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On 08/08/2011 01:49 PM, Erik Anderson wrote:
<blockquote
cite="mid:CAAeZAZ5fDFBj7QSG_s9KvKgy2550cfMT=5JWQcw2T7KiVq-Tpg@mail.gmail.com"
type="cite"> 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?</blockquote>
The American Intellectual Property Law Association's<i> Economic
Survey </i>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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Thanks<br>
<br>
Bruce
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