A word or two about patent... (long) (1 Viewer)

[Larry B]

Here's something I just posted on HTTalk.
While I recognize that this is a bit off the topic of HT, a recent thread on an alleged patent lawsuit between Bob Carver and Velodyne (and others) raised a number of questions (and revealed a lot of misconceptions) regarding patents. Similar issues were raised at a thread on another forum (HTF), which focused on a court decision involving a patent law suit between BOSE (please, no comments ) and JBL.
I thought it would thus be of interest to provide some basic information on patents. (If i have erred in making this assumption, I apologize for wasting your time).
The following passages are quoted directly from "Patent Law, A Practioner's Guide," second edition, by Ronald B. Hildreth, published by the Practising Law Institute [yes,
they spell practising with an "s"], ISBN 0-87224-059-2.
Following editorial conventions, my comments will be included within [brackets], and deleted words or passages will be marked with three periods (...).
I will try to copy the text carefully, but there may be an occasional spelling error, for which I apologize in advance.
Definition of a Patent
A patent is a contract between an inventor and the United States government under which the government grants the inventor a limited monopoly. The limited monopoly
excludes others from making, using, or selling claimed invention for seventeen years. [Note that this time has recently been changed] In return for these patent rights, the inventor discloses the complete invention to the public in order to promote the progress of science.
Patents Promote the Progress of Science
The progress of science is enhanced in geometric proportions by the patent system. For instance, an inventor...makes the required full disclosure of the invention in a patent application. When the patent issues, it becomes, in effect, a publication. A second person, interested in the subject matter of the invention, reads the issued patent. The second person conceives an "improvement" over the patented invention and files a patent application based on the improvement. A patent then issues to the second person.
Subsequently, a third person reads about the improved invention in the second patent and conceives an "improvement on the improvement." The third person files a patent
application....[you get the idea]
Inventor's Right to Exclude
The Constitution grants the inventor the "right to exclude" others from making, using, or selling the claimed invention in the United States... For example, a first inventor holds an unexpired first patent with a broad claim reciting
a "chair." A second inventor holds an unexpired second patent with a narrow claim reciting a "rocking chair." If the second inventor makes, uses or sells a rocking chair,
the second inventor infringes the broad "chair" claim in the first patent owned by the first inventor. This infringement occurs because the first inventor has the right to
exclude others, including the second inventor, from making, using, or selling any chair (whether it rocks or not). Accordingly, the first inventor's patent "dominates" the
second inventor's patent. [Under such circumstances, it is likely that the first inventor and the second inventor would enter into a license agreemment, whereby the second
inventor could sell the rocking chair, but would pay royalties to the first inventor.] [Thus, since the law grants the patent holder the right to exclude others from
practicing the invention, but does NOT grant the inventor the right to practice the invention, one can own a patent (as in the example) but still NOT be able to practice it. Strange, but true ]
Test for Patentability
The test for patentability is whether the inventor's claimed subject matter is new, useful, and unobvious over the prior art. [In other words, Carver (or BOSE) could not get a patent if the subject matter had been well known for years. To get the patent, he had to have INVENTED the subject mater.]
If anyone has questions, I will be happy to answer them, if I can. (If I can't, I will say so.)
Larry

 

[Chu Gai]

Just one question Larry...what makes those square pizzas at L&B pizzeria in Brooklyn so damned good?

 

[Sean Conklin]

The test for patentability is whether the inventor's claimed subject matter is new, useful, and unobvious over the prior art. [In other words, Carver (or BOSE) could not get a patent if the subject matter had been well known for years. To get the patent, he had to have INVENTED the subject mater.]

Ports have been around for years, probably many years before Bose entered the market.

Isn't it possible that a universal device such as a speaker port was just accepted as a necessity rather than someone's personal design? And an opportunistic company like Bose presented their port design (which still could've been designed by another company, but that company didn't deem it necessary to patent it) to the Patent office knowing that many other companies would infringe on it(because of the nature of speaker design in general), resulting in frivolous and ridiculous lawsuits such as what we have here?

