Seeking Vanity Patent: proper etiquette on asking for beta testers

[Terry Trimble]

Bob,
Thank you very much for sharing your professorial knowledge as a patent attorney of the process of getting a patent and worth or worthlessness of the patent.

I have one question I would like to find out if it is a Myth or Fact.
Question: The changing the product 10 to 20 % rule would not be a patent infringement.

The only reason I ask is I remember my time in the skateboard , major appliance industry and I was seeing patents and trademarks being broken all the time.
We as general public see this happening all the time as consumers now days seeing similar products coming out between competitors that release a innovative product with in 3 months or less .
The Best example is the Apple iPhone.

Thank again,
Terry

[Bob Shaver]

There is no percentage rule, but the way it works out it can have that appearance.

What you get in a patent is the claims, and the claims are basically a parts list. Claim 1 might be:

1. a pocketknife comprising:

a main blade
a corkscrew
a scissors, and
a saw.

If a competitor made a knife with 3 of those blades,he would not be infringing. Of course, you could not get this claim allowed if a knife with those blades already existed, or if this knife was obvious.

So if you have a claim with part A-Z, if someone can leave off one element, he is not infringing and is free to go. Thus, the challenge is to get a claim allowed with as few parts, or elements, as possible. Here is a good, broad claim.

1. A vehicle including flight control means and propulsion means, comprising:

a fuselage and wings; and

a plurality of surfaces defining the exterior of said fuselage and wings, said surfaces consisting of a series of facets.

That is the broad claim for the stealth plane, the F117-A.

[Bob Gross]

Another idea is that you want to guess the approximate life expectancy of the new invention. You can make better decisions about patenting or not patenting and how to deal with competition.

I worked for a technology company in a certain narrow field. We saw a better way to design a mousetrap (to use the slang), so we got the patent process started. Later, a different and larger company introduced products that used the same design basis. We received the patent, and we simply watched the competition. Once their market profitability got good enough, we filed a patent infringement lawsuit. That went back and forth for a while, and then the other company simply gave up and offered our company a substantial sum of money to officially ignore them, which we did. However, in our product training classes and sales presentations, it gave us a huge unofficial claim to tell to more and more customers.

Our company knew that it was not big enough to go head-to-head with the larger company, so we simply made our profit out of substantial settlements.

The moral of the story is that there is always more than one way to skin a cat.

–B.G.–

[Robert Blean]

> We received the patent, and we simply watched the competition.

I recall talking to one executive some years back and found their use of the patent system pretty disgusting. They were early in their field, so they had a ton of patents, not to mention being big enough to have too many lawyers as well.

I was surprised anyone would admit to this conduct, but here is what he told me: when any new company came into their field they just watched for awhile — until the new company had enough money to be a worthwhile target. Then they hit the new company with a patent infringement lawsuit, whether or not any infringement was taking place. It was cheaper for the new company to settle than to fight even erroneous claims, so they basically got to tax any new entrant into their field.

Yuck!

[Bob Gross]

"…so they basically got to tax any new entrant into their field."

Hey, business is business.

If you just want to be charitable, then change your name to Mother Teresa.

–B.G.–

[Robert Blean]

I would not object if the new company had to pay for legitimate patents. It's the paying even if they were not infringing anything that bothers me — that is abuse of the legal system, and it is wrong. I am realistic enough to know that sort of thing happens, but that does not mean I have to like it or approve of it.

[Tim Cleary]

This has definitely been an education and much to digest. I hope others found it as helpful as I did.

Tim

[M B]

Some yrs back I was working on a project with a new product (to my company). It was a "me too" product that had been in existence for a while, but we developed a more economical process than the existing producer had, and were out to get a substantial part of their business. Our process was more economical because we were basic in some of the raw materials, whereas the other producer had to purchase them from others. The other producer had 2 plants producing this product, one here in the US and one overseas. This was a business for them generating about $50,000,000 revenue, and about half of that was profit margin.

So we patented our process. Of course we were sued by the current producer for patent infringement, and they badmouthed us to the customers to try to scare them away from buying from us.

Turns out there was 1 possible infringement technicality we were guilty of. The other producer had claim that a certain common contaminant was necessary for a decent quality product, so they claimed needing at least some low level (at least 1 ppm) of that to make acceptable product. This was in fact BS, but it allowed them a wide claim against similar processes because it was difficult to disprove, and difficult to eliminate. We in fact had several ppm frequently.

One day the competitors attorneys came to our plant, and I had to show them around and answer their questions. One thing I showed them was an expensive online analyzer showing that we had virtually NO amt of this impurity in our process. Yep, 0.001 ppm. Further, we had historical trends to show it stayed low. So they went away with the foundation of their suit broken.

What they never asked, was if that analyzer was WORKING. It in fact was not. I was under no responsibility to divulge this if not asked. It only worked for a short period before the analyzer probe corroded and failed.

They ended up selling their business and both plants to us for something like $150 million, because they could not compete. We immediately shut down their US facility, and raised our prices. We kept the overseas because it provided poorer quality product to far east markets.

Your patents are only as good as your attorneys.

[Rob Daly]

"This has definitely been an education and much to digest. I hope others found it as helpful as I did.

Tim"

I am finding it very interesting reading. Thanks everyone.

Looking forward to seeing your product Tim.

[Author]

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