[hpsdr] SDR Patent application that will kill hpsdr

[Bruce Perens]

On 08/08/2011 01:49 PM, Erik Anderson wrote:
>  One thing that might be good is that (as long as we don't make any 
> changes) that suing someone for patent infringement when that exact 
> infringement could be considered "prior art" is hopefully not 
> considered a healthy thing to do?
The American Intellectual Property Law Association's/Economic Survey 
/has placed the cost of prosecuting or defending a patent case at 
somewhere above USD$5 Million. The effect of this is that the party with 
the deepest pockets wins by default and the other party has to accept 
their license. There is no justice for those who can't afford to spend 
lots of time in court. Patent claims that have little chance of standing 
a court challenge are regularly used to extract significant license fees 
from hapless victims.

A proper reply to the application is indeed based upon the language of 
the claims rather than the abstract. There is no law that prevents you 
from sending a certified letter to the applicant the moment you become 
aware of an application, not two months later, and this letter can be 
considered as evidence that the applicant was informed of prior art in 
any later litigation.

Technically, an applicant who files without citing prior art of which 
they are aware is a perjurer. Theoretically there is a potential of jail 
time for perjurers. Unfortunately, USPTO disbanded their enforcement 
department in 1974, and there have been no perjury prosecutions of 
applicants since then, only "inequitable conduct" which can be 
significant for the attorney or patent agent involved but the only peril 
for the applicant is that they lose their patent. So, there is really no 
downside for someone who attempts to shake down others with an invalid 
patent, except that they might not succeed.

     Thanks

     Bruce
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