Suppose a product was using a technology before a patent ?

[Skybuck Flying]

"Dennis M. O'Connor" <dmoc@primenet.com> wrote in message
news:1123520125.499791@nnrp1.phx1.gblx.net...

"Del Cecchi" <cecchinospam@us.ibm.com> wrote ...
I remain skeptical

Bye,
Skybuck.

You ask for information then argue with the answer?

He's a cross-posting troll. I've kill-filed him.

I know you... I thought you were a big fat troll... with your unary
encoding. Hahahahaha.

The fact is you mis-interpreted my universal coding you dumb fuck ! lol.

Go read it again !!!!!!!

Wieeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

It's good to rule

Oh yes I see... you setup the newsgroups to alt.flame again...

Not falling for that one again

Wieeeeeeeeeeeeeeeeeeeeeeeeeee

Lol, I am gonna leave it !

LET THERE BE FLAMEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE =D

Bye,
Skybuck.

 

[Rich Grise]

On Mon, 08 Aug 2005 10:42:53 +0200, Skybuck Flying wrote:

Hi,

I have a simply question really.

Suppose a manufacturer was producing some product which use technology Z
before a patent describing technology Z was filed.

The inventor sues manufacturer for patent infringement.

The manufacturers defense is that he was producing/selling the products well
before patent application say 3 years.

The manufacturer claims the patent is invalid because he was selling
products using this technology long before the patent was filed. ( But kept
it secret from competitors )

Here's the rub. If the manufacturer was keeping the design a trade secret,
then they have no legal leg to stand on, and the patentor can go ahead and
go into production. If there's a legal battle, whoever has the most money
wins.

If Manufacturer _had_ _disclosed_ his art, then that is First Disclosure
and the patent will be invalid.

Assuming both parties have capable lawyers Who would win this lawsuit the
inventor/patent holder or the manufacturer ?

Whoever has the most money.

I think if the manufacturer can prove that the products were produced and
sold well before the patent filing he should win easily...

All he has to do is show that his invention was disclosed - this could
include sending it to the PO - it doesn't have to be released to the
general public.

So this is just a reality check

Does it work like that in reality or is reality screwed up lol ?

Yes.

I would like to ask this question in a law newsgroup... but the closest
thing I found was law.court which seems kinda dead ?

I'm not a lawyer, but I play one on USENET. ;-)

Good Luck!
Rich

 

[Jim Thompson]

On Mon, 8 Aug 2005 12:12:32 -0400, Keith Williams <krw@att.bizzzz>
wrote:

In article <vptef1hg4jtal592041t2m4ecpa4jrrg16@4ax.com>,
thegreatone@example.com says...
[snip]

I was referring to "A" _produced_, before "B" applied for letters
patent.

Ok, that is a little different, though if "A" kept the widget as a
trade secret, "B" may still be able to get and defend the patent.

[snip]

Even though kept a trade secret, it invalidates the patent
application, since all you need to show is that product was produced
utilizing the technology before the patent application .

...Jim Thompson
--
| James E.Thompson, P.E. | mens |
| Analog Innovations, Inc. | et |
| Analog/Mixed-Signal ASIC's and Discrete Systems | manus |
| Phoenix, Arizona Voice480)460-2350 | |
| E-mail Address at Website Fax480)460-2142 | Brass Rat |
| http://www.analog-innovations.com | 1962 |

I love to cook with wine. Sometimes I even put it in the food.

 

[Colonel Forbin]

In article <dd84fq$9pq$1@news1.zwoll1.ov.home.nl>,
Skybuck Flying <nospam@hotmail.com> wrote:

Wieeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

The crystal meth must be kicking in...

 

[Keith Williams]

In article <DpMJe.52410$zY4.11379@tornado.ohiordc.rr.com>,
forbin@dev.nul says...

In article <dd7dh4$tvf$1@news5.zwoll1.ov.home.nl>,
Skybuck Flying <nospam@hotmail.com> wrote:

Why not ?

It's no longer a trade secret, somebody else has re-invented it.

The manufacturer could step forward and disclose their trade secret.

