Thanks Netman, THAT adds even more..
credibility to the KDS/FASC.
I found this study/analysis of
patents on another board to be
quite re-assuring (I changed
the company name but still should
apply to FASC):
What the impact on Fasc will be if:
1) its technology is not patentable, or
2) its technology is already patented by someone else.
Answers:
1. If FASC’s technology is not patentable, FASC can maintain secrecy by treating the technology as a “trade secret, “simply not telling anybody how they do it for at least the timeframe it takes to become dominant trusted provider in the market, or, like Coca-Cola, indefinitely.
Trade Secret definition: a process, method, plan, formula or other information unique to a manufacturer, which gives it an advantage over competitors. Therefore the trade secret has value and may be protected by a court-ordered injunction against use or revelation of trade secrets by an employee, former employee or someone who comes into possession of the trade secret. The employer may seek damages against such a person for revealing the secret. In addition, the owner of a trade secret involved in a lawsuit may request a "protective order" from the judge to prohibit revelation of a trade secret or a sealing of the record in the case where references to the trade secret are made. A trade secret is a business process and not a patentable invention.
2. If FASC’s technology is already patented by someone else and FASC is the one who incorporates it into their processors, gets contracts, etc., then the patent holder can demand licensing fees and get a cut of the profits. A cut does not mean they’re necessarily entitled to a huge chunk of the profits. If, for example, only one part of the invention incorporates said other patent holder’s novel technology, then their right to fees is typically substantially reduced. The court will also take into account other costs, such as manufacturing the processors, marketing, legal fees, inter alia.
First to Invent v. First to File. In the United States, the person to invent something first is the one who gets the rights, whether they file a patent application or not. An inventor can prove their inventiveness by such things as lab notes, samples, etc. In many foreign nations, the person who files the application first is the one awarded the technology.
“Patent trolls” are guys sitting in their basements inventing stuff, but who have no intention of taking it to market. They merely get the patents on it. Then, they sit back and wait for someone else to come along and invent the same technology so they can sue for licensing / royalty fees. I have read that Intellectual Ventures is one such patent troll.
Patentability Searches and Opinions. Corporations that actually plan to use inventions usually hire patent attorneys to perform patentability searches and opinions before filing the patent applications. Patentability searches are usually performed by searchers who go out and search existing patent applications for like or similar technology. The attorney will peruse through those and prepare a patentability opinion, which is an expert opinion of whether the invention is novel, and if there are similar inventions out there, what the chances of infringement are. I trust FASC (Cal) has already had these done and knows where it stands in terms of novelty, and, if novel, how to protect that.
That is why I’m not worried about the patentability issue. FASC’s advisors, investors, and other interested parties, would not (likely) have permitted it to go this far down the road without determining where they stand with the technology. Companies signing contracts with FASC most definitely want to know that patent searches and opinions were performed. These things are standard in the industry whenever proprietary technology is at issue.
