On my way home I had a brainwave, something to do with {daren't say}, and think it's a possible patentable idea. I could sell loads of these items (if I could get of my backside and make 'em), and so could everyone else from here to china. However, I don't want to go to time, expense and effort in patenting it, I don't care if others out there want to go and manufacture the same product. What I do care about is some toerag registering the patent for themselves and doing us all out of the potential market and benefits.
So what's the best way of ruining the patent potential of this. Has this successfully been done? Does it involve climbing Nelson's column armed with a megaphone, or is there an easier way?
With respect to Patent law, defensive disclosure is a publication of details that are made deliberately about an invention to render it prior art and thereby precluding others from getting a patent on the same invention. Defensive disclosure can be made by filing for public disclosure through the Statutory Invention Registration and publishing the abstract in the Official Gazette of the U.S. Patent and Trademark Office. This can also be done privately by publishing it in an independent journal that will probably be consulted by a patent examiner. Once this becomes published, it precludes issuance of a patent on that invention.
The most important part of any patent is the list of "claims". Each one must be original, must not be public knowledge and must never have been claimed in another patent.
Any claim within a patent can be challenged, if it can be shown that something covered in that claim was public knowledge prior to the date of filing.
Patents are challenged by disputing claims - so a common outcome of a legal challenge is that *some* of the claims in a particular patent are invalidated.
So what counts as prior art?
Almost anything to which the public can gain access.
That could be an article in a magazine, something described in a radio or tv programme, or presented at a conference or public lecture.
Something in written/diagram form is best - particularly if it has a wide circulation *and a publication date*. If it's a publication that some libraries archive, so much the better.
(Private communications - emails, letters, your own notebooks, internal company documents etc - CANNOT be used to show prior art)
And yes - patent claims are invalidated all the time on prior art.
One very straightforward way to do it is to send a copy of the material you believe to show prior art to the patent lawyer that made the application.
The patent lawyer then has a professional duty to inform the relevant patent office (i.e. their professional body won't take kindly if they ignore this responsibility)
(If they didn't use a patent lawyer, then it's some crank in a tinfoil hat that isn't worth worrying about - all serious patent applications use patent lawyers as writing a *good* patent isn't easy).
A good place to start is to check whether your idea *is already patented*.
See google's patent search:
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's patent search is so good now, professionals use this for their initial searches.
(BTW - An expired or abandoned patent also counts as "prior art").
Usenet would be good because it's archived by Google - and has a date associated with it.
A lot of web content comes and goes, and may leave no permanent trace.
However a commercial publication, offered for sale to the public in physical hard-copy, would I think most likely be best.
In challenging a patent claim, the easier it is to show indisputable prior art the better. Ideally you want your prior art to be so well-known that no-one even attempts a patent in the first place.
(or that it can be shown that a person, working in that area, should have been aware of the published article)
JOOI, if I wrote up my idea and didn't publish it myself but could show when I had written it up could that be used to invalidate a patent. That would have the advantage of allowing me to continue work without alerting the potential competition but give me some protection if they came up with the same idea later.
I am thinking along the lines of posting it to a lawyer for safe keeping.
I note that this is not what the OP is trying to achieve.
No - that definitely could not invalidate any claim within a patent.
The keyword is PUBLIC.
It is often the case that 2 companies are (secretly) researching the same thing - the first to patent wins the game - it doesn't matter that the other company may also have been about to patent (or publish) the same thing (or had done the work, but overlooked patenting or publishing).
(NB Putting a product on sale to the public that uses your idea - is also "publishing")
If you PUBLISH, you cannot subsequently PATENT.
Patentable ideas must be kept secret until you file your patent.
I have had some ideas put into IETF and ITU standards and that doesn't stop people from *trying* to patent it. It is a sure fire way to prove prior art though.
Bearing in mind that may patents can be 'got round' by determined competition if they are not very well drawn up by patent agents experienced in that particular field, it's sometimes preferable to keep an invention secret. But that runs the risk that someone else may invent, and subsequently patent, the very same thing, at which point you're stuffed (unless you can negotiate a license agreement based on documentary evidence that you had actually invented but not patented it). When I was at work we used to speculate that such 'secret' inventions ought be published in a totally obscure publication unlikely to be read by anyone that mattered, but which still constituted publication. The fictional favourite was 'The Hungarian Farmers Weekly'. Obscure publication, obscure language and a 'weekly' magazine so of no consequence!
Except that the patent examiner might not be aware of your disclosure and m= ight grant someone else (who has thought of it independently) a patent. Th= en you still have a legal battle on your hands when you start making the it= em and the patent holder tries to defend his patent against you. =20
Ideally you need to publish in a way that it will stand a good chance of b= eing found if the examiner does a search. =20
Yes, if you include a front page of today's newspaper, properly sealed envelope (with wax seal) etc and properly date-stamped by the PO. It's what a lawyer told me years ago in exactly the same circumstance.
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