Maxspect Patent Garbage

[Kengar]

Maxspect does not have an actual patent yet; in fact, their application has not even been taken up for examination. I would estimate, based on when they filed it in the U.S., that it will be taken up for examination sometime this summer.

Regarding the letter they are sending, it is to put potential future infringers on notice of their PUBLISHED APPLICATION and to set the stage for potential recovery of royalty amounts under the so-called provisional rights provision of the patent law.

In general, you cannot enforce anything (meaning prevent a competitor from infringing, and recovering damages/reasonable royalty based on competitor's infringing activity) unless and until you have an actual GRANTED patent in hand (meaning the application has been allowed, you paid the issue fee, and the PTO issued the patent). However, under the provisional rights section of the patent statute to which Maxspect's letter refers, once you have your patent, you can recover a reasonable royalty for your competitor's activity that took place PRIOR to issuance of the patent. (This is in addition to recovering for post-issuance infringing activity, for which you can recover damages, e.g., lost profits, you suffered as a result of the competitor's infringing activities.)

In order to collect reasonable royalty for the pre-issuance activity, the claims as finally granted and which the competitor is determined to have infringed must be "substantially identical" to the claims as they were shown in the published version of the application. Additionally, the competitor must have had actual notice -- not just presumed or imputed, but actual -- of the published application. THIS is why Maxspect is sending a copy of the published application with their letter: to provide that actual notice of the published application.

As for whether Maxspect will get the patent, I can't say. What a patent covers is determined by the invention as defined in the claims. In this case, their broadest claim recites the following:

1. (original) A cross-flow wave making pump, comprising
an impeller shell fOlming a water intake and a water outlet,
an impeller assembly pivotally connected to two ends of the impeller shell, and
a motor used for driving the impeller assembly; wherein,
the impeller assembly complises an impeller used for driving a liquid flow, a first turntable
and a second turntable respectively fixed at two ends of the impeller, wherein the first
tumtable is provided with a shaft rotatably mounted in the impeller shell, the second tumtable
is provided with a cavity used for receiving a rotor shaft of the motor.

(The full set of claims they are pursuing, before there has been any examination and need to amend the claims at least, can be seen here:http://appft.uspto.gov/netacgi/nph-P...DN/20150292507)

In the International Application on which Maxspect's U.S. application is based, the International Search Report identifies a Chinese patent application, CN 101793255, as being an X-type reference, which means that, according to the International Search agent, that document, by itself, would preclude patentability of most (nine out of ten, in this case) of the pending claims, as per the International Application. The English-language Abstract for that reference reads as follows:

The invention provides a double-wind wheel cross-flow fan, which comprises a motor and cross-flow wind wheels, and is characterized in that: the double-wind wheel cross-flow fan comprises a double-output shaft motor (11), wherein a left output shaft (23) of the double-output shaft motor (11) is coaxially connected with the driving end of a left side wind wheel (14); a right output shaft (24) of the double-output shaft motor (11) is coaxially connected with the driving end of a right side wind wheel (14); or the double-wind wheel cross-flow fan comprises two single-output shaft motors (55), wherein motor-free output shaft ends of a left side motor and a right side motor are arranged oppositely; an output shaft of the left side motor is coaxially connected with the driving end of the left side wind wheel; the output shaft of the right side motor is coaxially connected with the driving end of the right side wind wheel; and when observed from one end to the other end of the fan, blades of the two wind wheels have the same inclination direction. The double-wind wheel cross-flow fan can be used as air source fans of other air supply equipment.

And here is what the reference shows:





So we shall see......... Orbitech, anyone?!

[Kengar]

Just checked out the status of the patent application. No examination yet, but outside third party has submitted references -- including at least some cited in connection with the International Application on which the U.S. application is based; see my post re the patent matter above -- explaining why the patent application should not be allowed. Sooooo, this will be fun to watch.......

[Techbiker]

Originally Posted by Kengar

Just checked out the status of the patent application. No examination yet, but outside third party has submitted references -- including at least some cited in connection with the International Application on which the U.S. application is based; see my post re the patent matter above -- explaining why the patent application should not be allowed. Sooooo, this will be fun to watch.......

