QED

[moodz]

Oh sure ML has opened Pandora's box in setting precedents. I agree with you. Actually I have just been reading some posts on other forums about the QED and lots of claims, impending commercial release and that was years ago from folks. If BW was to 'give' his design to someone else like the Chinese they still have to get them past customs in the USA and wherever ML have patents. Maybe you are safe that they will get into Germany though so you don't have to buy a ML. If it could be proved that one of the 'users' in the law suit did this or was involved with it, it might be interesting in (4) the determination of damages.....

I don't think rattling the cage of the bear more helps anyone- especially BW.

Chudster

Patent law is somewhat less clear than laws relating to anti-competitive behaviour and bonus the ACCC will fight the case for you in certain circumstances.

Misuse of market power (s46)

The Competition and Consumer Act 2010 has specific provisions prohibiting powerful players from abusing their market power. These prohibitions are contained in s. 46 of the Act, which prohibits the misuse of market power.
The tests for misuse of market power

To determine whether there has been a misuse of market power, three questions have to be answered.

1. Does the company have substantial market power?
2. Is it taking advantage of that power?
3. Is it using the power for an illegal purpose?

Substantial market power

Market power is the ability of a firm to insulate itself from competition. The market has to be defined by asking three questions:

1. What products are sufficiently close substitutes (the relevant product market)?
2. What firms are sufficiently proximate to compete effectively (the relevant geographic market)?
3. What is the functional level of the market?

Within that market a firm’s market power will be determined by a combination of factors including:

• how difficult it is for competitors to enter the market
• the firm’s ability to behave with little regard to what its competitors, suppliers or customers do
• the firm’s market share
• the firm’s financial strength
• the firm’s ability to consistently restrict competition.

The firm may have a substantial degree of power in a market even though:

1. the body corporate does not substantially control the market; or
2. the body corporate does not have absolute freedom from constraint by the conduct of:
   1. competitors, or potential competitors, of the body corporate in that market; or
   2. persons to whom or from whom the body corporate supplies or acquires goods or services in that market.
   
   

Taking advantage of market power

To take advantage of substantial market power requires only that the power be used: Queensland Wire Industries Pty Ltd v BHP (1989) ATPR 40-925.

In determining whether, by engaging in conduct, a corporation has taken advantage of its substantial degree of power in a market, the court may have regard to any or all of the following non-exhaustive factors:

1. whether the conduct was materially facilitated by the corporation's substantial degree of power in the market;
2. whether the corporation engaged in the conduct in reliance on its substantial degree of power in the market;
3. whether it is likely that the corporation would have engaged in the conduct if it did not have a substantial degree of power in the market;
4. whether the conduct is otherwise related to the corporation's substantial degree of power in the market.

Illegal purpose

It is not illegal to have market power or to use it. Only if the conduct is engaged in for an illegal purpose is there a contravention. The Act spells out illegal purposes as follows:

• eliminating or substantially damaging a competitor
• preventing the entry of a person into that or any other market
• deterring or preventing a person from engaging in competitive conduct in any market

The courts have established that the illegal purpose need not be the only purpose, nor even a dominant purpose: Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) 75 ALR 581. It is enough that it be one of the purposes, and a substantial one.



...which in the case of a multi million dollar company litigating against a hobbyist ????


and the legal interpretation ...

[PATCHES JUNIOR]

Aziz, I am sure BW really likes the way you are supporting him here. Keep up the good work. He needs more friends like you. Especially the Chinese ranting.

[chudster]

Patent law is somewhat less clear than laws relating to anti-competitive behaviour and bonus the ACCC will fight the case for you in certain circumstances.

Misuse of market power (s46)

The Competition and Consumer Act 2010 has specific provisions prohibiting powerful players from abusing their market power. These prohibitions are contained in s. 46 of the Act, which prohibits the misuse of market power.
The tests for misuse of market power

To determine whether there has been a misuse of market power, three questions have to be answered.

