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Related to this question on 3D Systems patent expiry, it appears that 3D Systems are raising a patent infringement lawsuit on the basis that Kickstarter and Formlabs:

knew or should have known about, or were willfully blind to, 3D Systems' extensive patent rights in thearea of three-dimensional printing and stereolithography

This may be more on the legal side rather than the patent side, but surely they must have to first find out whether any of their specific patents are infringed, rather than just say, "We have a lot of patents in this field, you must have infringed some..."

What is the correct process here? Shouldn't they wait to see what technology is implemented in this process?

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3 Answers

up vote 6 down vote accepted

The "willfully blind" passage that you quote from paragraph 17 is in the "Background Facts" section of the complaint. It does not state the basis for the lawsuit - though it is possible that they are setting up an argument of willful infringement.

Paragraph 22 of 3D Systems' complaint reads as follows:

"Upon information and belief, Formlabs' Form 1 3D printer is used for a process of stereolithographically forming a three-dimensional object by forming cross-sectional layers of the object from a material capable of physical transformation upon exposure to synergisticstimulation, including the steps of receiving data descriptive of cross-sectional layers, formingcross-sectional layers by selectively exposing the material to the synergistic stimulationaccording to data descriptive of the cross-sectional layers to build up the three-dimensionalobject layer-by-layer, and in particular in a process that infringes one or more claims the '520Patent."

The allegation is quoting language from 3D Systems' patent 5597520 claim 1. That is, 3D Systems is making a specific allegation of infringement of a particular claim of a presumably valid patent issued by the USPTO. It looks like they are basing their infringement claim on public descriptions of the operation of the FORM 1 printer.

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The general standard one has to meet for filing any kind of factual assertion with a U.S. District Court is set out in Federal Rule of Civil Procedure 11(b)(3):

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

...

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery;

But how much pre-lawsuit investigation is appropriate/necessary before filing a patent infringement suit isn't particularly clear cut and depends a lot on the context of the specific situation. Traditionally, the bar has been pretty low - in general, all a complaint has to do is allege facts that, if true, state a claim for relief (i.e. a valid reason to sue someone). The Supreme Court raised the bar a bit in the last decade, requiring the allegations to at least be "plausible," but still not requiring "detailed factual allegations."

However, even the slightly raised standard is muted in the patent context because the Federal Rules also supply a "form complaint" for direct patent infringement (along with complaints for a variety of other types of actions), and the Supreme Court also held that complying with the requirements of these form complaints de-facto meets the necessary pleading requirements.
Paraphrasing Form 18, all you have technically have to do is state/allege that:

  1. My lawsuit arises under a federal statute (e.g. 35 U.S.C. 271);
  2. Patent No. X issued on Y date;
  3. I have/had an ownership interest in Patent No. X during period T; and
  4. Defendant D infringed my rights in Patent X during period T by making, using, selling, and/or importing into the United States a doohickey W that embodies one or more claims of Patent No. X.

Therefore, give me money (and/or make D stop it).

As long as you can say all four of those things subject to the requirements of Rule 11, you can file a suit for patent infringement.

Obviously, the most contentious is element 4, that the defendant is infringing, but as long as you can make a decent argument that, based on what you know now, you believe that if you're given the opportunity to conduct discovery (i.e. dig into the details of what the defendant is doing and how its doing it), it's likely that you'll discover evidence that supports your allegation, then you've complied with all the legal requirements.

The standard for pleading indirect infringement is a bit higher. See @DennisCrouch's post on the subject.

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+1 for this. Your second last paragraph is the most intriguing - seems really...open to abuse. –  Rory Alsop Nov 27 '12 at 21:40
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Yes and no. Despite their reputation, in reality the vast, vast majority of lawyers take their ethical obligations extremely seriously and would never file a complaint unless they truly did have a good faith basis for believing it's appropriate. Unfortunately, there are always exceptions, intentional or not, and its the exceptions that tend to make the news (or at least, the blogs). –  Jay Smith-Hill Nov 28 '12 at 19:37
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Let me second Jay's comment. I have been involved in quite a few Rule 11 exercises. The patent holders frequently spend tens, sometimes hundreds, of thousands of dollars (on attorneys fees and others) investigating both prior art and the products or processes of anyone they intend to sue over the patent. The possibility of sanctions for a Rule 11 violation is a very real deterrent to those who have built a practice in the patent arena. Being a plaintiff in a patent suit is not cheap. Skimping on the initial stages is a recipe for an expensive disaster. –  user96 Nov 30 '12 at 1:49
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So, in laymen's terms (i'm not a lawyer) if the USPTO approves your patent, you can be sued for infringing another patent?

Does liability fall on the inventor or the person filing (lawyer?).

I'm scared stiff!

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You getting a patent does not mean you can make any specific product. Your product may very well incorporate things other than the part you patented. It is makes or selling, those things that are infringement. Getting a patent doesn't infringe anybody else's patent regardless how close it may be. Making, selling, using, etc. something that steps on someone else's patent does. You have a novel scooter but when you go into production someone's patent on the underlying basic scooter can still be infringed. Completely unrelated to you getting or not getting a patent on your special twist. –  George White Sep 1 '13 at 4:56
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