It may be fun for you!, but not really for all the people who did the original design of the Gyre, and all the people who make their living and feed their families because this products.
People like you that is part of this knock off on intellectual property is the disgrace of your profession, just sad
I think personally you should move to China and work more closely with your people, and forget that at any point you belong to a country of entrepreneurs, and people who want to make a living with their originality, not abusing the inventions of others.
Here we go, no wonder your Avatar is a pirate, and you really make the lawyer profession look like they really are pirates, let me know if you need some money.

[ganjero]

[jason2459]

Originally Posted by Techbiker

...
I think personally you should move to China and work more closely with your people, and forget that at any point you belong to a country of entrepreneurs, and people who want to make a living with their originality, not abusing the inventions of others....

I have no clue about patent stuff and I have maxspect gyres, love them, and think they were worth every penny.


But you do know maxspect is a Chinese company and this is a Chinese company ripping off another Chinese company's IP right?

[Kengar]

Originally Posted by Techbiker

It may be fun for you!, but not really for all the people who did the original design of the Gyre, and all the people who make their living and feed their families because this products.
People like you that is part of this knock off on intellectual property is the disgrace of your profession, just sad
I think personally you should move to China and work more closely with your people, and forget that at any point you belong to a country of entrepreneurs, and people who want to make a living with their originality, not abusing the inventions of others.
Here we go, no wonder your Avatar is a pirate, and you really make the lawyer profession look like they really are pirates, let me know if you need some money.

About the only thing showing some thought is your quip about my avatar being a pirate. That was actually sort of funny! It comes from my nickname, Kengar, which has sort of a pirate "ring" to it, and has nothing to do with my profession. Like I said, though, sort of funny; I actually chuckled at that.

Everything else you wrote, on the other hand, is just completely off-the-wall and without any basis or knowledge of who I am or what I or many other patent attorneys do for a living. Most of my time is spent securing patent protection on the fruits of my clients' and their employees' labors. Nowhere, however, have I advocated blatant copying of a PATENTED product. All I have done is EXPLAIN what is going on in connection with the letter that is being sent by the Maxspect attorney, informing POTENTIAL infringers of the PENDING patent application. However, as explained in my original "patent garbage" post, unless and until a patent actually issues, Maxspect can't do anything to stop someone from selling a similar product. And if Maxspect does not manage to secure patent protection, e.g., because similar technology was known and used by others (as evidenced by prior-art references) before they filed their own patent application (new paradigm) or before they invented their own thing (old paradigm), well, then that's just the way it works.

If Maxspect can't patent their product as it currently exists and they want to protect something, they are free to make improvements vis-a-vis the prior art and patent that. If the improvements make the product better, they will secure for themselves a competitive advantage, and the patent will protect THAT. THIS is how the patent system is supposed to work. As noted previously, the patent system is provided for in the Constitution, specifically to foster innovation: "the Congress shall have Power To...promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...." The theory is that if you allow someone to reap the exclusive benefits of their invention for a period of time (i.e., a limited-duration monopoly of well defined scope), they will disclose their invention to the public in the form of the patent so that when the patent expires, everyone else will benefit from the knowledge of the technical improvement. (Yes, a lot of patents cover fairly de minimis advances over the prior art, but that's not the point of this explanation of the system.)

When you invent something, feel free to give me a call and I'll be happy to walk you through the process of figuring out whether it is patentable and, if so, how to go about filing a patent application. (Note that patentability is NOT the same as inventing something; just because something is, as far as YOU know, an invention does NOT mean you can tie up rights in it via a patent.) In fact, I'll do it for you for free. Until then, drop the unfounded rhetoric.......

[Techbiker]

Originally Posted by Kengar

About the only thing showing some thought is your quip about my avatar being a pirate. That was actually sort of funny! It comes from my nickname, Kengar, which has sort of a pirate "ring" to it, and has nothing to do with my profession. Like I said, though, sort of funny; I actually chuckled at that.

