QED

[sido]

Well yes, the fact that a patent has been issued and filed, i would say the threat escalates especially for ML because the product is half way there. It just needs the right major Manufacturer to take action in obtaining the IP, if the owner decides to sell it off.

Obviously ML has taken action and a different path in obtaining the IP of the QED.... in that being suing the owner of it. Not nice by them, but probably they feel that they have paid for that IP many times over due to many things but mainly the expected sales of detectors not looking good so far in the last 3-6 months to shareholders in recent times.

Whats keeping ML and C ahead as a Company is new recent business ventures, nothing to do with Detectors.
Sid

[chudster]

Carl,

The order names Prospective applicants and respondents and orders no costs. This is an early discovery to allow ML to see if there is a case that QED violates ML patents not a pre-trial discovery. If ML finds evidence of patent violation then it will probably proceed and costs will start mounting up. If it does not then ML could still proceed in bluff to mount up costs for some commercial aim (depends on their ethics and tactics) or might drop the case paying the existing costs.

The central question is whether the QED violates ML patents and which ones. Presumably to get this order ML had to show that it has prima facie evidence that one or more patents were breached by the QED design.

What I am concerned about is that people might stop innovating and sharing info on the forums. That might be a collateral aim of ML.

If QED has something unique and patented, it is possible as someone suggested that this is a tactic of ML to obtain the technology or force cross licensing. The lesson from that would be that if you have something special, don't include something special of others that is patented without permission.

It is for sure though that its not good form to denigrate ML or any person/ company because if you start to damage the reputation or future sales because if rumours go around the prospecting community that something better is on the way then do expect some kind of response. There are other laws for denigrating people personally that are another reason. Everyone deserves respect as per forum rules and ML especially for giving us one target of performance and price to aim homebrew at. Dr Candy deserves similar personal respect as a scientist and company founder and by patenting of course we have been told how their stuff works. If you really have something better (and don't use the patents of others you have not sought permission for), then make it and let folks decide.

ML motivation is not known and probably will never be stated. Presumably it is not about malice because of what people have said but has a commercial motivation. That commercial motivation could be about reputation (impact on sales), actual sales or to access better technology. ML are positioned as a premium performer with a premium margin to protect.

I am not in SA but if they are open hearings and someone has the time and inclination to attend the hearings and report then we would learn a little more.

Chudster

[moodz]

A somewhat strange case as I was under the impression that the QED is a project not a product and there is no provision in the patent act for a company to claim discovery of infringing IP where the IP is not being sold or exploited ( ie not a product )

Specifically section 119C of the patent act allows "infringing" acts for the purpose of innovation ???

PATENTS ACT 1990 - SECT 119C

Infringement exemptions: acts for experimental purposes (1) A person may, without infringing a patent for an invention, do an act that would infringe the patent apart from this subsection, if the act is done for experimental purposes relating to the subject matter of the invention.
(2) For the purposes of this section, experimental purposes relating to the subject matter of the invention include, but are not limited to, the following:
(a) determining the properties of the invention;
(b) determining the scope of a claim relating to the invention;
(c) improving or modifying the invention;
(d) determining the validity of the patent or of a claim relating to the invention;
(e) determining whether the patent for the invention would be, or has been, infringed by the doing of an act.


moodz

[hdphilip]

here's some ideas for bugwhisker's defence....

A. wear a name tag that sez....

hello, my name is bugwhiskers, with your cat avatar....


B. Ask ML to prove the QED actully exists......


but, if you walk into the courtroom and the judge is reading a owners manual on a gpx6000. call out for pizza, it's going to be a long day

Good luck Bug's

[chudster]

A somewhat strange case as I was under the impression that the QED is a project not a product and there is no provision in the patent act for a company to claim discovery of infringing IP where the IP is not being sold or exploited ( ie not a product )

Specifically section 119C of the patent act allows "infringing" acts for the purpose of innovation ???