1. Does the company have substantial market power?
2. Is it taking advantage of that power?
3. Is it using the power for an illegal purpose?

Substantial market power

Market power is the ability of a firm to insulate itself from competition. The market has to be defined by asking three questions:

1. What products are sufficiently close substitutes (the relevant product market)?
2. What firms are sufficiently proximate to compete effectively (the relevant geographic market)?
3. What is the functional level of the market?

Within that market a firm’s market power will be determined by a combination of factors including:

• how difficult it is for competitors to enter the market
• the firm’s ability to behave with little regard to what its competitors, suppliers or customers do
• the firm’s market share
• the firm’s financial strength
• the firm’s ability to consistently restrict competition.

The firm may have a substantial degree of power in a market even though:

1. the body corporate does not substantially control the market; or
2. the body corporate does not have absolute freedom from constraint by the conduct of:
   1. competitors, or potential competitors, of the body corporate in that market; or
   2. persons to whom or from whom the body corporate supplies or acquires goods or services in that market.
   
   

Taking advantage of market power

To take advantage of substantial market power requires only that the power be used: Queensland Wire Industries Pty Ltd v BHP (1989) ATPR 40-925.

In determining whether, by engaging in conduct, a corporation has taken advantage of its substantial degree of power in a market, the court may have regard to any or all of the following non-exhaustive factors:

1. whether the conduct was materially facilitated by the corporation's substantial degree of power in the market;
2. whether the corporation engaged in the conduct in reliance on its substantial degree of power in the market;
3. whether it is likely that the corporation would have engaged in the conduct if it did not have a substantial degree of power in the market;
4. whether the conduct is otherwise related to the corporation's substantial degree of power in the market.

Illegal purpose

It is not illegal to have market power or to use it. Only if the conduct is engaged in for an illegal purpose is there a contravention. The Act spells out illegal purposes as follows:

• eliminating or substantially damaging a competitor
• preventing the entry of a person into that or any other market
• deterring or preventing a person from engaging in competitive conduct in any market

The courts have established that the illegal purpose need not be the only purpose, nor even a dominant purpose: Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) 75 ALR 581. It is enough that it be one of the purposes, and a substantial one.



...which in the case of a multi million dollar company litigating against a hobbyist ????


and the legal interpretation ...


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Moodz,

Good post. This underlies the need for folks to get good legal advice. Anyway my take FWIW.

This is a different argument to using the 119C exemptions of a 'hobbyist'. If you go down this path you are saying this is no longer a case of folks experimenting. You would be claiming that ML was anticompetitive stopping entry of a new competitor through a legal abuse of process. You would probably use this if QED was really due for market intro and ML was pursuing a case that had no prospect of success, was in disregard of established facts etc.

This goes as to the ethics of ML in pursuing a case where there is no infringement. If there is infringement and ML doesn't exhibit bad ethics in pursuing a dead horse infringement case then don't expect the ACCC to step in and would probably be reluctant to do so.

The kinds of things that would be looked at (assuming infringement) were settlement offers like did the QED 'users' offer to license the patent on reasonable commercial terms and was minelab likewise reasonable if it refused offers. I would imagine if that step was not completed the ACCC would be hard pressed to intervene.

It also would be relevant if after many years of promises, introduction was finally going to happen and this prompted the action or could a case be made that as for the many past years, no market entry was imminent?

First steps first and the 1,2,3,4 of my last post is probably the way folks need to think before relying on the ACCC.

In short you would need to show that minelab was exhibiting anticompetitive behaviour in the course of a (valid??) patent infringement case.

I would imagine that the case would have to go some ways before you could possibly rely on this.

As I said good advice is needed. It is at odds with a hobbyist experimental argument and I would imagine this is way down the track.

The 'users' need to think stepwise. The simplest outcome is if the QED does not use the ML patents then nothing else matters. That is the place to start.

Chudster

[Aziz]

Aziz, I am sure BW really likes the way you are supporting him here. Keep up the good work. He needs more friends like you. Especially the Chinese ranting.

