I think you know that just playing your personal radio that others can hear by happenstance isn’t infringing. There’s a point at which it becomes part of the service you’re offering–a public performance. Only then is it infringing if you don’t get a license.
If this is the case you are thinking of, note an important distinction. The Duke folk were using devices covered by the former prof’s patents. That is distinct from studying the devices themselves for the purpose of coming up with their own version.
(Which has nothing to do with the SCOTUS decision which basically gutted the 170 year-old research exemption for using patented devices.)
The Copyright Act has tried very hard to strike a reasonable balance in 17 U.S.C. §110:
Supposedly not, but it’s amnazing what people try to get away with.
I wrote an article a couple of years ago about how a couple of guys were granted US patent #5,443,036 on August 22, 1995 – Method of Exercising a Cat It was a patent on using a laser pointer to play with a cat.
I’m amazed it was granted, because a.) it’s extremely obvious; b.) It doesn’t involve anything that hadn’t been previously invented or used; and c.) the idea had already been published before they even applied for the patent.
Betcha didn’t know you’ve been violating a patent.
Actually, the patent lapsed. U.S. Patent Law now requires a couple of intermediate payments to the Patent Office during the lifetime of the patent, and they didn’t keep up the payments. Undoubtedly part of the reason is that no one was paying them any royalties, which has to be because 1.) it’s hard to detect violations of the patent; and 2.) Hardly anybody knew about the patent in the first place.
I’ve talked to patent lawyers about this, and I’ve been told that the patent probably wouldn’t stand up to a court challenge. But that didn’t stop the guys from spending thousands on the patent in the first place. Or the (p[ossibly very understaffed and frustrated) Patent Office from granting it.
Yeah, that’s the one. Of course, it also said
The bolded text represents the only reasons you may use a patented invention without infringing under the experimental use exception. I am unaware of any case law that distinguishes between making and using in this context, though - are you? Or are you suggesting that there is a different design-around exception from the experimental use exception? (As I understand it, there is no problem with buying the patented product and then experimenting on it, as the first sale doctrine would prevent any further damages in the absence of any license agreement attached to the sale.)
What if you accidently duplicated a formula for something and sold the product under an entirely different name with no intention of using the original as a selling point?
I’m thinking that by experimenting; I develop a cola that tastes nice to me and start selling it as Lustola, completely unaware that the ingredients are those used in Pepsi/Coke and in the same proportions.
And as these recipes are secret I wouldn’t know what I’d done.
To be clear, you can often do some of what is written into a patent. What you cannot do without the owner’s permission is to do anything written in any of the claims.
Speaking of the US at least, patents broadly consist of two main parts, teachings and claims. They represent an exchange. The inventor gives teachings, often including background information, descriptions and drawings of the invention, notes on the preferred embodiments or best known versions of the invention, and the like. The inventor has to fork over the good stuff here. In exchange, the inventor gets to define one or more claim that acts as a fence around what he wants to protect. The claims are numbered, and each is written as a single sentence, and often they refer to earlier claims (for example “the device of Claim 4 in which the handle is aluminum”).
Practicing anything written as a claim is infringing the patent, and the patent gives the inventor the right to sue you for damages and to force you to stop.
The whole point is to encourage the industrial arts by trading a 20 year monopoly for the disclosure of useful technology that might otherwise have been kept secret. Congress has the power to encourage the industrial arts in this way because of a specific line in SEction 8 of the Constitution.
As a practical matter, it is harder to enforce a patent claim that defines something people could do for themselves, as in the OP, and easier to enforce a claim the practicing of which cannot be kept a secret. So, if you have some sort of process for doing something, and somebody can use your process in their basement, you will have a hard time finding out about it. But if you patent a certain device and they sell the device, all you have to do is find one of the devices they sold (or buy one yourself). Thus “process claims” are often harder to enforce than “product claims”.
Well, those formulas are trade secrets, not patented, so that is fine as long as you didn’t acquire the trade secret improperly. For patented products, the patent is published, so you wouldn’t have the “recipes are secret” excuse. But if you infringe a patent unwittingly, you are still liable for damages (which the patent holder may or may not bother to enforce, depending on the situation, of course).
Coke and Pepsi aren’t protected by patents, only trademarks and trade secrets. People have already figured out how to duplicate their formulas and there would be no problem so long as – 1. They didn’t actually steal the formula from Coke and 2. They don’t use Coke’s trademarks on their products
This American Life did a whole show on Coke and they interviewed a Coke official who basically admitted that the value of Coke is not its “secret” formula but rather the name, logos, symbols, slogans and other trademarks that they own.
I use chemistry patents fairly often in my work. Some procedures are better than others, to the point where some worked exactly as written (or could be modified to work) and some were so hard to duplicate it was just a waste of time. As these are generally pharmaceutical company patents, what I’m looking for tends to be in the description and not the claims, as generally what is claimed is the class of molecules and possibly a key synthetic step. I can think of only one time I had to go to Legal, as a key step we were looking at was covered under patent. (We ended up not doing the chemistry, but not for that reason.)
When I was in school I could probably get away with doing anything that was in the claims under the research exemption. I doubt it would be anywhere near that easy in industry, although the patent holder would have to A. Find out about it and B. Do something about it.