May 6, 2021

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Case Filed Against Issen Alibris – Fedida Civil Decision

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The fourth patent examiner for the Issen Alibris case, in what is expected to be a very tight race, has set a contentious schedule for the final examination of the proposed invention. The schedules have been established by the United States Patent and Trademark Office (USPTO). If no compromise can be reached, then the patent will be granted on all relevant claims. There is a high degree of unpredictability and risk associated with this process, not least from the fact that a patent is such a long-term creation that it is virtually impossible to predict what technologies or discoveries will become apparent in the future. This unpredictability and risk make scheduling such a process important.

issen alibris

One of the issues the examiner will be examining is the scheduling of the three-year period during which the claimed invention was conceived. The patent claims herein were filed in July of 2021. Subsequent to the filing of the application in July, there were many years of research and development during which significant new advances in the technology underlying the inventions were made. Based on the historical record and the facts giving rise to the invention, it is apparent to a qualified expert in the field as to when these technologies became clear and when they were learned. Specifically, there was considerable long-term and intensive research in the area of electrical engineering prior to the filing of the patent applications in 2021.

Pursuant to the second claimed invention, the second patent applicant contends that it is likely that he actually did know about the invention prior to the filing of the patent application in July 2021. The first claimed invention was based on information that the first applicant had learned and/or learned from watching the programs on television concerning the benefits and advantages of using a digital phone. The information came from observations of his wife talking on the phone one day and of what she said as she listened to the telephone program. These facts giving rise to the first claimed invention were not, as the second applicant would like to have them, deduced from any prior art or information disclosing that an invention was known before the filing of the patent application in July 2021. Thus, based on the information that the first applicant received and learned, he reasonably could have known about the existence of a digital phone prior to the filing of the patent application in July 2021. Accordingly, this contention is not based on any fact or facts giving rise to a likelihood of an award of damages.

As previously noted, on appeal, the claim is based on a Rule 12(b) claim for violation of a Rule 12(b) privilege. This means that, if a Rule 12(b) privilege claim has been infringed, the defendant must take adverse action. There is no question that the Rule 12(b) privilege provides protection to individuals against the costs and expenses of litigating litigation in the United States courts. It also provides broad protection against the penalties for witness intimidation and against activities related to securities fraud. However, the United States Supreme Court has held that Congress never intended to limit the protection afforded the person against the costs and expenses described in the Rule 12(b).

In the present case, the plaintiff’s counsel is attempting to raise an inference of a Rule 12(b) violation in the underlying case without relying on admissions of the defendant at trial. Specifically, the complaint asserts that the defendant waived its right to discovery because it signed a non-dischargeable written statement admitting that it had engaged in conduct constituting a violation of the patents’ patent rights. We do not agree with the premise. We hold that the motion to dismiss is proper under the circumstances described in this case and therefore, we affirm the dismissal of the complaint.

Pursuant to the rules of descent and distribution, a patent-holder is not entitled to automatic protection fromiovening patent infringement suits in the United States under the Patent Law. The Patent Law provides that, where an invention is issued the patent-holder, by virtue of an exclusive license, may protect the subject matter from competing uses for a designated period of time, termed the patentability period. The patent laws also set forth a process for dealing with issued patents that are found to be fraudulent or invalid. As part of this process, the US Patent Office requires that, before the Patent Office will grant a patent, it must determine whether the claimed invention is legally patentable. The claimed invention is then subjected to the rule of compulsory process, which bars the party bringing suit against the competitor for infringements not disclosed within the patentability period.

The complaint against the defendant herein involves a claim of violations of the federal and state fair credit reporting act. Specifically, the complaint contends that defendants failed to disclose material information relating to their prior art that would have changed the scope of protection for their inventions. Specifically, the complaint notes that defendants did not disclose prior art when applying for the patent in California. Further, the complaint further contends that defendants failed to disclose material information relating to the invention prior to offering to sell the product in California. Finally, the complaint contends that defendants failed to disclose their knowledge that they were violating the statute when they filed their patent in California.

On October 6, the court entered judgment in favor of the plaintiff and dismissed the complaint against defendants. The court found that the complaints against the two defendants failed to state a claim for patent infringement, that the claimed invention was legally patentable but not that the defendants violated the statute of limitations. Pursuant to the statute of limitations, the plaintiff must file a complaint within a year of the date of the ruling of the court in an action under the law. If no complaint is filed, the statute of limitations begins to run from the earliest of the date that an action may be brought. Accordingly, on October 6, the court entered judgment against Issen Alibris and permanently dismissed his complaint for lack of a case.

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