What is the effect of lost and recovered prior art on patent validity? Normally, the existence of prior art containing matters for which a United States utility patent makes claims to patent rights prevents a patent from being issued for those claims, and if a patent somehow issues anyway, it provides a defense to a defendant in a patent infringement action. But suppose that there exists prior art that is not know to anyone alive at the time that the patent is applied for and issued, but ten years later when the patent holder brings a timely patent infringement lawsuit, the prior art which had been unknown to anyone alive at the time is rediscovered. Does that invalidate the patent? Example For example, suppose that Sharp Co. develops a process of making steel for knives that is superior in some way (e.g., it makes it much cheaper and quicker to manufacture the knives than an alternative status quo process that produces exactly the same end result), by incorporating flax oil into the process of forging its knives. It is impossible to discern that the flax process was used by physically inspecting a knife made with it after the fact. Assume that this patent easily qualifies as valid by every relevant legal test evaluated as of 2012-2014 and under all changes to patent law since then that do not pertain to prior art. This process was something that no published work available to living people was aware of at the time that Sharp Co. applied for its patent in 2012, and the patent was issued in 2014. In time, Sharp Co. discovers that Dull Co., a company next door to it, is using the same flax oil process to forge its knives and brings suit in 2022 for patent infringement, having copied the Sharp Co. process from its patent application, and Dull Co. gains 50% of the market share of knives made with this process costing Sharp Co. US $50 million a year in lost profits. But after filing an answer in the patent infringement lawsuit in U.S. District Court, the patent infringement defense lawyer for Dull Co. who reads archaeology and linguistics texts in his spare time happens to learn that in 2016, archaeologists discovered an inscription in Old Persian from 1100 BCE in a newly unearthed tomb and translated it and published their findings in the journal Nature, describing precisely the same lost art of using flax oil to forge knives that Sharp Co. reinvented independently in 2012 and for which it secured its patent. No one affiliated of Sharp Co. learned about the newly discovered Old Persian texts until after they brought their infringement lawsuit and the lawyer for Dull Co. brought it to their attention. Dull Co.'s lawyer had raised the defense of invalidity based upon prior art in the answer that Dull Co. filed even though he didn't know about this particular prior art at the time. Evidence from the ancient Old Persian text and some related authentic texts written by Old Persian priests from a few centuries later indicates that there were hundreds of copies of the description of this process which were included in every prayer book of the predominant religion of the region now called Iran in 1100 BCE that was freely available in each of hundreds of temples in the region to anyone interested, but it was not preserved by later scribes who decided that it was considered an obvious piece of knowledge among metal workers that wasn't worth recopying at some point in the early Iron Age, even though they were wrong and the process was later entirely forgotten. Question Does the previously lost prior art, that is rediscovered before the patent of the lost prior art process expires, provide Dull Co. with a meritorious prior art invalidity defense to the validity of Sharp Co.'s patent infringement lawsuit against Dull Co.? I can imagine this question functionally hinging on when prior art has to exist, and I could also imagine it hinging on the definition of what has to happen for something to constitute prior art. But, I'm not really sure exactly what the proper analysis would be. Differences from prior similar questions This differs from the similar question &quot;What impact does prior art discovered after (US) patent awarding have on enforceability and even validity of that patent?&quot;, because in this question, by design, there was nothing that would have operationally counted as prior art available at the time the patent was applied for and at the time that it was issued, while that question implicitly assumes that the only reason that prior art wasn't discovered was due to an inadequate prior art search when the patent was issued, and that a sufficiently thorough search for prior art at the time the patent was applied for and issued could have possibly found it. This also differs from the fact pattern where someone already uses the patented process in a secret manner protected as a trade secret that is not disclosed until after the patent is issued, because, as I understand it, to be prior art, something must be knowable to people in the general public at some prior time (usually in a publication that is not confidential). The example is loosely inspired by Rahil Alipour, Thilo Rehren, Marcos Martinón-Torres. &quot;Chromium crucible steel was first made in Persia.&quot; Journal of Archaeological Science (2020); 105224 DOI: 10.1016/j.jas.2020.105224 (recounting their discovery that there was widespread manufacturing of chromium steel in Southern Persia around 1000 CE, a metallurgy technique that was subsequently lost and then only rediscovered about nine centuries later).
