IP Infringement & Open Source

[Aaron]

It seems that it is questionable whether or not someone can make
something from a patent for personal use without infringing. I always
thought different until I read this...

There may be some options for experimenting but when actually
benefiting in a practical manner from the device, that may be
infringement.

Patent it yourself - Google Books

Let me quote from one of the most well know IP attorney's with the
most famous Patent it yourself book: "While 'Home Infringement' may
be difficult to detect, nevertheless it is a form of infringement that is
legally actionable and can subject the infringer to paying damages and/or an injunction prohibiting further infringement. "

It is illegal in Canada to - to make something for personal use - based
on a patent.

Go see for yourself:
patent misconception personal use - Google Search

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wiki:
In United States law, an infringement may occur where the defendant has made, used, sold, offered to sell, or imported an infringing invention or its equivalent.[3] One also commits indirect infringement if he actively and knowingly induces another to infringe, and is liable for that infringement. Types of "indirect infringement" include "contributory infringement" and "induced infringement."

No infringement action may be started until the patent is issued. However, pre-grant protection is available under 35 U.S.C. § 154(d), which allows a patent owner to obtain reasonable royalty damages for certain infringing activities that occurred before patent's date of issuance. This right to obtain provisional damages requires a patent holder to show that (1) the infringing activities occurred after the publication of the patent application, (2) the patented claims are substantially identical to the claims in the published application, and (3) the infringer had "actual notice" of the published patent application.

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What this appears to be about such as the same as Canadian Law is that
the patent acts or laws specifically prohibit certain infringements. They
do not however specifically allow people to make things from patents
for personal use - and that means that just because it doesn't specifically
prohibit it but also doesn't specifically allow for it doesn't make it ok to
do so and can be punishable by law. This isn't just a stretch to assume
this - you can see in the above links that it is very specifically spelled
out by ip attorneys and organization that it absolutely is illegal to make
something for personal use if it is based on a patent - even if it is for
non commercial use in the privacy of your own home.

They make no bones about the fact that it is difficult to enforce or
pursue because of the nature of the privacy involved with peoples
personal activities but nevertheless, it is illegal.

--------------------------------------------------------

Look at this for Canadian law:
http://www.nwoinnovation.ca/upload/d...onceptions.pdf

"Fifth Misconception – Personal Use is Not Infringement
of a Patent

It is erroneously believed that only commercial exploitation constitutes
infringement and that making and using a patented invention
for one's own personal use does not constitute a legally actionable
wrong. The Patent Act, however, contains no express
exemption for personal use, but rather declares that whoever without
authority makes, uses, offers to sell, sells within Canada, or
imports into Canada any patented invention within Canada during
the term of the patent therefore, infringes the patent."

--------------------------------------------------

This should come as a surprise to the open source community but so what!
There are countless things being discussed that are not patented! But - isn’t this quite interesting though?

There are countless IP attorneys that are all saying the same thing in addition to legal organizations that say it is a MYTH that people can
make things for personal use - even if they don't sell them for profit.

------------------------------------------------------

Does anyone know more on this? The only sites that I saw that claim
"as long as it isn't being sold" are not really legal sites but just people
quoting the same thing that I have always seen quoted that say it is
not infringement for personal use.

[Farmhand]

Enablement .

Hi Aaron, I found this i'm not sure exactly what it means yet but I will work it out if i need to.

Quote is from this page.

Patent | LII / Legal Information Institute

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." See 35 U.S.C. § 112. At the end of the specification, the applicant lists "one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." See 35 U.S.C. § 112. Enablement is understood as encompassing three distinct requirements: the enablement requirement, the written description requirement, and the best mode requirement.

Every patent application must include a specification describing the workings of the invention, and one or more claims at the end of the specification stating the precise legal definition of the invention. To satisfy the enablement requirement, the specification must describe the invention with sufficient particularity that a person having ordinary skill in the art would be able to make and use the claimed invention without "undue experimentation." See In re Wands, 858 F.2d 731 (Fed Cir. 1988). In In re Wands, the Federal Circuit Court of Appeals listed eight factors to be considered in determining whether a disclosure would require undue experimentation. The Patent and Trademark Office has incorporated these factors in the Manual of Patent Examining Procedure. See MPEP 2164.01(a).

The written description requirement compares the description of the invention set out in the specification with the particular attributes of the invention identified for protection in the claims. It is possible for a specification to meet the test for enablement, but fail the written description test. The basic standard for the written description test is that the applicant must show he or she was "in possession" of the invention as later claimed at the time the application was filed. Any claim asserted by the inventor must be supported by the written description contained in the specification. The goal when drafting patent claims is to make them as broad as the PTO will allow. THe writing requirement imposes two important limitations: the applicant may not seek protection for a claim that is broader than the supporting specification; and, if the applicant intends to focus on a particular attribute of the invention in the claims, that attribute must be clearly indicated in the specification.

