Hi, Bernard -
'It all depends on what Wi-LAN calls infringement.'
With respect, it all depends on what the court calls infringement.
Insofar as Radiata has no product on the market, the infringement can only be attributed to Radiata's claim, identical to Wi-LAN's, that its IP is necessary to implement IEEE 802.11a.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
8. Infringement
Infringement is any act that interferes with the full enjoyment of the monopoly granted. (52)
Infringement of a patent occurs when the words of a claim, as construed by the court, aptly describe the defendant's product or process.
8.1 Intent to Infringe
In Canada, it does not matter whether a defendant intended to infringe the patent; the defendant will still be liable for damages or profits. (53)
In the United States, however, a defendant will be penalised for wilfully infringing a patent or carrying on with reckless disregard to the situation and trouble damages can be awarded. (54)
8.2 Literal or Textual Infringement
If each and every word of the claim aptly describes the defendant's article or process, then there is little or textural infringement. (55) The claim forms the basis for the comparison, like a checklist. The elements of a claim are compared with the elements of the defendants device or process.
8.3 Infringement of the Pith and Substance
Older cases stated that a patent could still be infringed if there was no literal infringement but if the defendant had made minor variations to the invention and had still taken the substance of the invention. (56) The courts distinguished between the "essential elements" in a claim and the non-essential elements which could be varied. Non-essential integers could be omitted or replaced by their mechanical equivalents and there would still be infringement. (57)
8.4 Substantive Infringement
In 1982, the English House of Lords decided the case of Catnic Components Ltd. v. Hill & Smith Ltd.. (58) The Catnic test, like the pith and substance test, applied where there was a variant between what the claim stated and the defendants device or process. The Catnic test is:
(a) Does the variant have a material effect on the way the invention works?
(b) If it does not, does the patent specification make it obvious that the variant was not intended to be excluded from the claim? (59)
The answer to the second question must be consistent with the text of the claims. The court must interpret them, it cannot redraft them.
Where an inventor has clearly stated in the claims that he considered a requirement as essential to the invention, the court cannot decide otherwise for the sole reason that he was mistaken. The court cannot conclude that strict compliance of the word or phrase used in the claim is not an essential requirement of the invention unless it is obvious that the inventor knew that a failure for complying with that requirement would have no material effect upon the way the invention worked. (60)
9. Remedies
The Patent Act provides that an infringer will be liable for damages and profits (61) and can be ordered to no longer make, use or sell the infringing device or process.
jurisdiction.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
'Note for example that there are several schemes in the *open literature* for achieving frequency and symbol synchronization for OFDM.
Patent law, in the United States and Canada, permits the incorporation of any unpatented scheme, published or unpublished, and any unpatented prior art, in a novel, previously unpatented process. It is the assembly of these previously unrelated pieces into a novel process, that constitutes the essence of the patent.
The question is not whether someone has thought about, or written about, some mechanism. The question is whether these previously disparate mechanisms have been used to constuct a new process. That process should not be obvious to a skilled practicioner in the field: the concept dates from the older concept of a spark of genius, and the concept of ingenuity.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"The field of digital signal processing if highly flexible and subtle, and there is usually more than one way to accomplish a given task."
Exactly: this idea has a particular relevance, perhaps unappreciated, in patent law. For example, the use of Viterbi soft-decision error correction versus the use of Reed-Solomon Forward Error Correction: does the use of a different mechanism change the underlying, patented process, making it a new process? Or, by performing the intermediate step in the process differently, is the patented process substantially unaltered in what it does?
This concept finds expression in the Doctrine of Equivalents; simply put (too simply, perhaps) it states that a different method of achieving the same result within a patented process will not invalidate the patent. The difference is too insubstantial, and the process is essentially unchanged.
You can take this to the point (obviously) of saying that you must invent a new process before a patent will be awarded.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Bernard, in making these points, I am not asserting that Wi-LAN will, or will not prevail. Since the time we first discussed the matter a year ago, I have been bombarded with assertions that Wi-LAN's claims are hogwash, that their patent is too broadly asserted, that they only have one patent, and company X has dozens of patents, that all this or that existed in prior art, and so on.
I was motivated to investigate the matter, not from the viewpoint of whether the negative assertions were right or wrong, but from the following bases:
1 - What is the law on these matters?
2 - What constitutes the reason for Wi-LAN's belief? Or, as the lawyers would put it, has Wi-LAN got a case?
It is not my position that Wi-LAN will win. It is my position that they have a case, and a strong one, based on the proposition of being a first-mover in technological innovation - in inventing and patenting a novel process in radio transmission/reception. That process incorporates many aspects of prior art, and open literature, assembled in a way that no one else had previously implemented - when considered in its entirety.
If that is true, than any implementation of coded OFDM (only generic OFDM is uncoded) must institute a new, and appreciably different process of moving data in a radio network to escape the bounds of the patent.
If that is true. >smile<
Best regards,
Jim |
