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Old 02-28-2006, 10:14 PM   #25 (permalink)
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Originally Posted by stealthx32
But using that logic, Cingular will be allowed to collect royalties on their recent application for emoticon patents until someone challenges the USPTO? Its a clear case of prior art while the RIM/NTP case is not, but they're both invalid nonetheless.

If they're invalidated now, doesn't that mean that they shouldn't hold the ground in the past as well since it was not an original idea to begin with?
No to the first question. You cannot enforce a patent application. Cingular can't do anything unless and until there is an issued patent. Further, if Cingular comes and sues you, they could lose on validity grounds--if accused of infringement, you ALWAYS assert BOTH non-infringement and invalidity. You don't need the Patent Office to declare a patent invalid--the courts can do that (in fact, the courts can do it on more grounds than can the PTO).

No to the second question as well, for the reasons I've outlined on here before.