19 Mar
2007
19 Mar
'07
9:56 a.m.
On 19 Mar 2007 at 9:33, Lyle Bickley wrote:
For example, if one wants to kill a 1983 patent, and
there is inadequate
written prior art available, one may be able to use 1983 (or earlier)
physical technology (hardware and software) to do it.
In court, the opposition would "nail" any hardware/software presensted to a
jury that was not contemporaneous with or earlier than the patent being
litigated. Anything not original would "contaminate" an exhibit (because of
the potential for "cheating", etc.). That fact precludes the use of
emulation, simulation, etc. of old hardware/software on modern systems in
patent litigation.
I can certainly appreciate that aspect, having done my time as an
expert witness. "Just as good as" is much less convincing than
"we've got the real thing right here". And the opposing side will
make much of any opening you might give them, even if it doesn't make
a lot of sense.
I was once called by a computer manufacturer's attorneys to ward off
a possible class-action suit. The representative plaintiff that had
been selected had put in a larger hard disk and added his own video
card (the manufacturer sold the system with an integrated on-board
model). The presence of the video card and some additional software
was enough to prevent certification of the plaintiff as a class-
action participant and the plaintiff's attorneys had to start all
over again. Eventually, they burned enough money that they got tired
of it and went on to sue someone else over the issue of battery life.
It wasn't logical from a technical aspect--but the tort system rarely
is. :)
Cheers,
Chuck