PATENTS ACT 1990 - SECT 119C

Infringement exemptions: acts for experimental purposes (1) A person may, without infringing a patent for an invention, do an act that would infringe the patent apart from this subsection, if the act is done for experimental purposes relating to the subject matter of the invention.
(2) For the purposes of this section, experimental purposes relating to the subject matter of the invention include, but are not limited to, the following:
(a) determining the properties of the invention;
(b) determining the scope of a claim relating to the invention;
(c) improving or modifying the invention;
(d) determining the validity of the patent or of a claim relating to the invention;
(e) determining whether the patent for the invention would be, or has been, infringed by the doing of an act.


moodz

Yes, there are exemptions for experimentation. I assume that the QED must have gone beyond that or that the order sought seeks to see if it has gone beyond that and that they have some reasonable grounds for that. Again in seeking the orders some kind of evidence must have been presented and that could have been posts or statements on forums.

So it is presumed that there is evidence that the QED design reasonably uses infringing IP and that it has been used (say to find gold or treasure) in a way that was not for experimental purposes. Lab books and experimental records traditionally define the experimental use and if it is shown that the product was used outside of experiments such as are detailed in those experimental records (and especially used for commercial purposes) then patent rights to exclude manufacture, use, offer for sale or sell come into force. This could be by being given to others to use or demonstrated to someone for a potentially commercial purpose. Certainly statements (if they were made) like: "This will kill Minelab (or its sales)". "Wait 'til this is on the market" etc are not helpful.

IANAL but as to the court remedy that could just be to cease and desist anything but experimental activities or to remove the infringing IP or pay a royalty on future units sold (or given away). As to damages there are court costs and if a device has been used personally, a court might order something like the payment of some profits for that use. Usually, these cases are between commercial enterprises and I am not aware of cases against 'hobbyists' or even people that make one for their own use. This might be a precedent and we should all watch closely to see where the line is.

Chudster

[chudster]

Yes, there are exemptions for experimentation. I assume that the QED must have gone beyond that or that the order sought seeks to see if it has gone beyond that and that they have some reasonable grounds for that. Again in seeking the orders some kind of evidence must have been presented and that could have been posts or statements on forums.

So it is presumed that there is evidence that the QED design reasonably uses infringing IP and that it has been used (say to find gold or treasure) in a way that was not for experimental purposes. Lab books and experimental records traditionally define the experimental use and if it is shown that the product was used outside of experiments such as are detailed in those experimental records (and especially used for commercial purposes) then patent rights to exclude manufacture, use, offer for sale or sell come into force. This could be by being given to others to use or demonstrated to someone for a potentially commercial purpose. Certainly statements (if they were made) like: "This will kill Minelab (or its sales)". "Wait 'til this is on the market" etc are not helpful.

IANAL but as to the court remedy that could just be to cease and desist anything but experimental activities or to remove the infringing IP or pay a royalty on future units sold (or given away). As to damages there are court costs and if a device has been used personally, a court might order something like the payment of some profits for that use. Usually, these cases are between commercial enterprises and I am not aware of cases against 'hobbyists' or even people that make one for their own use. This might be a precedent and we should all watch closely to see where the line is.

Chudster

Its also unusual (but not impossible) to go to court without some kind of warning letter which states the grievance to BW. Not sure if he received anything from Minelab prior but any such letter would give a clue. This from the IP Australia website about an application for preliminary discovery:

"You may not know the identity of an infringer until you gain access to relevant information and documents not in your possession.
An order for preliminary discovery requires a person to give information about possible infringers to a plaintiff. The person concerned may not end up being a defendant, but merely someone who has relevant information or documents."

BW is named as the potential respondent but may actually not be the target (or the only target) depending on what they discover. I could foresee that BW has experimented and given info to someone else who is not using it for experimental purposes and may be making the design and selling it although it looks like they are chasing him. That is all speculation though. BW and Minelab probably know.

Chudster

[Aziz]

Hi all,

and greetings to the Chinese.

BTW Chinese.
ML must have an enourmous fear from the Chinese.
Don't call Chinese too much often. You will very likely cause the red alert state somewhere in Australia and get sued. Be polite to ML and Chinese.


