Bad patents kill small businesses

[jleelim]

Delaware, USA.

I'm starting up a small software company with whatever little money I have. The software that I'm producing targets a very narrow market, but has good potential. I recently discovered a competitor with lots of capital has filed a U.S patent application on the software as a new product invention.

However, I know for fact that this software is not a new invention. It was invented long before the existence of my competitor and proofs of the invention are still scarcely available online. I'm concerned that the patent application filed by my competitor will be approved and it will put me out of business. I cannot possibly compete with them on the legal front.

What should I do? Should I be concerned? Is there a way to notify the patent officers the existence of this invention before they approve another bad patent?


Please help.

Regards,

Stephen

 

[divgradcurl]

The patent application process takes place between the inventor and the USPTO -- it is not subject to public scrutiny. There really isn't any way that I am aware of for you to hijack the patent application during the application process.

Once a patent actually issues, then anyone can request a reexamination of an issued patent -- see 35 U.S.C. 302 and 35 U.S.C. 311 for examples of what to do. Any new prior art must be actually be prior to any art that it referenced by the patent, and must be pertinent to every claim of the patent which is being reexamined. If you really have good prior art that was not cited in the application, then it is possible, but not easy, to get a patent invalidated. Furthermore, the examiner in the USPTO will also be looking for prior art, so if the proof really does exist, it is possible that the examiner might find it.

Finally, if a patent inssues and you are sued for infringement, an invalidity claim is a common counterclaim, and can iether invalidate a patent or render it unenforceable.

Are you sure that they are applying for a broad patent that will cover your invention as well? Are you sure they are not patenting some narrow aspect of the software that may very well be new? If you really believe that they are applying for a patent that may cover all or part of your product, you may want to talk with an experienced patent attorney sooner rather than later to figure out your options.

 

[jleelim]

Hi,

The claims do cover exactly what I do. I've been reading the newsgroups and I was told that I can protest a pending application if the application has not yet been published. In my case, the application has already been published and I can only resort to "Third party submission", which allows me to submit a patent or publication that will be used by the examiner in evaluating the application.

The proofs of prior are that I have are research documents and web pages. I do not think I am allowed to submit these as "third party submission". http://www.uspto.gov/web/offices/pac/mpep/documents/0600_610.htm

Do you know if the patent examiner searches the Internet for prior art and/or only within existing patents only?

Thanks,

Stephen