XTOL patented?

<p>Taking up the question again in the last post of this thread:</p>

<p>http://www.photo.net/black-and-white-photo-film-processing-forum/00TWgB</p>

<p>does kodak claim patent protection on XTOL? As the last post in the thread linked above says, I have a package of XTOL, and nowhere on the packaging is there a claim of patent protection.</p>

<p><strong>Kodak patent</strong> 5853964.</p>

<p>But, probably none of the five example or preferred embodiments is the real thing. Deception is key in chemistry patents.</p>

<blockquote>

<p>does kodak claim patent protection on XTOL?</p>

</blockquote>

<p>Photographers are used to copyrights, which run the life of the artist plus 75-100 years. Patents expire in 19 years. So, while there is no doubt that Kodak "did" claim patent protection on XTOL, once upon a time, they don't have any protection today.</p>

<p>The patent that Alan Marcus cited was issued in 1998, so it still has many years left.</p>

<p>As John mentions, it's likely that "true" XTOL is not the same as any of the examples in that patent. However, the claims cover a range of compositions, which would probably cover the actual formulation of "true" XTOL. </p>

<p>I just had a look at US patent 5,853,964. That patent references two other closely related patents, <strong> 5,702,875 and </strong> <strong> 5,756,271.</strong></p>

<p><strong>I didn't find the answer to my original question, which is whether XTOL itself falls under these patents, but I did notice one interesting thing. All claims require borate as the sole buffer. If one were of a mind to make an alternative to XTOL (assuming that XTOL actually does fall under these patents) it would probably be rather easy to work around these patents by including some other buffering ingredients in the formulation.</strong></p>

<p><strong>By the way, sorry about the change of font. I am not sure how to fix the post so it is all one font.<br /> </strong></p>

<p><br /> Patent examples for chemical formulations don't always correspond 1:1 to a commercial product, and unless you're able to get the (confidential) XTOL formulation from Kodak, you'll never know which of the examples (if any) in those patents is the actual XTOL recipe. However, it's very likely that the recipe <em>is</em> covered in the range of formulations claimed in the patents.</p>

<p>Jordan (and others),</p>

<p>Here is one thing that is puzzling me. XTOL might be covered by the patent, yet it is uncertain to me whether Kodak is claiming that XTOL is covered by the patent. Is there any documentation that Kodak is claiming patent protection for XTOL? There is no such claim on the package of XTOL I have, and there is no claim for patent protection on Kodak's data sheet for XTOL (http://www.kodak.com/global/en/professional/support/techPubs/j109/j109.pdf), but perhaps there is other documentation where Kodak is claiming patent protection for XTOL.</p>

<p>Alan,</p>

<p>AFAIK, there is no requirement to associate products with the patents that describe them. When you see it happen, it's usually a "patent pending" notice (to discourage would-be copy-cats, I suppose) The fact that Kodak holds the patents is sufficient -- they are entitled to protect their intellectual property, whether it has been used in XTOL or not.</p>

<p>Kodak probably has multiple patents that relate to XTOL -- from proprietary chemical ingredients, to methods of "encapsulating" the powders to prevent caking, the packaging material, the formulation itself, etc. Listing them all could get tedious.</p>

<p> </p>

<p>Here is what the US patent and trademark office says about marking patents:</p>

<p>"A patentee who makes or sells patented articles, or a person who does so for or under the patentee is required to mark the articles with the word "Patent" and the number of the patent. The penalty for failure to mark is that the patentee may not recover damages from an infringer unless the infringer was duly notified of the infringement and continued to infringe after the notice.<br>

The marking of an article as patented when it is not in fact patented is against the law and subjects the offender to a penalty. Some persons mark articles sold with the terms "Patent Applied For" or "Patent Pending." These phrases have no legal effect, but only give information that an application for patent has been filed in the Patent and Trademark Office. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited."</p>

<p>Here is the web reference for the above: http://www.uspto.gov/web/offices/pac/doc/general/patpend.htm</p>

<p>Commenting on my last post, this means that a patent holder cannot collect damages from an alleged infringer unless the product contains a label with a patent notice.</p>

<p>An exception to this occurs if the patent holder sends a notice of infringement to the alleged infringer.</p>

<p>However, I understand that sending notice of infringement raises other legal problems for the patent holder because it opens the door for certain legal actions by the alleged infringer. (I had found a website that explained all that, but unfortunately I lost the link.)</p>

<p>I should point out that I am not a lawyer, patent lawyer or otherwise, so don't count on me for accurate legal advice. However, I am an inventor on a number of patents, and I have been involved in patent disputes, so I am not entirely ignorant of some issues of patent law.</p>

<p>For home/hobby use I wouldn't worry about Kodak going after you even if you stated here that you were using a specific formula and listed it on a forum such as this -Kodak is not the RIAA after all.<br>

If you wanted to go into selling a developer - that's another story. (and questioanble in this digital age and financial stressed time in history)<br>

If you are a pro selling a large amount of photos processed with a patent infriged formula - that would be a legal liability, but I'm not sure of Kodak's history on attempting to recover in a situation such as that. They would have to find out about it first place somehow.<br>

But I'm not a lawyer - usual disclaimer here.</p>