So let me see if I understand things properly:
Let's say I work for Foobar Corp. and I absolutely hate my competitor,
Acme Corp.
Then I become aware of a patent that is highly relevant to the
business of Acme. (Foobar may not even own this patent)
All I have to do is find some e-mail addresses in the acme.com domain
and send them a copy of this patent.
And then I just wait until they release their next product and sue
them (or wait for the patent owner to sue them).
If things are really like this, I think all UX practitioners, whose
job is to be open to all sorts of information, should have something
to say about this situation. This is not unheard of: things like the
Designer's Accord for environmental issues have attracted considerable
support. Why not make something like that for patents?
Cheers,
Alex
Sent from my iPhone
On 10 Jun 2008, at 08:04, Andrei Herasimchuk <[EMAIL PROTECTED]
> wrote:
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 b
elief 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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