On Jun 9, 2008, at 11:16 PM, Kontra wrote:
And you did cite the specific *law* that specifically bans email list
participation. It's of course not a matter of legal disputation as to
what's reasonable or theoretical exposure, it's all automatically
presumed knowledge, which cannot possibly be acquired any other way.
For your perusal:
http://www.lawyersusaonline.com/reprints/burnslevinson5.htm
-----
"In Knorr-Bremse Systeme Fuer Nutzfahrzeuge Gmbh v. Dana Corporation,
383 F.3d 1337 (Fed. Cir. 2004), the court ruled there would not be an
adverse inference of willfulness from a defendant’s failure to obtain
or disclose an opinion of counsel.
Despite this decision, however, *a company accused of infringement
still has an affirmative duty to use due care in avoiding infringement
of the patent at issue.* The willfulness inquiry will depend on
whether the alleged infringer, ***when it learned of the patent,***
investigated the patent’s scope and formed a good faith belief the
patent was invalid or not infringed.
Notwithstanding the Knorr-Bremse decision, the best way to accomplish
this remains obtaining a competent opinion of non-infringement and/or
invalidity from competent patent counsel. *Simply reading the patent
at issue and comparing it to the accused device (the allegedly
infringing product) is likely insufficient.* Moreover, if the dispute
turns into litigation, the defendant will need to demonstrate that a
thoughtful and thorough investigation was conducted, in order to avoid
willfulness damages. "
-----
Emphasis mine. Feel free to read the whole thing. There's plenty more
found via Google where that came from.
If you engage in patent discussion or read or hear about a patent that
is similar to anything you are working on and then don't *immediately*
get your IP or patent lawyers involved to make sure they provide you
with an "opinion of non-infringement" then you are at risk for
increased damages if you are ever sued and found to be infringing. For
those that work for corporations, and not for themselves, this means
you are supposed to get lawyers involved the moment you engage in any
thread where a patent is discussed so the lawyer can then document a
non-infringement opinion of the work you are doing as it relates to
the patent in question.
You can pretty much guess how that might pan out. And you can see why
many lawyers instruct their engineering and design teams to avoid web
sites or discussion groups where it's ok to discuss patents openly.
Keyword: Openly.
The trick here is that if patent discussions happen *ON THIS LIST* and
I subscribe to the list via email, then all that discussion is on my
email server as if I had read it, even when I may have not. Try
proving that in a court of law, however.
Again, Kontra (or whoever you are hiding behind some anonymous nic)...
I honestly don't care what you think of the law itself or how "absurd"
you think it is or how arrogant you think I am for basically trying to
protect designers on this list from having to go through things I've
seen others go through and stuff I've been through myself.
Seriously... I'm just the messenger here and your tone with me is
about as out of line as it gets.
If you honestly don't believe me, then by all means, go ask a lawyer
specializing in IP and patents.
And yes... if you are telling me to remove myself from the list over
this issue because you will refuse to not engage in patent discussion,
then I'll gladly unsubscribe and walk away. And yes I'm *willing* to
risk being on the list as long as it is understood people won't
intentionally post patents or discuss them openly. IOW, that it is
against the organization's policy not to do so on the list. I fully
expect there to be a slip every now and then.
--
Andrei Herasimchuk
Principal, Involution Studios
innovating the digital world
e. [EMAIL PROTECTED]
c. +1 408 306 6422
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