As a US patent attorney with a lot of experience in telecom products I feel obligated to add to this discussion. Mr. Marks is the inventor of US Patent No. 4,926,474. I have reviewed his US patent and can appreciate his frustration. The body of his US patent does disclose the concept of locating a microphone at an intermediate portion of a telephone handset (see column 4 lines 11-14) in the context of locating the handle of the telephone handset at a lower position than that of a conventional telephone handset. Without a doubt, these are essential features of the Beocom 2. Thus, to him, it may seam as if the Beocom 2 is infringing on his US patent. Unfortunately, this is not how the US patent system works.
In the US, it is the claims (legalese run-on sentences located at the end of a patent) that define the scope of subject matter in which patent rights are conveyed. For a product to infringe a claim, it must include each and every claimed feature. In this case, his broadest claim (claim 1) includes features (e.g., “said handset comprising a handle terminating at one end in a speaker portion and at its opposite end in a microphone portion spaced from said speaker portion” etc.) that the Beocom 2 does not implement. Thus, the Beocom 2 does not infringe his US patent.
The frustrating part for Mr. Marks (aside from the enormous amount of money he must of spent to secure his patent rights) is that his US patent does include subject matter that would have supported a claim that the Beocom 2 would infringe. However, such a claim was not presented during the examination of the US patent and thus it is not known if that claim would have been allowed by the US Patent Office. In other words, he had the opportunity (but not the foresight) to claim subject matter that the Beocom 2 would infringe. Unfortunately (for him), he did not. However, don’t be too harsh on him for this decision. With hindsight it is easy to say what subject matter he should have pursued in his claims, but such decisions are not so easy at the time they need to be made.
Incidentally, I happen to know the Primary Examiner of his US patent. Also, it is also worth noting that his US patent expired on May 15, 2007. In addition, note that his US patent was only enforceable in the US. I’m not sure in what other country he has obtained a patent.