The patent is invalid From 35 U.S.C. 102 A person shall be entitled to a patent unless — (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent There is no doubt that the Persion &quot;printed publication&quot; in c.1100 BCE predates the invention of the technique by Sharp Co. in 2012 CE. If follows that Sharp Co. is not entitled to patent protection. This is merely a refinement of 35 U.S.C. 101 which says (my emphasis): Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. The process Sharp Co. invented was not &quot;new&quot; - patent rights only accrue to the first inventor, in this case, some unnamed ancient Persian. The prior art exclusion is merely one means of ensuring that the patent holder is the first inventor.
The laws are - in the US you can’t make, sell, offer for sale etc. anything that infringes a claim in an issued valid, un-expired US patent. There is no special case for replacement battery packs like there is for medical procedures. One of their battery pack patents in the suit. US7999510B2, is very broad. The first claim, below, only requires a housing, lithium ion chemistry and a particular range of current at 18 volts. It would seem to apply to batteries compatible with other brands of tools. From google patents it seems that the examiner considered 155 previous patents before deciding this was novel and not obvious. Reading the judgement the issue at court was not the inventiveness but wether or not a Canadian company who brought the concept to them initially should be considered the inventor. It was ruled that the Canadian one did not reliably put out the needed current. It expires in 2023. Claim 1 A battery pack for powering a hand held power tool, the battery pack comprising: a housing connectable to and supportable by the hand held power tool; and a plurality of battery cells supported by the housing, the battery cells being capable of producing an average discharge current greater than or equal to approximately 20 amps, the battery cells having a lithium-based chemistry, the battery cells having a combined nominal voltage of at least approximately 18 volts.
A basic rule of trademark law is that a trademark is protected only for use in the same industry, or in regard to the same general sort of thing. "Maxwell House" for example, is the name of a brand of Coffee, and no doubt a trademark. If A business used it as the name of a brand of mobile home, it would not infringe the mark of the coffee brand. "Java" as a term for coffee , has been slang for any and all coffee at least as far back as WWII. I doubt that it is a currently active trademark in any case. It is, however, the name of a currently active programming language. Calling a new computer technology "Java" would probably infringe that (although the makers of javascript, a quite different computer language, seem to have gotten away with it). But it is hard to see how a realty company would so infringe. Of course there might be details which would cause this name to be infringing in fact, that I have no way of knowing. You could play safe with Sumatra Realty instead. Evin a quickly dismissed suit for trademark infringement could cost a startup time and money that might be a fatal handicap.
Publication after the author's death is still publication. As you can see in this excellent chart this work is copyrighted for 95 years after the publication date under US law. If it had never been published, it would be protected by copyright for 70 years after the death of Lovecraft, the author (a term which has now expired). However, statements of genealogy would be facts, and as such are not protected by copyright. limited quotes to support those facts would be appropriate in a work of non-fiction, and would normally be permitted as fair use under US law. Such quotes would probably not be appropriate in fiction in any case. The exact wording of the genealogy would probably be protected, but not the relationships (who is the parent of whom, etc).
