everytime this topic of EInk comes up, people on HN seem to claim there's a patent thing. I ask the simple question of which patent is blocking, and I get lazy answers like patent thicket. To be frank, I suspect those who make that comment aren't actually directly involved in the industry. I've been to SID and other display conferences and the real problem is physics and also lack of funding. What I know is that EInk can't get to the lower cost pricepoint without solving the scale problem which means getting an order for millions of displays. They can't solve cheap large panels because that would require solving yield issues which again becomes a matter of scale. Startups show up but can't get the billion or so that's needed to get to scale. You can see this pattern repeated with companies like Mirasol. The real problem is that nobody wants to put millions into making displays when they could get higher ROI from putting it into another hot AI/ML or internet service company.
But the narrative is, this locks out generics somehow. The new patent can't cover the subject matter of the old patent, as its automatically prior art, so only the improvements are covered by the new patent. If the "improvements" are so minor as to be irrelevant then I don't see how this is a real impediment to a generic. If on the other hand there's a significant improvement, it seems like that's really something that should be getting patent protection.
I just feel like there's always a step missing in the usual simple descriptions of evergreening I see. Is this all just tied in with something like doctors writing brand-name prescriptions, and the brand name just gets these minor pointless "improvements," but enough to diverges away from what the generic is so it can't be easily substituted?
Even if you're likely to win, it brings a generic offering below profitability.
To a certain degree, it doesn't matter if your patent isn't completely valid, or doesn't completely match what your competitors are doing. The point is to have deeper pockets than them and be able to spend more on lawyers than them. As long as your patent lasts long enough in court to stop your competitors from doing whatever you don't want them to do, it has achieved its goal.
Patents are so broken.
(IANAL, just an MBA who's heard some war stories).
I think a more realistic timeframe for usable eInk patents is 20 years from the first Kindle release, so 2027 or so.
It was a really hard problem that required totally different tooling from a normal display manufacturer so I'd absolutely expect that to be a huge source of delays in getting set up.
You can't just convert an existing display factory to make e-ink displays, so the startup costs are huge and the odds are good that you'll take at least a few years to work out the quirks. Probably more like 4-6... if you get lucky and can figure out what tools to use quickly.
Ignorant question: are you not allowed to start developing a product, or "planning" to develop a product, before a patent it infringes on expires? I see from glancing at Wikipedia that with a US patent, "making" the item is infringement, but where is the line on that? Is it that you literally can't fully make the thing, i.e. only get 99% of the way there and you're fine? Or is it infringement to have an on-the-record chat with a buddy that you're thinking of working on X when the patent for X expires? (Responses in the form of LMGTFY are welcome, I couldn't quickly figure out how to search for this.)
Lawyer-no-longer-practicing-patent-law here: You have to look at each individual, numbered claim (at the end of the printed patent). Treat each claim as its own infringement checklist, with each term in that claim as a checklist item. IF: Every checklist item in that claim is present in what you're doing, either literally or, as an edge case, by a "substantial equivalent," a term of art; THEN: That claim is infringed. (It only takes one infringed claim for liability.)
A canonical hypothetical claim is this: "1. A seating structure comprising: (a) a generally-horizontal seating platform; and (b) at least four legs, of substantially-equal length, each affixed, substantially orthogonally, to the same side of the seating platform to extend in the same general direction relative to the seating platform."
For that hypothetical claim, a tripod-style three-legged stool with angled legs wouldn't infringe because four legs are required for infringement. (There'd probably be an argument over whether the angled legs satisfied the "substantially orthogonally" element.)
For the same claim, suppose that you had a conventional four-legged chair with a back. That chair would infringe claim 1 because the checklist elements are all present; the addition of the back is irrelevant to the infringement analysis.
(In chemical- and biological fields, extra elements can be relevant to infringement analysis, for reasons we won't go into here.)
Another edge case: If you "induce" someone to infringe the claim, you're liable as an infringer. Still another is "contributory infringement," which I won't go into here.
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> Or is it infringement to have an on-the-record chat with a buddy that you're thinking of working on X when the patent for X expires?
No infringement there — for infringement to exist, someone has to actually make, use, sell, offer to sell, or import the subject matter of at least one issued claim of the patent.
(Usual disclaimer: I'm not your lawyer, don't rely on this as legal advice about your specific situation, small changes in facts can sometimes make a big difference in outcome, etc.)
Generally, you can be sued for infringement whenever you make, use, etc., anything that comes within the scope of any issued, unexpired, not-yet-invalidated claim.
There's a nebulous experimental-use exception to liability; it's currently of uncertain scope [0].
> If I build a factory that produces chairs, and then hoard all those chairs in my house, can I be told to knock it off?
Generally, yes — if the chairs come within the scope of an issued, unexpired claim that hasn't yet been invalidated, then simply making the chairs constitutes infringement of that claim.
> What if I build the factory and then have it just stand there, producing nothing?
If the factory itself doesn't infringe a claim, then there's no infringement under the stated circumstances.
Same disclaimer as above.
[0] See, e.g. https://www.lrrc.com/webfiles/TCL-KK_DS.pdf (not an endorsement).
There's not much of a market-based solution to a legally protected monopoly. The best you can hope for is to higher demand at lower price points that makes a lower price profitable