[Discuss] The America Invents Act

[Hsuan-Yeh Chang]

This has been changed by AIA and recent court decisions.  See, for example, http://www.patentlyo.com/patent/2011/02/patent-reform-act-of-2011-an-overview.html

Below are some quotes from above link:

"accusations of willful infringement must be pled with particularity (following FRCP 9(b))"
"proof of knowledge of patent is insufficient to establish willful infringement"
"a pre-lawsuit notice of infringement cannot itself establish willfulness unless the notification is fact specific in explaining the infringement"
"failure to obtain the advice of counsel (or to present that advice to the jury) 'may not be used' to prove willfull infringement or inducement of infringement"
"damages subject to trebling are only those accrued after the infringement became willful"
"in a 'close case' there will be no willful infringement (here, the statute requires a judge to 'explain its decision' and to make a decision prior to the issue being tried by the jury)"


What you said has been out dated by Obama's signature of AIA...

HYC



________________________________
From: Dan Ritter <dsr at tao.merseine.nu>
To: Hsuan-Yeh Chang <hsuanyeh at yahoo.com>
Cc: Mark Woodward <markw at mohawksoft.com>; "discuss at blu.org" <discuss at blu.org>
Sent: Wednesday, September 28, 2011 10:26 AM
Subject: Re: [Discuss] The America Invents Act

On Wed, Sep 28, 2011 at 06:59:50AM -0700, Hsuan-Yeh Chang wrote:
> The best "priorart.org" for all industry is "patft.uspto.gov".  My view is that the open source community should file more patent applications.  International treatise requires that all patent applications be published after being filed for 18 months.  Such pre-grant publications will be searched by the Patent Examiners and will become the most powerful "prior art" against all late comers.  Also, pre-grant publications can be used as a very good source of open source documentation.  (Patent documents published by the Patent Office do not have copyrights.)

This is, unfortunately, terrible advice.

In theory, you would be correct. In practice, the fines for
treading on a patent increase substantially if you knew about
the patent you were infringing on.

As a result, it is not a good idea for a programmer to look at
any software patents at all.


-dsr-

-- 
http://tao.merseine.nu/~dsr/eula.html is hereby incorporated by reference.
You can't fight for freedom by taking away rights.