The secret is in the products itself which is prove of prior art yet nobody
noticed it

By disclosing their trade secret they should be able to prove that they are
infact the original inventors.

Surely that has to count for something in court

The patent and copyright systems are protectionist legislation intended to
try to enforce some degree of fairness over profit from intellectual
property and innovation. Nobody ever claimed they were perfect.

The obvious point of patents is to protect an inventor who has
invested a great deal of capital to develop an idea into an invention
with some practical use which might be sold at profit from scalpers
who simply copy the design without having to invest any of the R&D
capital and can thus undercut the price of the inventor who needs
to recover these costs through sales.

From society's (read; government) perspective the idea of a patent is
education. The guilds weren't a pretty thing.

At this level, it's the same notion as forbidding the counterfeiting
of money. Why earn it when you can just print what you need?

Someone said the notion of patents was to encourage inventors to
disclose ("open source") their inventions, but I do not believe this
to be the case. The system is merely an artifact of a capitalist
economic system intended to serve as a check on free market exploitation.

The intent is exactly the opposite. The intention is to foster
knowledge by enticing inventors to teach their art. In return they
receive a limited monopoly on their invention.

A wise man once wrote:
"To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries;"

If there is any "purpose" to the patent law, it is to encourage invention
in the first place by providing some degree of insurance that an inventor
will have the first shot at profiting from the invention.

There is a reason there are two parts of a patent. The "teachings" and
the "Claims". You don't get the reward ("claims") without cost
("teachings").

The prolonged fight between DeForest and Armstrong with respect to
radio technology should provide a valuable lesson.

Why? We have two inventors and a pile of money for lawyers. What's so
valuable about that lesson?

The philosophical issue of fairness remains open. If party "A"
invents something which is later completely independently discovered
and developed by party "B," should B be denied the opportunity to
profit from his invention simply because A discovered it first?

That's the way the cookie crumbles. How do you know "B" discovered it
"independently"? He may have falsified his notebook. Why does the
government care? The art has been taught by "A".

The general gist of patents is to deter copying, so it clearly falls
short in such a case. B did not copy A, yet B may not be able
to profit merely because A was first to register his invention.

You mist the point of patents. The purpose is to *TEACH* the relevant
art. The exclusive license to practice the art is payment for those
teachings.

A free market mentality would say, let the market decide, but
that clearly isn't "fair" because it often simply depends on who
can undercut the other on price.

Thus the system can never be universally fair.

There is no such thing as fair. Is it fair that you get dealt a better
poker hand than I?

That's why lawyers get paid so much.

No human society has ever fully resolved the notion of how to fairly
reward human labor and inventiveness.

Capitalism is the worst system possible, except for all the others that
have been tried.

What if A invented an idea, but had a really crappy implementation,
but B independently (or not) implemented the same idea in a much
more efficient way?

B can then patent this "much more efficient way". B may (or may not)
need a license from A to practice his art, but if it's that much better
A will want a license from B too.

The case of Teller vs. Ulam is another excellent example. Evidently
Ulam first came up with the notion of radiational coupling as the
way to create the hydrogen bomb, but Teller developed the concept
into a workable design. Thus, who should "own" this dubious piece
of intellectual property?

As always, their employer. Note that patents don't mean squat when
national defense is at stake.

--
Keith

 

Winfield Hill wrote:

Skybuck Flying wrote...

It does say the following line:
"In determining priority of invention under this subsection"

Isn't that all obsolete now, didn't we recently follow the rest
of the world and change from first to invent, to first to file?


--
Thanks,
- Win

Mostly true. The U.S. formerly followed the first-to-invent
philosophy: the one who could prove first invention prevailed.
Existing patents could be invalidated by proof of earlier conception.

AIUI, Europe follows first-to-file: the first person to file
prevails, even over earlier inventors, as long as the material
was still patentable, i.e., not previously disclosed, known, or sold.

Last time I looked, the U.S. adopted a compromise position: patent
(i.e., monopoly) rights accrue to the first filer, but those who can
prove earlier invention/conception/use have a non-transferrable right
to practice/manufacture/sell their inventions.

