win - win?
Michael Recchione
>I'm not an attorney, and this isn't legal advice.
(disclaimer mode off now).
I've looked at a lot of patents over the years, mostly to support our IP Law folks in either deciding whether to continue maintaining a particular patent, or in deciding whether we have a good case for asserting one of our patents against a competitor. I've also had to work with our lawyers on applications for my own patents. That still doesn't make me a patent attorney or an expert on patents in general - I'm just familiar with the prevailing style in my industry and my company.
That said, the claims on this patent seem a little strange. We typically write our applications so that the first independent claim is the broadest claim you could make about the invention that would stand on its own, i.e. it should not depend on its own dependent claims in order to be valid. It appears to my (non-lawyer, not offering a legal opinion) eyes that every claim in this patent is dependent on Claim 1, and that Claim 1 itself is so broad that almost any miter box or bench hook (or any number of other devices that read on prior art or are obvious extensions of prior art) would be well described by it.
As I said a couple of times, I'm not a lawyer and this isn't a legal opinion. But it seems like a funny way to write a patent based on what I've seen.
However, I've seen funnier - my own company has (not on purpose), in a few instances, filed and obtained more than one patent on more or less the same invention - different technical teams, different lawyers, maybe different examiners. Essentially, the patent office has shifted responsibility for the patent prosecution process to the courts, which essentially means that the deepest pockets win all the time. It stinks.
Regarding LV and FWW's actions on this thing, one thing that an old boss of mine drummed into my head is that any patent is a good patent until it's successfully challenged. The segment of the patent code that Dan posted a link to states that anyone who encourages others to infringe on a patent is guilty of infringement. So FWW was clearly in trouble with the tip. LV probably doesn't care if you take the trouble to build yourself a dovetail jig with magnets - most people won't go to the trouble, and those that would probably are allergic to buying stuff anyway, so it would be no skin off their nose. And they'd have a real hard time finding out you did it anyway.
But a further tidbit is that failure to assert patent rights can be nullify those rights. If a competitor could show that LV let this tip go unchallenged, they would then be free to infringe at will. At the same time, for the reasons you pointed out, neither LV nor FWW would have wanted to get into a real battle over this, as each depends on the other's good will to some extent. Besides, it's probably not worth it. So the mildly worded retraction was enough for LV to protect its rights from infringement from real competitors while still allowing FWW to save face and not establish a precedent requiring them to do full patent searches on future tips.
So maybe the whole thing worked out for the best after all. I'm glad I practiced and learned to cut dovetails without a jig :-).