IP Infringement & Open Source

[Aaron]

personal use infringement

@ All
Enablement
"The enablement requirement is directly related to the specification, or disclosure, which must be included as part of every patent application. "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains...to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention."

This is not confusing language, the intent is clear and precise. While our forefathers fully supported the concept of free enterprise, guaranteeing the protection of corporate profit by the availability of patent of rights. They were clearly God fearing men who would not support the concepts of corporate monopoly being used to deprive the poor and needy of the basic comforts of life by making it inaccessible to them through the patent process and by corporate price fixing. This (enablement requirement) has been clearly established to keep in balance. The protection of free enterprise, while maintaining our individual civil rights. The patent process was never intended to keep the fatherless and the widow from building and using anything they need to support themselves and increase the quality of their lives. It would be unconscionable to construe the patent process as legalizing such reprehensible behavior.

A History of the Patent Law of the United States

Seeing that the revised patent law was primarily written by Thomas
Jefferson, my favorite Founding Father, I'd agree it was written with
integrity.

However, each part cannot be interpreted by itself, it has to be
interpreted to my understanding in the context of the entire patent
law itself, which absolutely prohibits infringement on the patent.

If it specifically restricts certain infringements those infringements are
illegal. If certain infringements aren't explicitly spelled out, like possibly
personal use, but also isn't explicitly excluded from infringement, then it
is completely open to being infringement. This is the logic for the Canadian
patent law on personal use infringement and is probably identical for
the American patent law, possibly.

[rosehillworks]

I agree - but that is development, which I this is
different from looking at a patent, going to radio shack and
the hardware store, building it and putting it into use in one's home.

The enablement requirement also makes it possible for a group of experiments
that have "credentials" in the respective art to demonstrate failure after
failure to replicate the claims based on the patent, present it to the
patent office and file for the patent to be nullified.

Of course it would have to be an active patent to even matter but
I wonder if a company could sue a patent holder if they were blocked
from developing the same thing by the patent to find out later that
the patent didn't meet the enablement requirement - effectively
showing the patent was never valid to begin with.

Interesting possibilities.

Aaron
You have made a vary GOOD point. I believe that the full disclosure requirement is not only ignored but intentionally violated by many
inventors and they should have never been granted a patent.

[kcarring]

With the points George Wiseman makes on free energy patents,
Changing a patent by 20% part is another one of those myths:

Patent it yourself - Google Books

Directly below the same home infringement quote:

"The amount you'll have to change a patented product to avoid
infringement is not subject to a quantitative analysis, but rather
is determined by the breadth of the patent's claims."

I don't think it is necessary to make it an honest patent by changing
it "10-20%" therefore invalidating it since it would be "free energy."
According to the logic, a free energy patent that slipped through
by deception could still be changed 10-20% into another deceptive
variety without "correcting mistakes" and still making the patent
"valid" if it makes it through.

I still agree with him for the most part. I recommend his books all the
time and especially the EFIE - and I tell people to just buy the ready
built one for ease.

For the record, only the quoted portion was George's words, the rest were mine so i stand corrected. I only meant to say, and, please... this is a completely hypothetical situation:

If a patent states that a circuit is energized by BEMF, and the inventor fully believes otherwise (not that I'm saying he does..hypothetical here...) AND let's for a moment, hypothetically, pretend he is correct - what you have is a patent based on misinformation. If, for example the mechanism of which the energy is produced cannot be proven, one way or another, and new patent comes along with minor changes to the circuit behavior with a claim that the energy comes from magnetic induction and that his circuit uniquely exploits that source, and not BEMF...

... in the end...

You have a complete and total FARCE if it should go to court, a hayday for lawyers to play on legalities, definitions, theorems and proofs.

In other words, if a patent is "adapted" for the system, and unprovable or even so much as impossible to replicate as shown...

It's worth nothing. All it is, is a permission slip for you to go broke trying to defend something - a battle of your money versus someone else's words regarding phenomenoms not explained by conventional science. All the while you have the suppressors laughing behind your back, because neither of you are entitled to make claim to how it actually works because current science doesn't back you suffice to claim overunity, no matter how you try.


So it's a battle of fraudulent and misleading patents that are not easily reproducible nor adequately explained by science (or what they call science) - in this hypothetical situation.