Chinese. Chinese. Chinese. Chinese. Chinese. Chinese. Chinese.
(I hope someone is going to sue me too...)

Soon to be released: A ML killer detector.
Produced in
Chinese. Chinese. Chinese. Chinese. Chinese. Chinese. Chinese.
(I hope someone is going to sue me now...)

Soon to be given the WBGB technology to the
Chinese. Chinese. Chinese. Chinese. Chinese. Chinese. Chinese.
(I hope someone is going to sue me now...)

Soon to be released: A Tablet PC based ML killer detector.
Produced in
Chinese. Chinese. Chinese. Chinese. Chinese. Chinese. Chinese.
(I hope someone is going to sue me now...)


*LOL*
ML is making itself totally ridiculous.
I never never ever will buy a ML detector.
(I hope someone is going to sue me now...)

Aziz

[Aziz]

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

[Aziz]

Now a good opposite comparison:

If ML is seeking all the QED IP (including source code) then should bugwhisker seek the same from ML so that he can show, that he isnt using ML's IP?
?????

ML will lose the case blatantly!!!!
And ML shows its anti-competitive behaviour at best!!!
Aziz

[WM6]

A somewhat strange case as I was under the impression that the QED is a project not a product and there is no provision in the patent act for a company to claim discovery of infringing IP where the IP is not being sold or exploited ( ie not a product )

I am thinking in the same way.

Remember what the ML site (so called "fluonders") constantly argued and argues: "QED is not on market and never will be - it is questionable if QED even exist!"

Only on marketed product Patent act, Competitions act, and other free market act can be applied.
In no case on project in experimental phase or even on "non-existing things".
In experimental phase you can try what you want in your creation, even BBS, FBS, DVT, SETA, MPS technology - whatever you want. Without any patent infringement.

In case of QED, ML has no basis to file lawsuit against BW, and BW is not obliged to give ML QED dossier.
It is on his lawyer to file a complaint to the court and refuse to extradite QED documentation to ML, because there is no legal basis for such request.

OK, if there any possible infringement in source code exist, such creation will be blocked from future marketing in such way of legal defence.
Is this ML goal as sort of ML revenge for too much superfluous verbal fight in past? Can be.

Patents Act changes
Changes made by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 relevant to the Patents Act 1990
Schedule 1 - Raising the quality of granted Patents
http://www.ipaustralia.gov.au/about-us/public-consultations/ip-reforms/raising-the-bar-patents/

Research exemption
Section 119C - introduces an exemption from Patent infringement for experimental activities relating to Patented inventions.
The exemption will apply to all research activities where the predominant purpose of those activities are to gain new knowledge, or test a supposition or principle about the invention or improve on, or modify the invention

http://www.alrc.gov.au/publications/9-challenging-and-enforcing-patent-rights/challenges-patent-rights
Hence, if the research is conducted solely to improve a patented invention the activity would still be exempt, even if it was intended to commercialise the improvement.
PATENTS ACT 1990 - SECT 119C
Infringement exemptions: acts for experimental purposes
(1) A person may, without infringing a patent for an invention, do an act that would infringe the patent apart from this subsection, if the act is done for experimental purposes relating to the subject matter of the invention.
(2) For the purposes of this section, experimental purposes relating to the subject matter of the invention include, but are not limited to, the following:
(a) determining the properties of the invention;
(b) determining the scope of a claim relating to the invention;
(c) improving or modifying the invention;
(d) determining the validity of the patent or of a claim relating to the invention;
(e) determining whether the patent for the invention would be, or has been, infringed by the doing of an act.

PATENTS ACT 1990 - SECT 123
Innocent infringement
(1) A court may refuse to award damages, or to make an order for an account of profits, in respect of an infringement of a patent if the defendant satisfies the court that, at the date of the infringement, the defendant was not aware, and had no reason to believe, that a patent for the invention existed.
(2) If patented products, marked so as to indicate that they are patented in Australia, were sold or used in the patent area to a substantial extent before the date of the infringement, the defendant is to be taken to have been aware of the existence of the patent unless the contrary is established.
(3) Nothing in this section affects a court's power to grant relief by way of an injunction.

