SP poured out in WDP Patent Lawsuit - Page 2

Phelps · Phelps

In article <ch3ijd$eg2$1@news-int.gatech.edu>,
"Tempest" <gtg713b@prism.gatech.NOSPAM.edu> wrote:

> "Phelps" <phelpscatcher@attbi.com> wrote in message
> > Not necessarily. If the contract was made with the understanding
> > that SP had a good patent, then it is a material breach for SP to turn
> > out to NOT have the patent.
>
> Yeah I know. My argument is that we *don't know* what the contracts said.
> But my gut tells me that SP tailored the contracts so that a loss of patent
> wouldn't be retroactive.

Doesn't matter. Unless there is a specific and deliberate waiver of
it (and I can't imagine any lawyer across from SP agreeing to it) then
the royalty agreement is going to be in material breach. I could even
see someone arguing that the inclusion of that sort of clause would be
evidence of inequitable conduct (basicly means a deliberate fraud on the
patent office -- the hugest no-no in patent law) and that would nullify
the contract.

In short, I would be hugely, hugely surprised to find out that SP is
getting another dime on these patents.

--
Phelps <http://www.donotremove.net>
"Bury me with all my stuff, because you know that it is mine."
-- Master Shake's Suicide Note, "Aqua Teen Hunger Force"

Tempest · Tempest

I can only hope that you're right.

"Phelps" <phelpscatcher@attbi.com> wrote in message
news

helpscatcher-93EF6D.22101001092004@netnews.comcast.net...
> In article <ch3ijd$eg2$1@news-int.gatech.edu>,
> "Tempest" <gtg713b@prism.gatech.NOSPAM.edu> wrote:
>
>> "Phelps" <phelpscatcher@attbi.com> wrote in message
>> > Not necessarily. If the contract was made with the understanding
>> > that SP had a good patent, then it is a material breach for SP to turn
>> > out to NOT have the patent.
>>
>> Yeah I know. My argument is that we *don't know* what the contracts said.
>> But my gut tells me that SP tailored the contracts so that a loss of
>> patent
>> wouldn't be retroactive.
>
> Doesn't matter. Unless there is a specific and deliberate waiver of
> it (and I can't imagine any lawyer across from SP agreeing to it) then
> the royalty agreement is going to be in material breach. I could even
> see someone arguing that the inclusion of that sort of clause would be
> evidence of inequitable conduct (basicly means a deliberate fraud on the
> patent office -- the hugest no-no in patent law) and that would nullify
> the contract.
>
> In short, I would be hugely, hugely surprised to find out that SP is
> getting another dime on these patents.
>
> --
> Phelps <http://www.donotremove.net>
> "Bury me with all my stuff, because you know that it is mine."
> -- Master Shake's Suicide Note, "Aqua Teen Hunger Force"

Jose · Jose

The Gardner's bought Pneu Ventures and claimed they "discussed" electrifying
the firing system of a marker and thus were part of the design team of the
Shocker. It was eventually proven in court that someone else was the
exclusive designer of the firing system. Could Dye claim that the Gardner's
patent was filed in bad faith somehow, since they were trying to imply that
they helped design something they in fact did not?

Jose

"Phelps" <phelpscatcher@attbi.com> wrote in message
news

helpscatcher-F5E974.22072801092004@netnews.comcast.net...
> In article <10jaosmrl2jt10f@corp.supernews.com>,
> "Jose" <please@dontsendmestuff.com> wrote:
>
> > I'm thinking that if SP is in breach they could be liable for damages
> > because of bad faith contracts where they knew they were not the legal
> > patent owners.
>
> There is a presumption in the law that an issued patent is valid. I
> don't see any room for a bad faith claim short of proving inequitable
> conduct to the patent office, and that isn't what the judge found here.
>
> --
> Phelps <http://www.donotremove.net>
> "Bury me with all my stuff, because you know that it is mine."
> -- Master Shake's Suicide Note, "Aqua Teen Hunger Force"

DGDevin · DGDevin

"Jose" <please@dontsendmestuff.com> wrote in message
news:10jdetucrpugf71@corp.supernews.com...