George Wiseman quote:

"the Patent Office has no function except to record and file patents in case someone needs them in a lawsuit and for public viewing. It's up to the market to determine if a device works or not. If it doesn't work, it won't sell. If someone commits fraud, they get punished."

[SuperCaviTationIstic]

And When A Law Is Unjust, You Don't Pay Heed To It

[Aaron]

free energy patents

If a patent states that a circuit is energized by BEMF, and the inventor fully believes otherwise (not that I'm saying he does..hypothetical here...) AND let's for a moment, hypothetically, pretend he is correct - what you have is a patent based on misinformation. If, for example the mechanism of which the energy is produced cannot be proven, one way or another, and new patent comes along with minor changes to the circuit behavior with a claim that the energy comes from magnetic induction and that his circuit uniquely exploits that source, and not BEMF...

... in the end...

You have a complete and total FARCE if it should go to court, a hayday for lawyers to play on legalities, definitions, theorems and proofs.

I'd guess this point brings up something that I'd personally have to take
it as a case by case basis.

What I mean is that even if the explanation isn't 100% accurate of how
it works, yet - if it is built to spec, the benefits of the claims are actually
realized - then it would definitely meet the enablement requirement.
Many patents quote electron theory model, which has never been proven
in addition to the fact that there is monumental evidence to show it is
absolutely flawed but those patents would be considered valid if the patent
shows how to build it.

In your example, I don't know if another patent that gives a more accurate
explanation to the theory of the workings would make the other one
invalid or a farse. Possibly, it might
just be another valid patent with different claims even if the schematic and
other diagrams are practically identical. But not sure how it would play
out.

If the theory of operation however that just might be more accurate that
exploits an energy source that is unconventional and not recognized in
the common books, I think they could just deny it because it can't possibly
work in their opinion based on those claims. As stated earlier possibly that
if a patent had the "mistakes" corrected and revealed free energy that
it wouldn't be granted and it would be considered the farce and not the
one that is already granted that may be explained in a way that is
palatable to the examiners.

[Aaron]

zpe

But - there are some patents that have been granted with zero point
energy claims. ZPE is of course almost always misused but still, perhaps
it set a precedence?

[rosehillworks]

A History of the Patent Law of the United States

Seeing that the revised patent law was primarily written by Thomas
Jefferson, my favorite Founding Father, I'd agree it was written with
integrity.

However, each part cannot be interpreted by itself, it has to be
interpreted to my understanding in the context of the entire patent
law itself, which absolutely prohibits infringement on the patent.

If it specifically restricts certain infringements those infringements are
illegal. If certain infringements aren't explicitly spelled out, like possibly
personal use, but also isn't explicitly excluded from infringement, then it
is completely open to being infringement. This is the logic for the Canadian
patent law on personal use infringement and is probably identical for
the American patent law, possibly.

Aaron
Yes,(Integrity and Justice). To preserve these truly American values is precisely why personal infringement suits should always be tried in front of a jury. The jury has the right to find a defendant innocent even though the law may declare them guilty. This is our forefathers way of ensuring individual rights, when are lawmakers forget the spirit and concept of justice. However, finding a judge and lawyers that understand and are willing to allow the jury to properly exercise their authority in a court of law is a very rare occasion. The legal systems blatant infringement on the rights of the jury is repetitive and well established. Our system has become one of legality and not one of justice. May God bless America with a heart of justice once again.

[Michael John Nunnerley]

Prior Art

Prior Art is the down fall of a lot of patents whether it is an application OR a granted patent.

I am in the front line of this prior art as I have documentaion and witnesses to a full running invention back in the 80's, but since then others have applied for patents on this IP. What do I do now, well I have no interest in applying for a patent on that invention, I want it open to all as long as it is not used for financial gain by OTHERS. If this was used by these other patented grants and applications, then I WOULD FILE AGAINST THEM, as it stands at the moment it does not appear that anyone has or is using this IP, apart from the GOVERNMENT "maybe".

As long as an invention was shown by the inventor or on the inventors authority in open source, that invention can only be patented by the inventor and not by the authorised constructor in open source.

Prior art - Wikipedia, the free encyclopedia

Mike

[Aaron]

personal infringement

I hope it does go back.

In those days, if it was common law then there would be no victimless
crimes that are punishable and just about anyone with some common sense
had a serious chance of simply defending themselves in court.

