Bad News Re LED Lighting: Another Orbitech patent application has been allowed.

[Kengar]

Just a heads up. One of Orbitech's three pending patent applications has recently been allowed (April 7). They have not yet paid the issue fee, which they must do in order for the application to be issued/granted as an enforceable patent.

One of the allowed claims is this one:

26. (Previously Presented) A lighting system for marine growth in a marine habitat having an open top, comprising:

a housing disposed over the open top ofthe marine habitat; and
an LED light source disposed on an inner side ofthe housing facing the open top of the marine habitat, the LED light source comprising at least one light engine having a plurality of individual LEDs, the LED light source is a main source oflighting to the marine habitat.


I note that a request for reexamination of one of their two issued patents (the one they sued PFO on) has been filed, but reexamination has not yet been granted. Given the type of request for reexamination that was filed, the requesting party is anonymous. More details to follow as they become available.

(Yes, I am a patent attorney.)

[iamwhatiam52]

HUH?

They can lay claim to the concept of using LED's on a salt water tank as if no one thought of this but them?

[mcoomer]

Greedy bastards. They've already killed one of the greatest lighting suppliers ever. Now what! I guarantee you it will be a cold day in hell before I buy one of their products.

[alcove]

what a bunch of clowns, lets see what they do now that there is more than just pfo to jump on.

[SWINGRRRR]

HUH?

They can lay claim to the concept of using LED's on a salt water tank as if no one thought of this but them?
Google Orbitech and PFO. The original story is not new.
I guarantee you it will be a cold day in hell before I buy one of their products.
Thats the crap of it. THEY DONT MAKE AQUARIUM LED LIGHTS!! They plan too since 2009, but never had. The patent killed it for anyone else making a P-N-P LED fixture.
I hope Mr. Crabb, rots in you know where. Hes set LED aquarium tech back 20 years.

[sslak]

Greedy bastards. They've already killed one of the greatest lighting suppliers ever. Now what! I guarantee you it will be a cold day in hell before I buy one of their products.

This.

I would love to see them market a line of aquarium lighting specifically so I can enjoy the satisfaction of NOT buying it.

[dogstar74]

Hypotheticaly

I'm developing an LED light that is for...... oh yeah, accent lighting on an interior wall. Strangely enough this light has the perfect spectrum for growing photosynthetic organisms. But I can't by law tell you that. It's great if you want your wall color to have a slight actinic cool lighting scheme. It's about 60% royal blues and 40% high intesity whites. Although it's perfect for growing corals, this is an accent light for an interior wall.

Strangely enough, we designed it just under 24" in length. And next week we'll send to production a model that's just 30" in length. Or two units can be placed together to span any particular 48 inch area. Just in case you need to.

End of hypothetical rant.

The truth is, we've been using off label items in this hobby for a very long time. LEDs are not going away. The process is what is being patented here. But the guy that developed the Metal halide light for parking lots and gymnasiums could not have intended that the lights would be used in the aquarium trade.

I wouldn't be too upset about this, fact is, most of these lights are over priced simply because they are used in aquariums. (specialty market). It won't be too long till all these cases of defending that patent becomes too costly for the company, and they'll focus more energy on having an original idea rather than who beat who to the punch line.

Just my .02

[Santoki]

What I don't understand is how a patent which claims exclusivity over the use of a technology for a specific purpose is allowed. Isn't this synonymous to patenting the use of computers for say... the specific purpose of .. watching movies, playing games,
or filing a patent for using LEDs in cars etc.. I could go on and on.
Maybe I should file a patent for use of LEDs to light my kitchen, or wait, maybe patenting the use of florescents over a marine habitat?
-R

[SWINGRRRR]

Didnt the patent say something about a controller as well? That was the hit to PFO. I wonder if there could be a fixture without a controller and not violate the patent. Hmm, wheres a good patent attorney when you need one?

[Kengar]

Hmm, wheres a good patent attorney when you need one?

Right here.

[SWINGRRRR]

Right here.

So what about the guy a couple post up? Can you do that, just name it something else? And what about no controller, controller thing? Any ideas?

[Amoore311]

I don't see this as a big deal either tbh. The fixtures were over priced when PFO was selling them, and they will stay that way for a while simply because it's a niche market product.

This patent wouldn't stop all of the DIY that's going on right now with LED's. Those DIY'ing the fixtures just wouldn't be able to sell them for a profit.

