|
July 1966 Popular Electronics
 Table of Contents
Wax nostalgic about and learn from the history of early electronics. See articles
from
Popular Electronics,
published October 1954 - April 1985. All copyrights are hereby acknowledged.
|
Are you violating patent
laws in your basement? Patent laws have changed since this article was published
in 1966, but the tenets are basically the same - do your due diligence on prior
work assignment before publishing any publicly accessible product (print or physical).
Since part of Popular Electronics' raison d'être is to provide circuits
for hobbyists to build and benefit from, the lawyer who wrote this piece focuses
on such applications. He claims, at least according to 1960 patent law, "There are
court decisions which hold that experimental use of a patented invention for the
sole purpose of gratifying curiosity or a philosophical taste, or for mere amusement,
is not an infringement." HOWEVER, before you conclude that this must still be the
case, read this synopsis from the Ius Mentis website titled "Crash
Course on Patents," wherein is stated, "In most European countries, the exclusive
exploitation rights granted by a patent are restricted to commercial exploitation.
A private person who builds the patented invention in his own home for his own personal
goals cannot infringe on a patent... U.S. law is more strict. It forbids anyone
from making, using or selling the invention, even when the use is strictly personal."
I'm not a lawyer, and I don't play one on TV, but my unsolicited advice is to be
real sure of your legal standing before going public with any work be it electrical,
mechanical, chemical, etc. The bank account you save might be your own.
Infringers Beware
 By Thomas F. Kirby
Most electronics experimenters are aware that almost every circuit diagram or
construction project published in Popular Electronics has - in some form - been
patented. And, as electronics technology becomes more complex and/or sophisticated,
the chances of and opportunities for patent infringement are that much greater.
Construction projects utilizing the most modern components are always built around
existing patents.
The following article was prepared for Popular Electronics by a Registered Patent
Attorney. It explores some patent problems that could arise from building electronic
projects published in this magazine and any of the other electronics magazines,
as well as various handbooks.
Unlike a patent, which is a "negative right" (it excludes others from making
or using). this article looks at the positive side of things and states that experimenters
CAN build projects for their own enjoyment.
- The Editor
Many currently available transistor and tube handbooks and other manuals containing
electronic circuit diagrams contain a warning similar to the following: The electronic
devices and circuits disclosed herein may be covered by patents of the John Doe
Company or others. The disclosure of information herein does not grant a license
under any patents covering such electronic devices, such circuits or combinations
of such electronic devices with other devices or other circuit elements.
Some readers may have never noticed this warning, others blithely ignore it,
and some may not fully understand it. Therefore, a brief discussion of such warnings
should be of interest-and could save someone money!
The Patent Owner. Many publishers of literature disclosing circuit
diagrams are in the business of manufacturing and selling components such as transistors,
tubes, and other basic electronic devices. Frequently, they also manufacture equipment
using these components in various combinations and circuit arrangements.
Since these manufacturers want to sell their components and equipment to the
widest possible market, they need to publish information about the components and
how they can be used. Very often, the components themselves and many of the circuits
in which they are used are patented or are the subject of pending patent applications.
These patents (and applications) might be owned by the manufacturer, or by another
firm from which the manufacturer has a license. Or, in some cases, the patents might
even be owned by an independent party who has discovered or invented new ways of
using the components.
In any event, the manufacturer-publisher wants it clearly understood that just
because the information is published, it does not follow that the reader is free
to exploit this information commercially. The patent owner still intends to benefit
from his patent rights and may require a user of any patented invention to take
a license.
Patent Laws. The United States patent laws are very strict.
Whoever owns a valid patent has the right to exclude others from making, using or
selling apparatus embodying the invention covered by any claim of that patent. Therefore,
whoever without authority makes, uses or sells any patented invention, within the
United States during the term of the patent, infringes the patent.1
In a patent infringement lawsuit, the court can award damages adequate to compensate
for the infringement "but in no event less than a reasonable royalty for the use
made of the invention by the infringer, together with interests and costs as fixed
by the court." In some instances, the court may increase the damages up to three
times the amount found or assessed."
Faced with these stringent laws, what risk is there in building circuits disclosed
in publications? It depends to some extent on the purpose for which the circuit
is being built.
The Electronics Hobbyist. It is common knowledge that electronics
experimenters and hobbyists are continually building circuits they find in publications.
Frequently, many of these circuits are patented. As a practical matter, it is impossible
for a patent owner to know which hobbyists and experimenters are actually infringing
his patents.
Fortunately, however, the position of experimenters and hobbyists rests on sounder
legal ground. There are court decisions which hold that experimental use of a patented
invention for the sole purpose of gratifying curiosity or a philosophical taste,
or for mere amusement, is not an infringement.
But this rule cannot be invoked to protect persons (or companies) who use a patented
invention commercially, as in the course of business or for profit. Commercial use
of patented inventions of others invites a charge of patent infringement. This is
true even though the publication from which the particular circuit was obtained
did not contain a notice that the circuits disclosed therein might be patented.
Most companies are very careful to police and enforce their patents - against
the small operator as well as the larger competitor. This is sound and necessary
business practice. The patent owner can require an infringer to stop manufacture,
use, or sale of infringing equipment, or he can require the infringer to take a
license and pay a royalty. Having to stop manufacture and sale of apparatus could
be costly or even ruinous to a small operator. Taking a license, even at a reasonable
royalty rate, is another cost item on a product which could create problems if not
considered in advance.
Minimizing Infringement Risk. It is wise to have a patent search
made before getting into production on apparatus employing electronic circuitry
to see if there are any "live" patents covering the proposed circuitry. If no such
patents are found, the risk is minimized. (Note: There is always the possibility
that a pertinent patent was not found in the search or that a patent was issued
after the search was made.)
If patents are found which might be infringed, you have a chance to consider
the desirability of some sort of license arrangement with the patent owner, or run
the risk of a charge of patent infringement action.
Only a few high points on the subject of patent infringement are covered here.
If you have any doubts about incurring liability for patent infringement through
the use of circuits found in publications for commercial exploitation, the sensible
thing to do is consult a patent attorney, before you make a big investment.
3 69 Corpus Juris Secundum 288
1 Title 35, United States Code, Section 271
2 Title 35, United States Code, Section 284
Posted September 12, 2024
(updated from original post on 6/25/2018)
|