united-states Theories Of Product Liability In Tort There are three basic theories of product liability in tort (setting aside breach of warranty claims) under state law in most U.S. states. Defective manufacturing. In this theory, there was a flaw in making the product that caused it not to conform to an otherwise good design, causing harm to the claimant. For example, if a fire alarm is designed to have a trigger that actives at a certain temperature, but the noise maker in the alarm melts and becomes inoperative at a temperature below the trigger temperature because the manufacturer uses plastic instead of the design requirement of metal for a part because of a temporary shortage of that metal, the manufacturer is liable for harm that results from the fire alarm's failure to activate at the trigger temperature. Defective design. In this theory, there was a flaw in the design of the product and that flaw caused harm to the claim and would have done so even if the product was perfectly manufactured consistently with the design. What constitutes a defective design? A company's liability for a design defect occurs when there was a foreseeable risk posed by the product when the product was manufactured as intended and used for its intended purposes. In many states, plaintiffs also have to show that the risk could have been reduced or avoided by the adoption of a reasonable alternative design, which was: Feasible, in other words, the manufacturer had the ability to produce it; Economically feasible, in other words, it would not cost too much to make the product with the modification; and Not in opposition to the product's intended purpose, in other words, the product would still perform the function for which it was created. (Source) For example, if a whiskey distilling vat generates high internal pressures that could cause it to explode if not alleviated, and the manufacturer does not include a pressure release valve in the design to prevent that explosion, the manufacturer would be liable for the harm caused by an explosion that occurs because there is not a pressure release valve in the design making it defective. Also, failure to comply with a regulatory standard intended to enhance safety in a design when that non-compliance causes harm (e.g. designing a car without seat belts), may be a design defect as a matter of law. Likewise, failure to comply with widely recognized non-legally adopted design standards in an industry intended to enhance safety in designs of particular kinds of products, when that non-compliance causes harm, will usually constitute open and shut proof of a design defect without further proof or analysis. Failure to warn. In this theory, the design of the product presents risks of harm to the user that are not obvious, which would be mitigated or eliminated if the user was given an adequate warming of the risk and followed that warning. For example, while the risk of harm from a knife is obvious and does not trigger a duty to warn, if a knife is made from a material that creates a toxic cloud of chlorine gas when exposed to bleach, the maker of a knife with this non-obvious risk needs to adequately warn potential users of the knife of the importance of not exposing it to bleach or the maker of the knife will have liability for bleach related harms to users that occur. Observations Product liability in tort is &quot;strict&quot; in the sense that there can be liability even if the manufacturer was not negligent. For example, in a defective manufacturing case, even if the manufacturer had the best quality control system in the world, if one item in a billion is defectively manufactured and causes harm as a result, the manufacturer is still liable. Similarly, in a defective design case, it is not a defense that a reasonable product designer took reasonable care to identify defects (e.g. holding brain storming sessions and reading any relevant studies) that didn't actually reveal the potential problem, if the design defect was foreseeable but the designer just didn't think of it anyway. And, in a failure to warn case, there can be liability even if the manufacturer was &quot;reasonable&quot; in the sense of providing the warnings customarily used by others in the industry but still fails to warn of a non-obvious risk that causes harm. Application Are they only liable if the product malfunctions in an unexpected and unpredictable way (e.g., the board breaks)? Not exactly. But if the product is causes harm while carrying out its intended purpose, that isn't a malfunction or defect. A gun isn't defective because it can be used to intentionally kill someone or commit suicide. Does liability only apply when a product injures a user, but not when the users injures themselves using a product where harm cannot be excluded? There is not liability if the user is not injured. If the user injures themselves using the product for the intended purpose this is also not a product liability issue unless the harm could have been avoided with a design change or warning of a non-obvious risk. Can they absolve themselves of liability by simply warning the user about risks? If a product has a design defect, merely warning a user of the design defect will usually not relieve the manufacturer from liability. For example, stating that the whiskey vat doesn't have a pressure relief valve and could explode, when it could have been designed with them with a $2 manufacturing cost change, won't relieve the manufacturer from liability if someone is harmed by the vat exploding because it doesn't have a pressure relief valve. In reality, there are gray areas where an alleged design defect that can be fully mitigated with a warning is really a design defect, but that's why we have judges, juries, and expert witnesses to resolve close cases where there are arguments to be made either way. A skateboard does have risks even when used for its intended purpose, most of which are obvious, but some of which (e.g. getting clothing entangled in a wheel) might not be. When there is no feasible way to eliminate the risks that are present, and warnings are provided when there are non-obvious risks, then there is no liability on the part of the manufacturer of the skateboard.