Everything else you wrote, on the other hand, is just completely off-the-wall and without any basis or knowledge of who I am or what I or many other patent attorneys do for a living. Most of my time is spent securing patent protection on the fruits of my clients' and their employees' labors. Nowhere, however, have I advocated blatant copying of a PATENTED product. All I have done is EXPLAIN what is going on in connection with the letter that is being sent by the Maxspect attorney, informing POTENTIAL infringers of the PENDING patent application. However, as explained in my original "patent garbage" post, unless and until a patent actually issues, Maxspect can't do anything to stop someone from selling a similar product. And if Maxspect does not manage to secure patent protection, e.g., because similar technology was known and used by others (as evidenced by prior-art references) before they filed their own patent application (new paradigm) or before they invented their own thing (old paradigm), well, then that's just the way it works.

If Maxspect can't patent their product as it currently exists and they want to protect something, they are free to make improvements vis-a-vis the prior art and patent that. If the improvements make the product better, they will secure for themselves a competitive advantage, and the patent will protect THAT. THIS is how the patent system is supposed to work. As noted previously, the patent system is provided for in the Constitution, specifically to foster innovation: "the Congress shall have Power To...promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...." The theory is that if you allow someone to reap the exclusive benefits of their invention for a period of time (i.e., a limited-duration monopoly of well defined scope), they will disclose their invention to the public in the form of the patent so that when the patent expires, everyone else will benefit from the knowledge of the technical improvement. (Yes, a lot of patents cover fairly de minimis advances over the prior art, but that's not the point of this explanation of the system.)

When you invent something, feel free to give me a call and I'll be happy to walk you through the process of figuring out whether it is patentable and, if so, how to go about filing a patent application. (Note that patentability is NOT the same as inventing something; just because something is, as far as YOU know, an invention does NOT mean you can tie up rights in it via a patent.) In fact, I'll do it for you for free. Until then, drop the unfounded rhetoric.......

Wherever help you to sleep at night, Mr Pirate, by name and definition.
As you say "fun to watch"
It maybe as you "lawyer" Legally right at some point, but like always people like you do not have a clue what is morally right, what a waste!

[d0ughb0y]

Originally Posted by jason2459

I have no clue about patent stuff and I have maxspect gyres, love them, and think they were worth every penny.


But you do know maxspect is a Chinese company and this is a Chinese company ripping off another Chinese company's IP right?

Exactly right.

I don't think Maxspect hides that fact, they just don't advertise it.
Whoever thought of using a "western" sounding name in that company is a marketing genius. It really works for American consumers. Most people think it is a US company, lol.

FWIW, companies whose business model is based on making money out of lawsuit usually never becomes as successful as a company that just make good products. I remember Tivo's business model is they patented the word "Tivo" and plan to sue and get money from anyone even mentioning the word Tivo. The CEO actually announced this strategy on CNBC, lol. They got hung up on that, they completely missed out on the DVR market share.

We live in a global economy, it does not matter now where something is made. Judge the product on its own merit, not by where it is made.

[Kengar]

Originally Posted by Techbiker

Wherever help you to sleep at night, Mr Pirate, by name and definition.
As you say "fun to watch"
It maybe as you "lawyer" Legally right at some point, but like always people like you do not have a clue what is morally right, what a waste!

Huh?

[richgoose]

Originally Posted by Kengar

Huh?

I personally find it interesting how this process plays out - thanks for breaking down the possible ways this could go.

Techbiker - it's hard to understand why you are demonizing this gentleman who isn't taking a side or advocating piracy - your time would be better spent going after the myriad of scumbag personal injury attorneys out the in O-town IMHO.

[biecacka]

I agree. As I stated elsewhere, I don't have a horse in the race so I am only here to maybe learn something.

Corey

[CHSUB]

Originally Posted by d0ughb0y

Exactly right.

I don't think Maxspect hides that fact, they just don't advertise it.
Whoever thought of using a "western" sounding name in that company is a marketing genius. It really works for American consumers. Most people think it is a US company, lol.

