[Jewelry making - Article 00363] - Re: [Orchid] Argentium patent and patent application

[James White]

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>     I do not believe that purchasing the alloy from a licensed
>     producer automatically grants me the right to manufacturer a
>     product using the method claimed in claim 1. Are you saying that it
>     does? 

    No. Not automatically. But generally you'd KNOW when it didn't and
    that fact might even have the effect of your choosing NOT to
    purchase. Peter is, I'm certain, well aware of that. 

    Given, as is apparently the INTENTIONAL case by Peter that you, as
    purchaser are NOT required to sign a contract (nor are the
    intermediaries between you and Peter) stipulating that the purchase
    of AS metal is contingent and limited to only certain activities (or
    specific activities are prohibited), then, by the Doctrine of First
    Sale (I took the time to look it up, it's also often called [some say
    incorrectly] "Exhaustion of Patent Rights") you have the right to do
    anything you want with your purchased AS. The basis of this is
    essentially two fold. First, standard contract law in which a sale is
    a sale is a sale and once you OWN (not license or have been granted
    explicit limited rights, but OWN) something the prior owner has no
    additional claims on the goods. Any restrictions/limitations must be
    made clear to you before actual purchase, the patent NOT standing in
    as said notice, and the normal avenue for that would be contract. The
    second is that by selling or permitting others to sell the monopoly
    holder (i.e., Peter, the patentee) is indeed exercising his monopoly
    for that particular sale and "exhausts" his monopoly over that
    particular bar, piece, whatever, of AS. 

    So, unless you tell me that, in addition to your assumptions above,
    that you are contractually accepting a limitation on what you can do
    with the AS, then you are wrong in believing that the purchasing of
    the alloy from a licensed producer does not grant you the right to
    manufacture a product per claim 1, it DOES give you the right (absent
    that contrary contract). 

    You'll also sometimes hear the term "implied license" but, while it
    seems to fit and even judges misuse it, it has it's own specific
    meaning in patent law and is not correctly applicable to this
    scenario. 

    The order the claims are listed in on a patent makes no difference.
    What the wide variety of claims do is what I said before, they give
    Peter the opportunity to pick which claim he might want to assert
    against infringers who BYPASSED his legal monopoly in countries where
    he has a patent and, given his wisdom and the wisdom of his
    attorneys, I'm sure he will pick the one(s) to attempt to assert that
    have the biggest payoff for him. Again, reread my prior post and take
    the time to think about the whys of the structure of the patent
    system and its methods of operation. 

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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