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Obtaining broad, high quality patent protection requires specialized legal and technical expertise, and the investment of several thousands dollars- typically at a cost of about $6-10K to prepare and file the patent application. However, if you are a small entity (i.e., a small business or individual) on a very limited budget we can usually provide you fee reduction assistance (usually 50% off; i.e., $3,000-$5,000) if our docket permits. If you are looking for low-cost, quality oriented Provisional Patent, that usually 50% of our Utility Patent Application fee (i.e., as low as $1,500-$3,000, depending upon case complexity). Just give us a call or request a quote to check for current pricing availability.
As experts in patents, our legal practice has been very successful in winning valuable patents (click here for 100's of sample patents) for our clients. Clients of the firm always deal directly with our principle partner, Ariel Bentolila, on all of their legal matters, and are assured personal attention, open and direct communication, and the highest quality legal services, which we have consistently rendered to well over 1000 clients served over our 10 years of legal practice. We look forward to adding you to our ever growing ranks of satisfied clients (click here for representative client endorsements).
Provisional U.S. Patent Applications
One of the fall outs from implementing GATT in the United States is the provisional patent application. While certain other jurisdictions have had provisional patent applications for years, this is a first for the United States. Provisional patent applications have been able to be filed since June 8, 1995, when certain GATT mandated patent law changes came into effect, including the new twenty year patent term measured from an application's effective filing date.
Does GATT dictate adoption of Provisional Patent Applications? Certainly not! Provisional Patent Applications are being provided out of a sense of fairness. Allow us to explain . . .
Purpose and Effect
The lifetime of a U.S. Patent is now twenty years from its effective filing date. For foreigners that might well be 21 years from the filing date in their home country patent application if they wait until the end of the one year time period for filing an application in the United States claiming priority to their home country application under the Paris Convention. In order to give U.S. applicants basically the same privilege, the provisional patent application was created.
If a provisional patent application is filed first, then a regular U.S. patent application may be filed within one year claiming priority from the provisional application. The patent subsequently granted on that regular U.S. application will then also have a lifetime of 21 years from the filing date of the provisional application, provided the regular application is filed at the end of the one year time period. It is to be noted that the provisional patent application does not mature into a patent -- rather it expires after its one year lifetime. It simply gives a subsequently filed regular patent application the possibility of a 21 year lifetime measured from the filing date of the provisional application.
Although provisional patent applications were created to give U.S. applicants parity with foreign applicants, there is no requirement that the applicant be a U.S. National or Resident. Foreign applicants can also file provisional patent applications, they cannot, however, claim priority to another patent application in a provisional application. Nevertheless, foreign patent applicants may well want to file provisional patent applications in the United States. The reasons why foreign applicants may find it a good idea to do so are discussed below.
A provisional application differs from a regular application in a number of ways:
1. Provisional applications are not examined on their merits and cannot mature into issued patents - thus, once they serve their purpose, they expire.
2. The official filing fees are lower (as of 2011): $220 for large entities and $110 for small entities - but the usual filing feesmust still be paid when the regular patent application is subsequently filed.
3. The paper work involved in filing a provisional application is less than for a regular patent application. Also, the provisional application does not need to include claims or acknowledge the prior art. However, it does require a full description of the invention.
4. Provisional applications cannot claim priority from other applications. But a regular patent application can claim the benefit of multiple provisional applications or the benefit of a combination of provisional and regular filings and/or a foreign application from which priority is claimed under the Paris Convention, so long as the regular patent application is filed within one year of such applications.
Provisional Patent Applications - Advantages and Disadvantages
So far provisional patent applications sound pretty good. One might note that there are few disadvantages even if the provisional patent application is properly used. If it is improperly used, well then that is a different story, as we shall soon see.
As noted above, provisional patent applications may be filed by both U.S. and non-U.S. applicants. As is turns out, the advantages (and disadvantages) to a U.S. applicant differ from those of a non-U.S. applicant. As such, the benefits and drawbacks of utilizing provisional patent applications differ for such applicants and, therefore, these matters are treated separately below for U.S. and non-U.S. applicants.
Advantages for U.S. Applicants:
1. Provisional patent applications are relatively inexpensive to file.
2. The eventually filed regular application will then have a life which might be as long as 21 years from the filing date of the provisional application.
3. The regular application filed within one year does not have to be identical to the provisional application it replaces. Thus, the regular application can serve the function of a continuation-in-part application. A further advantage is that the patent issuing on that regular application has a twenty year life from its filing date and not the filing date of the provisional application. (If the provisional application had started out life instead as a regular application and the second application were a regular continuation-in-part application, the patent's lifetime would be based on the filing date of the first application, i.e., it would be up to one year shorter). However, if new matter is added to the regular patent application, the applicant must comply with the best mode requirements of U.S. Patent Law and also be aware that they do not have the benefit of a filing date for the new matter until such time as the regular patent application is actually filed.
Disadvantages for U.S. Applicants:
1. Since provisional patent applications are easy to file, not to mention the fact that they carry the name 'provisional', a fair number of these applications may be hastily drafted. If regular patent applications with fuller disclosures are not filed until the one year time period for filing a regular application is nearly expired, other parties may file conflicting applications (with better disclosures) in the interim and the first-to-file party may well loose in a contest with the second-to-file party if the disclosure of its provisional application is deemed inadequate to support the claims of its subsequently filed regular application.
2. Even more trouble for the U.S. applicant will arise if the provisional patent application is deemed by the patent authorities of other countries not to support a claim to priority by a subsequently filed foreign patent application. If the applicant publicly disclosed the invention in the interim, the applicant may discover that the subsequently file foreign applications are barred by the applicant's actions in publicly disclosing the invention during the normal one year priority time period.
3. Another date must be remembered and entered to a docketing system. If you miss the one year date for filing the regular application, you cannot claim the benefits of the provisional application.
4. Under the original version of the Patent Law that added the possibility of filing provisional applications, it was not absolutely clear whether a provisional patent application could be used as the basis for making a priority claim for filing patent applications in other countries under the Paris Convention. This problems seems to have been overcome by more recent changes to the U.S. Patent Law.
