RadioBanter - I have a dumb question about antenna building

Did you see anything in the findings which absolves anyone from
infringement (willful or otherwise) if one reproduces a patented
invention for personal use and *does* make a good-faith effort to
change it to avoid patent infringement?

Hi Gene,

"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).

As I understand the situation from my reading (and I am by no means a
lawyer, hence my understanding bears no legal weight at all), there
are two issues involved:

[1] Does it infringe? Are you, in fact, actually reproducing an
invention which is patented?

If you are, then you can be subject to penalties (e.g. the
original manufacturer's loss of profits due to the infringement),
and/or become the subject of a court judgement which forbids you
to continue manufacturing the infringed invention.

[2] Was the infringement "willful"? Was it a knowing and deliberate
infringment?

If so, the court can increase the amount of damages awarded to the
inventor(s), up to the point of treble damages.

As I read the rulings cited above, they have to do with the issue of
whether an infringement is willful (and thus subject to increased
damage awards) if the infringer had made a good-faith effort to
"design around" the patent. The rulings above, as summarized, don't
seem to deal with whether *infringement* itself occurred... only
whether the infringement was *willful*.

So - if you start out in an attempt to "design around" someone else's
patent (creating a similar invention which does not actually
infringe), and you use good faith in this attempt (which would
probably mean a competent engineering approach, plus advice from
competent counsel), and you think you've modified the invention
enough to avoid infringing, and a court rules otherwise, then:

- You'd still be infringing, and
- The court would probably rule that your infringement was not willful,
and would decline to levy any increased penalties.

http://www.mmmlaw.com/articles/article_234.pdf describes one such
case... Polaroid vs. Kodak.

Otherwise virtually all patents would
be useless. One could always claim some good-faith attempt to change the
patented item.

This marks the issue of protection offered, but NOT GUARANTEED. And
again, if it goes to court, it will invariably be between
manufacturers (or the patent holder and a manufacturer). The courts
are quite competent to smoke out the rats.

Very probably.

Oh... back on the original question of "building for personal use."
It appears that this question depends on where you are. The U.S.
doesn't have a "for personal use" exemption, but it seems that most
E.U. countries do, and that in these countries a patent infringement
doesn't exist unless the infringing products are actually being
offered for sale. Quite a sensible approach, I think.

--
Dave Platt AE6EO
Hosting the Jade Warrior home page: http://www.radagast.org/jade-warrior
I do _not_ wish to receive unsolicited commercial email, and I will
boycott any company which has the gall to send me such ads!