O boy!, did you really think, that I did mean the QED with the Chinese option?
Keen on dreaming!!!

I have some nice projects, which can be given to the Chinese....
including the WBGB technology...

Chinese, ..Chinese, ..Chinese, ..Chinese, ..Chinese, ..Chinese, ..
are coming to eat you and your profits....

Aziz

[chudster]

O boy!, did you really think, that I did mean the QED with the Chinese option?
Keen on dreaming!!!

I have some nice projects, which can be given to the Chinese....
including the WBGB technology...

Chinese, ..Chinese, ..Chinese, ..Chinese, ..Chinese, ..Chinese, ..
are coming to eat you and your profits....

Aziz

This has all been too serious. As Moodz likes Monty Python there is only one appropriate response:

http://www.youtube.com/watch?v=04QoA44c23A

'nuff said

[Aziz]

This has all been too serious. As Moodz likes Monty Python there is only one appropriate response:

http://www.youtube.com/watch?v=04QoA44c23A

'nuff said

Damn f"§$%§$% kraut's GEMA doesn't allow me to see it.
http://www.youtube.com/watch?v=AUZDMQ_QyIc
(this seems to work...)

[Aziz]

Hey PJ,

PJ rants:

Do not forget their latest puppet, AZIZ!! (Zugs)

http://www.finders.com.au/forum/viewtopic.php?t=7170

Tell the market leader, that I'm looking forward to be sued.

I think, it's time to get the "total metal detector war" starting....


Wait...
Chinese.. Chinese.. Chinese.. Chinese..Chinese.. Chinese..

MUAHAHAHAHAHAHAH

Aziz

[WM6]

Remember too that the final target may not be BW.

Very likely, I think.

[PATCHES JUNIOR]

Well guys,

ML is trying to steal some blokes IP. Why do you think, why they want to have everything? (incl. source code).

If ML is allowed to see everything, I would suggest, that we all should see it too to make up our owns minds.

(Should the Chinese allowed too?)
Aziz

I wish you would say who are you talking about when you say "ML" in your statement I quoted? Do you mean Minelab?

[Aziz]

I wish you would say who are you talking about when you say "ML" in your statement I quoted? Do you mean Minelab?

Market Leader!!!! Or short ML.


BTW, the company you are talking about is being watched...

Aziz

[Aziz]

Now PJ,

tell us more about your association with the mentioned company. I think the readers are interested to know, what you are doing.

[Davor]

No, they are not.

[PATCHES JUNIOR]

No, they are not.

Your right Davor. They know who they want. Aziz should of been informed by his mentor by now. As far as working for Minelab, I wish I did! Would not have to get up all hours of the night to check irrigation. Getting too old for that stuff. Or even making the money that Aziz makes would be nice.

[Davor]

As if I give a fa.t. A sissy company that relies on know-it-all policy reminds me only on Pablo Francisco's show where he presents how Keanu Reeves and Morgan Freeman know too much
http://www.youtube.com/watch?v=Wuo6T1ieWkk

All the passion, all the persistence ... just because you hate irrigation?

Sorry, I'll miss that. NOT INTERESTED!

[PATCHES JUNIOR]

As if I give a fa.t. A sissy company that relies on know-it-all policy reminds me only on Pablo Francisco's show where he presents how Keanu Reeves and Morgan Freeman know too much
http://www.youtube.com/watch?v=Wuo6T1ieWkk

All the passion, all the persistence ... just because you hate irrigation?

Sorry, I'll miss that. NOT INTERESTED!

Seeing where you are from I understand your view. I think Aziz has the same problem. Sorry that you have that view, but anyone would in your situation.

Oh ya, in case you did not figure it out, that Youtube video you linked is a movie! You I hope know it is not real. Maybe not. But I hope your smart enough to figure it out. I hope everything is going good for you my friend. And stop believing what you see in the movies!!!!