[time-nuts] patents and hobbyist projects

jimlux jimlux at earthlink.net
Sun May 15 10:05:40 EDT 2016


On 5/15/16 1:12 AM, Poul-Henning Kamp wrote:
> --------
> In message <jh7fjbpcfb612319v9cq8u0blrus9ecco4 at 4ax.com>, David writes:
>
>> Commercial use also includes using the patent in production in some
>> way outside of selling an item which uses the patent.
>
> The Supreme Court recently limited that significantly, buy reiterating
> that you had to perform _all_ steps of a patent to infringe it:
>
> 	http://www.supremecourt.gov/opinions/13pdf/12-786_664d.pdf
>
Bear in mind that not all the steps have to be performed by one entity 
for infringement to exist.

A sells a kit with 95% of the infringing stuff, B completes the kit 
completing the infringement.  B is the infringer here, even though they 
did not do most of the steps.  A might also be in trouble from the 
"enabling/facilitating a tortious/illegal act", especially if the kit 
from A has no other use.  The patentese term is "Active Inducement to 
Infringe"

As others have noted, while building one in the privacy of your own 
secret laboratory is technically infringement, the damages that you'd be 
liable to are very small and not worth the patent holder's time.

There is also a "practice the invention to understand it" exception 
(experimental use exception), but it's very, very narrow:
"for amusement, to satisfy idle curiosity, or for strictly philosophical 
inquiry."  - if it's in furtherance of a commercial activity, it doesn't 
meet the "idle curiosity" requirement - if you're practicing it to 
design around, or catching mice with it, so that you can come up with a 
better mousetrap, that's an infringement. (Embrex decision)

Most importantly, use at an academic institution is generally NOT 
excepted - historically (19th century) it would have been, but since 
research universities have started taking out patents and collecting 
royalties, now practicing a patent is infringement since it's commercial 
use (Madey decision)

There's some other exceptions with the use of patented drugs before the 
patent expires, so as to faciliiate the availability of generics, but I 
don't know anything about that.




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