Proving a victim for personal infringement seems tough to ever do. I wonder
if there are any court cases for that specifically.

If the item isn't even available commercially yet, then it isn't taking
away sales and this is the case for most of the "free energy" patents.

Out of all patents granted in all categories, it seems there are only a very
small almost insignificant percentage of them that ever go into production
anyway so almost all patent owners I doubt could claim they are losing
sales.

[Aaron]

35 U.S.C. 271 Infringement of patent. - Patent Laws

Infringement:

35 U.S.C. 271 Infringement of patent. - Patent Laws

35 U.S.C. 271 Infringement of patent. - Patent Laws

35 U.S.C. 271 Infringement of patent.

(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
(b) Whoever actively induces infringement of a patent shall be liable as an infringer.
(c) Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination, or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.
(d) No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his having done one or more of the following: (1) derived revenue from acts which if performed by another without his consent would constitute contributory infringement of the patent; (2) licensed or authorized another to perform acts which if performed without his consent would constitute contributory infringement of the patent; (3) sought to enforce his patent rights against infringement or contributory infringement; (4) refused to license or use any rights to the patent; or (5) conditioned the license of any rights to the patent or the sale of the patented product on the acquisition of a license to rights in another patent or purchase of a separate product, unless, in view of the circumstances, the patent owner has market power in the relevant market for the patent or patented product on which the license or sale is conditioned.
(e)
(1) It shall not be an act of infringement to make, use, offer to sell, or sell within the United States or import into the United States a patented invention (other than a new animal drug or veterinary biological product (as those terms are used in the Federal Food, Drug, and Cosmetic Act and the Act of March 4, 1913) which is primarily manufactured using recombinant DNA, recombinant RNA, hybridoma technology, or other processes involving site specific genetic manipulation techniques) solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs or veterinary biological products.
(2) It shall be an act of infringement to submit -
(A) an application under section 505(j) of the Federal Food, Drug, and Cosmetic Act or described in section 505(b)(2) of such Act for a drug claimed in a patent or the use of which is claimed in a patent, or
(B) an application under section 512 of such Act or under the Act of March 4, 1913 (21 U.S.C. 151 - 158) for a drug or veterinary biological product which is not primarily manufactured using recombinant DNA, recombinant RNA, hybridoma technology, or other processes involving site specific genetic manipulation techniques and which is claimed in a patent or the use of which is claimed in a patent, if the purpose of such submission is to obtain approval under such Act to engage in the commercial manufacture, use, or sale of a drug or veterinary biological product claimed in a patent or the use of which is claimed in a patent before the expiration of such patent.
(3) In any action for patent infringement brought under this section, no injunctive or other relief may be granted which would prohibit the making, using, offering to sell, or selling within the United States or importing into the United States of a patented invention under paragraph (1).
(4) For an act of infringement described in paragraph (2)-
(A) the court shall order the effective date of any approval of the drug or veterinary biological product involved in the infringement to be a date which is not earlier than the date of the expiration of the patent which has been infringed,
(B) injunctive relief may be granted against an infringer to prevent the commercial manufacture, use, offer to sell, or sale within the United States or importation into the United States of an approved drug or veterinary biological product, and
(C) damages or other monetary relief may be awarded against an infringer only if there has been commercial manufacture, use, offer to sell, or sale within the United States or importation into the United States of an approved drug or veterinary biological product. The remedies prescribed by subparagraphs (A), (B), and (C) are the only remedies which may be granted by a court for an act of infringement described in paragraph (2), except that a court may award attorney fees under section 285.
(5) Where a person has filed an application described in paragraph (2) that includes a certification under subsection (b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) of section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355), and neither the owner of the patent that is the subject of the certification nor the holder of the approved application under subsection (b) of such section for the drug that is claimed by the patent or a use of which is claimed by the patent brought an action for infringement of such patent before the expiration of 45 days after the date on which the notice given under subsection (b)(3) or (j)(2)(B) of such section was received, the courts of the United States shall, to the extent consistent with the Constitution, have subject matter jurisdiction in any action brought by such person under section 2201 of title 28 for a declaratory judgment that such patent is invalid or not infringed.
(f)
(1) Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.
(2) Whoever without authority supplies or causes to be supplied in or from the United States any component of a patented invention that is especially made or especially adapted for use in the invention and not a staple article or commodity of commerce suitable for substantial noninfringing use, where such component is uncombined in whole or in part, knowing that such component is so made or adapted and intending that such component will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.
(g) Whoever without authority imports into the United States or offers to sell, sells, or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer, if the importation, offer to sell, sale, or use of the product occurs during the term of such process patent. In an action for infringement of a process patent, no remedy may be granted for infringement on account of the noncommercial use or retail sale of a product unless there is no adequate remedy under this title for infringement on account of the importation or other use, offer to sell, or sale of that product. A product which is made by a patented process will, for purposes of this title, not be considered to be so made after -
(1) it is materially changed by subsequent processes; or
(2) it becomes a trivial and nonessential component of another product.
(h) As used in this section, the term "whoever" includes any State, any instrumentality of a State, any officer or employee of a State or instrumentality of a State acting in his official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.
(i) As used in this section, an "offer for sale" or an "offer to sell" by a person other than the patentee or any assignee of the patentee, is that in which the sale will occur before the expiration of the term of the patent.
(Subsection (e) added Sept. 24, 1984, Public Law 98-417, sec. 202, 98 Stat. 1603.)
(Subsection (f) added Nov. 8, 1984, Public Law 98-622, sec. 101(a), 98 Stat. 3383.)
(Subsection (g) added Aug. 23, 1988, Public Law 100-418, sec. 9003, 102 Stat. 1564.)
(Subsection (e) amended Nov. 16, 1988, Public Law 100-670, sec. 201(i), 102 Stat. 3988.)
(Subsection (d) amended Nov. 19, 1988, Public Law 100-703, sec. 201, 102 Stat. 4676.)
(Subsection (h) added Oct. 28, 1992, Public Law 102-560, sec. 2(a)(1), 106 Stat. 4230.)
(Subsections (a), (c), (e), and (g) amended Dec. 8, 1994, Public Law 103-465, sec. 533(a), 108 Stat. 4988.)
(Subsection (i) added Dec. 8, 1994, Public Law 103-465, sec. 533(a), 108 Stat. 4988.)
(Subsection (e)(5) added Dec. 8, 2003, Public Law 108-173, sec. 1101(d), 117 Stat. 2457.)

