State of Innovation

The Aspex Eyewear v.  Clariti case decided by the CAFC on May 24, 2010 used the excuse of equitable estoppel to allow Clariti Inc. to steal Aspex Eyewear’s invention in U.S. patent 6,109,747.  Aspex sent a letter to Clariti asserting that Clariti was selling products that were covered by three other of Aspex’s patents in 2003.  Aspex then sends a letter in 2006 that one of Clariti’s products is infringing the 6,109,747 (747 patent) and seven months later files suit against Clariti for infringement of the 747 patent.  The court found that this seven month delay justified a defense of equitable estoppel on the part of Clariti.  There is no evidence that Clariti relied on Aspex’s statements or that it relied on Aspex’s seven month silence.  This is clearly just another backhanded way to undermine patent rights.

This case makes a mockery of the Constitutional guarantee of securing inventor’s rights.  Congress has already spoken on when silence or inaction bars the awarding of damages.  35 USC § 286 limits damages for infringement that occurs more than six years before the filing of a lawsuit.

This case opens up the possibility that by marking your product with a patent and failing to file a lawsuit within seven months might result in a defense of equitable estoppel.  This makes the notice provision of the patent laws 35 USC § 287 a minefield for the patent holder.

This case is one in a long line of changes to our patent law that are designed to make it easier to steal patented technology.  These changes include the publication requirement, the underfunding (stealing of user fees) of the patent office, the appointment of an incompetent PTO director (Jon Dudas), the requirement of maintenance fees to keep your patent alive, the elimination of the duty of care, the elimination of automatic injunctions for infringement, the imposition of a subjective (unworkable) standard of obviousness, the doubling of the pendency time to obtain a patent, the increased ability to attack the validity of a patent under new procedures, the lowering of the standard of inequitable contact, prosecution history estoppel and on and on and on.  This is an all attack on the patent system, which will destroy our economic and technological leadership.