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What next?What next?Posted Feb 10, 2012 18:40 UTC (Fri) by SecretEuroPatentAgentMan (guest, #66656)In reply to: What next? by pboddie Parent article: Jury rules that Eolas's "interactive web" patent is invalid (ars technica)
The normal case is that one looks over the invention, makes a brief check for prior art, draft the application and file it in the hope of it being inventive. Examiners at the various patent offices are the experts on searching for prior art and will decide if a patent can be granted or not.
It does indeed happen that unexpected and fatal prior art comes up, wiping out the application.
This is how the system is used normally. Filing an application knowing of fatal prior art is useful only in extremely unusual cases and a grant cannot be expected anyway.
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"file it in the hope of it being inventive" Posted Feb 10, 2012 18:49 UTC (Fri) by pboddie (subscriber, #50784) [Link]
I think your own words stand on their own and so I've promoted them to the title of the post. Good to know that monopolies are issued on the basis of people hoping to, as would be said colloquially, "get in on some action". That is, if there is any "action" to be had.
"file it in the hope of it being inventive" Posted Feb 11, 2012 21:05 UTC (Sat) by SecretEuroPatentAgentMan (guest, #66656) [Link]
You can do all kinds of searches and file an application in good faith yet still discover fatal prior art comes up in a country whose language or even character set is unknown to you.
Once you file an application it remains unpublished and thus secret for 18 months in order to give the applicant a head start over a competition that might not respect your rights. This leads to all sorts of other complications, particularly for those that file an application for something very close within those 18 months in which case the fatal prior art will possibly be found perhaps 5 years later. The definition of prior art varies but in Europe there is no limit on age or language
This is in good faith, not to get in on some undue action.
"file it in the hope of it being inventive" Posted Feb 13, 2012 10:28 UTC (Mon) by pboddie (subscriber, #50784) [Link]
Firstly, I think you perhaps missed the connotations of the word "action" which I was using colloquially, as in "The ATM on Main Street is giving out free money: let's get a piece of that action!"
On the topic of whether something is perceived as being inventive, we are told over and over that patents reward people who, through their work, enabled something that otherwise wouldn't have been done. That brings up the issue of whether every little thing, while important to advancing the state of the art, is worthy of the granting of a monopoly as a reward to the person or organisation who decided to share their discovery with everyone else (through the patent bureaucracy).
If, indeed, every little thing gets its own patent and the smallest advance is considered "inventive", then it becomes a speculator's game in more than one sense: people try and do the least work for the benefit of a patent ("in the hope of it being inventive") and perhaps try and get as many as they can for the work they have done, seeking to have a solid obstacle in front of their competitors.
And as we all know, in fields where many people can be doing the same kind of work, I don't see how it can be ethical to grant a monopoly to people for something that could well be developed independently within those 18 months of secrecy, either.
"file it in the hope of it being inventive" Posted Feb 20, 2012 20:34 UTC (Mon) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> If, indeed, every little thing gets its own patent and the smallest advance is considered "inventive", then it becomes a speculator's game in more than one sense: people try and do the least work for the benefit of a patent ("in the hope of it being inventive") and perhaps try and get as many as they can for the work they have done, seeking to have a solid obstacle in front of their competitors.
As mentioned earlier, novelty is not sufficient to get a patent granted, there is a requirement for non-obviousness/inventive step, exactly to stop the smallest advance. As the premise fails the rest does not hold.
Nevertheless I would really like to know why you believe "try and get as many as they can for the work they have done" translates into "a solid obstacle in front of their competitors". A few quality patents or even patent applications tend to be better and also cheaper than a shotgun approach with many low quality patents or applications.
> I don't see how it can be ethical to grant a monopoly to people for something that could well be developed independently within those 18 months of secrecy, either.
Such cases (secret prior art) is handled differently around the world. In European practice secret prior art is novelty destroying but cannot be used against inventive step.
The question here isn't how many *could* develop the same thing independently but how many *would*. Do you have any figures for the frequency of this issue?
"file it in the hope of it being inventive" Posted Mar 1, 2012 12:58 UTC (Thu) by nix (subscriber, #2304) [Link] As mentioned earlier, novelty is not sufficient to get a patent granted, there is a requirement for non-obviousness/inventive step, exactly to stop the smallest advance. As the premise fails the rest does not hold.The patent offices are doing a really bad job, then. It is routine (even in the pharmaceutical world, the sector always used by pro-patent people to indicate the goodness of patents) to apply for patents identical to about-to-expire patents with one or two tiny details changed. Bingo, extra twenty years monopoly. It is also not unknown for patents *identical in wording* to existing patents to be granted, often repeatedly. And as for 'prior art', as long as this is restricted purely to patent searches and searches of a few journals it will remain wholly inadequate for the software field, where most prior art consists of implementations and a lot of that is source-unavailable.
"file it in the hope of it being inventive" Posted Mar 9, 2012 22:16 UTC (Fri) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> The patent offices are doing a really bad job, then.
Feel free to give specific examples of cases.
> It is routine (even in the pharmaceutical world, the sector always used by pro-patent people to indicate the goodness of patents) to apply for patents identical to about-to-expire patents with one or two tiny details changed.
In that case their own patent becomes the closest prior art and they will have to show that what you call "tiny details" are novel and non-obvious in view of the existing patent. This requirement is not any lesser just because closest prior art is their own.
> Bingo, extra twenty years monopoly.
Really? If you could change trivial details and get another 20 years just like that you would have a fantastic career as a patent attorney in front of you. The rest of us would have to slog it out according to the laws, rules, guidelines and conventions. Also pharmaceutical patents are heavily contested by generics who would challenge patents.
> It is also not unknown for patents *identical in wording* to existing patents to be granted, often repeatedly.
It can happen in theory but I have not seen any such myself. And in what way do you mean this takes place repeatedly? Again I would appreciate some examples.
> And as for 'prior art', as long as this is restricted purely to patent searches and searches of a few journals it will remain wholly inadequate for the software field, where most prior art consists of implementations and a lot of that is source-unavailable.
Well, if you assume something sufficiently wrong you might conclude anything. In reality what you call "a few journals" is a large collection. For instance EPO has an agreement for exchange with IEEE and ITU. Also plain Google is used. You might wish to look into "NPL" - Non Patent Literature.
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