> The Gardner's bought Pneu Ventures and claimed they "discussed"
electrifying
> the firing system of a marker and thus were part of the design team of the
> Shocker. It was eventually proven in court that someone else was the
> exclusive designer of the firing system. Could Dye claim that the
Gardner's
> patent was filed in bad faith somehow, since they were trying to imply
that
> they helped design something they in fact did not?
>
> Jose

Phantom had a working electro before that, a design they chose not to put on
the market.

It's the old race to the courthouse, whoever files first gets to sit on top
of the hill and pee on everyone else.

Phelps · Phelps

In article <10jdetucrpugf71@corp.supernews.com>,
"Jose" <please@dontsendmestuff.com> wrote:

> The Gardner's bought Pneu Ventures and claimed they "discussed" electrifying
> the firing system of a marker and thus were part of the design team of the
> Shocker. It was eventually proven in court that someone else was the
> exclusive designer of the firing system. Could Dye claim that the Gardner's
> patent was filed in bad faith somehow, since they were trying to imply that
> they helped design something they in fact did not?

Unless you could make a strong showing of actual bad faith (the standard
is "clear and convincing evidence", which is just less than "beyond a
reasonable doubt" and much higher than "a preponderence of the
evidence") then no. Just those facts don't sound like they rise to the
level. As a matter of fact, if it was -proven- then the patent would
already be invalid and that would have been part of the judgment.

--
Phelps <http://www.donotremove.net>
"Bury me with all my stuff, because you know that it is mine."
-- Master Shake's Suicide Note, "Aqua Teen Hunger Force"

Jose · Jose

Ok. Thanks for the insight Phelps.

Jose

"Phelps" <phelpscatcher@attbi.com> wrote in message
news

helpscatcher-6BFBEC.18384602092004@netnews.comcast.net...
> In article <10jdetucrpugf71@corp.supernews.com>,
> "Jose" <please@dontsendmestuff.com> wrote:
>
> > The Gardner's bought Pneu Ventures and claimed they "discussed"
electrifying
> > the firing system of a marker and thus were part of the design team of
the
> > Shocker. It was eventually proven in court that someone else was the
> > exclusive designer of the firing system. Could Dye claim that the
Gardner's
> > patent was filed in bad faith somehow, since they were trying to imply
that
> > they helped design something they in fact did not?
>
> Unless you could make a strong showing of actual bad faith (the standard
> is "clear and convincing evidence", which is just less than "beyond a
> reasonable doubt" and much higher than "a preponderence of the
> evidence") then no. Just those facts don't sound like they rise to the
> level. As a matter of fact, if it was -proven- then the patent would
> already be invalid and that would have been part of the judgment.
>
> --
> Phelps <http://www.donotremove.net>
> "Bury me with all my stuff, because you know that it is mine."
> -- Master Shake's Suicide Note, "Aqua Teen Hunger Force"

Kristan Roberge · Kristan Roberge

Phelps wrote:

> Patently Obvious is reporting that WDP was granted a summary judgment
> (meaning the judge threw the case out of court) in the SP patent case:
>
> http://patentlaw.typepad.com/patent/...all_paten.html
>
> The judge ruled that the SP didn't have properly name the inventors,
> because they left out a one Dr. Hensel, who the court has determined is
> the inventor of the electronics, a vital element of all the claims in
> question. (Claims as in the patent claims, not the lawsuit.) They
> never paid Hensel for this work, and he never signed any sort of
> agreement that they had the rights to his intelectual property. The
> judge is ordering the USPTO to add him to the patent, which means he
> (Hensel) will have to agree to EVERYTHING in regards to the patent as
> half-owner.

Actually no he won't. See the judge ruled against SP also because WDP
tracked down
Hensel, and bought his patent/design rights from him. Thus the judge ruled
that SP can't
go and very well sue the other half owner of the patent rights.

Kristan Roberge · Kristan Roberge

Jose wrote:

> Looks like SP got the worst of all worlds. Now they won't have money from a
> patent OR royalties or maybe even permission to use a royalty free firing
> system. Wonder if they will have to re-imburse the smaller companies they
> tried to screw? Also, now that the Gardner's have opened the Pandora's box,
> we will have to wait and see what WDP does with this ruling and possible
> patent rights. VERY interesting developments.

the best part was the judge saying he didn't think Billy or Adam could have
invented anything.