Advantages for Foreign Applicants:
1. Provisional patent applications are relatively inexpensive to file.
2. Provisional patent applications need not be filed in the English language. As such, they can be easily filed about the same time that the foreign applicant is filing their original application in their home country.
3. A U.S. patent, once granted, becomes prior art, against later filed U.S. patent applications, as of its filing date under 35 U.S.C. Section 102(e). If it is based on a provisional patent application, the resulting patent's 102(e) date is the date that the provisional patent application was filed. If based solely on a home country patent application to which priority is claimed, the 102(e) date is only the actual filing date of the regular U.S. patent application. Thus, foreign applicants can obtain earlier 102(e) prior art dates for their U.S. Patents if they base them on provisional applications instead of basing them solely upon home country applications.
4. Under 35 U.S.C. Section 102(b), a U.S. patent application must be filed within one year of the publication of an invention. The inventor can still obtain a valid U.S. Patent if the inventor can evidence the fact that the inventor made the invention before the publication occurred. Historically, foreign patent applicants have had difficulty in taking advantage of this aspect of U.S. Patent Law since the evidence had to show completion of the invention in the United States. With the GATT mandated changes to U.S. Patent Law and effective January 1, 1996, the invention will no longer have to have been completed in the United States. As such, provisional applications can then give foreign applicants an additional one year time period under 35 U.S.C. Section 102(b) if the provisional application is filed about the same time that the home country application is filed.
5. The regular application filed within one year does not have to be identical to the provisional application it replaces. Thus, the regular application can serve the function of a continuation-in-part application, but without having the down side of an earlier filing date (for the purpose of calculating the term of the resulting patent). However, if new matter is added to the regular patent application, the applicant must comply with the best mode requirements of U.S. Patent Law and also be aware that they do not have the benefit of a filing date for the new matter until such time as the regular patent application is actually filed.
6. An eventually filed regular application will have a life which might be as long as 21 years from the filing date of the provisional application, just like a regular application filed under the Paris Convention claiming priority to a home country application. This advantage is probably only of interest to applicants from non-Paris Convention countries.
Disadvantages for Foreign Applicants:
1. Added cost (but not a great deal of added cost).
2. If a foreign applicant chooses to use this procedure, they should file the U.S. provisional application about the same time that they file their home country application. That means that they must be alert to file the provisional application right away and not rely on simply filing a Paris Convention application almost one year later.
3. If filed in a language other than English, an English-language translation must be filed in due course.
4. The expiry of the one-year life of a provisional patent application is different than the end of the one year grace period under the Paris Convention if the date falls on a holiday or weekend (i.e. any day the United States Patent and Trademark Office is closed).
Combating the Disadvantages
There are certain strategies for combating these disadvantages. We suggest following up a hastily prepared provisional application with a better draft, which is then filed as a regular U.S. Patent Application, as soon as practicable and preferably within a month or two after filing the provisional application. We also suggest filing a regular U.S. Patent Application before any public disclosure of the invention occurs if the filing of foreign applications is of interest since, although most major foreign patent offices have indicated that they will respect priority claims under the Paris Convention based on an U.S. provisional application, this view has been challenged by some commentators and the issue is ultimately one for the courts to decide in many different countries. Thus, do not use the provisional patent application to lull yourself into a false sense of security if the provisional application is anything less than a full disclosure of the invention or if foreign corresponding applications are of interest to you. Once a good, full description of the invention has been prepared, file a regular U.S. patent application. Do not wait for the one year time period nearly to expire, unless you are certain that the extra few months of patent protection makes the added risk in waiting worthwhile. Since many technical arts change quickly, the extra few months of patent protection near the end of the patent's twenty year lifetime may well be meaningless.
One key point to understand regarding our Provisional Patent Application (Provisional Patent Application) practice is that we recognize that not all clients are willing or capable to invest upfront the full cost of a non-provisional Utility Patent Application. Although we urge you to have us prepare a non-provisional Utility Patent Application for you, we are willing to accommodate your economic strategy with a customized Provisional Patent Application approach that both educates you to the risks and maximizes the effect of what you can afford to invest.
Another key point to understand is that when we talk about a better, average, or lesser quality Provisional Patent Application we mean to impart the general expectation that the less time spent on developing the provisional specification, the less likely that it will contain the necessary information to support the disclosure and/or claims in the future non-provisional Utility Patent Application. This lack information could limit the claim scope (e.g., no searched prior-art to design around) or give rise to gaps in the specification (such as missing alternative embodiments) that would weaken a resulting patent if it ever went to litigation (albeit extremely unlikely). Another important factor that often affects claim scope, arises from the fact that the current best Patent Practice is to write the claims first, and then draft a minimal specification that fully supports the claims, which is the opposite of how the Provisional Patent Application practice proceeds where the specification is drafted first, and claims are done later in the Utility Patent Application. Another benefit of drafting the claims first, is that often it drives added, and/or more precise disclosure in the specification.
You should keep in mind that there are two main levels of invalidity in the patenting and enforcement process, the first is when the Patent Examiner looks at the Utility application (we refer to this as "minimum legal validity", or "examination validity"), and the second is when a Patent Lawyer challenges the issued patent in court litigation (let us call this "litigation validity").
Regarding examination validity, a common quality issue may arise is the way an invention is described in the disclosure of a cost focused Provisional Patent Application. Although it is true that a Provisional Patent Application may be written in plain-English, problems may still arise where the language used causes vagueness or contradictions, which may result in a rejection during examination of the later-filed Utility Patent Application, or legal problems during litigation. Our Revision level of Provisional Patent Application service is intended to clean up the common examination related problems, and the Drafting Basic Provisional Patent Application service takes care of the examination and basic litigation validity related problems.
Fortunately, however, regarding our cost focused Provisional Patent Application services, because we ensure that the provisional application meets the minimum legal requirements, the foregoing issues of quality due to low cost do not tend to prevent you from receiving a patent, but might weaken the awarded patent’s strength and value.