[WM6]

Yes, there are exemptions for experimentation. I assume that the QED must have gone beyond that or that the order sought seeks to see if it has gone beyond that and that they have some reasonable grounds for that. Again in seeking the orders some kind of evidence must have been presented and that could have been posts or statements on forums.

So it is presumed that there is evidence that the QED design reasonably uses infringing IP and that it has been used (say to find gold or treasure) in a way that was not for experimental purposes. Lab books and experimental records traditionally define the experimental use and if it is shown that the product was used outside of experiments such as are detailed in those experimental records (and especially used for commercial purposes) then patent rights to exclude manufacture, use, offer for sale or sell come into force. This could be by being given to others to use or demonstrated to someone for a potentially commercial purpose. Certainly statements (if they were made) like: "This will kill Minelab (or its sales)". "Wait 'til this is on the market" etc are not helpful.

IANAL but as to the court remedy that could just be to cease and desist anything but experimental activities or to remove the infringing IP or pay a royalty on future units sold (or given away). As to damages there are court costs and if a device has been used personally, a court might order something like the payment of some profits for that use. Usually, these cases are between commercial enterprises and I am not aware of cases against 'hobbyists' or even people that make one for their own use. This might be a precedent and we should all watch closely to see where the line is.

Chudster

Prety true, yes, but there is no need to give ML anything with such way "experimental phase" defence.
Even if a couple of such experimental apparatus was tested in field.
This is on BW lawyers.

[chudster]

Now a good opposite comparison:

If ML is seeking all the QED IP (including source code) then should bugwhisker seek the same from ML so that he can show, that he isnt using ML's IP?
?????

ML will lose the case blatantly!!!!
And ML shows its anti-competitive behaviour at best!!!
Aziz

Aziz,

I don't know the details of whether the material is only available to independent experts or their patent counsel or to the Minelab tech team but we have a very developed legal system here that was taken from and still relies on British Law. Clearly it doesn't allow people to apply to the courts on spurious grounds to steal competing IP; however that might be the effect. If it is the effect then its probably due to things that have been said in online forums. I haven't read all of the posts about minelab and the QED but I think I saw warnings at least from Carl about that.

I am not an apologist for Minelab (and for the record I have no association with them), but they do have a business to protect including jobs and yes, shareholders returns too. It is clear that Minelab has acted before to protect its patents and interests and no doubt it will again. They have a premium product with premium performance and obtain a premium margin for it backed up by those patents. While they have provided a fantastic target for us to aim our development at but if you poke a bear in a cage you'd better be sure the bars are strong..... especially if $100m of revenue is at risk.

Minelab are due respect for their achievements even if they are your 'enemy'. You are due respect for your opinion and achievements also. You may not be aware but at one large international corporation (household name) it is instant dismissal if you denigrate the opposition. Fine though to talk about one's positive strengths. We could all learn from that..... including Minelab who has to be wary that hitting the little inventor is a bad look from someone who is supposed to have the 'ducks nuts' of technology. Of course if QED claims are affecting sales (without any offering for people to buy) and it can be shown that QED performance is based on their patents, then perhaps they win.

Do Minelab have a right to what is in the orders including source code? Well a judge thought so. Was she/he justified? Well arguments were given and the law applied.

Does Minelab have to provide source to BW? Yes if he has evidence of patent infringement of his patent(s) technically, he can do exactly the same thing.

Yes the law is an as*, but its the only thing besides self preservation that keeps that lunatic on the other side of the road from crossing a smattering of white paint and colliding head on with you. Such that minelab behave ethically or unethically in coming through the bars then lets watch and be judge and jury ourselves on how they treat developers on forums. The court of public opinion is in session and how this action to target the QED is interpreted by all those minelab customers may be as weakness and not strength.

Chudster

[chudster]

I am thinking in the same way.

Remember what the ML site (so called "fluonders") constantly argued and argues: "QED is not on market and never will be - it is questionable if QED even exist!"