.

funny!!! i thought it was a german company!!!

[Protoavis]

Originally Posted by Techbiker

Wherever help you to sleep at night, Mr Pirate, by name and definition.
As you say "fun to watch"
It maybe as you "lawyer" Legally right at some point, but like always people like you do not have a clue what is morally right, what a waste!

So it's morally right to claim tech that already existed in various other applications for over a hundred years as your own?

[Kengar]

Whose morality are you asking about?

In any event, it's not a matter of morals here. It frequently happens that people come up with ideas and think they are patentable, only to find out after they have filed a patent application that the technology was publicly known elsewhere and therefore not, in fact, patentable. That's why it's prudent to conduct a patent search before you spend the money to file a patent application, particularly where the particular technology is simple and long-established and the field of technology is quite crowded.

Furthermore, if Company A files a patent application; I am aware of the application and study it and conclude that the claimed invention can't be patented; and decide to proceed with the same/a similar product that is essentially the same as the claimed invention/what was known beforehand, I am well within my rights to do that. As I've stated before, unless and until someone actually patents something, I can do what I want (with the caveat of potentially having to pay royalties for pre-grant activities explained above). It's called business/competition, and a patent attorney who understands how this process works -- e.g., me -- can guide you through the process.

[mikluha]

Originally Posted by Techbiker

It may be fun for you!
Here we go, no wonder your Avatar is a pirate, and you really make the lawyer profession look like they really are pirates, let me know if you need some money.

Wherever help you to sleep at night, Mr Pirate, by name and definition.
As you say "fun to watch"
It maybe as you "lawyer" Legally right at some point, but like always people like you do not have a clue what is morally right, what a waste!

Yeeees! I love to read comments here

[seamonster124]

Originally Posted by Techbiker

It may be fun for you!, but not really for all the people who did the original design of the Gyre, and all the people who make their living and feed their families because this products.
People like you that is part of this knock off on intellectual property is the disgrace of your profession, just sad
I think personally you should move to China and work more closely with your people, and forget that at any point you belong to a country of entrepreneurs, and people who want to make a living with their originality, not abusing the inventions of others.
Here we go, no wonder your Avatar is a pirate, and you really make the lawyer profession look like they really are pirates, let me know if you need some money.

Just so you are aware, the cross-flow technology is older than the United States, and Maxspects is a 100% Chinese owned business owned by: GUANGZHOU MAIGUANG ELECTRONIC.

https://trademarks.justia.com/owners...o-ltd-2908007/

[seamonster124]

Originally Posted by d0ughb0y

Exactly right.

I don't think Maxspect hides that fact, they just don't advertise it.
Whoever thought of using a "western" sounding name in that company is a marketing genius. It really works for American consumers. Most people think it is a US company, lol.

.

I bet they spend money to hide that fact. The anti Jebao crowd this Maxspects is american or German. The moment they realize Maxspects is as Chinese as Jebao, they just dont come back to post any more.

[biecacka]

I am aware that Maxpects is Chinese, I continue to post. Most of the time I don't post is so I don't get accused/bombarded with hatred and "go to your own thread" or whatever. I am unbias as I don't own any Jebao or Maxpects products. They don't fit my needs as my rimless tank, I don't want wires hanging over the top. That is the only reason. I know ppl with good and bad experience with Jebao and Vortechs alike.
As stated above if I understand it correctly Kengar, if company "B" copies company "A" prior to parents then the patent is awarded to "A". Company "B" could be held responsible for royalties? How would that or could that play out being as they are not under the same government regulations? Or could it be null and void since they are both Chinese companies....(thank you Seamonster for pointing that out! ).

Corey

[jason2459]

Didn't realize I was seamonster.

[Kengar]

Patent (IF ISSUED) that is at issue here is U.S. and covers U.S. activities.

Patents are country-specific.

If I have U.S. patent ONLY, competitors can make and sell 100% complete copies of covered product anywhere in the world they so choose.

