What About The Person Who Infringes?
Let us say that one day you were driving along and you saw a car, say a Honda, on the roadway. You took out your little book in which you carried a listing of all the licensed automobile manufactures who paid you a royalty, and saw that Honda was not paying you any royalties. You went back to your office, overlooking the bay where your fifty foot sport fisher rode at its slip, and sent a letter to Honda, demanding to be paid royalty for the use of your invented technology. Mr. Honda then called you to ask about your demand letter. He would then explain that your patent did not apply, because the Honda car did not have a frame, but instead used unibody construction, so as to avoid the use of a frame. Mr. Honda would the rightfully tell you that he had avoided your patent, as he had avoided to use one of the essential elements that you had listed in your claim.
Realizing that he had found a way around your patent you were disappointed, but not all that concerned, in that Honda was only one car manufacturer, and everyone else, that you knew of, was paying your royalties, and there was more than enough money available for you to purchase that small island off the coast of Belize.
One day, a few months later, after you had returned from your visit to your new vacation home on your island, you were driving along and you spotted a Lexus. Again, you looked into your little book, and you then realized that Lexus was not paying you any royalty. Just to be sure, and still a little miffed about the Honda guy avoiding your patent, you follow the Lexus to the mall, where, once the car is parked, you walked to the car and looked beneath the car. To your joy, you see the frame of the car. You look inside and see the gear shift, and then you note that there is at least one tire on the vehicle. “Ahh Haa”, you say to yourself, as you scribble in your note book. “Look’s like that twin engine airplane isn’t out of reach after all”.
You rush to your office and call Mr. Lexus, and inform him of your patent. Mr. Lexus listens intently, and then, after you have made your case, tells you what he has found. Mr. Lexus has found that in Kansas, there has been a man making ten speed bicycles for more than one year before the filing of your patent application. In fact, Mr Lexus explains, the bicycle maker has been quietly making ten speed bicycles in beautiful Sublette, Kansas, for at least ten years before you had filed your patent application. The ten speed bicycle, Mr. Lexus explains, has a frame, a variable speed transmission, and at least one wheel. Mr. Lexus explains that even though you had no idea that the Kansas shop was making and selling ten speed bicycles, the fact that the bicycles were sold for more than one year before your filed your application, would invalidate your patent. Of course, Mr. Lexus candidly noted that he was not inclined to tell anyone else about the bicycle maker because your patent kept others, who did not know your patent could be held invalid, from making cars which would then compete with him. Fortunately for you, it was not in his interest to tell anyone about the bicycle maker in Sublette, Kansas. Mr Lexus then bid you a good day, and hung up the phone. You then sat at your desk overlooking the bay. Realizing that some of the pie is better than none of the pie, you reach for the phone and called the yacht sale agent at the marina in Belize, to tell the salesman to deliver the forty foot sailboat to your slip at your vacation home.
This little story illustrates how the patent process works, and how patents may be invalidated during litigation.