Regarding the patent issue.....
Regarding the patent issue.....
Maxspect does not have an actual patent yet; in fact, their application has not even been taken up for examination. I would estimate, based on when they filed it in the U.S., that it will be taken up for examination sometime this summer.
Regarding the letter they are sending, it is to put potential future infringers on notice of their PUBLISHED APPLICATION and to set the stage for potential recovery of royalty amounts under the so-called provisional rights provision of the patent law.
In general, you cannot enforce anything (meaning prevent a competitor from infringing, and recovering damages/reasonable royalty based on competitor's infringing activity) unless and until you have an actual GRANTED patent in hand (meaning the application has been allowed, you paid the issue fee, and the PTO issued the patent). However, under the provisional rights section of the patent statute to which Maxspect's letter refers, once you have your patent, you can recover a reasonable royalty for your competitor's activity that took place PRIOR to issuance of the patent. (This is in addition to recovering for post-issuance infringing activity, for which you can recover damages, e.g., lost profits, you suffered as a result of the competitor's infringing activities.)
In order to collect reasonable royalty for the pre-issuance activity, the claims as finally granted and which the competitor is determined to have infringed must be "substantially identical" to the claims as they were shown in the published version of the application. Additionally, the competitor must have had actual notice -- not just presumed or imputed, but actual -- of the published application. THIS is why Maxspect is sending a copy of the published application with their letter: to provide that actual notice of the published application.
As for whether Maxspect will get the patent, I can't say. What a patent covers is determined by the invention as defined in the claims. In this case, their broadest claim recites the following:
1. (original) A cross-flow wave making pump, comprising
an impeller shell fOlming a water intake and a water outlet,
an impeller assembly pivotally connected to two ends of the impeller shell, and
a motor used for driving the impeller assembly; wherein,
the impeller assembly complises an impeller used for driving a liquid flow, a first turntable
and a second turntable respectively fixed at two ends of the impeller, wherein the first
tumtable is provided with a shaft rotatably mounted in the impeller shell, the second tumtable
is provided with a cavity used for receiving a rotor shaft of the motor.
(The full set of claims they are pursuing, before there has been any examination and need to amend the claims at least, can be seen here:
http://appft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220150292507%22.PGNR.&OS=DN/20150292507&RS=DN/20150292507)
In the International Application on which Maxspect's U.S. application is based, the International Search Report identifies a Chinese patent application, CN 101793255, as being an X-type reference, which means that, according to the International Search agent, that document, by itself, would preclude patentability of most (nine out of ten, in this case) of the pending claims, as per the International Application. The English-language Abstract for that reference reads as follows:
The invention provides a double-wind wheel cross-flow fan, which comprises a motor and cross-flow wind wheels, and is characterized in that: the double-wind wheel cross-flow fan comprises a double-output shaft motor (11), wherein a left output shaft (23) of the double-output shaft motor (11) is coaxially connected with the driving end of a left side wind wheel (14); a right output shaft (24) of the double-output shaft motor (11) is coaxially connected with the driving end of a right side wind wheel (14); or the double-wind wheel cross-flow fan comprises two single-output shaft motors (55), wherein motor-free output shaft ends of a left side motor and a right side motor are arranged oppositely; an output shaft of the left side motor is coaxially connected with the driving end of the left side wind wheel; the output shaft of the right side motor is coaxially connected with the driving end of the right side wind wheel; and when observed from one end to the other end of the fan, blades of the two wind wheels have the same inclination direction. The double-wind wheel cross-flow fan can be used as air source fans of other air supply equipment.
And here is what the reference shows:
So we shall see......... Orbitech, anyone?!