[buffalo123]

How do i get in on this action? I could get a few patents and wait for someone to manufacturer it. Then Sue CHA CHING $$$$$$$$$$$$$$$

Look like we been here before

[Bzar]

American patent? Global Economy? ;)

[evilc66]

I don't see this as a big deal either tbh. The fixtures were over priced when PFO was selling them, and they will stay that way for a while simply because it's a niche market product.

This patent wouldn't stop all of the DIY that's going on right now with LED's. Those DIY'ing the fixtures just wouldn't be able to sell them for a profit.

Actually, it might be a big deal even for DIYers. Building your own does not necessarily protect you from the patent. With the latest round of patents being pushed through, the use of any LED system for the growth and support of marine life will be in violation, regardless of who builds it. Granted, Orbitech isn't going to go after the average hobbyist, but they could single a few people out to make examples of them. Cease and desist orders will come long before lawsuits start getting handed out.

As for the cost, it's got nothing really to do with the fact that this is a niche market. The basic materials that you need is still expensive. Granted, DIY is cheaper, but the extra cost goes into a lot of tooling, engineering, and materials. If you think that LED fixtures are the only aquarium lights that are over priced, look at the basic material costs of a metal halide system. $50 in raw materials (bulb, ballast, reflector, socket, sheet metal) quickly becomes a $300 pendant.

[GreshamH]

Thanks for Chiming in evilC66 :)

[Variansyn]

Trying to wrap my mind around this. Does this essentially mean that Marineland, Pac Sun and a couple other companies won't be able to sell their units, or units similar to their patent ?

[NyReefNoob]

patent owt affect diy, as long as your not producing and selling

[shaunt]

I think maxspect (chinese company I believe) will tell them put their patent where the sun don't shine

[davidtsx]

I know this subject way to well. My brother is a patent attorney and is one of the head guys at the patent office. I was speaking to him a while ago about the patent that Orbitech had received and after doing a ton of research I found a lot of information for them to perform a patent review dated back two years before the submission of the patent application. So I submitted to a well know editor and for what I know he is one of the people that paid the thousand dollar fee in order to have the patent reexamined. I hope it's beat, but who knows. The reason this patent got undermine skin was because I wanted to do a DIY LED setup, but you will be effected by this even doing a DIY. They even have a patent on the controller.

[davidtsx]

Forgot to subscribe.

[tahiriqbal]

I think the whole fuss is all about the use of controller along with LEDs. I hope my touch screen controller is beyond their patent rights since we are based in the UK ;). I have already checked with the UK patent office regarding the use of controller with LED lighting systems with good news. This patent only applys to the USA so Orbitech can suck my .....I better not say.......

[Variansyn]

Touch Screen ?

Do tell sir. Do tell.

[returnofsid]

The specific patent, that ended up putting PFO out of business, was NOT just about using LEDs for aquariums. It was about using LEDs, along with a specific type of Controller, for aquariums.

[evilc66]

patent owt affect diy, as long as your not producing and selling

Don't be so sure of that. Any production of an item that uses patented technology or ideas is still in violation, whether you sell it or not.

I think maxspect (chinese company I believe) will tell them put their patent where the sun don't shine

Importing it personally from overseas is one way to get around the issue, for now. If anyone tries to import these in bulk, they could be in trouble.

Trying to wrap my mind around this. Does this essentially mean that Marineland, Pac Sun and a couple other companies won't be able to sell their units, or units similar to their patent ?

Pretty much. Pacific Sun is getting around it by selling them as hydroponic lights, even though they are ment for aquariums.

The specific patent, that ended up putting PFO out of business, was NOT just about using LEDs for aquariums. It was about using LEDs, along with a specific type of Controller, for aquariums.
That was only part of the patent, and probably the only part that Orbitech had a solid case against PFO. These continuances on the patent, if I'm reading them right, will make any light that is powerful enough to support marine life (that includes algae BTW) in violation. Ken, please correct me here if I'm wrong.

[Variansyn]

Pretty much. Pacific Sun is getting around it by selling them as hydroponic lights, even though they are ment for aquariums.

That sucks. I really like the Pac Sun setup via PC , it'd suck *** to see them affected by this or any company offering viable products for that matter.

