RIM's troubles not over!

I read somewhere (boy is that a good source) that vs RIM the Visto claims maybe a bit more tenuous. Of course time and a trail will tell us how valid that observation is.

fundamentalism, fundamentally wrong.

Rico wrote: > I read somewhere (boy is that a good source)

HAHAHAHAH...works for someone here.

That the patents have been upheld in court would seem to put Visto in a very strong position, since the most common defense against patent infringement is to claim that the patents are invalid. RIM would thus seem to be left with the usually harder argument that it's not actually infringing the patents.

As I understand it, US courts initially do not look at the patent as such, they look only at the patenting process. If that follows the rules, then the patent is "valid." Whether the patent covers a patentable process is a different issue, and one that the courts may rule on only if the alleged infringer brings non-patentability as a defense. Moreover, AFAIK even if a patent is eventually declared invalid by the Patent Office, and that ruling is used as a defense, the courts generally deem the patent was valid until the time the Patent Office said otherwise. Which IMO is absurd.

There is a wrinkle on which I would like some clarification. Suppose RIM could show that it used the allegedly patented process(es) prior to the filing or granting of the patent: would that not be prima facie evidence that Visto did not invent the process(es), and therefore has no claim?

Another wrinkle: Suppose RIM could show that the processes it uses, and which Visto claims are their property, were in fact widely known and understood before RIM itself applied them to its technology, would that not be prima facie evidence that Visto's claims are void?

I'm waiting for some leech to patent the answer to a first year electronics course problem -- if that hasn't been done already.

Again from vague source, I think the arguement is that the technology RIM is employing is not exactly a match here. Not a case of the patents are invalid, but aren't being infringed here. Again Visto has a different opinion.

fundamentalism, fundamentally wrong.

"Frequently Asked Questions: Patent infringement"

"Frequently Asked Questions: Determining the validity of patents"

That would be a "prior art" showing to render the patent invalid.

That would be an "obvious" or not "novel" showing to render the patent invalid.

Patent infringement

Defenses

The single most common defense to patent infringement is a counter-attack on the patent itself, i.e., the validity of the patent and the allegedly infringed claims. Even if the patent is valid, the plaintiff must still prove that every element of at least one claim was infringed and that such infringement caused some sort of damage. ...

No. It certainly hampers the patent holder if that's shown, but the law is supposed to uphold the right of the inventor to patent at any point. The patentor needs to demonstrate that they've tried to protect their process, though - and suing at this late date might be a problem.

That's the heart and soul of most patent cases - "prior art". You can patent a process that is _mostly_ well known, but there must be a significant improvement on your part.

Similar things have certainly been done. I should be able to dig up the (recent) patent for the rubber tire swing... (apparently filed as a demonstration of just how simple it is to get "prior art" past the patent office).

It is on this last point that I think (implied) RIM has a better case this time around, that they are not doing quite the same thing in the same way as the Visto patent. Again though the validity of this is to be seen in court/pre-trial.

fundamentalism, fundamentally wrong.

Of course you know that someone patented the "process" of using a laser pointer to play with your cat.

No, I didn't - but if you'd asked me "Has someone patented the process of using a laser pointer to play with a cat", I'd have had to guess the answer was "yes" :-)

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