Phelps	[11] Posted by Phelps 09-02-2004, 12:09 AM
Posts: n/a	Quote In article <ch3ijd$eg2$1@news-int.gatech.edu>, "Tempest" <gtg713b@prism.gatech.NOSPAM.edu> wrote: > "Phelps" <phelpscatcher@attbi.com> wrote in message > > Not necessarily. If the contract was made with the understanding > > that SP had a good patent, then it is a material breach for SP to turn > > out to NOT have the patent. > > Yeah I know. My argument is that we don't know what the contracts said. > But my gut tells me that SP tailored the contracts so that a loss of patent > wouldn't be retroactive. Doesn't matter. Unless there is a specific and deliberate waiver of it (and I can't imagine any lawyer across from SP agreeing to it) then the royalty agreement is going to be in material breach. I could even see someone arguing that the inclusion of that sort of clause would be evidence of inequitable conduct (basicly means a deliberate fraud on the patent office -- the hugest no-no in patent law) and that would nullify the contract. In short, I would be hugely, hugely surprised to find out that SP is getting another dime on these patents. -- Phelps <http://www.donotremove.net> "Bury me with all my stuff, because you know that it is mine." -- Master Shake's Suicide Note, "Aqua Teen Hunger Force"
Posts: n/a

Tempest	[12] Posted by Tempest 09-02-2004, 12:27 AM
Posts: n/a	Quote I can only hope that you're right. "Phelps" <phelpscatcher@attbi.com> wrote in message newshelpscatcher-93EF6D.22101001092004@netnews.comcast.net... > In article <ch3ijd$eg2$1@news-int.gatech.edu>, > "Tempest" <gtg713b@prism.gatech.NOSPAM.edu> wrote: > >> "Phelps" <phelpscatcher@attbi.com> wrote in message >> > Not necessarily. If the contract was made with the understanding >> > that SP had a good patent, then it is a material breach for SP to turn >> > out to NOT have the patent. >> >> Yeah I know. My argument is that we don't know what the contracts said. >> But my gut tells me that SP tailored the contracts so that a loss of >> patent >> wouldn't be retroactive. > > Doesn't matter. Unless there is a specific and deliberate waiver of > it (and I can't imagine any lawyer across from SP agreeing to it) then > the royalty agreement is going to be in material breach. I could even > see someone arguing that the inclusion of that sort of clause would be > evidence of inequitable conduct (basicly means a deliberate fraud on the > patent office -- the hugest no-no in patent law) and that would nullify > the contract. > > In short, I would be hugely, hugely surprised to find out that SP is > getting another dime on these patents. > > -- > Phelps <http://www.donotremove.net> > "Bury me with all my stuff, because you know that it is mine." > -- Master Shake's Suicide Note, "Aqua Teen Hunger Force"
Posts: n/a

Jose	[13] Posted by Jose 09-02-2004, 03:22 AM
Posts: n/a	Quote The Gardner's bought Pneu Ventures and claimed they "discussed" electrifying the firing system of a marker and thus were part of the design team of the Shocker. It was eventually proven in court that someone else was the exclusive designer of the firing system. Could Dye claim that the Gardner's patent was filed in bad faith somehow, since they were trying to imply that they helped design something they in fact did not? Jose "Phelps" <phelpscatcher@attbi.com> wrote in message newshelpscatcher-F5E974.22072801092004@netnews.comcast.net... > In article <10jaosmrl2jt10f@corp.supernews.com>, > "Jose" <please@dontsendmestuff.com> wrote: > > > I'm thinking that if SP is in breach they could be liable for damages > > because of bad faith contracts where they knew they were not the legal > > patent owners. > > There is a presumption in the law that an issued patent is valid. I > don't see any room for a bad faith claim short of proving inequitable > conduct to the patent office, and that isn't what the judge found here. > > -- > Phelps <http://www.donotremove.net> > "Bury me with all my stuff, because you know that it is mine." > -- Master Shake's Suicide Note, "Aqua Teen Hunger Force"
Posts: n/a

DGDevin	[14] Posted by DGDevin 09-02-2004, 03:34 AM
Posts: n/a	Quote "Jose" <please@dontsendmestuff.com> wrote in message news:10jdetucrpugf71@corp.supernews.com... > The Gardner's bought Pneu Ventures and claimed they "discussed" electrifying > the firing system of a marker and thus were part of the design team of the > Shocker. It was eventually proven in court that someone else was the > exclusive designer of the firing system. Could Dye claim that the Gardner's > patent was filed in bad faith somehow, since they were trying to imply that > they helped design something they in fact did not? > > Jose Phantom had a working electro before that, a design they chose not to put on the market. It's the old race to the courthouse, whoever files first gets to sit on top of the hill and pee on everyone else.
Posts: n/a

