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MMD > Archives > May 2002 > 2002.05.12 > 05Prev  Next

Value of Patenting Ideas
By George Bogatko

Unless the laws have changed the following is true:

A person making a claim of patent infringement must show not only that
infringement actually took place (a feat in itself) but also prove
actual damages.  You have to show how much income you lost due to the
infringement.  I believe each side pays for its own lawyers as well.

A person making a claim of copyright infringement must prove only that
the infringement took place.  The damages are statutory.  You don't
have to prove how much income you lost because of the infringement.
The law says you lost $500 per infringement; period.  If you make 10
pirate copies of my 10 tune roll, it'll cost you $40,000 because 8 of
those tunes are copyrighted by me (the other 2 are public domain).
I believe in some cases a "loser pays" rule is in place if the
infringement was egregious enough.

The history of patents is full of people successfully filing a patent
for a commercially successful idea, and spending the rest of their life
defending the patent.  The intermittent windshield wiper lawsuit comes
to mind.

Thus this statement is only partially true:

> Now if I use the machine to do something, like make perforated
> player piano rolls, then I believe that no one can stop me just
> because I use patented technology to make the rolls.

A) Assuming that the patent holder has successfully shown that you
are using his/her patented idea, you can be issued a restraining order
telling you to cease using the patented idea.  You may even be forced
to destroy only those portions of the machine that are infringing, or
hand over only those portions to the patent holder, assuming they can
clearly and unambiguously define what those portions are.

B) Assuming that the patent holder can show that your use of his/her
patent has resulted in a loss of the patent holder's income up to a
provable amount, you can be made to pay restitution for that exact

That's it.

Now apply all of the above to the real concept of a Mr. RollCollector
putting together a gizmo to cut rolls for his collection using a laser,
and having a Mr. LaserCutter spending the time and lawyer fees to tell
him to stop doing that.

Let's see now.  At $500/hr for a patent attorney, merely writing the
threatening letters and making the threatening phone calls could cost
$1000.  Then there's the cost of filing the papers (add another $1000).
(Always, always remember -- a law suit isn't real until the papers are
filed -- up to that point it's all hot air.)

Let's say the papers are really filed and the game is on.  If Mr.
RollCollector decides to appear without an attorney (or simply skip)
the first two or three court appearances (pleading poverty), that's
another $3000.  Prior to the fourth appearance, Mr. RollCollector
offers to stop using the machine, and pay the cost of the 20 rolls
he cut, at present market value -- about $300.

Score:  Mr. LaserCutter: $5000,  Mr. RollCollector: $300

Lets pretend that after this, Mr. RollCollector remakes his/her machine
using a different laser element, changes the head travel from left to
right to right to left (Or Up and Down, or top to bottom, or whatever)
and resumes cutting rolls.

Mr. LaserCutter must now prove all over again that __this__ new machine
infringes his patent.  Again the threatening letters and paper filings
($2000), but this time, Mr. RollCollector fights back with a lawyer
from Shyster, Spritzwasser & Flywheel ($75/hr).  The SS&F lawyer
confuses the issue with all kinds of dust and dross and delays, thus
causing Mr. LaserCutter's lawyer 10 to 15 more hours of headaches --

Cost:  maybe $300 for Mr. RollCollector, and another $7500 for Mr.
LaserCutter, and we haven't even gone to court yet.   Months and months
later, a settlement is reached.

Later on, Mr. RollCollector starts up version 3 of the machine.

See where this leads?  In Patent Law, more so than any other area of
the law, you only get the justice you can afford.

George Bogatko

(Message sent Sun 12 May 2002, 13:59:51 GMT, from time zone GMT-0400.)

Key Words in Subject:  Ideas, Patenting, Value

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