Generally, this question is not a singular inquiry as its wording may suggest on its face. What typically tends to come up as the subject of dispute is rooted in the urban legend that one cannot obtain a patent (utility) on software. This is substantially incorrect, and any patent attorney asserting to the veracity of this makes a substantially false conclusory statement of law knowingly and willfully controverting the actual state of law in, at least, all Western jurisdictions as it omits to assert to the fact that one is not barred to obtain a patent on any system that comprises of non-obvious software, and hardware to run on is entitled to a patent — except in the U.S. where one must also comply with the Alice decision requiring that at least one hardware component in addition to the hardware of a generic computer be necessary for the utility of the system. However, in the U.S., one may obtain a software-centered patent through a (i) method or (ii) a computer program product in addition to (iii) systems or apparatuses which are available avenues for patents everywhere else. When disputes around IP and software come up, this is typically at the crux of the debate: May one obtain a software patent? The answer is: One is not barred merely because the non-obvious aspect of an invention is software. For example, if one uses hardware that are prior art, in fact, patented to someone else, but by the use of software a system, method and/or computer program product achieves a different objective (since utility patents, axiomatically, must have a utility objective) one may obtain a patent, and a layman may very well consider their invention of the system as that particular component that appears to them as having required any inventive steps, encompasses the inventive novelty (understandably) which, in many cases may be software. So the advice from a patent attorney that “you can’t patent software” is simply malicious (or wide and far disbarringly incompetent). One may patent software so long as it is an invention, and the administrative (or at times judicial) process requirements are complied with. Nevertheless, since the question inquired about “IP”, below is the answer to other avenues of intellectual property. Copyrights The software code written to make this operable could be the subject of copyright as long as it is not substantially identical with another solution (or such to give reasons to believe it to be a derivative thereof) that also put buttons in the four corners. The visual design may possibly also enjoy copyright protection, but that is less plausible to imagine since not only the copyrighted work of art is protected, but anything that may objectively be deemed a derivative work (regardless of whether the “re-author” actually knew about the copyrighted material that it may be deemed the derivate of). Design patents It is possible that one could get design patents for the actual graphical design of the layout provided there isn’t something substantially similar already out there protected by a design patent. Utility patents This would most certainly not overcome obviousness, that is, the requirement for one to obtain a patent which needs that a presented invention not be obvious for anyone “with ordinary skill in the art” (an ordinarily knowledgable person in the field of the specific area of tech). Trademark I have a hard time stretching my imagination to see how this could be applicable.
You are correct that you are inviting a lawsuit if you file a counter-notice. You are also correct that it might be a clerical error. Your attorney is the guy who recommends a best course of action for you. Part of the ensuing trouble would be the bill from your attorney. If the copyright holder wins in court, they could recover from you based on actual damages, statutory damages, and profits under 17 U.S.C. §504. The first is how much they lost (e.g. via sales or licensing fees) from your infringement. The second is a fixed amount ranging from $200 to $150,000, depending, provided that the work is registered. It is more likely that your case would fall in the $200 category, given a mistaken belief that you had permission as innocent infringement. The last is about whatever profits you made from the infringement that exceeds the copyright holder's losses. Incidentally, under the relevant provision, 17 USC 512(g)(2)(C), they will restore your material shortly after receiving the counter notification, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network. Notice that all that YT has to have done is received notification that a lawsuit was filed. The other party does not have to prove to the provider that they filed a lawsuit.
Well, actually, fair use is maximally relevant. Copyright means, put simply, DO NOT COPY. Citing or not is irrelevant (plagiarism is a whole other non-legal kettle of fish). Technically, what you describe is violation of copyright. However, under section 107 of Title 17 (the copyright law), you could attempt to defend yourself against an infringement suit on the basis that your action was "fair use". See this LSE q&amp;a for the essentials of fair use.