Re: Patent Question

On Fri, 30 Oct 2009 09:38:25 -0700 (PDT), mpm <mpmillard@xxxxxxx>
wrote:

On Oct 30, 9:54 am, PeterD <pet...@xxxxxxxxxx> wrote:
On Thu, 29 Oct 2009 20:39:26 -0700 (PDT), mpm <mpmill...@xxxxxxx>
wrote:





One of our patents is stuck in an Art Group that has a pretty bad
backlog. (# 3662)
It was filed Jan 2009 and we'll be lucky to have a first office action
by 2012.
The App will publish ~ July 2010.

Q:  Can China (or ?) flood the market before we get our patent, and...

Q:  What, if anything, can we do about it?

We won't likely have the actual patent grant until sometime in
mid-2012, best case, unless the USPTO throws some additional resource
on their backlogs....

If it matters, we probably won't file a PCT due to the expense
involved.
If we can manage to sell the application rights (pre-grant), which is
our intention, the assignee will most definitely want PCT or foreign
filings, but the clock is fast-ticking down on that option.

Thanks.
-mpm

Any patent will have little to no effect on chinese infringment. They
will copy, sell, and when caught (finally) after a lengthy legal
battle, will disappear into the woodwork.

You are better off with trade secrets.- Hide quoted text -

- Show quoted text -

Thanks!
But maybe I should re-phrase my question...?

A US Patent grants certain OFFENSIVE rights.

Offensive rights of patents are *way* overrated. Large companies
spend money on patents for DEFENSIVE reasons. Small companies don't
have enough money to use them offensively and rarely have a need to
use them defensively.

Which means, once granted, imports can be stopped at the border
(assuming the authorites have a modicum of intelligence -- which may
be an invalid assumption in any case!).

Invalid assumption. You haven't enough time or money.

I'm asking about the period between when the patent application is
published online, and when we actually are awarded the patent. (some 2
years later, at the current rate)

That's the normal time.

Presumably, we won't have any capability to stop imports until those
offensive rights (i.e. the US Patent) are granted. (?)

Nope. Until the patent is granted you have no rights (and that's all
you have "rights", after).

Also, it is my understanding that even if someone infringes, they are
not liable for money damages for infringement which occured PRIOR to
you noticing them that they are infringing.

Not true, though it doesn't matter. If they show you the middle
finger, what are you going to do?

Normally, I wouldn't worry about this. But this is about a $30M deal,
and the attorneys are not exactly helpful... :(

Pay them $100M and they'll be 3x as helpful.

I was hoping someone here had the "real-world" scoop on this.

You've been hearing the "real-world scoop" here. You can't afford it,
particularly for a paltry $30M.

Because we have no intention to manufacture or sell, (or file
internationally) all we're selling is the rights to the domestic IP
Application. (Though we may yet file the PCT. Still to be
determined..)
Therefore, we "have" to go the patent route.

No, you really don't and if you "had to" you'd better just forget the
whole thing. You *can* license a product without patents.

Otherwise, I think the best offensive rights are to be "first-to-
market", and "best" in price/performance.

....and trade secrets, contracts, constant upgrades....

That way, you cause potential new entrants to question whether they
can get enough market share to be worthwhile.

You'd better cut your margins pretty thin, if that's your strategy.
Not a business I'd want to be in.

Anybody ever run into this "problem".
Domestically, it's a level playing field (I guess).

What makes you think that?

But the USPTO backlog is so bad in our Art Group, it makes me wonder
how anything gets to market that new and novel.

Two years is *good*. Sheesh.

What? You just roll the dice and take your chances?

That's what business is all about.

No wonder America is screwed.

No, it's the whiners who think the government is there as their
personal servant who are screwing everyone.
.

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