[Navyblue]

I find it hard to believe that you can patent the use of a technology for a specific purpose. By the same reasoning as some one has mentioned shouldn't it be possible for some one to file a patent on say, the use of porous material for air delivery in aquarium (aka airstone)? Or fluorescent tubes in home? Before they were common?

If this is indeed true I hope they dump all their money on this patent thing and develop something real nice. In no time we'll have a Chinese company copy it, or may be even improve it, and sell it on eBay at a fraction of the price. After all it isn't anything high tech or require any sort of special knowledge. I'll love to see how long they would last.

[Kengar]

I have to be careful not to be giving specific advice, so let me give a general explanation of how a patent "works." Also, this is my own explanation; it is not to be imparted to my Firm.

Although all of it is legally important, the critical part of the patent is the claims, which are found at the end of the patent. The claims are like the metes and bounds of a piece of property (e.g., I own the parcel of land with a permieter that runs 100 yards along main street, back 50 feet, 100 yards to the east, then 50 feet back to main street), and they define what the patent owner can PREVENT OTHERS FROM DOING. (Note that a patent gives you the right to exclude others from doing something; it does not give you the right to do yourself what is covered by the patent. If someone has an earlier patent that is broader or more general than what you came up with, that person can prevent you from practicing your own invention. (The solution would be for you to take a license from the owner of the broader patent, which lets you practice (e.g., make and sell, or even just make for yourself) your own invention.))

A patent claim can be thought of as a laundry-list or list of ingredients that must be present in a thing (product, method, combination of items, etc.) in order for that thing to be covered (i.e., prevented from being done) by the patent. So, in evaluating whether the thing under consideration is covered by the claim (i.e., whether it would infringe the claim, and hence the patent), you read the claim and compare what the claim says to the thing in question. If you can go down the claim and "check off" everything that is stated in the claim, the thing under consideration will infringe the claim (unless it can be shown that the claim is invalid, i.e., that it never should have been issued). One practical effect of this is that the less things there are recited in a claim, the broader the claim actually is and the more things it can cover.

That seems like a fairly straightforward thing to do, and many times it is. At times, however, what the words in a claim mean, and how much of the claim needs to be considered, can be open for debate or interpretation. (These are times when you really should involve a patent professional, since the analysis can get very tricky. Seriously.) For example, in general, the introductory words in the claim (called the preamble, which is the part that typically comes before the word "comprising" the first time comprising gets used, which means including but not limited to,)are not taken into consideration, but depending on certain circumstances, the preamble words MAY be taken to be affirmative requirements. Additionally, the words in the claim are to be interpreted in light of the specification (i.e., the rest of the patent, which explains what the invention is all about). However, it is one thing to interpret what the claim require in view of the specification; it is another thing altogether (and improper) to "read in" a limitation (i.e., make it a requirement) into the claims from the specification. For example, if my patent is directed to a car and the claims recite four wheels with tires as part of the car, and if the specification/desciption provides as an example a car with whitewall tires, except under certain circumstances, the claim term "tires" will cover any tires -- whitewalls, steel-belted radials, solid black, etc -- and it will not be interpreted to mean just whitewall tires. (If the patent attorney does his job correctly, he will know what things need to be described in the claims precisely and what things are not critical to the invention and can be recited more generally.) Thus, if you read the patent specification and see a specific example being described but the claims are broader, you need to focus on the broader language used in the claims to figure out whether something does or does not infringe.

Additionally, some times a term in the claim almost, but not quite, describes something in the potentially infringing thing under consideratoin. Under what is called the doctrine of equivalents (which I refer to as the patent law version of horseshoes or hand grenades (i.e., close enough!)), the thing MAY be found to infringe the claim even though, LITERALLY, all the words in the claim do not read on the thing under consideration. (This is another area that really, really needs to be left to a professional, since whether the doctrine of equivalents can be applied and, if so, how broadly it can be applied requires a lot of very fact-specific analysis.)

Additionally, some times there are a lot of different ideas presented in a single patent application, but the Patent Office will limit you to just one main concept to pursue in a given application. Or, at times, you look at the language of the claims you have been trying to get and realize they might be too narrow, or not adequately descriptive, or for some other reason don't suit your fancy. In either case, you can file what's called a continuation application to pursue claims to the other concepts or to re-express your original claims or to pursue claims to different facets or aspects of your invention. If you file such an application where it is based on the material you filed originally, with no changes in the disclosure such that new the claims are based on the origianal material, that is called a continuation application. On the other hand, if you add some new disclosure into the description (for example, you realized it would be cool to put spikes on the whitewall tires so you could drive real well on ice) and the new claims are based on that added disclosure, the application is called a continuation-in-part (because only part of the material is continuation material). (In the present case, Orbitech filed one application, then all four subsequent applications were straight continuation applications.)

