Sam, since you're an attorney, maybe you can also comment. Just for fun I pulled some info from the USPTO.
NOVELTY AND OTHER CONDITIONS FOR OBTAINING A PATENT
(Excerpted from General Information Concerning Patents print brochure)
In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if: "(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent," or "(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior
to the application for patent in the United States . . ."
If the invention has been described in a printed publication anywhere in the world, or if it has been in public use or on sale in this country before the date that the applicant made his/her invention, a patent cannot be obtained. If the invention has been
described in a printed publication anywhere, or has been in public use or on sale in this country more than one year before the date on which an application for patent is filed in this country, a patent cannot be obtained. In this connection it is immaterial
when the invention was made, or whether the printed publication or public use was by the inventor himself/herself or by someone else. If the inventor describes the invention in a printed publication or uses the invention publicly, or places it on sale, he/she must apply for a patent before one year has gone by, otherwise any right to a patent will be lost.
Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject
matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution
of one material for another, or changes in size, are ordinarily not patentable.
uspto.gov
While I've no doubt the USPTO has the talent, do you think they are able to fully determine whether the application has been described in a printed publication in this or a foreign country when determining patentability? Also, what if certain claims are prior art in this or any country but not patented?
INFRINGEMENT OF PATENTS
(Excerpted from General Information Concerning Patents print brochure)
Infringement of a patent consists of the unauthorized making, using, offering for sale or selling any patented invention within the United States or United States Territories, or importing into the United States of any patented invention during the term of the
patent. If a patent is infringed, the patentee may sue for relief in the appropriate Federal court. The patentee may ask the court for an injunction to prevent the continuation of the infringement and may also ask the court for an award of damages because of
the infringement. In such an infringement suit, the defendant may raise the question of the validity of the patent, which is then decided by the court. The defendant may also aver that what is being done does not constitute infringement. Infringement is
determined primarily by the language of the claims of the patent and, if what the defendant is making does not fall within the language of any of the claims of the patent, there is no literal infringement.
Suits for infringement of patents follow the rules of procedure of the Federal courts. From the decision of the district court, there is an appeal to the Court of Appeals for the Federal Circuit. The Supreme Court may thereafter take a case by writ of
certiorari. If the United States Government infringes a patent, the patentee has a remedy for damages in the United States Court of Federal Claims. The Government may use any patented invention without permission of the patentee, but the patentee is
entitled to obtain compensation for the use by or for the Government.
The Office has no jurisdiction over questions relating to infringement of patents. In examining applications for patent, no determination is made as to whether the invention sought to be patented infringes any prior patent. An improvement invention may be patentable, but it might infringe a prior unexpired patent for the invention improved upon, if there is one.
uspto.gov
From the above:
In such an infringement suit, the defendant may raise the question of the validity of the patent, which is then decided by the court......................The Office has no jurisdiction over questions relating to infringement of patents.
And from the Yahoo post:
The USPTO will defend their issues with our tax money. They are not going to have their issues overturned under any circumstances.
Do those sound consistent? Sounds like no patent has ever been overturned? <g>
TIA |