The first-to-file system engenders the unfortunate possibility of
losing one's rights to a later "inventor," while the first-to-invent
system's grants/pronouncements are ever subject to revision based on
new discoveries of older art.

I'm not sure, but I believe in the OP's scenario that prior sale of
of the device containing an embodiment of the invention prevents
subsequent patent efforts, though the concealment issue would make for
some lively lawsuits. Were there no sale, then first-to-file wins.

Overall, though messier, I think I prefer first-to-invent, as this
assures the little folks--who can't afford to patent everything--the
right to create and use their inventions, without fear of usurpation
down the road by better-funded competitors.

Cheers,
James Arthur

 

[Skybuck Flying]

"Colonel Forbin" <forbin@dev.nul> wrote in message
news:lQMJe.52530$zY4.10307@tornado.ohiordc.rr.com...

In article <dd84fq$9pq$1@news1.zwoll1.ov.home.nl>,
Skybuck Flying <nospam@hotmail.com> wrote:

Wieeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

The crystal meth must be kicking in...

What that hell is that.. or did you mean math .

 

[Winfield Hill]

dagmargoodboat@yahoo.com wrote...

Overall, though messier, I think I prefer first-to-invent, as this
assures the little folks--who can't afford to patent everything--the
right to create and use their inventions, without fear of usurpation
down the road by better-funded competitors.

Well, the little fellow can always reveal all in his user manual,
i.e. schematic diagram, software flow-chart, explanations, etc.,
thereby insuring that a later arrival can't properly go obtain a
patent by "disclosing" the invention. This approach also makes
for much easier, less-expensive legal action should a later patent
in fact be granted.


--
Thanks,
- Win

 

[Skybuck Flying]

Keith Williams for a supposedly smart fella you dont show it at the moment.

This discussiong is totally irrelevant for this thread.

If you want to discuss what patents are all about than get the hell out of
MYYYYYYYYYY thread yess.

Start your own damn thread and harvest from it, thrive in it, glorify it.

Mister Colonin Forbidden is nothing but a trolll for posting a completely
off topic issue for this thread.

It's called diverting all attention to something else.. Though diverting
attention is not the most serious of usenet crimes/troll techniques as I
should no as master troll lol. (not true but what the heck heheheheheheh)

Colonil Pawell forbidden moterfucka is purely trying to were me, you, us
downnnn by discussing completely irrelevant, time consuming posts which we
probably can't even do anything about.

Now be gone, and let this thread die and rest in peace. =D

Bye,
Skybukckckck. wiee. just a small screaming little wiee. period.

"Keith Williams" <krw@att.bizzzz> wrote in message
news:MPG.1d616816b3529348989b63@news.individual.net...

In article <DpMJe.52410$zY4.11379@tornado.ohiordc.rr.com>,
forbin@dev.nul says...
In article <dd7dh4$tvf$1@news5.zwoll1.ov.home.nl>,
Skybuck Flying <nospam@hotmail.com> wrote:

Why not ?

It's no longer a trade secret, somebody else has re-invented it.

The manufacturer could step forward and disclose their trade secret.

The secret is in the products itself which is prove of prior art yet
nobody
noticed it

By disclosing their trade secret they should be able to prove that they
are
infact the original inventors.

Surely that has to count for something in court

The patent and copyright systems are protectionist legislation intended
to
try to enforce some degree of fairness over profit from intellectual
property and innovation. Nobody ever claimed they were perfect.

The obvious point of patents is to protect an inventor who has
invested a great deal of capital to develop an idea into an invention
with some practical use which might be sold at profit from scalpers
who simply copy the design without having to invest any of the R&D
capital and can thus undercut the price of the inventor who needs
to recover these costs through sales.

From society's (read; government) perspective the idea of a patent is
education. The guilds weren't a pretty thing.

At this level, it's the same notion as forbidding the counterfeiting
of money. Why earn it when you can just print what you need?

