[Jewelry making - Article 00362] - Re: [Orchid] Argentium patent and patent application

[James White]

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>     What you wrote is interesting and sounds vaguely familiar.
>     However, prior art and prior inventive processes are different than
>     novel and obvious. 

    You're badly mixing and mangling concepts. Prior art is what makes
    things NON-novel, thus unpatentable, for certain---and likely why
    your claims were withdrawn. Prior art (whether thing or process) MAY
    also make something NON-obvious but that's left to all the specifics
    AFTER it's concluded the thing or process is NOVEL--i.e., does not
    appear in the prior art. 

    (The inventive process itself is a whole different subject and the
    debate about what an "inventive step" is, or is not, is relevant to
    European and perhaps many other countries patents but NOT to US, and
    some other countries I believe, patents. In the US mere "discovery,"
    along with all the other novel, non-obvious, useful, and statutory
    requirements is all that is required.) 

>     In my experience, James Binnion is correct in his reading of the
>     claim. 

    Well, certainly he's correct in his reading of the claim, it's for a
    process of ***using AS*** that has long been used for other metals.
    Where he is wrong is in his understanding of how many times Peter can
    ask him to bring out his wallet. 

>     Additionally, patent attorneys notwithstanding, claims are
>     essentially indefensible if the patent, including its claims can't
>     be understood by those experienced in the field of the patent. 

    There you would be wrong. The US law merely requires that the
    specification be sufficient for one "skilled in the art" to do/make
    the invention. There is no requirement that the party doing that
    actually understand the claims or the surrounding law or any theories
    of operation or whatever presented. 

>     As for the patent itself, is metal alloy and more specifically,
>     silver alloy diffusion bonding specific to Argentium Silver? If
>     you all have been using the same methods to bond silver alloys
>     prior to Peter Gammon Johns invention, then you are either not
>     using the specific method he invented, or those claims in his
>     patent, are likely not enforceable. Based upon what I have seen
>     posted here, I suspect Mr. Johns may only find claims 8, 9, and 17
>     - 21 to be valid if the patent is challenged. 

    There you would be quite wrong. By law and long precedent any claim
    which includes another granted claim in the patent (whether by
    specific reference or by incorporating all elements as an independent
    claim) MUST be considered both NOVEL and NON-OBVIOUS. Should the
    claim with only the incorporated elements fall for reasons of novelty
    or non-obviousness then the more restrictive (i.e., more elements)
    claim MAY fall for non-obviousness. It almost certainly would if it
    only recited an age-old method applied to a "new" (but now no longer
    allowed as novel and non-obvious) metal. Reread that original post of
    mine then let me know what you still don't comprehend about this well
    settled principle. 

>     In the mean time, manufacture, distribution and sale of the
>     product directly to those principally involved in the fabrication
>     of jewelry could be argued as an acknowledgment of a limited
>     license. Nevertheless, if anyone is really concerned, why don't you
>     require the distributor's to provide a limited license as a
>     condition of the sale. At least to the extent of quantities
>     purchased. Also, you could 

    See my latest post to James Binnion, "limited license" SOUNDS nice
    but it is A) not applicable here and B) you immediately twist it to
    the EXACT OPPOSITE of what you want and what the law ALREADY gives AS
    purchasers absent Peter mandating that they sign limiting contracts
    with him. I strongly recommend against anyone taking your advice and
    forking over the bucks to get an attorney to craft a "preemptive"
    "limited license." Settled patent law ALREADY, again given the
    absence of Peter foisting a contract on you BEFORE your purchase,
    gives AS purchasers purchasing via Peter's authorized makers (or
    importers, whatever) UNLIMITED LICENSE to do what they want with
    their purchased AS-----even to the extent of "infringing" one or many
    more of Peter's fully valid and enforceable claims. 

    Again, IANAL but I ain't ignorant either and I sure as heck don't
    try to "make up" the law. 

James E. White
Inventor, Marketer, and Author of "Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)" Info Sites: www.willitsell.com www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com
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