Re: Can an individual seek a declaratory judgement of non-infringement?

On Nov 24, 2:56 pm, "McGyver" <Greyp...@xxxxxxxxxxx> wrote:
<cgall...@xxxxxxxxx> wrote in message

news:d80b4d73-1aa8-4994-96ac-92fbf36ac088@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx





On Nov 23, 10:53 am, richard <mem...@xxxxxxxxxxx> wrote:
WTF is non-infringement?
If he wants to sue you for "infringement" then let his lazy ass come
to Wisconsin and file the claim.

AFAIK, you can't sue for "non-infringement", it is only a ruling.

You either have violated the patent rights or you haven't.

You should consult with a good patent attorney for further advice.
You won't get it here.
Not with such vagueness.

No, someone being threatened with litigation over patent infringement
can make a preemptive strike and seek a declaratory judgement of non-
infringement.  It can be critical if one wants to license their new
patent to others that may be concerned about infringement issues.
That much I know.

I am not commenting on your conclusions about a declaratory judgment action
being viable in a patent case.  I am not qualified to comment.

I just didn't know if I can do it myself or need an attorney to do so.

There is no rule requiring an attorney to be involved.  All that is required
is that you conduct the litigation and the trial with the level of knowledge
and skill concerning law and procedure that would be expected of an
attorney.

Any civil action can be filed in Wisconsin.  Whether the complaint will
survive defendant's motion to dismiss depends on (a) whether the defendant
has sufficient minimum contacts with the state of Wisconsin and (b) whether
you are right about a declaratory judgment being a viable cause of action in
this case.

I have used patent attorneys.  The truly good ones are beyond my
means.

I don't know how many patent attorneys you have knowledge of or anything
about your means.  I agree that litigation is expensive.  Whether a person
who cannot afford litigation should be initiating litigation depends on
whether you can and will acquire the knowledge and skill that a competent
patent attorney would have concerning this one case.

The bad/run of the mill ones are no better than DIY.

Regarding the bad ones, I agree.  Regarding the run-of-the-mill ones, I
don't agree.  The run-of-the-mill patent attorneys will be able to:
(a) prove that the state has subject matter jurisdiction,
(b) prove that the state has personal jurisdiction over the respondent,
(c) conduct discovery if necessary,
(d) get evidence admitted,
(e) respond to admissibility objections in a manner that gets the objection
overruled,
(f) prove that all documents submitted as evidence are authentic,
(g) respond to authentication objections in a manner that gets the objection
overruled,
(h) get expert witnesses qualified under state law concerning opinion
evidence,
(i) respond to objections to opinion evidence in a manner that gets the
objection overruled,
(j) object properly and effectively to inadmissible evidence offered by the
other party,
(k) examine a witness to get testimony admitted into evidence,
(l) cross examine a witness to prove he is a liar and doesn't know much,
(m) cross examine an expert witness who exceeds the bounds of opinion
evidence,
(n) re-examine a witness to rehabilitate his credibility after an expert
trial attorney butchers him,
(o) make all motions, objections and arguments needed to deal with a witness
who doesn't show up or testifies for the other side but disappears when it
is your turn to cross examine,
(p) comply with all rules of the local court, and
(q) etc.

A run-of-the-mill pro se litigant would think it will be enough to know all
about the product and the relationship between the parties, know the basics
of patent law, learn a few procedures and the format of a complaint, get a
few tips on the internet when a question arises and just tell the story to
the judge as if this were a small claims case.  They think that logic and
common sense will matter.  They usually lose and they sometimes end up
paying the legal fees of the other side.  On the other hand, there are those
that become equal to the task, to the same extent as their opponent's
attorney.   That takes a lot of hours in the county law library.  Good luck.

This answer must not be relied on as legal advice for the reasons posted
here:  http://mcgyverdisclaimer.blogspot.com.  And I am not your attorney.

McGyver- Hide quoted text -

- Show quoted text -

Thank you McGyver. Excellent post with lots to consider.
.

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