Update: actually, Black & Decker came up with this idea first and we just hadn't seen the thing :-(
The Thermal Flashlight concept has been kicking around for a while and a lot of people like it. Its a popular instructable. But as Hackaday pointed out a day ago, Its now a commercial product sold by Black & Decker.
In a way, I'm excited. We don't have access to the economies of scale to sell such a polished device for 30 bucks, so its nice that a commercial unit exists. But their patent application filed in October 18th 2011 really sucks. Public Lab started publishing about this tool in December 2010, so we would exist as prior art pre-empting their patent, except they give a "priority date" of 2008, so they claim to have thought up the idea first.
I'd like to challenge this patent application at the patent office with our prior art before it becomes a patent. I've never done this before. Any suggestions?
Interesting Matt, how did you find out about their patent? I wonder if the Berkman Center for Internet and Society would be interested in discussing this?
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Well, I saw the device and did a patent search for Black & Decker-assigned patents and thermal sensing-- it didn't take too long.
does their claim to priority apply to a patent filed 3 years later? does it apply if we had an independent process that provides a prior art trail? where does this leave the thermal flashlight and thermal fishing bob? if intended to be used for time lapse photography does that mean that it is a different invention and independent? It would be really interesting to hear some legal opinions.
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I myself am really curious about this issue in general, especially as I dive more into developing open environmental monitoring hardware :)
Maybe we could put together a little 'brief' regarding our questions (maybe this research note + comment thread is already enough), and follow Sara's suggestion about presenting this to someone at the Berkman Center? They seem to have folks who would dig this topic / issue ...
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Here are some potentially helpful notes from OSHWA: http://www.oshwa.org/2013/12/05/open-hardware-legal-meetup-nyu-nov-11/
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I'm also very curious to see how this progresses.
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So, does priority date allow them to back-date the effective date of their patent to before we independently published? I guess I thought "first to file" meant the application date.
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