In addition to disclosing sufficient information to enable others to practice the claimed invention, the patent applicant is required to disclose the best mode of practicing the invention. See 35 U.S.C. § 112. The best mode requirement is violated where the inventor fails to disclose a preferred embodiment, or fails to disclose a preference that materially affects making or using the invention. See Bayer AG v. Schein Pharmaceuticals, Inc., 301 F.3d 1306 (Fed. Cir. 2002). A violation of the best mode requirement involves two essential elements: first, it must be determined whether the inventor actually had a preferred mode of practicing the invention at the time the application was filed; if it is established that the inventor did contemplate a best mode for practicing the invention, the question becomes whether sufficient information was disclosed to enable a person of ordinary skill in the art to practice the best mode of the invention.

Source Page. Patent Law - Guide to Patents Law - Patent Law Info

Funnily enough I think there are a lot of patents that fall short of this requirement. I'ts a bit of a shame too really.

Cheers

[rosehillworks]

Farmhand
Good find. Keep up the good work.

[kcarring]

"PROTECTION BY INNOVATION

My ace in the hole is that I am always making my products better. This innovation is assisted by a worldwide volunteer organization. If someone starts selling my 'current' innovation, I can sell a better one shortly. Best free market )))

In fact, my innovations develop so fast that by the time a book is written it is obsolete. It is still the best printed information in the world, it is just not the best I've got. So anyone who markets (as competion) my technology, will ALWAYS be behind.

In fact, I encourage independent manufacture. Our time is best spent doing innovation, not manufacture and marketing. I also encourage manufacturers to join our information sharing cooperative. Those that share with us will be able to consult with us to get the latest and best information."

George Wiseman

Patents for free energy - are -

1. Mostly rejected by silent process
2. Incorrectly outlined in the patenting process - on purpose - because if they were correct, they'd be rejected.
3. Thus useless in a court of law, because anyone developing a similar but 10-20% different device (correcting the "mistakes") will be not infringing on the original patent, however - their device will no longer be qualified for patent, as it is now a "free energy device".
3. Only as strong as the inventors wallet and attorney.

Patents in this research area do, basically, one thing:

Immensely increase the R&D cost and thus the retail price of the device. Have a look at what that box of transistors, switches, ic chips and pcb's cost, as parts, and ask yourself why the product is so expensive.

IMHO, George has got the correct philosophy.

[kcarring]

Myth: You can't get investors if you don't patent.

Fact: Investors come when they see money. Show them the potential and they'll invest. A patent is only one 'protection' tool.

~ George Wiseman

Time spent worrying about home replication, patent infringement, patents period, for a free energy device is a sad symptom of systemic psychosis. A mental condition contracted by a social system designed and engineered to make you think something stands in your way.

Just do it.

I was watching TV the other night, that show where inventors go up against investors. The gentleman had a special end for your atypical cordless drill to tighten load straps on a freightliner's lowbed. He wanted very little for it all, basically he was there to sell the company, the idea... cheap. In the end, he got way more than he bargained for, and got to keep a portion of the company. He has no patent on the design. Unlike many many episodes of the same show, they didn't even ask if he had a patent. The product was that good, and the market was there. They jumped on it, hard.

[ztec2002]

is this still inferngment?

sorry can't spell.But if you made something that works based on stuff i learned on this forum but different from how its based from is it still inferngment?
cheers?????????

[Aaron]

enablement requirement

Hi Aaron, I found this i'm not sure exactly what it means yet but I will work it out if i need to.

Quote is from this page.

Patent | LII / Legal Information Institute



Source Page. Patent Law - Guide to Patents Law - Patent Law Info

Funnily enough I think there are a lot of patents that fall short of this requirement. I'ts a bit of a shame too really.

Cheers

The enablement requirement seems does state that the patent must
be clear enough for replication. But I think the reasons are definitely not
to enable anyone to copy it for their use, but rather to make sure that
the invention is actually disclosed in its entirety.

Also, for practical reasons, if someone were to purchase the patent,
the patent should actually enable the purchaser to be able to duplicate it.
If not, the patent would be a misrepresentation of something the govt
has guaranteed if anyone were to violate it - so it has to be a valid
patent.

Just my interpretation of course.

I think definitely quite a few patents lack this qualification too - the Gray
patents certainly are in this group so are plenty of other "free energy"
patents.

[Aaron]

Cornell references Nolo

Check this out:

Intellectual property | LII / Legal Information Institute

Even Cornell references the Nolo publisher that prints that
How to do your own patent book that specifically states that
personal use is definitely infringement. Gives quite a bit of
credibility to that book quote I think.

[Farmhand]

Yes it could be complicated by some, I'll leave that to the lawers, there good at complicating things.