Thus, continuation applications give you an opportunity to "play around" with the claim language you are trying to get allowed, or to redefine the scope of your invention, and although things that get said during the application process for the first application can have a bearing on how the claims in the later application are to be interpreted, ultimately the claims of the later application have to be interpreted on their own to feet. (Thus, for example, if the claims in the first patent recite tires, or even specifically whitewall tires, or if the term tires was, for some very case-specific reason, determined to actually mean whitewall tires, claims in some continuation patent that don't mention tires at all -- for example, they might be focused on the engine system of the car -- will not require any tires at all in order to be infringed.) So, the bottom line is that every patent that issues, even where they are all based on the same original application, needs to be considered on its own merits.

Finally, let me address briefly validity. To a major extent, the consideration works in the "reverse direction" of an infringement analysis. For example, if you can take a claim (whether it is the patent office considering the claim during the application process or a competitor worried that they infringe someone's patent) and hold it side-by-side with something that was done or known before the earliest date to which the claim being considered is entitled (referred to as "prior art"), and if that claim "reads on" the prior art reference such that each and every term in the claim is present in that single prior art reference, the prior art is said to anticipate the claim, and the claim is not valid. On the other hand, there are times the claim almost, but not quite, reads on a prior art reference. If, however, the differences between what is being claimed and what is shown in the reference would have been obvious to someone of "ordinary skill in the art," then the claim may still be invalid as obvious. (The features or details that are recited in the claim but that are "missing" from the primary reference can be "filled in" or provided by some other prior art reference or simply by what one of skill in the art would know, and there are standards and prescribed methods for assessing this.)

So, this is a lot of information for a friday morning, and it's time I get in and start working for the day. I hope you find this information useful.

[dcombs44]

If I'm not mistaken, don't patents eventually expire. Typically in 20 years I think.

[Kengar]

yes, they do expire. twenty years from the earliest claimed filing date.

so, if application for patent A is filed 1/1/10, when the patent finally issues it will expire 1/1/30 (assuming the required fees are paid at 3.5 years, 7.5 years, and 11.5 years after issuance to keep it in force).

if a continuation application is filed claiming priority back to the original application that led to patent A (regardless of whether it is a continuation or continuation-in-part, as explained above), continuation patent B will also expire 1/1/30.

It used to be that patents expired 17 years from the date they issued, so people used to always have someting in the hopper over at the patent office so that they could submit one continuation after another (so long as SOMEthing was pending and the priority chain could be traced back) so as to try to write claims to cover new technology as it comes on the scene using their original disclosure that, in certain cases, was made long before the new technology was ever even considered or a gleam in anyone's eye. These were often referred to as "submarine patents" because they would rise up out of the depths of the patent office and create havoc. (See, for example, Lemelson patents.) The change over to the 20 year from earliest claimed priority date was in part a response to that tactic and to a large extent nullified it.

Also, patent applications used to be kept confidential until the patent actually issued on it. Now, patent applications are published at 18 months from the earliest claimed priority date. So, on a first application in a chain, it will publish about 18 months from the filing date. A continuation application filed a year after the first application was fiiled will publish about 6 months after filing. Etc. Something filed two years after the original filing will publish even more quickly. As soon as a pending application is published, you can go on line at the PTO site and see just about everything going on with the application, which is how I found that the OT application has been allowed and what the allowed claims say.

[Variansyn]

So Kengar, since you are obviously "the man" on issues such as these. Can you comment from an outside perspective and in a non-legality form way what this will mean for the industry and (from what I guage) an eventual movement in lighting ?

Will Orbitech be our demi-gods and kill DIY projects and the ability to purchase unless it's marketed, licensed from them ? Or is there too little info thus far to accurately guage ?

[amheck]

How might this affect separate items, such as a controller by Digital Aquatics and/or Neptune with a LED fixture?

[evilc66]

Controller manufacturers will be safe, as they are general purpose devices. A 1-10v output isn't always intended to drive an LED driver. There are MH and T5 ballasts that will also accept that input, and where the 1-10v standard came from. GHL, Neptune, and DA will be safe when it comes to the AI fixtures (serial control specifically for the AI modules), as AI is licensed to be able to do this.

