The second part of this message also relates to the question of putting Microsoft on notice.
From what I can tell, Musicblvd simply take orders over the net, and then ship CDs to the buyer. That is not covered, the patent requires delivery of data over the net (or other electronic transfer) and then downloaded to the buyers machine where the data is stored on a floppy, hard drive, zip drive, etc.
Advance notice is not required to receive damages, even an unknowing infringer has to pay damages. Notice is needed to get triple damages. Also, notice can come from anywhere, even a third party -- the only important thing for triple damages is that the infringer know about the patent, and then continues to infringe without a good excuse (such as an opinion of counsel). Since most companies get an opinion from their lawyers that they don't infringe, the issue of triple damages is moot. Thus, the issue of notice is moot.
Often patent owners send a "cease and desist" letter demanding the infringer stop infringing. In some cases this is not been done at all, and in other it has been done on the day the suit is filed. Again, nothing need be done ahead of time. |