Only on marketed product Patent act, Competitions act, and other free market act can be applied.
In no case on project in experimental phase or even on "non-existing things".
In experimental phase you can try what you want in your creation, even BBS, FBS, DVT, SETA, MPS technology - whatever you want. Without any patent infringement.

In case of QED, ML has no basis to file lawsuit against BW, and BW is not obliged to give ML QED dossier.
It is on his lawyer to file a complaint to the court and refuse to extradite QED documentation to ML, because there is no legal basis for such request.

OK, if there any possible infringement in source code exist, such creation will be blocked from future marketing in such way of legal defence.
Is this ML goal as sort of ML revenge for too much superfluous verbal fight in past? Can be.

Patents Act changes
Changes made by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 relevant to the Patents Act 1990
Schedule 1 - Raising the quality of granted Patents
http://www.ipaustralia.gov.au/about-us/public-consultations/ip-reforms/raising-the-bar-patents/

Research exemption
Section 119C - introduces an exemption from Patent infringement for experimental activities relating to Patented inventions.
The exemption will apply to all research activities where the predominant purpose of those activities are to gain new knowledge, or test a supposition or principle about the invention or improve on, or modify the invention

http://www.alrc.gov.au/publications/9-challenging-and-enforcing-patent-rights/challenges-patent-rights
Hence, if the research is conducted solely to improve a patented invention the activity would still be exempt, even if it was intended to commercialise the improvement.
PATENTS ACT 1990 - SECT 119C
Infringement exemptions: acts for experimental purposes
(1) A person may, without infringing a patent for an invention, do an act that would infringe the patent apart from this subsection, if the act is done for experimental purposes relating to the subject matter of the invention.
(2) For the purposes of this section, experimental purposes relating to the subject matter of the invention include, but are not limited to, the following:
(a) determining the properties of the invention;
(b) determining the scope of a claim relating to the invention;
(c) improving or modifying the invention;
(d) determining the validity of the patent or of a claim relating to the invention;
(e) determining whether the patent for the invention would be, or has been, infringed by the doing of an act.

PATENTS ACT 1990 - SECT 123
Innocent infringement
(1) A court may refuse to award damages, or to make an order for an account of profits, in respect of an infringement of a patent if the defendant satisfies the court that, at the date of the infringement, the defendant was not aware, and had no reason to believe, that a patent for the invention existed.
(2) If patented products, marked so as to indicate that they are patented in Australia, were sold or used in the patent area to a substantial extent before the date of the infringement, the defendant is to be taken to have been aware of the existence of the patent unless the contrary is established.
(3) Nothing in this section affects a court's power to grant relief by way of an injunction.

IANAL but when you look at them, all these defences and exemptions are quite narrow. For example: innocent infringement would have to show that he was not aware of minelab and its patents. Hmmmm given public statements that may be hard...... The best one is probably 119C(c). BW needs good legal advice if he is to rely on any of these. I think if you re-read my posts you'll see the legal issues I can see at play that the court will look at:

1) Does QED use ML patents?
2) If it uses them, what was the use that BW or others have put the QED to.
3) If it does use them, BW or the users could offer a defence that the patent was invalid (which would need to be proven).
4) If those uses are not exempt, the patent is valid, and QED used them, then what was the damage in lost sales or how otherwise can the infringement be remedied by the 'users'?

Sorry but that is how the courts look at it.

With (4) If it gets to that stage, a good lawyer you might get a sympathetic judge that BW was just a backyard tinkerer with no commercial ambition. The judge might be shown a lot of the posts that either support that or don't ..........

Remember too that the final target may not be BW.

Chudster

[Aziz]

Sorry Chudster,

but I do not fully agree with you.

ML has opened the box of pandora and there is no way to go back now.
I hear someone calling "Fire in the hole!".

Aziz

[chudster]

Sorry Chudster,

but I do not fully agree with you.

ML has opened the box of pandora and there is no way to go back now.
I hear someone calling "Fire in the hole!".

Aziz

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