Phelps	[15] Posted by Phelps 09-02-2004, 08:38 PM
Posts: n/a	Quote In article <10jdetucrpugf71@corp.supernews.com>, "Jose" <please@dontsendmestuff.com> wrote: > The Gardner's bought Pneu Ventures and claimed they "discussed" electrifying > the firing system of a marker and thus were part of the design team of the > Shocker. It was eventually proven in court that someone else was the > exclusive designer of the firing system. Could Dye claim that the Gardner's > patent was filed in bad faith somehow, since they were trying to imply that > they helped design something they in fact did not? Unless you could make a strong showing of actual bad faith (the standard is "clear and convincing evidence", which is just less than "beyond a reasonable doubt" and much higher than "a preponderence of the evidence") then no. Just those facts don't sound like they rise to the level. As a matter of fact, if it was -proven- then the patent would already be invalid and that would have been part of the judgment. -- Phelps <http://www.donotremove.net> "Bury me with all my stuff, because you know that it is mine." -- Master Shake's Suicide Note, "Aqua Teen Hunger Force"
Posts: n/a

Jose	[16] Posted by Jose 09-03-2004, 05:46 PM
Posts: n/a	Quote Ok. Thanks for the insight Phelps. Jose "Phelps" <phelpscatcher@attbi.com> wrote in message newshelpscatcher-6BFBEC.18384602092004@netnews.comcast.net... > In article <10jdetucrpugf71@corp.supernews.com>, > "Jose" <please@dontsendmestuff.com> wrote: > > > The Gardner's bought Pneu Ventures and claimed they "discussed" electrifying > > the firing system of a marker and thus were part of the design team of the > > Shocker. It was eventually proven in court that someone else was the > > exclusive designer of the firing system. Could Dye claim that the Gardner's > > patent was filed in bad faith somehow, since they were trying to imply that > > they helped design something they in fact did not? > > Unless you could make a strong showing of actual bad faith (the standard > is "clear and convincing evidence", which is just less than "beyond a > reasonable doubt" and much higher than "a preponderence of the > evidence") then no. Just those facts don't sound like they rise to the > level. As a matter of fact, if it was -proven- then the patent would > already be invalid and that would have been part of the judgment. > > -- > Phelps <http://www.donotremove.net> > "Bury me with all my stuff, because you know that it is mine." > -- Master Shake's Suicide Note, "Aqua Teen Hunger Force"
Posts: n/a

Kristan Roberge	[17] Posted by Kristan Roberge 09-04-2004, 02:18 AM
Posts: n/a	Quote Phelps wrote: > Patently Obvious is reporting that WDP was granted a summary judgment > (meaning the judge threw the case out of court) in the SP patent case: > > http://patentlaw.typepad.com/patent/...all_paten.html > > The judge ruled that the SP didn't have properly name the inventors, > because they left out a one Dr. Hensel, who the court has determined is > the inventor of the electronics, a vital element of all the claims in > question. (Claims as in the patent claims, not the lawsuit.) They > never paid Hensel for this work, and he never signed any sort of > agreement that they had the rights to his intelectual property. The > judge is ordering the USPTO to add him to the patent, which means he > (Hensel) will have to agree to EVERYTHING in regards to the patent as > half-owner. Actually no he won't. See the judge ruled against SP also because WDP tracked down Hensel, and bought his patent/design rights from him. Thus the judge ruled that SP can't go and very well sue the other half owner of the patent rights.
Posts: n/a

Kristan Roberge	[18] Posted by Kristan Roberge 09-04-2004, 02:19 AM
Posts: n/a	Quote Jose wrote: > Looks like SP got the worst of all worlds. Now they won't have money from a > patent OR royalties or maybe even permission to use a royalty free firing > system. Wonder if they will have to re-imburse the smaller companies they > tried to screw? Also, now that the Gardner's have opened the Pandora's box, > we will have to wait and see what WDP does with this ruling and possible > patent rights. VERY interesting developments. the best part was the judge saying he didn't think Billy or Adam could have invented anything.
Posts: n/a

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