Bay Area IP is relatively unique in the patent industry in working with our clients to achieve their optimal balance between cost and quality. The vast majority of patent firms avidly avoid this trade-off for good reason- it is tough to define the uncertainty!
"Patent Pending" is a phrase that is sometimes seen on manufactured items. Patent pending means that someone has filed for a patent on an invention and is waiting to see if the patent is granted.
Manufacturers use patent pending as a warning that a patent may be issued that would cover the item and that copiers should be careful because they might infringe if the patent issues. Once the patent issues, the patent owner will stop using the phrase patent pending and start using a phrase such as "covered by U.S. Patent Number XXXXXXX."
Applying the patent pending phrase to an item when no patent application has been made can result in a fine. You can only use the term patent pending if you have applied for a patent (provisonal or non-provisional). Unfortunately, there is a common association of "Patent Pending" exclusively with Provisional Patent Applictions; however, both a provisonal patents and non-provisional patents provide Patent Pending status and there are many reasons not to file a lower quality provisional patent application..
NOTE: you cannot use the term patent pending if it is not true.
A patentee who makes or sells patented articles, or a person who does so for or under the patentee is required to mark the articles with the word "Patent" and the number of the patent. The penalty for failure to mark is that the patentee may not recover damages from an infringer unless the infringer was duly notified of the infringement and continued to infringe after the notice.
The marking of an article as patented when it is not in fact patented is against the law and subjects the offender to a penalty. Some persons mark articles sold with the terms "Patent Applied For" or "Patent Pending." These phrases have no legal effect, but only give information that an application for patent has been filed in the Patent and Trademark Office. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited.
The answer to this common question mostly depends on your financial situation and goals. Of course, if you knew that your idea was going to be worth millions of dollars, then their would be no question about it, and you would be sure to file a top quality Utility patent application right away. However, for inventors who think that their idea might receive little interest in the marketplace, a Provisional "Patent Pending" application may be the best risk/reward option, especially if your budget is extremely limited. Please click here for the main Provisional "Patent Pending" application pros and cons. In general, the decision is boils down to the level of investment you feel is warranted, or the most you can invest, to protect the potential future revenues your idea may generate. If you do not think that your idea will sell in the marketplace, or if you simply can not afford a quality Utility patent application, then a Provisional "Patent Pending" application might be your best option. On the other hand, if you think that your idea has commercially potential, which may be confirmed, for example, if pertinent professionals or consumers like it, then a Utility Patent Application will provide you the best quality patent protection for licensing and against idea theft and knock-off products. Click here for a more detailed explanation of why a Utility Patent Application inherently is of much higher quality than a Provisional "Patent Pending" application.
A Full Utility Patent Application costs a lot of money, why do it instead of a Provisional Patent Application (PPA)?
Again, if you knew that your idea was going to be worth millions of dollars, then their would certainly be no question about it, and you would be sure to file a top quality Utility patent application right away. If you are an individual inventor, which is probably why you are considering a Provisional "Patent Pending" Application, we know it seems like a lot of money at first, but, to frame the context more accurately, like any decision, it is all about assessing the opportunity -vs.- cost. On the opportunity side of the equation, if the opportunity seems to be relatively significant and there is some positive feedback from industry players (e.g., professionals, companies, academia, executives, etc.), then a less quality Patent Application (e.g., a cost-focused Provisional "Patent Pending" Application) may risk losing a valuable deal if a big player deems the application as legally insufficient to warrant their investment or licensing. Another significant risk is that the weaker Provisional "Patent Pending" Application might very well have technical and legal gaps in the disclosure that would allow would-be-copiers or licensees to more easily design around your patent, thereby losing all or part of your potential revenue stream. Click Here for a more detailed explanation of why a Utility Patent Application inherently is of much higher quality than a Provisional "Patent Pending" Application. Of course, if your confidence in the commercial value of your invention is relatively low, then a full Patent Application may not be for you, and you should Click Here to assess your better course of action.
On the cost side of the equation, generally, as the opportunity appears more significant, then the investment warranted usually follows some equation like $ to invest = $ Income Potential x Probability of Success. A low cost patent firm, such as Bay Area IP, can go a long way towards helping you take less upfront risk, while best positioning you to reap the rewards. For example, a typical, high overhead, patent firm would charge any where from $7,000 to $10,000 just to prepare and file a Utility Patent Application and about the same amount to prosecute it until issuance. That makes it almost impossible for the independent inventor to invest in a better quality Utility Patent, and forces them into the more risky Provisional "Patent Pending" Application. In contrast, our much lower fees to prepare and file the same Utility Applications gets you in the quality "ball park", at substantially less risk. Our unique affordable-cost approach, provides a service at every quality step from a "full service"Utility Patent Application down to a cost focused Provisional "Patent Pending" Application, which enables you to pick your optimal comfort zone balancing the Opportunity -vs.- Cost and Risk -vs.- Reward decisions against your financial situation.
Having already decided upon a Provisional "Patent Pending" Application it is usually the case that you are on a limited budget, or have high uncertainty about the marketability of your idea. For some inventors, another variable is the number of ideas that patent protection is sought. The main decision point factors are as follows:
The first item to consider is your budget. If you simply cannot afford a Quality Oriented Provisional "Patent Pending" Application then the Cost Oriented Provisional "Patent Pending" Application is your way to go. If your budget is not the limiting factor, then the next decision point to consider is how much confidence you have in the marketability of your invention. Of course, the higher your confidence, a proportionately greater investment in patent protection warranted. That is, if you have done some basic marketability research (e.g., professionals like your idea, it is selling on eBay, you see inferior products in the market place, & etc., for marketing ideas read books by Jay Levinson) that is very positive, then you should procure the highest quality Provisional "Patent Pending" Application (if not a full Utility Patent) that you can afford. Similarly, the lower your marketability confidence, a commensurately lower amount of investment is justified. After establishing your budget and level of confidence, then you should decide how much work you are able, or willing, to do yourself with our guidance. If you are willing to provide a detailed description for a Provisional "Patent Pending" Application under our guidance, and have relatively good confidence in the marketability of your idea, but only have a limited budget to work with, then either of our Drafting Basic Plus or Drafting Basic service is ideal. Because the Drafting Basic Plus level of service includes a broad claim, it is a good compromise between cost (e.g., "Drafting Basic" Provisional "Patent Pending" Application) and quality (e.g., the "Good quality" Provisional "Patent Pending" Application). Some inventors have multiple ideas they wish to pursue patent protection for. Often they do not know which one will be the most well received in the marketplace and cannot afford the cost of procuring high quality Provisional "Patent Pending" Applications for all of them. Some clients find a good approach in this situation is to procure, for the idea they have the most confidence in, a Quality Provisional "Patent Pending" Application that is then used as a template to pattern Provisional "Patent Pending" Applications for their other ideas, and use our Cost Oriented Provisional "Patent Pending" Application services to clean up and assure minimum legal validity for each of them.