Basically to me it depends on what is considered the product of the human intellect.Just for example, if there was a patent to utilise air pressure using an arrangement of valve's that would not necessarily prevent me from patenting or using or making public another different method of using valves to utilise the same type of air pressure. The valve and the air pressure are free to play with, only the method to ustilise it in that specific way or how it it outlined in the patent is protected. Even if I got my idea from the exsiting patent by using "my" imagination to envisioning another way to do it. The way I see it that would be my intellectual property to do with as I please.

Intellectual property | LII / Legal Information Institute

Quote from link above.

In general terms, intellectual property is any product of the human intellect that the law protects from unauthorized use by others.

Thats how I see it, it make's sense to me.

Cheers

[Aaron]

patents

Patents for free energy - are -

1. Mostly rejected by silent process
2. Incorrectly outlined in the patenting process - on purpose - because if they were correct, they'd be rejected.
3. Thus useless in a court of law, because anyone developing a similar but 10-20% different device (correcting the "mistakes") will be not infringing on the original patent, however - their device will no longer be qualified for patent, as it is now a "free energy device".
3. Only as strong as the inventors wallet and attorney.

I agree that constant creativity can make the patents or infringements
obsolete anyway - but there are some things that actually create an
entirely new way of doing something that isn't easy to circumvent
if it was patented except for waiting out the life of the patent to be
able to do the same thing.

A couple years ago, I was involved with a copyright issue. I can't discuss
it but the content in question was all published in a really old publication
without any copyright notice - during a year where no copyright notice
means it is absolutely public domain - that is all changed these days
of course.

Anyway, the publication had a very, very strong stance against copyrights.
Not implied by no copyright notice they actually bragged about it in their
magazine that copyrights are for people that lack creativity, and so on...
basically what Wiseman is saying if that entire quote is from him.

Of course 30 years later the author of an article gets it copyrighted,
which is blatant "fraud on the copyright office". It wasn't worth it at the
time to pay an attorney to have this overturned.

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.

[ztec2002]

open source

can i still patent something and make it open source? And make some money from the sleepless nights that i worked on this project?Not robing from anyone here but using the knowlege gained?
cheer?????????

[Farmhand]

Which brings me back to enablement, if the obligations aren't met to the enablement clause it would be very difficult to know where to draw the line.

Another reason I think the enablement part is for, is so people can build it see how it works and try to improve on it. Or do it better a different way. Or radically simplify it or reduce costs. Thats progress !

It would be hard to know what is a different or "allowed" way if it is not clearly defined in the patent, ie. the "prefered embodyment of the device" and such, as outlined in the enablement section.

Maybe lawers portray things the way they want it to be, not the way it is actually written or it's intended purpose. I don't know. Seems silly if everyone were scared to try to impove exsisting devices or build thier own devices to do something a different way or whatever. Doesn't make a lot of sense to me.

Oh well
Cheers

[rosehillworks]

@ 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.

[Aaron]

patent infringement

But if you made something that works based on stuff i learned on this forum but different from how its based from is it still inferngment?
cheers?????????

A great majority of the projects here are either public domain,
expired patents, etc...

Bedini has some concepts here people are working on and they are
patented, but of course he is here giving people not only permission
but assistance in learning his circuits.

Overall, I don't think the personal infringement issue has much of a
chance of being enforced unless there is a mobile robotic camera in
the home of every person. And again, almost all of the projects here
are based on public domain info so you probably don't have to worry
about anything. But of course like everything - consult a legal
professional.

Personally, I think the personal use/personal built infringement issue is
ridiculous. I only brought it up as a technical point to someone that
demanded otherwise. Even though I agreed with them initially, I still
wanted to search it because I do like to test my beliefs and was
surprised to find these answers.

The federal govt could say something ridiculous like it interferes with
commerce since it prevents you from paying money into the economy,
etc... the company could claim it was money they are entitled to but
of course many things people either save money on or get for free,
they otherwise wouldn't spend it for the same thing anyway and the
company never lost out anyway.

If you have any doubts about a particular project, you can just raise
the question in the thread and most of the builders are very proficient
in the circuits and the history of their development so you would probably
get an answer quick.

I have seen so many new patentable innovations that were developed
openly and freely and are given away to everyone.

The creative commons suggestion like Ash recommended is the right idea
but I'm not sure it actually can prevent anyone from going out and
patenting it.

The patent office is very backed up like up to a couple years and the
examiners are rushed. There is no way they could ever do all the due
diligence necessary to see if it is public domain or not. And unless someone
is monitoring the applications being filed, which that alone is a full time
job for an entire team of people, it would be hard to tell if someone
was patenting someone else's invention. I'm certainly not willing to
to do that.

[Aaron]

enablement requirement

Another reason I think the enablement part is for, is so people can build it see how it works and try to improve on it. Or do it better a different way. Or radically simplify it or reduce costs. Thats progress !

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.