Someone said the notion of patents was to encourage inventors to
disclose ("open source") their inventions, but I do not believe this
to be the case. The system is merely an artifact of a capitalist
economic system intended to serve as a check on free market
exploitation.

The intent is exactly the opposite. The intention is to foster
knowledge by enticing inventors to teach their art. In return they
receive a limited monopoly on their invention.

A wise man once wrote:
"To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries;"

If there is any "purpose" to the patent law, it is to encourage
invention
in the first place by providing some degree of insurance that an
inventor
will have the first shot at profiting from the invention.

There is a reason there are two parts of a patent. The "teachings" and
the "Claims". You don't get the reward ("claims") without cost
("teachings").

The prolonged fight between DeForest and Armstrong with respect to
radio technology should provide a valuable lesson.

Why? We have two inventors and a pile of money for lawyers. What's so
valuable about that lesson?

The philosophical issue of fairness remains open. If party "A"
invents something which is later completely independently discovered
and developed by party "B," should B be denied the opportunity to
profit from his invention simply because A discovered it first?

That's the way the cookie crumbles. How do you know "B" discovered it
"independently"? He may have falsified his notebook. Why does the
government care? The art has been taught by "A".

The general gist of patents is to deter copying, so it clearly falls
short in such a case. B did not copy A, yet B may not be able
to profit merely because A was first to register his invention.

You mist the point of patents. The purpose is to *TEACH* the relevant
art. The exclusive license to practice the art is payment for those
teachings.

A free market mentality would say, let the market decide, but
that clearly isn't "fair" because it often simply depends on who
can undercut the other on price.

Thus the system can never be universally fair.

There is no such thing as fair. Is it fair that you get dealt a better
poker hand than I?

That's why lawyers get paid so much.

No human society has ever fully resolved the notion of how to fairly
reward human labor and inventiveness.

Capitalism is the worst system possible, except for all the others that
have been tried.

What if A invented an idea, but had a really crappy implementation,
but B independently (or not) implemented the same idea in a much
more efficient way?

B can then patent this "much more efficient way". B may (or may not)
need a license from A to practice his art, but if it's that much better
A will want a license from B too.

The case of Teller vs. Ulam is another excellent example. Evidently
Ulam first came up with the notion of radiational coupling as the
way to create the hydrogen bomb, but Teller developed the concept
into a workable design. Thus, who should "own" this dubious piece
of intellectual property?

As always, their employer. Note that patents don't mean squat when
national defense is at stake.

--
Keith

 

[Colonel Forbin]

In article <dd88j9$ipf$1@news5.zwoll1.ov.home.nl>,
Skybuck Flying <nospam@hotmail.com> wrote:

[...] elided.

And BIFF begat B1FF, and so on...

 

Winfield Hill wrote:

dagmargoodboat@yahoo.com wrote...

Overall, though messier, I think I prefer first-to-invent, as this
assures the little folks--who can't afford to patent everything--the
right to create and use their inventions, without fear of usurpation
down the road by better-funded competitors.

Well, the little fellow can always reveal all in his user manual,
i.e. schematic diagram, software flow-chart, explanations, etc.,
thereby insuring that a later arrival can't properly go obtain a
patent by "disclosing" the invention. This approach also makes
for much easier, less-expensive legal action should a later patent
in fact be granted.


--
Thanks,
- Win

Yes, but, unfortunately, disclosing all in your manual virtually
assures you that competitors will benefit, and that your gadgets
will be made by off-shore folks for less, legally.

A large, established competitor with a bigger market presence
could easily get greater advantage from any innovations than the
inventor. That, of course, is one of the situations the patent
system was intended to prevent, as it discourages innovation.

Then again, it depends on what you make and where you sell it--
if you make a specialized product that's backed chiefly by your
reputation, e.g. the Hewlett-Packard of old, then you needn't be
so concerned about publishing particulars.

If you're making a commodity, where the field is crowded and
price rules, then your competitors, while sincerely appreciating
your donations of time and trouble, will eat you.

The best "protection" in one sense is to file for letters patent
on everything, but it's tedious and expensive, and the time spent
thereon is time not spent on business or further invention.
Advantage again to larger outfits, who can afford minions to handle
the overhead.