[ewizard]

I kind of skimmed this thread but I think two key points that are highly relevant are:
1 - Home infringement may be difficult to detect - YES so if you want to copy something for your own use how would anyone know or even care unless you advertise it (not smart).
2 - It takes a lot of money to defend a patent so what use would it be for someone to go after an individual that made something only for home use? Unless that was a very wealthy home use individual it would make no sense and if that person was wealthy why would he be bothering to copy something when he could likely buy it?

I just don't think this is anything for most people to worry about. On a forum where there are a lot of famous knife makers I asked one time about making a copy for myself of a particular knife design I wanted to try. One of the top high end (read very expensive $$$ ) knife makers responded himself that if you are making it for yourself and don't sell it that it's fine. I think you would find most people to be of the same opinion.

[Aaron]

waste of time

I kind of skimmed this thread but I think two key points that are highly relevant are:
1 - Home infringement may be difficult to detect - YES so if you want to copy something for your own use how would anyone know or even care unless you advertise it (not smart).
2 - It takes a lot of money to defend a patent so what use would it be for someone to go after an individual that made something only for home use? Unless that was a very wealthy home use individual it would make no sense and if that person was wealthy why would he be bothering to copy something when he could likely buy it?

I just don't think this is anything for most people to worry about. On a forum where there are a lot of famous knife makers I asked one time about making a copy for myself of a particular knife design I wanted to try. One of the top high end (read very expensive $$$ ) knife makers responded himself that if you are making it for yourself and don't sell it that it's fine. I think you would find most people to be of the same opinion.

Yeah - one attorney I was reading was saying that it is not really
enforceable as from a practical standpoint. It takes too much money
to sue for personal use for something that costs a fraction of the legal
fees. And even if legal fees were recouped, it isn't worth the time or
hassle.

[jibbguy]

Actually, there was always reason to claim that there is no illegality for your own use. There must be shown "damage" to be considered so.

Who would be the "victim"? Understand that this "crime" requires a Complaint (and generally these are handled as Civil suits, and anyone can sue anyone else whenever they like anyway lol). So you would need the Patent holder to file a complaint or a suit. Then, they must show how they are being harmed by this experimentation or personal use.