[phxreefer]

Kengar, thank you for keeping up to date on this. I also think the issue is very interesting. The comments that you get are also the best I've seen in a while. Very entertaining side bar to the issue itself. Keep up the good work!

[kyle.nagel13]

So if the patent is issued, the "copying" company could have to pay royalties on US sales?

[seamonster124]

So Jebao wants to sell us the same stuff cheaper, and maxspects say no! we want to charge more for the same thing! Put some German writing on the box and they'll line up

[biecacka]

So how is a Chinese company requesting a US patent? I don't know the laws, nor am I pretending to so I'm sorry if it's a "dumb" question.
So if they are awards the patent as a US patent, they are stating that a(nother) Chinese company cannot make and distribute like products in US.

What does German writing on the box have to do with it? Does it change the patent laws? I'm confused on that as well....I'm a chef-not familiar with the patent laws like you two are.

Corey

[Kengar]

A company anywhere in the world can have patents that protect its products in the U.S. Similarly, a U.S. company can have patents that protect its products in other countries around the world. You select where to file for patent protection based on where you have markets. As noted above, the scope of protection afforded by a given patent is limited to the particular issuing country, so if I sell product in U.S. and Canada and want to have protection in both, I file for patents in both U.S. and Canada.

Re paying royalties, your question appears to be prompted by my explanation of provisional patent rights. IF the company that has been copying the ultimately patented product had ACTUAL knowledge of the published patent application that covers the product, and IF the claims in the ultimately granted patent are substantially identical to the claims as shown in the published version of the application (published while the application is still pending), then the patentee can recover from the copying company "a reasonable royalty" for the copying company's activity that occurred before the patent actually issued. In other words, the patentee will be able to get a little more from the copying company than ordinarily would be the case, since generally speaking a patent does not have any protective effect until it actually issues. (The patentee will also be able to recover "damages" from the copying company, e.g., profits it lost due to the copying company's activity, as measured from the time the patent issued going forward; the provisional rights simply extend the benefit of the patent "forward" slightly, to a time before the patent actually issued.)

As noted, however, in order for the patentee to avail itself of the provisional rights provision and get such pre-patent-grant royalties, the infringing company has to have ACTUAL knowledge of the published application (which ultimately issued as a patent). And one way to demonstrate that a competitor has ACTUAL knowledge of a published application is to send it to them. That is what Maxspect is doing here. The text of Maxspect's letter (one version, at least), reads as follows:

Dear Sirs:
Guangzhou Maiguang Electronic Science Technology Co., Ltd., d.b.a. Maxspect (hereinafter “Maxspect”) is the owner of a utility patent application, which includes claim coverage directed to a cross-flow wave making pump. As a reference, enclosed is U.S. Patent Application Publication No. US 2015/0292507 A1.

I note from two articles in ************.com that industry intelligence indicates that Jebao Co., Ltd. or related entities have designed and may offer a Jecod CP-45, a Jecod CP-25, or other related equipment which is described and illustrated as a “Cross-Flow Wave Pump”. As a reference, enclosed are copies of the two articles as well as a portion of the website at the aboveidentified URL. This equipment may ultimately infringe one or more claims of the pending patent application of the above-identified U.S. patent application publication. Under the provisional rights provisions added to the Patent Act in 1999, a claimant can recover damages (after the patent issues) if it gives notice to the target of the claims after the pending application is published. See, 35 USC 154(d).

At this time, Maxspect would be pleased to discuss various options to provide you with the ability to avoid liability for infringement under provisional rights provisions related to the above-identified patent application. If you are of the opinion that you do not need to take any action at this time with Maxspect, it would be helpful if you could give us some insight into your reasons. Infringement may occur through making, using, or selling a product in conflict with the claims of the above-identified patent application publication. Maxspect may elect to seek damages from one or both of sellers or manufacturers of infringing products.

Please contact me at your earliest convenience to address this matter.