ISTM the smaller folks have to choose their battles, and use a
mix of disclosure strategies appropriate to each product/invention.

Cheers,
James Arthur

 

[Joerg]

Hello Winfield,

But, if as Skybuck stipulated, the invention was secretly contained within
the product, not advertised or discussed by the manufacturer in brochures,
manuals, etc., and not apparent to a product user, or to one studying the
product, it's hard to see how it could be declared a publicly-disclosed
prior art, and used to overturn the new patent. This is one of the reasons
for open disclosure of inventions, or alternately for defensive patenting.

That often doesn't stick in a lawsuit. IIRC there was a company that
made golf balls from Surlyn or some kind of special plastics. They kept
the golf ball innards a secret but sold lots of these which constitutes
"noninforming public use". Then Dunlop engineered something similar,
filed a patent for the technology and subsequently sued. AFAIR Dunlop
lost and their patent was declared invalid because of prior noninforming
public use.

Regards, Joerg

http://www.analogconsultants.com

 

[Keith Williams]

In article <dd88lv0rjj@drn.newsguy.com>, Winfield_member@newsguy.com
says...

dagmargoodboat@yahoo.com wrote...

Overall, though messier, I think I prefer first-to-invent, as this
assures the little folks--who can't afford to patent everything--the
right to create and use their inventions, without fear of usurpation
down the road by better-funded competitors.

Well, the little fellow can always reveal all in his user manual,
i.e. schematic diagram, software flow-chart, explanations, etc.,
thereby insuring that a later arrival can't properly go obtain a
patent by "disclosing" the invention. This approach also makes
for much easier, less-expensive legal action should a later patent
in fact be granted.

There are IP "Journals" that are used for exactly this purpose. The

idea you wish to protect is published anonymously so your competitors
can't figure out what you're up to.

--
Keith

 

[glen herrmannsfeldt]

Skybuck Flying wrote:
(snip)

It doesn't say "trade secret" it clearly says invention !!!

It doesn't say:
"
A person shall be entitled to a patent unless -

(a) the trade secret was known or used by others in this country,
"

It says:
"
A person shall be entitled to a patent unless -

(a) the invention was known or used by others in this country,
"

The invention which is claimed by a person CAN be known by others, namely
the trade secret holders !

It's the person who could not have known a probably kept trade secret !

However he is not the true inventor. The true inventor remains the trade
secret holder !

In many cases two people come up with the same idea independently.

In that case, the fact that one uses it as a trade secret doesn't
prevent another from having invented it first. As I understand it,
at some point it comes down to who can prove they invented it first.

-- glen

 

[glen herrmannsfeldt]

Del Cecchi wrote:
(snip regarding patents, trade secrets, and simultaneous invention)

So I could patent the formula for Coke Syrup? And then sue Coke for
infringing?

Or is there something different about product using "technology"? I
guess the ambiguity is the word "using".

I would say it is different in the degree of proof needed.

Say I buy some coke and do chemical analysis to determine the
formula. (If it were possible it would have been done by now).
I would determine the individual chemicals in a given sample,
but not necessarily the formula used by coke. Coke uses many
natural ingredients containing mixtures of chemicals where it would
be very difficult to identify the actual ingredient.

Another post regarded the plastic used in a golf ball. Identifying
a single chemical, even one as varied as a polymer, isn't so hard.
Much easier than the complex mixture that is Coke. It would,
then, be relatively easy to prove that two golf balls were made
of similar plastic than that two cola drinks were made from the
same formula.

-- glen

 

[Winfield Hill]

Keith Williams wrote...

There are IP "Journals" that are used for exactly this purpose.
The idea you wish to protect is published anonymously so your
competitors can't figure out what you're up to.

Facinating, how does one find these journals?


--
Thanks,
- Win

 

[Fred Bloggs]

Skybuck Flying wrote:

"Fred Bloggs" <nospam@nospam.com> wrote in message
news:42F74B67.9060105@nospam.com...