Infringement of Patents
Infringement of a patent consists of the unauthorized making, using, offering for sale, or selling any patented invention within the United States or U.S. Territories, or importing into the United States of any patented invention during the term of the patent. If a patent is infringed, the patentee may sue for relief in the appropriate federal court. The patentee may ask the court for an injunction to prevent the continuation of the infringement and may also ask the court for an award of damages because of the infringement. In such an infringement suit, the defendant may raise the question of the validity of the patent, which is then decided by the court. The defendant may also aver that what is being done does not constitute infringement. Infringement is determined primarily by the language of the claims of the patent and, if what the defendant is making does not fall within the language of any of the claims of the patent, there is no literal infringement.
Suits for infringement of patents follow the rules of procedure of the federal courts. From the decision of the district court, there is an appeal to the Court of Appeals for the Federal Circuit. The Supreme Court may thereafter take a case by writ of certiorari. If the United States Government infringes a patent, the patentee has a remedy for damages in the United States Court of Federal Claims. The government may use any patented invention without permission of the patentee, but the patentee is entitled to obtain compensation for the use by or for the government. The US Patent Office has no jurisdiction over questions relating to infringement of patents. In examining applications for patent, no determination is made as to whether the invention sought to be patented infringes any prior patent. An improvement invention may be patentable, but it might infringe a prior unexpired patent for the invention improved upon, if there is one.
2010 was a landmark year with regard to the false patent marking. In just a week alone that year a single plaintiff has filed more than 20 separate false marking lawsuits in the US District Court for the Northern District of Illinois, and scores of similar suits have been filed in a variety of courts in recent weeks. These complaints allege that products were physically marked with patent numbers or other notations indicating that the product was covered by a patent when, in fact, the seller knew that the patent had expired, did not cover the product or was invalid.
This avalanche of cases is not due to a sudden flourishing of false patent markings. It is the result of a recent Federal Circuit Court of Appeals decision that established a potentially lucrative payday for plaintiffs who prevail on such claims.
Under Section 292(a) of the Patent Act, marking an unpatented article with intent to deceive the public mandates a fine of “not more than $500 for every such offense.” In The Forest Group, Inc. v. Bon Tool Co., No. 2009-1044 (Fed. Cir. Dec. 28, 2009), the court construed that provision to require imposition of the fine on a per-article basis (as opposed to a per-decision basis). Thus, a false patent marking on one million individual articles could generate an award of up to $500 million. Any persons can serve as plaintiffs in this “qui tam” cause of action, whether or not they have an interest in a patent or suffer any personal injury.
The Federal Circuit recognized that its ruling would encourage “a new cottage industry” of false marking litigation by plaintiffs who have not suffered any direct harm, but it concluded that such a consequence is imposed by the plain language of the statute.
The predicted “cottage industry” emerged in no time. Plaintiffs immediately began to scour store shelves and ads to search for markings of expired or questionable patents and have flocked to court with their claims.
This development warrants immediate caution among companies that regularly mark products with patent numbers or other patent indicia. After briefly summarizing the marking issue, this alert suggests steps to help mitigate false marking risk and potential defenses when faced with false patent marking claims.
Patent holders have good reason to mark patented products. Section 287(a) of the Patent Act provides that failure to mark such a product requires proof of actual notice of the patent before an infringer can be subject to damages. Marking obviates that actual notice requirement. But this reward can be more than offset if one runs afoul of Section 292.
Section 292 prohibits marking a product with either another’s patent, another patentee’s name (akin to counterfeiting) or a patent or application number (or other patent indicium) where no patent or patent application exists (akin to false advertising). Prohibited marks include those signifying expired patents, patents without issued claims reading on the marked product and patents that have been narrowed (e.g., by claim construction) so that no claims read on the marked product. To violate the statute, such marking must be for the “purpose of deceiving the public.”
To limit the risk of patent marking claims, companies should consider the following:
A company faced with a false patent marking claim has available several potential defenses. At the outset of the case, the constitutional validity of the statute could be attacked by a motion to dismiss. Although at least one court has considered and rejected a defendant’s arguments that the plaintiff lacked standing for lack of injury (Pequignot v. Solo Cup Co., 640 F. Supp. 2d 714 (E.D. Va. 2009)), there may be more to say on standing, and the Federal Circuit or the US Supreme Court may reach a different conclusion. For example, in Solo Cup, the court relied on cases holding that an assignee of a proprietary interest of the government (e.g., a qui tam fraud claim for damages under the False Claims Act) has standing. The defendant argued that in a Section 292 case, the interest asserted by the qui tam plaintiff is an interest of the government as sovereign in the enforcement of a law—not a proprietary interest in recovering monetary damages—and that a sovereign interest is not assignable. Although the district court rejected this argument in Solo Cup, commentators have supported the distinction, and we believe it remains viable.
