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case scenario
Posted by Anonymous . updated on 1/8/2010
here is the problem below:
U.S. Patent Y was issued by the USPTO on Nov 1, 1998 within one year of filing. The U.S. Patent Y is viewed as a sign of honor by Yummy Noodles that Yummy Noodles proudly displays the patent at the very front of its store. Today, Yummy Noodles has become a chain selling its famous spicy noodle soups throughout the United States. Despite its growth, Yummy Noodles continues to make its spicy noodle soups by its patented method of 10 hrs. of slowly boiling a whole chicken in lots of water and then adding sweet tomato, salt and its secret ingredient red hot chili pepper for seasoning.
In Dec of 1999, Yummy Noodles recieved a letter from Tasty Hotpot as follows:
Dec.1, 1999
Dear Yummy Noodles,
We, Tasty Hotpot, are a proud owner of U.S. Patent T, a copy of which is attached herewith. We have noticed that you sell a tasty noodle soup. Please kindly review the attached patent, and we would like to discuss with you our licensing program.
Sincerely,
Tasty Hotpot
Enclosure: U.S. Patent T
U.S. Patent T describes a tasty hotpot made of powder sugar, rice wine, tomato, soy sauce and beef stock. U.S. Patent T has only two claims:
1. A tasty hotpot, comprising:
sugar for sweetening,
means for flavoring said hotpot,
tomato,
soy sauce, and
chicken stock.
2. The tasty hotpot of claim 1, wherein said means for flavoring said hotpot is rice wine.
Yummy Noodles ignored Tasty's Hotpot's letter and eventually forgot about the letter from Tasty Hotpot. Yummy Noodles did not consult anybody for advice.
On May 1, 2008, Yummy Noodles received another letter from Tasty Hotpot.
May 1, 2008
Dear Yummy Noodles,
We, Tasty Hotpot, are interested in cross licensing our U.S. Patent T with your U.S. Patent Y for the cross-licensing price of US$ 1 per bowl of your spicy noodle soup, payable to Tasty Hotpot. With the licensing of your U.S. Patent Y, we plan to open Tasty Noodles in every city throughout the United States.
Sincerely,
Tasty Hotpot
Yummy Noodles is furious with the letter and wants to sue Tasty Hotpot. Please advise Yummy Noodles how and where Yummy Noodles can sue Tasty Hotpot. Please also advise Yummy Noodles' risk of suing Tasty Hotpot by advising whether Yummy Noodles infringes U.S. Patent T.
Thoughts I have so far:
1) Where can Yummy Noodles sue?? is it because you can't ask for royalities when cross-trading? is that it? unless the second letter qualifies for "offer to sell"... but.. i think that consideration is incorrect..
2) I could try to argue Patent T invalid since my patent is included in the claims... but i don't know when the Patent T was issued. And plus, I would have to admit that I infringed Patent T first, and also the burden of proof would be on me, so that isn't the best of ideas.
3) claim contruction for Patent T:
tomato is tomato.
soy sauce is soy sauce.
chicken stock is chicken stock.
two means+funtion claims, which i interrpret as:
means for sweetening is sugar, and equivalents.
means for flavoring is rice wine, and equivalents.
4) Yummy Noodles could have a DOE infringement problem maybe?...
tomato --> sweet tomato
soy sauce --> equivalent.. salt?
chicken stock --> 10 hr. chicken stock
means for sweetening --> equivalent.. sweet tomato??
means for flavoring --> equivalent... red chili pepper?
but it seems as if the last two are substantially different!
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