I've been studying some patent law via a patent law firm. I came across something that at 1st glance, would seem to contradict what I've been saying about the separation of patent validity and patent infringement and that the trials are about infringement and not validity as some insist is the case. I fact I was ready to post that I apparently was wrong or at least partially wrong. However, a closer examination of the apparent contradiction to what I've been saying, turns out, I think, to support my contention fully. Sometimes the way a piece is written may be or cause ambiguity.
1st, I'll post the sentence that appears to contradict what I've been saying. My previous post is there to show the apparent conflict and comparison to the actual law. Here is the apparent conflicting statement of law that makes what I said previously sound to be wrong:
"1. Ownership of a Valid Patent
The first general element of a patent infringement claim requires proof of two specific sub-elements: ownership of the patent in question, and the patent’s validity."
Ok, that seems to contradict my contention. But now read this, from the same set of laws and from the same patent law office...
"Registration with the USPTO involves an extensive review process before approval. Issuance of a patent therefore creates a presumption of validity."
Well, I have been saying EXACTLY THAT over and over many times for years based on common sense and as I've noted, that usually turns out to be right once all the rubble is cleared. Those 2 very points..... That the uspto is the go to and makes an extensive review, which by the way, is far more knowledgeable and expert that anyone other entity that is involved in patent validity. And the fact that BECAUSE of that very fact, THERE IS INDEED A PRESUMPTION OF VALIDITY!!! That is what I have been saying so many times over and so many have said I was wrong. Well, there is the quote from patent law and a patent law firm. It agrees and VALIDATES what I've been saying for the past 6 or 7 yrs, unequivocally.
Now obviously, it's possible for the uspto to have made a mistake or missed something and been in error and that's why there is the IPR laws as well as any other method of showing possible invalidity within the purview of the courts.
And so, there have been the challenges made against validity, essentially against the uspto, who is presumed to be right, in the original issuance of the patents. And there's been a ton of them and in my opinion, due to the powerful effect of the sawyer letters, across the board, all the IPRs were ruled in favor of validity. Original validity. Nothing was changed. It's the exact same validity that was part of the original patenthood. So that's what I've meant, all along, when I've said that the IPR rulings left nothing gained nothing lost, although I have tried to remember to include the estoppel rule of law, as I was told about here, that says that past validity challenges cannot be brought up again which is an important thing. There were many separate and specific challenges made and many of them were duplicates of other claims, but they've all been ruled on in favor of vplm and so that at least keeps things moving fwd I must admit. But those things above only applied to the initial bringing of suit. 2 basic things that have to be gotten out of the way 1st before moving fwd and given the IPR history, that prerequisite was out of the way immediately. Not an issue. So with those 2 things out of the way right off the bat, all that's left is INFRINGEMENT. PROVING INFRINGEMENT! And that's what I've been saying. So AGAIN.....validity is not the issue. Infringement is.
All my commentary is to be considered as my personal opinions, to which I am entitled. And there is no proof of said opinions unless I offer it in the comments.