The Solo Cup court also rejected a constitutional challenge to the statute under the “Take Care” Clause of Article II of the US Constitution, based on the government’s lack of control over the litigation. But the Federal Circuit or the Supreme Court might reach a different conclusion. After all, courts have characterized Section 292 as a criminal statute. Traditionally, prosecutors have discretion to decide whether harm to the public requires prosecution and can recommend a quantum of punishment that is commensurate with that harm. Here, a private party controls whether the action will be commenced and recommends the amount of the fine to the court. That problematic aspect of this type of litigation arguably prevents the executive branch from discharging its responsibilities to enforce the criminal laws. The harm is exacerbated by the fact that the court’s discretion is essentially unfettered under the Patent Act.
Defendants also might consider arguing that, insofar as the interest at issue is the sovereign’s interest in enforcement of a criminal law, the lack of standards to determine the amount of the penalty per act may be unconstitutionally vague or arbitrary. Enforcement of such an imprecise standard could lead to excessive fines, particularly given the Federal Circuit’s recent construction of the statute to render each improperly marked article an independent offense.
The most likely route to success in defending against a false patent marking claim is to show on summary judgment a lack of intent to deceive the public. For example, in Solo Cup, it was undisputed that the defendant had knowledge that its product bore marks of expired patents and its product packaging contained a warning that the product “may be covered” by patents when, in some cases, they were not. However, the court held that knowledge of falsity creates only a rebuttable presumption of intent to deceive. A defendant could, and in that case did, offer sufficient evidence to rebut the presumption. With respect to the false patent marks, the court found that Solo Cup, on advice of counsel and for valid business reasons decided to remove the marks over time to minimize costs rather than to deceive the public. With respect to the “may be covered” warning in the product packaging, the court found that Solo Cup, again consistent with advice of counsel, used the warning as a practical way to protect its patent rights where its patent portfolio was constantly changing and where the company had established procedures on its website and phone lines to handle inquiries regarding patents.
The rule in Solo Cup, if applied by other courts, should also preclude liability where a defendant can show that it was negligent only in not promptly removing expired marks. For example, an employee in the law department of a company may have known that the patent expired, information not known to employees in other departments responsible for advertising and marking the products. If the company can demonstrate that the failure to remove marks of expired patents resulted from administrative oversight rather than an intent to deceive, it should not be liable under Section 292. All facts and circumstances should be considered. For example, if a product bears the marks of many valid patents and one expired patent, a company would have a strong argument that it had no intent to deceive since it is difficult to imagine under those circumstances how the mark of one expired patent could mislead the public and chill competition – the concerns underlying Section 292.
Furthermore, even if intent is proven, district courts have discretion to impose per-article damages below $500. Accordingly, a defendant with hundreds of thousands or millions of articles in circulation will have an opportunity to persuade the judge that damages of anything more than, say, a fraction of a penny per article would be inequitable.
Intent to Deceive Still Required
Parties who accidentally mark their products incorrectly are not subject to liability under the statute. The Federal Circuit made clear that the plaintiff asserting a false marking claim must show, by a preponderance of the evidence, that the accused party did not have a reasonable belief that the articles were correctly marked. However, a party's assertion that it did not intend to deceive “'is worthless as proof of no intent to deceive where there is knowledge of falsehood.'” Forest Group, slip op. at 6 (quoting Clontech Labs. Inc. v. Invitrogen Corp., 406 F.3d 1347, 1352 (Fed. Cir. 2005)).
The Forest Group decision provides a good illustration of what can constitute proof of intent to deceive. Forest Group is the assignee of U.S. Pat. No. 5,645,515, which claims an improved stilt of the type commonly used in the construction industry. Forest Group sued its competitor, Bon Tool, alleging that Bon Tool had sold stilts that infringed the '515 patent. Bon Tool counterclaimed, alleging that Forest Group had violated the false marking statute by marking its stilts with the '515 patent even though the patent did not cover Forest Group's product.
In February 2007, the district court issued a claim construction that was contrary to Forest Group's reading of the claims at issue and later granted summary judgment of noninfringement against Forest Group. Nevertheless, the district court found that those decisions, by themselves, did not give Forest Group the requisite knowledge that it should no longer mark its products with the number of the contested patent. The district court noted that the patent was written by an experienced patent lawyer, that the inventors did not have strong academic backgrounds, and that neither of them was versed in patent law. However, in November 2007, a court in another lawsuit involving the same patent construed the claims at issue in a manner similar to that of the first lawsuit and likewise granted summary judgment against Forest Group. The district court concluded that after the second adverse ruling, Forest Group had the requisite knowledge that any continued patent marking would be false. Yet, Forest Group continued to mark its products with the patent number after that date. The district court did not believe Forest Group's claim that it had instructed its manufacturer not to mark the products.
Citing the highly deferential “clearly erroneous” standard of review, the Federal Circuit upheld the district court's determination that Forest Group had a good faith basis to believe that its products were correctly marked prior to the November 2007 summary judgment order. The Federal Circuit noted, however, that “the quantum of proof regarding Forest Group's knowledge in this case is quite high” and went out of its way to point out that it is not necessary to have multiple adverse claim construction and summary judgment rulings in order to prove knowledge of falsity.
Because the district court had not determined how many articles were falsely marked by Forest Group after November 2007, the Federal Circuit remanded the case. On remand, the district court will have to determine the number of falsely marked articles and how large a civil penalty, not to exceed $500 per article, should be imposed.
The Federal Circuit's holding that the false marking statute imposes a penalty for each improperly marked article creates the potential for significant liability for patentees and licensees. Although the Federal Circuit emphasized the trial court's discretion to impose a penalty significantly less than the statutory maximum, the statute's broad standing provision encourages plaintiffs to file lawsuits that may impose costly discovery obligations on patentees and their licensees. For this reason, patentees and licensees likely will need to pay more attention to their product marking decisions.
Specifically, patentees and licensees need to make sure that they have a good faith basis to place their patent numbers on products and continue to make certain the marking is appropriate as products are modified. It also will be important to diligently investigate any assertions that the products are improperly marked. Patentees also will need to establish mechanisms to make certain that products are not marked with expired patent numbers.
Patent licensees who are required to mark as a condition of their license also are affected by this decision. Such licensees may want to consider including in their licenses provisions requiring the patent owner to indemnify them for false marking.
