you choose not to charge for an invention doesn't mean it'snot patentable. The patent protects your right to essentially do with the invention as you wish. If you want to stop anyone else from making the product then you certainly could, if you have the money for the proper lawsuits.
The point in this article, though, is that the defendant had his software out before the patent was ever applied for. Granted, the plaintiff in the case could have been working on it for a while but typically this sort of company would patent the idea long before they release the software. The instant you think you have a patentable idea nowadays is the point at which you have to get it patented. Otherwise, someone else could patent it while you develop it.
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Timelines
Generally, you have one year after you release a product to file a patent for it.
Any invention pre-dates its patent application (the invention is required to exist to be patented). The date of filing does not indicate the barrier for prior art.
Please provide more specifics on the timings involved - the headline may be quite incorrect.
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Re: Re: Re: You didn't list all the facts
Whoops... missed the "open source" stement in the article... my fault. My point was that I disagree with the amount they are suing, if Mr. Jacobsen is at fault, if he wasn't profiting from a stolen idea. Since his code was open source then KAM is suing for an absurd amount.
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Prior art, well yes.
I designed and built interface hardware for a person
controlling his model raliroad with a PDP-8e in 1974.
He was using this amazing programming language
called Dartmouth Basic.
There is prior art up the wazoo in this instance.
KAM... you suck.
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brainiacs
Quit ragging on patent trolls and patent lawsuits. Some of us are braniacs, not businessmen. Should we not be able to profit from our incredible ideas?
If you cannot bring your idea to market and simply sit back and wait for someone else to reinvent your invention and make a success of it then you have contributed nothing and deserve nothing. NTP is the prime case in point. Whether Camapana invented anything or not, there was no causal link between his invention and RIM's success and NTP deserved nothing rather than the $600 Million dollars the courts helped them to extort.
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Brainiace
>>If you cannot bring your idea to market and simply sit back and wait for someone else to reinvent your invention and make a success of it then you have contributed nothing and deserve nothing.
Since you contributed nothing, then you should "OWE" nothing right? Even based on your reasoning, there should not be a lawsuit.
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i think the patent system should examine the market and whether or not a patented product is being produced, to determine infringement...add that clause, the system might work a little better. NOTICE, i said 'add' for all you forum trolls out there
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A lot of people don't seem to understand how the legal system really works. It's actually just a big game with a predetermined outcome (kind of like professional wrestling). Right or wrong has very little to do with anything. The judges will make what ever rules are required to ensure a politically correct outcome and the rest is all just a show with very well paid actors. So most of these kind of cases will be decided in favor of whom ever has the most political influence: If a big corporation thinks their patent overrides a little guy's prior art, some judge will probably agree with them and make up a rule for it.
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Sad
Word on the streets is Kam used Jacobsen's source for their code, seems to me he needs to counter-sue and get their source to see if this is valid....
They really have the gaal not only to sue someone who made the product before theirs but the possibility they used his as a template is incredulous....
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Re: brainiacs
fucking idiots everywhere...
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Re:
Mudak..
Judges and juries don't give a shit about big corporations...
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Re: Re: brainiacs
angry dude,
I find it amusing that you respond to a well through out critique by simply insulting the person.
We've asked you nicely before, but I'll ask you again:
put up or shut up.
First, show us the super wonderful absolutely brilliant patent you keep claiming you have but refuse to show us, even though it's a public document.
Second, instead of insulting all of us, explain why the patent system works so well in the face of repeated evidence of problems.
Will you actually put up? I doubt it. You haven't yet, so why would you start now? I'll tell you though, it would go a long way towards helping your credibility.
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Prior Art
Computer Hacking started at the MIT 'Model Railroaders Club' back in 59-60. That has to be prior art.
The quote says' "People who don't remember history are doomed to repeat it!"
The patent office need a guick lesson in 'Google' I found fifty entries in less thatn a second.
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Copyright and Sourceforge
The funny thing is, when you look through the FOIA documents that KAM is/was harassing Bob with, they were smart enough to leave off the "Copyright 1997-2006" portions of the website, but not smart enough to hide the "Project registered in 2001" portion of the sourceforge page they included.
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