I know you said not to post here on this subject, but I felt I should bring to light this possible fact: Seeing as how a speaker port has been universally well known and used in the speaker manufacturer sector for years, but may not be well known or familiar to a Patent office or the justice system. Thus a case of Bose pulling a fast one on a respectable speaker company, patent office and the court system.

BTW Larry, that was a very good and informative post, and am not arguing with you(you didn't write the patent laws), I am just trying to bring to light the possibility that this might be immoral on Boses part.

 

[Peter Galbavy]

Minor point, and even more off-topic, but readers of this thread should note that patent law is very country specific. EU and US patent law are very different - and even within the EU there are differences between countries.

Many 'valid' patent claims in the US do not matter outside the country - and the converse is also true.

 

[Chu Gai]

which is the reason patents are also filed outside of the US, no?

 

[Larry B]

Chu:

In attempting to answer your questions, there are two important points that need to be addressed.

First, does the BOSE patent cover ALL ports? To discuss this matter further, we all must (and I mean, must) read the patent, paying particular attention to the claims (as they define the extent of BOSE's ability to exclude). My guess is that the claims are directed to particular types of ports; presumably, this type of port would have been novel, and sufficiently different from existing ports to be patentable.

Second, it is certainly possible that the PTO (Patent and Trademark Office) made a mistake. However, you must realize that the granting of a patent is not something that happens willy-nilly, and in the blink of an eye. Patents often take years to issue, and that is because the PTO generally rejects the claims in the application, and the inventor then has to modify the claims, and/or defend them (in other words, convince the PTO that the claims are patentable).

Another point to consider, which has not been discussed here previously, is that the applicant is legally obligated to reveal to the PTO all materially relevant information pertaining to their invention, including ALL PRIOR ART. Failure to do so, if intentional, is considered inequitable conduct, and is grounds for invalidating the patent. JBL is a giant company, with the resources to hire excellent lawyers; if they felt that BOSE had committed inequitable conduct, they most certainly would have brought it up.

And on a separate note, Peter is absolutely correct about foreign patents. U.S. Patents are enforceable only in the U.S., which (as you suggested) is why many inventors seeks patents in foreign countries, as well as in their own.

Larry

 

[LDfan]

My friend works for the PTO as a patent examiner (he approves or denies patents). Maybe I'll have him look into this.

Jeff

 

[Larry B]

Jeff:

If he's willing to do it, that would be great.

Once a patent issues, the file wrapper (which contains all the correspondence between the inventor and the PTO) becomes public. If your friend was willing to look at that (it can be quite lengthy), it wold be very informative.

Larry

 

[LDfan]

Larry, do you want me to ask him for the file wrapper thingy?

Jeff

 

[Mark Austin]

It's not a patent on every port, just a specific port design.
The question "what is patentable" is a complicated one. Here is a simplified answer.
In order to be patentable, an invention must pass four tests:
1.The invention must fall into one of the five "statutory classes" of things that are patentable:
I. processes,
II. machines,
III. manufactures (that is, objects made by humans or machines),
IV. compositions of matter, and
V. new uses of any of the above.
2. The invention must be "useful". One aspect of the "utility" test is that the invention cannot be a mere theoretical phenomenon.
3. The invention must be "novel", that is, it must be something that no one did before.
4. The invention must be "unobvious" to "a person having ordinary skill in the art to which said subject matter pertains". This requirement is the one on which many patentability disputes hinge.
http://www.patents.com/patents.htm

 

[Mark Austin]

Sean,

I am just trying to bring to light the possibility that this might be immoral on Boses part.

What evidence do we have that even remotely suggests that Bose has done something immoral? I just don't understand the mindset that automatically assumes that Bose must be in the wrong, without any evidence to back up that assumption.