Winfield Hill wrote:


This would mean they didn't make a public disclosure of the invention
(unless of course the invention was apparent to anyone studying the
product, but you specified that it was kept a trade secret). So they
couldn't seek to invalidate the patent based on their secret info.

Trade secrets are only protected against wrongful appropriation. 35
U.S.C. 102(g) allows for patentability of an invention derived by
independent discovery or reasonable reverse engineering of a
pre-existing invention that has been "concealed" by another inventor.


In (a) the law says otherwise but then in your part (g) that could be an
exception.

http://www.uspto.gov/web/offices/pac/mpep/consolidated_laws.pdf

At page 102 (top left corner)

"
35 U.S.C. 102 Conditions for patentability; novelty and loss of right to
patent.

A person shall be entitled to a patent unless -

(a) the invention was known or used by others in this country, or patented
or described in a printed publication in this or a foreign country, before
the invention thereof by the applicant for patent, or
"

These are only conditions...

They are conditions for "loss of right to patent." Section a) refers to
a context of publication by print, patent, or some other means from
which a reasonable inference could be made that the invention is
well-known to practitioners of the art. The phrase "known by others"
does NOT refer to those select few who maintained secrecy of their
invention. The Miller analogy would be secrecy is to publication as
intelligence is to skybuck flying.

So a lawyer could say:

"The patent should not have been granted in the first place".

Really? And whose lawyer would say that? Certainly not the lawyer for
the applicant, so it must be the lawyer for the trade secret. Assuming
the application has passed muster with novelty, usefulness, and
non-obviousness, the attorney is then left with no recourse except to
paragraph g) subparagraph 2). Interference does not apply because no
patent exists for the trade secret.

But your text is from this section:

"
(g)(1) during the course of an interference conducted under section 135 or
section 291, another inventor involved therein establishes, to the extent
permitted in section 104, that before such person's invention thereof the
invention was made by such other inventor and not abandoned, suppressed, or
concealed, or (2) before such person's invention thereof, the invention was
made in this country by another inventor who had not abandoned, suppressed,
or concealed it. In determining priority of invention under this subsection,
there shall be considered not only the respective dates of conception and
reduction to practice of the invention, but also the reasonable diligence of
one who was first to conceive and last to reduce to practice, from a time
prior to conception by the other.
"

But this section is too complex for me to understand at the moment...
complex words and sentences and references to other sections...

Your inability to comprehend the words has nothing to do with the actual
law. All you need to concentrate on is "or (2) before such person's
invention thereof, the invention was made in this country by another
inventor who had not abandoned, suppressed, or concealed it." The
interference refers to conflicting rights between two patents. Since the
trade secret was not patented, there is no interference. But 2) does
apply in the case of a manufacturer who made no attempt to suppress or
conceal his invention and is actively using it. It is the concealment
that deprives the trade secret from recourse to a cause of action under
35 USC 102 (g). By its very definition, the trade secret was established
to suppress competition and maximize profits from its use. And what is
more, in order to defend a trade secret against misappropriation, the
holder must show proof of due diligence in protecting that secret- or
concealment under federal patent law- in order to have a cause of action
under state law for wrongful loss.

 

[Fred Bloggs]

Keith Williams wrote:

You mist the point of patents.

That must be one of them there phone-etic misspellings ... but "mist" ?
See a dentist, toothless Bush supporter...

 

[Don Lancaster]

Fred Bloggs wrote:

Skybuck Flying wrote:

"Fred Bloggs" <nospam@nospam.com> wrote in message
news:42F74B67.9060105@nospam.com...


Winfield Hill wrote:


This would mean they didn't make a public disclosure of the invention
(unless of course the invention was apparent to anyone studying the
product, but you specified that it was kept a trade secret). So they
couldn't seek to invalidate the patent based on their secret info.


Trade secrets are only protected against wrongful appropriation. 35
U.S.C. 102(g) allows for patentability of an invention derived by
independent discovery or reasonable reverse engineering of a
pre-existing invention that has been "concealed" by another inventor.



