our backlog to even first look at an application was 18months. I was working on applications that had been ongoing for 5+ years after first being picked up
That’s insane 😲
I mean, it’s already iffy to assume than “only one person can come up with a given idea at a time”, it gets worse when “whichever gets to patent first is the only possible inventor”, but waiting 5 or 15 years after the fact just to be granted a monopoly on the invention… is insane.
It’s not important when the application became a patent, it’s important when it was filed and what it contained
Maybe I’m missing something, but how can anyone be accused of copying a patented work, if they announce or release their product before a patent gets published?
Sure, they probably should have filed an application themselves, but if the backlog to even look at an application is 18 months, then what happens of person A files an application, then 12 months later person B files a similar application, and they just sit there? Should person B wait until their application gets processed (positively or negatively), before announcing or releasing anything? What about products released with a “Patent pending” notice, are they just a gamble?
What I seem to understand for this case, is that Masimo has been filing multiple provisionals for different patents over 15 years, they may have approached Apple to license some of them, then when Apple announced their own product, Masimo hurried up to fix the wording on a bunch of the provisionals to match Apple’s product, and filed them as finals.
From an external point of view, what I see is the publication of a product using non-patented technology that should be considered prior art and render all those patents invalid.
A couple things that I didn’t make too clear that may help sort some of these things out:
- patent applications, provisional or not, are published (unless specifically filed to not be, but 95% of applications I looked at were published). But I didn’t think inventors would search patent databases before inventing…
- Filing date is the easiest way to establish prior art date, not the only one. If two inventions are similar and filed close in time to each other they could show additional things to establish an earlier date. I forget the specifics but it regularly happened when I would use prior art within a year of the filing date to reject the application that the applicant would come back with notes from meetings or emails or other supporting documents to establish a new prior art date and invalidate my rejection, a product release would qualify, but it has to be before the filing date of the provisional or application where the infringed process is disclosed.
From the limited details I know about the case it looks like apple wanted to use the masimo process, even approached them but then backed out and apple didn’t use a different enough process in their watches to avoid infringement.
That seems to me like apple doesn’t have a prior art date before masimo for the process used since they approached masimo and the small sections of arguments I’ve seen from apple are focused on the length of time between application and patent and that at the time masimo was not making consumer devices. Both of which have little to nothing to do with infringement. If their arguments were about the difference in their process vs massimo, or notes or something detailing development before approaching masimo I would have a more favorable eye towards apple.
Again I might be missing something because I have not really read up on this except highlights from articles and a passing interest because of my old job. But was trying to provide some insight to the patent side of it.
