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[POSTED TO alt.cellular.cingular - REPLY ON USENET PLEASE]

In <u6s6g.1829$VV2.136900@news20.bellglobal.com> on Thu, 04 May 2006 14:58:28
-0400, Wolf Kirchmeir <wolfekir@sympatico.ca> wrote:

>John Navas wrote:

>> That the patents have been upheld in court would seem to put Visto in a very
>> strong position, since the most common defense against patent infringement is
>> to claim that the patents are invalid.  RIM would thus seem to be left with
>> the usually harder argument that it's not actually infringing the patents.
>
>As I understand it, US courts initially do not look at the patent as 
>such, they look only at the patenting process. If that follows the 
>rules, then the patent is "valid." Whether the patent covers a 
>patentable process is a different issue, and one that the courts may 
>rule on only if the alleged infringer brings non-patentability as a 
>defense. Moreover, AFAIK even if a patent is eventually declared invalid 
>by the Patent Office, and that ruling is used as a defense, the courts 
>generally deem the patent was valid until the time the Patent Office 
>said otherwise. Which IMO is absurd.

"Frequently Asked Questions: Patent infringement"
<http://www.iusmentis.com/patents/faq/infringement/>
"Frequently Asked Questions: Determining the validity of patents"
<http://www.iusmentis.com/patents/faq/validity/>

>There is a wrinkle on which I would like some clarification. Suppose RIM 
>could show that it used the allegedly patented process(es) prior to the 
>filing or granting of the patent: would that not be prima facie evidence 
>that Visto did not invent the process(es), and therefore has no claim?

That would be a "prior art" showing to render the patent invalid.

>Another wrinkle: Suppose RIM could show that the processes it uses, and 
>which Visto claims are their property, were in fact widely known and 
>understood before RIM itself applied them to its technology, would that 
>not be prima facie evidence that Visto's claims are void?

That would be an "obvious" or not "novel" showing to render the patent
invalid.

<http://en.wikipedia.org/wiki/Patent_infringement>

   Patent infringement

   Defenses

   The single most common defense to patent infringement is a 
   counter-attack on the patent itself, i.e., the validity of the patent 
   and the allegedly infringed claims. Even if the patent is valid, the 
   plaintiff must still prove that every element of at least one claim 
   was infringed and that such infringement caused some sort of damage.
   ...

-- 
Best regards,        SEE THE FAQ FOR CINGULAR WIRELESS AT
John Navas          <http://en.wikibooks.org/wiki/Cingular_Wireless_FAQ>