[Bongo Shrimp]

Ok, on the diy side- how are they going to know what you built in your garage and are using on your aquarium in your home? -They won't. And it's not like they are going to come to your house and seize your diy fixture. It just wouldn't happen.

So yeah it technically violates the patent but will it really affect the diy? I doubt it.

[tahiriqbal]

Touch Screen ?

Do tell sir. Do tell.

http://www.reefcentral.com/forums/showthread.php?t=1823278&highlight=touch+screen+controller

I hope you like it..

[Bongo Shrimp]

Touch Screen ?

Do tell sir. Do tell.

It's called an iphone. :)

[jjstecchino]

I really would like to find out the name of the egghead who granted the patent "Use of LED light for the purpose of growing marine life". If I find out who he is I am going to submit "Use of air for the purpose of breathing", "Use of a mixture of carbohydrate, proteinaceous material and lipids for the purpose of sustaining life", etc. If I find out his name I too can be a..... rich man!

[bobbyb323]

Trying to wrap my mind around this. Does this essentially mean that Marineland, Pac Sun and a couple other companies won't be able to sell their units, or units similar to their patent ?

Marineland, Acan Lighting and others companies have probably already paid Orbitech for the rights to manufactor and sell. This is what this is all about. Orbitech is making money without manufactoring a single fixture.

[Bongo Shrimp]

I really would like to find out the name of the egghead who granted the patent "Use of LED light for the purpose of growing marine life". If I find out who he is I am going to submit "Use of air for the purpose of breathing", "Use of a mixture of carbohydrate, proteinaceous material and lipids for the purpose of sustaining life", etc. If I find out his name I too can be a..... rich man!

Don't forget "Use of H2O for purpose of hydrating one's self and for over all sustaining of life. ;)

[petrio]

Greedy bastards. They've already killed one of the greatest lighting suppliers ever. Now what! I guarantee you it will be a cold day in hell before I buy one of their products.

I super agree

[bobbyb323]

Greedy bastards. They've already killed one of the greatest lighting suppliers ever. Now what! I guarantee you it will be a cold day in hell before I buy one of their products.

I hate to say this but you will be paying them indirectly when you buy a LED fixture made by another manufacturer that paid the licensing fee for the patent rights to Orbitech in order to manufacture it. Sorry about the bad news but this is business. We are all emotionally involved, Orbitech and aquarium companies only look at this as business. The could care less. I'm sorry about the reality check. They could care less if they mad T5s or LEDs as long as the bottom line was in the green:(

[evilc66]

Marineland, Acan Lighting and others companies have probably already paid Orbitech for the rights to manufactor and sell. This is what this is all about. Orbitech is making money without manufactoring a single fixture.

AquaIllumination is the only licensed manufacturer that I'm aware of.

[Variansyn]

http://www.reefcentral.com/forums/showthread.php?t=1823278&highlight=touch+screen+controller

I hope you like it..

Maybe you and I can talk one day ;)

[leifkrarup]

Google Orbitech and PFO. The original story is not new.

Thats the crap of it. THEY DONT MAKE AQUARIUM LED LIGHTS!! They plan too since 2009, but never had. The patent killed it for anyone else making a P-N-P LED fixture.
I hope Mr. Crabb, rots in you know where. Hes set LED aquarium tech back 20 years.

No..... he doesn´t!.... luckily these silly US patent laws:spin1: doesn´t apply for Europe. Lots of LED lightning is being developed over here: ie. Pacific Sun amongst others.

[Im14abeer]

This is actually one of the bigger problems the USA has. I know it probably doesn't seem like it with the current troubles, but non-specific patents hobble innovation and that is one of the USA's strong points. We might not make a whole lot here anymore, but we sure do still design plenty. I'm going to patent the sun for the express purpose of making vitamin d in the human body, you're all infringing and owe me royalties!

[Chris27]

A smart engineer thinks up a solution to a problem....engineer is happy....job well done today....gold watch....then the lawyer comes by and takes the engineer's watch, his Toyota corolla, his house, and leaves him with enough money to buy a new vest to wear at the grocery store while stocking the cereal isle....lawyer buys a new plane and hits the champagne room at the local gentleman's club.

Orbitech didn't ruin anything - their lawyers did.