For some parties, it may be too late. The statute of limitations for false marking actions is five years. As a result, some patentees and licensees may already be exposing themselves to financial liability on a much greater scale than they ever anticipated.
Fear of liability, however, should not cause patentees to refrain from marking altogether. Correct marking remains essential to maximizing a patentee's award of damages against infringers. A correct marking can be made by placing the word "patent" or the abbreviation "pat." together with the number of the patent on the patented product itself. If the nature of the product does not permit it to be marked, then the packaging should be marked. Although marking is not required for patents that contain only process or method claims, patentees should consider marking end products where feasible.
Are Patents, Trademarks, Servicemarks, and Copyrights?
What is protected?
Original expression of an idea
Customer's notion of your good or service's source.
Products, processes, compositions, functions
|Typical things protected||how to make Coca-cola, hidden high-tech methods, & etc.||written material: computer programs, books, plays, poems; art: sculptures, paintings, photographs, etc.||names, logos, internet domain names, designs, & etc.||unique shape/styling of articles like product packaging, figurines, etc.||tools, devices, machines, computer programs, games, processes, formulas, internet, electronic, chemical and business methods etc.|
What are others prohibited from doing?
Unauthorized use or dissemination by someone who has been let in on the secret.
Copying the expression
Confusing the consumer.
Making something looking the same or similar..
How is the right established?
Use in trade
Use in trade
What is needed to get protection?
Know-how must be well defined, not publicly known, and protected.
Tangible use of the expression.
Mark must distinctive, and not confusingly similar to another.
Visible appearance must be new and not obvious.
|Geographic coverage||country of origin or by other countries by treaty||Worldwide||Country filed in||Country filed in||Country filed in, or worldwide if PCT filing|
What is the duration of protection?
Until disclosed to the public.
life of author plus 50 years
10 years, or as long as it is in use.
14 years (US) from grant
At most 20 years from filing.
The difference between patents, copyrights, and trademarks can be confusing sometimes. Although there may be some similarities among these kinds of intellectual property (IP) protection, they are different and serve very different purposes.
A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.
The right conferred by the patent grant is, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.
A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office.
Copyright is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phono records of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
The copyright protects the form of expression rather than the subject
matter of the writing. For example, a description of a machine could
be copyrighted, but this would only prevent others from copying the
description; it would not prevent others from writing a description
of their own or from making and using the machine. Copyrights are registered
by the Copyright Office of the Library of Congress.
There are some good reasons to file a Provisional "Patent Pending" Application, however, it is not always a good idea. To better acquaint yourself with Provisional "Patent Pending" Application characteristics and considerations, you may want to review our FAQ on our Provisional "Patent Pending" Application services and our overview on provisional applications before proceeding.
It is imperative to understand that although a Provisional "Patent Pending" Application may written very informally (e.g., "cutting corners) to cut costs, if the Provisional "Patent Pending" Application does not satisfy the multitude of “best practices” and legal requirements, you can easily lose some or all of your future patent protection rights. Understandably, many small business and independent inventors have an economic incentive to file a Provisional "Patent Pending" Application to attain presumed “Patent-Pending” legal protection while determining the invention’s market value before investing in the cost of a full non-provisional, Utility patent application.
Bay Area IP recognizes that individual and small business inventors sometimes need a very affordable provisional “Patent-Pending” protection mechanism that they can use to either buy time to raise funds or for market testing their invention before investing in a non-provisional, Utility patent application. Yet, other situation will have sufficient budget to procure a high quality Provisional "Patent Pending" Application to protect a potentially seminal idea(s). That is why we offer two categories of service- the first is our quality oriented provisional application service, which serves clients who wish to have a relatively good quality follow-on non-provisional, Utility patent application, and the other category is our cost-focused Provisional "Patent Pending" Application practice, described in some detail below.
When it comes to getting provisional "Patent Pending" all provisional patent application services are NOT created equal. Independent inventors, especially, should not be fooled to believe that Provisional "Patent Pending" Applications do not have the same quality or legal requirements than do full non-provisional, Utility patent applications. If your Provisional "Patent Pending" Application is legally or technically insufficient, for any reason it cannot be corrected after filing. That is because, by law, no new information may added to Provisional "Patent Pending" Applications; hence, any defects in the Provisional "Patent Pending" Application will automatically be inherited into the non-provisional, Utility patent application. In this way, if you have low quality Provisional "Patent Pending" Application you likely will have a crippled or worthless corresponding non-provisional, Utility patent application. Thus, not be you not only lose any patent protection you thought you had, yet, even worse, you will be barred from ever patenting your invention (Internationally as well) if it was ever publicly used or disclosed– a high risk to take just to avoid some relatively small upfront expenses. This is why you should always procure the highest level of quality that you can afford.
This cost-focused category of Provisional "Patent Pending" services below provides an ideal vehicle for the independent inventors who are more concerned about attaining a quick “Patent-Pending” status at very low cost so they can buy time to raise funds for a or test market their invention to determine its value before investing significant funds.
Result: Likely an OK quality non-provisional, Utility patent application, and you defer up to 80% in normal costs (depending on invention complexity) to the non-provisional, Utility patent application. This work generally proceeds as follows:
For inventors who want a legal professional to legally draft their Provisional Patent Application at a relatively low cost, and are not too concerned about patent scope or preserving there International patent rights, yet want their Provisional Patent Application to at least cover their core product/service idea and include basic legal “best practices.”
Key features includes the following:
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WO/2010/138632 (WIPOlink) "A PORTABLE, COLLAPSIBLE, WORKSTATION TRAY TABLE APPARATUS", May 26, 2010.
WO/2010/008399 (Espacenet link)"DYE DOPED GRAPHITE GRAPHENE SOLAR CELL ON ALUMINUM", July 28, 2010
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US20110073764(A1) (USPTOlink) "Method and System for Nuclear Imaging Using Multi-Zone Detector Architecture",February 16, 2010.
US20110035291 (USPTOlink) "Method and System for Online Redistribution of Information", February 2, 2010.