In (a) the law says otherwise but then in your part (g) that could be an
exception.

http://www.uspto.gov/web/offices/pac/mpep/consolidated_laws.pdf

At page 102 (top left corner)

"
35 U.S.C. 102 Conditions for patentability; novelty and loss of right to
patent.

A person shall be entitled to a patent unless -

(a) the invention was known or used by others in this country, or
patented
or described in a printed publication in this or a foreign country,
before
the invention thereof by the applicant for patent, or
"

These are only conditions...


They are conditions for "loss of right to patent." Section a) refers to
a context of publication by print, patent, or some other means from
which a reasonable inference could be made that the invention is
well-known to practitioners of the art. The phrase "known by others"
does NOT refer to those select few who maintained secrecy of their
invention. The Miller analogy would be secrecy is to publication as
intelligence is to skybuck flying.


So a lawyer could say:

"The patent should not have been granted in the first place".


Really? And whose lawyer would say that? Certainly not the lawyer for
the applicant, so it must be the lawyer for the trade secret. Assuming
the application has passed muster with novelty, usefulness, and
non-obviousness, the attorney is then left with no recourse except to
paragraph g) subparagraph 2). Interference does not apply because no
patent exists for the trade secret.


But your text is from this section:

"
(g)(1) during the course of an interference conducted under section
135 or
section 291, another inventor involved therein establishes, to the extent
permitted in section 104, that before such person's invention thereof the
invention was made by such other inventor and not abandoned,
suppressed, or
concealed, or (2) before such person's invention thereof, the
invention was
made in this country by another inventor who had not abandoned,
suppressed,
or concealed it. In determining priority of invention under this
subsection,
there shall be considered not only the respective dates of conception and
reduction to practice of the invention, but also the reasonable
diligence of
one who was first to conceive and last to reduce to practice, from a time
prior to conception by the other.
"

But this section is too complex for me to understand at the moment...
complex words and sentences and references to other sections...


Your inability to comprehend the words has nothing to do with the actual
law. All you need to concentrate on is "or (2) before such person's
invention thereof, the invention was made in this country by another
inventor who had not abandoned, suppressed, or concealed it." The
interference refers to conflicting rights between two patents. Since the
trade secret was not patented, there is no interference. But 2) does
apply in the case of a manufacturer who made no attempt to suppress or
conceal his invention and is actively using it. It is the concealment
that deprives the trade secret from recourse to a cause of action under
35 USC 102 (g). By its very definition, the trade secret was established
to suppress competition and maximize profits from its use. And what is
more, in order to defend a trade secret against misappropriation, the
holder must show proof of due diligence in protecting that secret- or
concealment under federal patent law- in order to have a cause of action
under state law for wrongful loss.

Sigh.
http://www.tinaja.com/patnt01.asp



--
Many thanks,

Don Lancaster
Synergetics 3860 West First Street Box 809 Thatcher, AZ 85552
voice: (928)428-4073 email: don@tinaja.com

Please visit my GURU's LAIR web site at http://www.tinaja.com

 

[Skybuck Flying]

"Joerg" <notthisjoergsch@removethispacbell.net> wrote in message
news:GAOJe.2660$zr1.227@newssvr13.news.prodigy.com...

Hello Winfield,

But, if as Skybuck stipulated, the invention was secretly contained
within
the product, not advertised or discussed by the manufacturer in
brochures,
manuals, etc., and not apparent to a product user, or to one studying
the
product, it's hard to see how it could be declared a publicly-disclosed
prior art, and used to overturn the new patent. This is one of the
reasons
for open disclosure of inventions, or alternately for defensive
patenting.

That often doesn't stick in a lawsuit. IIRC there was a company that
made golf balls from Surlyn or some kind of special plastics. They kept
the golf ball innards a secret but sold lots of these which constitutes
"noninforming public use". Then Dunlop engineered something similar,
filed a patent for the technology and subsequently sued. AFAIR Dunlop
lost and their patent was declared invalid because of prior noninforming
public use.

Wieeee, there is a god

Regards, Joerg

http://www.analogconsultants.com