 

[Larry B]

The patent Number is 5,714,721; claim 1 reads as follows:

1. A loudspeaker system comprising,

at least a first electroacoustical transducer having a vibratable diaphragm for converting an input electrical signal into a corresponding acoustic output signal,

an enclosure,

said enclosure being divided into at least first, second and third subchambers by at least first and second dividing walls,

said first dividing wall supporting and coacting with said first electroacoustical transducer to bound said first and said second subchambers,

at least a first passive radiator intercoupling said first and third subchambers,

at least a second passive radiator intercoupling at least one of said second and third subchambers with the region outside said

enclosure,

each of said passive radiators characterized by acoustic mass,

each of said subchambers characterized by acoustic compliance,

said acoustic masses and said acoustic compliances selected to establish at least three spaced frequencies in the passband of said loudspeaker system at which the deflection characteristic of said vibratable diaphragm as a function of frequency has a minimum.

 

[Eric Kahn]

Warning!!!
Anti bose statement to follow

I am just trying to bring to light the possibility that this might be immoral on Boses part.

selling what should be a $30 clock radio for $349 is a little Immoral to me, even if it sounds as good as an average boom box

 

[Larry B]

Mark:

You have hit the nail on the head. Many individuals on this forum hate BOSE, for reasons that defy logic. (As I said in an earlier post, if you don't like their products, then just don't buy them.) As such, they want to convince themelves that BOSE MUST be in the wrong in their litigation.

I don't think we will be able get through to them that patents, and litigations relating to them, are about facts, not about emotions.

Larry

 

[Larry B]

Erik:

There is nothing immoral about our free enterprise system.

 

[Mark Austin]

Eric,

selling what should be a $30 clock radio for $349 is a little Immoral to me, even if it sounds as good as an average boom box

That's not the issue here. And who is to determine what a manufacturers product should sell for? Usually it is determined b the market. There's nothing immoral about it.

Larry,

Exactly! All of the accusations against Bose in these threads are based on the emotions the posters have towards Bose products, not the facts of the case. What is amusing is the length that some posters will go to suggest Bose must be in the wrong, with nothing to support their assumption. It defies logic.

 

[Eric Kahn]

You are right, it was off the issue

I just hope JBL appeals to a higher court and wins but that is my biased opinion owing to my visit to a bose store and the attitudes within said store

 

[ThomasW]

Larry
Thanks for the very interesting and informative post.
Regarding Bose and it's detractors. They alienated many people with the suit against CU.
Many of the terms used where you listed individual phrases are quite interesting since "air" is an acoustic mass

 

[Eric Kahn]

''subchamber'' could also be the room the enclosure is in

since there is no definition of ''subchamber''

 

[Mark Austin]

I just hope JBL appeals to a higher court and wins but that is my biased opinion owing to my visit to a bose store and the attitudes within said store.

That brings up the crux of the issue for most people that don't like Bose. They realize that their customer base is not the audio/videophile or HT enthusiast. Like it or not we as Ht enthusiasts make up a tiny percentage of the market, maybe 5%. And we take our business to stores and products that cater to our pursuits. Bose on the other hand caters to the other 95%. People who don't care about comparing this to that. They make their purchases based on name recognition, and company reputation. And amongst JP6 they have a good reputation. I had a lengthy discussion with one the largest retailers of big screen TV's and the number 3 seller of B&W speakers in the nation, he also carries Denon, Krell, McIntosh, Rotel, M&K, several months ago. I had mentioned that his store wasn't very favorable to the HT enthusiast or audiophile, and he said "exactly, they aren't the market I'm going after". "My customers just want something that sounds good." He had spent several years with a couple of hi end audio/video stores that catered to the enthusiast, and said he could average about $2.5 million in sales a year with those stores. Changing his focus to the consumer with money, but not a lot of desire to research and compare he was able to average $15 million a year in sales per store. His point of view was why cater to 5% of the market instead of the 95%? Even though he has some of the most beautiful A/V stores in the country he could care less about selling to the informed HT enthusiast. The same business model that Bose uses.