US20100187193(A1) (USPTOlink) "Shoe Rack Attachment", January 25, 2010.
US 20100179604(A1) (USPTOlink) "Apparatus and Method for Radiolucent Anatomic Positioning", January 9, 2010.
US20100122253(A1) (USPTOlink) "SYSTEM, METHOD AND COMPUTER PROGRAM PRODUCT FOR PROGRAMMING A CONCURRENT SOFTWARE APPLICATION", November, 9, 2010.
US20100092582 (A1) (USPTOlink)"Topical Hair Care Formulation and Method of Making", October 13, 2010.
US20110041923(A1) (USPTOlink)" APPARATUS AND METHOD FOR THE FREEING OF SEIZED VALVES", August 24, 2009.
US20100092582(A1) (USPTOlink)" APPARATUS FOR CONVERTING WAVE ENERGY INTO ELECTRICAL ENERGY", July 4, 2010.
US20100205007(A1) (USPTOlink)" Method of Pathologic Correlation for Radiology Resident Education", July, 4 , 2010.
US20100020033(A1) (USPTOlink)" SYSTEM, METHOD AND COMPUTER PROGRAM PRODUCT FOR A VIRTUAL KEYBOARD",July 4, 2010.
US20100205141(A1) (A1) (USPTOlink)" METHOD, SYSTEM AND COMPUTER PROGRAM PRODUCT FOR DATA COLLECTION AND RETRIEVAL FOR MEDICAL RESEARCH", July 4, 2010.
US20100083514(A1) (USPTOlink)" Apparatus and a Method for Drafting a Framework for a Pattern", July 3, 2010.
US20100331144(A1) (USPTOlink)" EXERCISE MACHINE",June 30, 2010.
WO/2010/033289 (USPTOlink)" AN APPARATUS FOR MOUNTING AN ANATOMICAL POSITIONER ON A PATIENT CARE PLATFORM" June 30, 2009.
US20100190144(A1) (USPTOlink)" Method, System and Computer Program Product for Studying for a Multiple-Choice Exam", June 25, 2010.
US20090314280(A1) (USPTOlink)" Apparatus and A Method for Solar Tracking and Concentration af Incident Solar Radiation for Power Generation", June, 19,2009.
US20100312121(A1) (USPTOlink)" APPARATUS FOR A NEEDLE DIRECTOR FOR AN ULTRASOUND TRANSDUCER PROBE:,June 9, 2010.
US 20090291764 (A1) (USPTOlink)" SYSTEM AND APPARATUS FOR A CONTROLLED TOY TO INTERACT WITH A COMPUTER GAME",May 19, 2010.
US20100287731(A1) (USPTOlink)" Window Maintenance Apparatus for A Tilt-In Sash", May 19, 2010.
US20100289315(A1) (USPTOlink)" APPARATUS FOR PORTABLE CUSHIONS FOR HEAD AND NECK SUPPORT OF A PASSENGER IN A VEHICLE",May 13,2 009.
US20100071128(A1) (USPTOlink)" APPARATUS FOR MOUNTING AN ANATOMICAL POSITIONER ON A PATIENT CARE PLATFORM", May 12, 2010.
US20090283101(A1) (USPTOlink)" DEVICE FOR PROTECTING A NIPPLE OF A MOTHER DURING NURSING",May 7, 2009.
US20100283249(A1) (USPTOlink)" SYSTEM AND METHOD FOR CONVERSION OF OCEAN WAVES INTO USABLE MECHANICAL ENERGY",May 7, 2010.
US20100276967(A1) (USPTOlink)" Apparatus for a Pickup Truck Box Cover",May 2, 2010.
US20090327043(A1) (USPTOlink)"Method And System Of Ranking A Document", April 29, 2009.
US20100243493(A1) (USPTOlink)" APPARATUS FOR AN ELECTRIC TOOTHBRUSH COVER", April 8, 2010.
US20100243724(A1) (USPTOlink)" Payment Apparatus for a Personal Transportation System",March 30, 2009.
US2010024147(A1) (USPTOlink)" SYSTEM AND APPARATUS FOR RAPID RECHARGING OF ELECTRIC BATTERIES",March 18, 2010.
US20100235750(A1) (USPTOlink)" SYSTEM, METHOD AND PROGRAM PRODUCT FOR A GRAPHICAL INTERFACE",March 12,2010.
US2010022882(A1) (USPTOlink)" MOBILE DATABASE NETWORK", March 6, 2010.
US20100058202(A1) (USPTOlink)" METHOD SYSTEM AND PROGRAM PRODUCT FOR PROVIDING ENABLING AN INTERACTIVE AND SOCIAL SEARCH ENGINE", February 19, 2010.
US20090211143(A1) (USPTOlink)" HIGHLY MANEUVERABLE FISHING LURE", February 19, 2009.
US20090304169(A1) (USPTOlink)" ADVERTISEMENT OR INFORMATION FEEDING METHOD, SYSTEM, AND PROGRAM FOR COMPLETING DEALS BETWEEN POTENTIAL CONSUMERS AND INFORMATION PROVIDERS",February 17, 2009.
US20090199343(A1) (USPTOlink)" Portable Breastfeeding and Nursing Pillow", February 5, 2009.
US20100130233(A1) (USPTOlink)" SYSTEM, METHOD AND PROGRAM PRODUCT FOR LOCATION BASED SERVICES, ASSET MANAGEMENT AND TRACKING", January 30, 2010.
US20100131361(A1) (USPTOlink)" METHOD, SYSTEM AND COMPUTER PROGRAM PRODUCT FOR DISTRIBUTING A MARKETING MESSAGE OVER MOBILE DEVICES", January 30, 2010.
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US20090181609 (A1) (USPTOlink)" RETRACTABLE HIDEAWAY CHIMNEY DAMPER CAP",January 9, 2009.
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US20100174719(A1) (USPTOlink)" SYSTEM, METHOD, AND PROGRAM PRODUCT FOR PERSONALIZATION OF AN OPEN NETWORK SEARCH ENGINE",January 6, 2010.
