On Tue, 04 Jan 2005 12:42:41 -0800, Roy Lewallen
wrote:
The law does *forbid* you from making a patented item even for your own
use. (From
http://www.uspto.gov/web/offices/pac...x.html#patent: "The
right conferred by the patent grant is, in the language of the statute
and of the grant itself, “the right to exclude others from making,
using, offering for sale, or selling” the invention in the United States
or “importing” the invention into the United States." Notice the word
"making".)
Hi Roy,
Administrative offices are frequently the poorest source of legal
information - especially when worded as vaguely as above.
Instead, Court records show a vastly different interpretation:
"Even though infringement is found, one factor that may negate
willfulness is a bona fide attempt by the alleged infringer to
design around the patent. ... The Federal Circuit reversed,
stating:
This court has indicated that the incentive to "design around"
patents is a positive result of the patent system.... One of
the benefits of a patent system is its so called
"negative incentive" to "design around" a competitor's
products, even when they are patented, thus bringing a steady
flow of innovations to the marketplace. It should not be
discouraged by punitive damage awards except in cases where
conduct is so obnoxious as clearly to call for them."
The obnoxious conduct, in this case, was the licensing of a technology
to then develop patents that would then render the original useless as
a commodity (the only value of a patent). In other words "bad faith"
agreements.
The ruling is from one of many (883) articles on the web specifically
directed toward the State Indus., Inc. v. Mor-Flo Indus., Inc. case
More on willful infringement:
"Patent law encourages competitors to design or invent around
existing patents." See, WMS Gaming, Inc., 51 U.S.P.Q2d at 1396
(Fed. Cir. 1999). Thus, a good faith attempt to design around the
patent will generally negate a charge of willful infringement,
particularly if advice of counsel is sought during the design
process. See, Braun, Inc. v. Dynamics Corp. of Am., 975 F.2d 815,
823 (Fed. Cir. 1992); Read, 970 F.2d at 828 (Fed. Cir. 1992).
Indeed, even in the absence of advice of counsel, a sincere
attempt to design around the patent may negate willfulness. See,
Rolls-Royce Ltd. v. GTE Valeron Corp., 800 F.2d 1101, 1109-1110
(Fed. Cir. 1986).
By-and-large, it is overwhelmingly clear that all such cases brought
and LOST were against commercial interests and not lone individuals.
It seems to me that the raison d'čtre of this body of amateur radio
activity is to improve designs - at least Rhetorically.
I suppose suit for slander or defamation stands a better chance. ;-)
73's
Richard Clark, KB7QHC