Sincerely,

James A. Sheridan Sheridan Law LLC


NOTE WELL: Nowhere does Maxspect tell anyone to stop selling their product, or that they (Maxspect) has an actual issued patent in hand. This is something the people railing against the Maxspect letter don't understand, and which the people no longer selling the Jaebo product don't seem to understand, either. If my client received such a letter, I would look at the application and the prior art and assess whether, in my opinion, Maxspect will be able to secure allowance of the claims as published (or any claims at all, ever, for that matter) and advise them accordingly. I REALLY wish folks from the industry would contact a competent attorney -- me or someone else -- before simply dropping a product line, so that they can make properly informed business decisions.

Furthermore, as noted, in order to recover under the provisional rights provisions of the patent laws, the claims of the issued patent (if one ever issues in the first place) must be substantially identical to the claims of the published application. This, of course, raises the question of what claims are.

The claims of a patent are found at the end of the document, and they define the precise scope of what is protected in a way similar to a piece of real property that has been described by metes and bounds. In general, a patent claim can be thought of as a checklist of elements or features a competitor’s product must have in order to infringe the patent and subject the competitor to liability. If the competitor’s product is missing even one feature or element of a given claim, either literally or by “equivalents,” the competitor’s product does not infringe the given claim. There can (and usually are) multiple claims of varying scope in a given patent, and a competitor will be liable for infringement of the patent if any single claim is infringed, regardless of how many other claims in the patent are not infringed.

So the question now is whether Maxspect will be able to secure allowance of claims “substantially identical” to the claims as per the published application. If they do secure allowance of such claims, and assuming such claims actually do cover the competitors’ products, then Maxspect will be able to recover “reasonable royalty” for the competitors’ activity from the time they were informed of the published application until the time the patent actually issues. That, then, raises the question of whether the claims in the published application – or ANY claims, for that matter – will be allowed. That is where comparison to the prior art comes in.

If what is described in a given claim is shown identically in a given prior art reference (something that shows what was known prior to the application being filed), then the reference is said to “anticipate” the claimed invention, and the invention as claimed cannot be patented. Alternatively, even if the invention as claimed is not “anticipated” by any single reference, if the differences between what is claimed and what is shown in the prior art would have been “obvious” to a person having “ordinary skill in the art,” then the claimed invention still cannot be obtained. (This analysis is done on a claim-by-claim basis, and you may have some claims allowed in an application and other claims not allowed.)

So, if you compare the claims (sample provided in first post) of the Maxspect application to the prior art (sample provided in the graphic) and the prior art shows everything recited in the claims, the claims are anticipated and cannot be obtained. In that case, if possible, an applicant (e.g., Maxspect) can amend the claims to recite features that are not shown in (or obvious in view of) the prior art in order to differentiate their claimed invention from the prior art. (Any feature an applicant wants to add to the claims in order to “get around” the prior art has to have been disclosed in the application as filed; the applicant cannot just make up some ostensibly distinguishing feature and add it to the claims.) Notably, however, if the claims are so amended after the application has been published, the ultimately granted claims will not be “substantially identical” to those in the published application, and the ability to recover a reasonable royalty based on the competitor’s pre-patent-grant conduct will have disappeared. Moreover, if the applicant adds some feature to the claims in order to secure allowance of their claims but the competitor’s product does not literally include that feature, the competitor’s product will not infringe the claim an there will be no liability at all. (The keen-eyed reader may notice that above I referred to infringing a claim if your product includes every element recited in a claim, either literally or “by equivalents,” but here I only refer to “literally.” If you amend your claims to recite an additional element, the presumption is that you can no longer rely on the “Doctrine of Equivalents” to show that a competitor’s product includes the feature that you amended your claim to recite.)

So, coming back to the Maxspect matter, the pressing question is whether Maxspect will be able to secure allowance of their claims as published in view of the prior art. Or, if not, will Maxspect be able to add any feature that is disclosed in their application to secure any sort of patent protection at all. Time will tell…….

Finally, contrary to Seamonster124’s suspicious assertions, I do not work for Jaebo. Rather, I have my own patent firm (www.kmfpatent.com). Nor have I ever represented Jaebo. I’m just trying to help folks understand so that they can argue with knowledge instead of damning the devil they know nothing about.

Time to get back to work…..