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US 20090292548(A1) (USPTOlink)" METHOD, SYSTEM, AND PROGRAM PRODUCT FOR INFORMATION EDITORIAL CONTROLS",November 8, 2008.
US 20100104668(A1) (USPTOlink)" NUTRITIONAL SUPPLEMENT FOR HONEYBEES", October 24, 2008.
US 20100089282(A1) (USPTOlink)" COMMUTER TRAIN FERRY SYSTEM FOR COMMUTERS AND THEIR VEHICLES", October 14, 2008.
US 20100078095(A1) (USPTOlink)" MORE SILENT AND ROBUST ELECTRIC PENCIL SHARPENER",October 1, 2008.
US 20090148644(A1) (USPTOlink)" HIGHLY CONFORMABLE ADHESIVE DEVICE FOR COMPOUND, MOVING OR VARIABLE FORMS",September 26, 2008.
US 20100082178(A1) (USPTOlink)" APPARATUS FOR HOLDING MARTIAL ARTS BOARDS", September 12, 2008.
7,568,451 (USPTOlink)" Rotary nail filing apparatus for animals"August 19, 2008.
US 20100017939(A1) (USPTOlink)" Device and Method for Sealing Protective Gloves",July 24, 2008.
US20090025245(A1) (USPTOlink)" MEASURING DEVICE AND ACCESSORIES FOR PREPARING QUILT PIECES",July 15, 2008.
US 20090301579(A1) (USPTO link)" VACUUM PRESSURE SYSTEMS WITH VACUUM CHAMBER FULL-RANGE, CLOSED-LOOP PRESSURE CONTROL” , June 10, 2008.
US 20090305204(A1) (USPTOlink)" RELATIVELY LOW-COST VIRTUAL REALITY SYSTEM, METHOD, AND PROGRAM PRODUCT TO PERFORM TRAINING",June 6, 2008.
US20090295106(A1) (USPTO link) "Machine for the transportation of physically challenged persons", May 30, 2008.
US20090287305(A1) (USPTO link) "Wholly implantable non-natural heart for humans",May 19, 2008.
US 20090282009(A1) (USPTO link) "SYSTEM, METHOD, AND PROGRAM PRODUCT FOR AUTOMATED GRADING", may 8, 2008.
US 20080284103 (A1) (USPTO link) "INSTRUCTIONAL BOARD OR ELECTRONIC MEDIA GAME ", May 6, 2008 .
US20080263884(A1) (USPTO link) "APPARATUS FOR PREPARING MATERIAL PIECES TO BE SEWN" Apr. 18, 2008.
US 20090264800(A1) (USPTO link)" THERAPEUTIC SYSTEM AND METHOD FOR IMPROVING EYE-TRACKING SKILLS", April 18, 2008.
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US 20080177839 (A1) (USPTO link)" Method, System, and Program for Integrating Disjoined but Related Network Components into Collaborative Communities", April 3, 2008.
7,918,111 (USPTO link)" Lock device that enable users to choose the security level of the lock". March 27, 2008.
US 20090184509 (A1) (USPTO link)"TABBED LABEL DEVICE FOR HOME OR OFFICE ORGANIZATIONAL TASKS", March 11, 2008.
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US 20080263884 (A1) (USPTO link)" APPARATUS FOR PREPARING MATERIAL PIECES TO BE SEWN", April 18, 2008.
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US 20080271994 (A1) (USPTO link) "Method and Apparatus for Using an Electric Field for Controlling of the Crystallizing Material or Materials", February 1, 2008.
WO/2008/091914 (WIPO link)" METHOD, SYSTEM, AND PROGRAM FOR AN INTEGRATING DISJOINED BUT RELATED NETWORK COMPONENTS INTO COLLABORATIVE COMMUNITIES", January 22, 2008.
7,597,610 (USPTO link) "Stand-up grinder caddy with adjustable height and low profile floating head", January 14, 2008.
US 20080196298 (A1) (USPTO link) "Synthesizing Hydrocarbons of Coal with Ethanol", January 7, 2008.
US 20090146960 (A1) (USPTO link) "COMPUTER KEYBOARD HAVING AN ENHANCED ERGONOMIC AND INTUITIVE DESIGN", December 5, 2007.
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US 20090083932 (A1) (USPTO link) "Electrically and battery powered vacuum cleaner" November 30, 2007.
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US 20090084563 (A1) (USPTO link) "Shovel for sifting debris from soil ", November 19, 2007.
US 20090084270 (A1) (USPTO link) "Electrically and battery powerd coffeemaker ", November 19, 2007.
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US 20060236565 (A1) (USPTO link) "Ride-on snow blower", April 22, 2006.
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US 20070285219 (USPTO link) "Apparatus for reinforcing seatbelt usage in automobiles", December 13, 2007
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US 20070156555 (USPTO link) "Systems, methods and programs for determining optimal financial structures and risk exposures", July 5, 2007
US 20070198552 (USPTO link) "System, method, and programs for automatically building audit triggers on database tables", August 23, 2007
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US 20070157393 (USPTO link) "Adjustable recliner bed", July 12, 2007
US 20070126238 (USPTO link) "Apparatus for increasing motor vehicle fuel efficiency", June 7, 2007
US 20070107283 (USPTO link) "Outdoor signage with enhanced readability in direct sunlight", May 17, 2007
US 20070106565 (USPTO link) "Method For Using A Communications Network To Define A Product, And The Ordering Thereof By A Consumer", May 10, 2007
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US 20060101124 (USPTO link) "Method and apparatus for mass email transmission", November 7, 2005
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US 20060144340 (USPTO link) "Apparatus for a disposable food feeding container", December 21, 2005
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US 20060065668 (USPTO link) "Apparatus for single handed can holding", September 14, 2004
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US 20060107818 (USPTO link) "Apparatus for dampening impact vibration in manual tools", November 24, 2004
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US 6,765,298 (500 kb) National Semiconductor Corp. (Santa Clara, CA) "Substrate pads with reduced impedance mismatch and methods to fabricate substrate pads", June 12, 2003
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