Contesting a patent

[Bluexcell]

I want to contest an existing patent. i believe that more than one of the patents claims are common knowledge, that more than one of the patents claims exist in other processes as part of those processes, and are intrinsic to those processses and that the key, fundamental advantage of the patent - best method knowledge, is not claimed, though it may be apparent from the patent drawings. The description of prior art makes no mention of claims in the patent already existing as part of other processes.

how do i do this? where can i get some advice?,
and what does this say in plain english please!

"While the invention has been described in connection with several exemplary embodiments thereof, it will be understood that many modifications will be apparent to those of ordinary skill in the art; and that this application is intended to cover an adaptations or variations thereof. Therefore, it is manifestly intended that this invention be only limited by the claims and the equivalents thereof. "

 

[ALawyer]

Challenging a patent is hard work and will require a capable patent attorney.

 

[Bluexcell]

Yes, i guessed i would need an attorney, ( my fiance is one, though in construction litigation, somewhat different) If anyone can offer a translation of the last part of my original post, that would be helpful.

Also, what i was hoping for was an outline of the steps involved in contesting an existing patent as opposed to a patent pending, the info for the latter is available on the Patent Office site, but i find little info on contesting existing patents. Before i even consider an attorney, i want to understand the method and due process.

 

[T-DESIGNER]

What is the patent number you want to challenge?

Here is a quote from the following web site:

http://www.2001law.com/topic_56.htm#docs

"The jury is in on patent litigation: it is expensive. Extraordinarily
expensive. Consider the following: The average cost of patent
litigation through trial is $1.2 million. The Patent and Trademark
Office has been on a pace to issue approximately 200,000
patents yearly. With a PTO staff that in great numbers lacks even
24 months' experience, and with an average of about fifteen
hours being dedicated to each patent, it is no surprise that the
burden of challenging and enforcing patents is being left more
and more to private parties asserting their rights in court."

Here is an interesting web site that uses "bounty hunters"
to discover information to invalidate a patent. You might
try and contact them.

http://www.bountyquest.com/

 

[Bluexcell]

Bluexcell says:
Thanks T designer, for a useful posting.

I do not think it right or proper that i should discuss the merits or non merits of a specific case here in a public forum, simply because until i understand the process of contesting a patent, i leave myself open to the vagaries of the law, libel being uppermost in my thoughts. I have indicated the reasons i wish to contest the patent in question, perhaps someone might care to comment on the grounds for contesting an established patent, or give examples where a patent has been contested on specific points especially claims and prior art- past cases, where the matter is public domain.


The cost of contesting a patent is prohibitive. What i would like, is to be aware,of my chances of successfully contesting a patent, the odds, based upon, for example past cases, relevent points of law, judgements. Armed with that information, i could make a business judgement - the private part. The public part, proof of common knowledge or prior art needs research and verification.

It seems to me from experience and observation, that many patents are simply flouted by non disclosure, that is, employees sign non disclosure agreements and manufacturers often never sell equipment/ technology publicly, it remains inside a group., all under the same umbrella. The only way one might discover if patents are being infringed would be to work with that technology in a technical position, and know what you are looking for. If a technology remains hidden, it can flout patents.
I am not talking about retail widgets, or products that are used by the public, where patent infringement might be obvious, though i suspect much of what we use today,probably infringes patents.The cost of contesting or protecting a patent is such that an individual may not be in a position to do anything, and might not even be aware.

Another problem is that the method by which patents are approved is not entirely public, one relies upon "experts" behind closed doors.
Technology changes so rapidly now, that even experts are hard pushed to keep up with the state of the art. What this means is the scope of common knowledge is growing, and experts cannot be expected to know everything regarding a particular technology. What might be novel to one group of experts may be common knowledge to another especially until it is published. In fact i beleive that in many cases, the granting of patents inhibits beneficial progress, as much as it protects the rights of the inventor(s).If the inventor chooses not to use the invention commercially, and sits on it, for whatever reason, perhaps waiting for technology/ markets to make the invention commercially viable for the inventor ( note, the inventor may not be in a position to maximise profit from the invention) then progress for others is only possible by finding a way around the patent.
If the patent claims are such that this is not possible, the only method open to someone who can see a market/ profit in the invention is either flout the patent having considered the viabilty/ penalties/options..., armed with knowledge that it is likely that infringement could be contested successfully ( financially and on point of law),or come to some licence agreement with the inventor, in which case the inventor gets the invention commercially viable.

I dont want to give money to the inventor of something, i think, is based on common knowledge in a particular field. I see a market for an improved version of the invention. Now, i am not prepared yet, to pay an attorney to tell me what i already know, or what i can find out myself for free, using the resources of the internet.
Thats why i am posting this topic. The subject matter - "contesting a patent" is not widely addressed for the layman, it seems that the weight of knowledge is in favour of patent protection, often at the expense of progress.

And i am still waiting for a plain english translation of the text in my original post...

 

[T-DESIGNER]

You may or may not receive a reply from an attorney, where
you are asking for a layman's translation; i.e., if you read the
"fine print" at the bottom of this site's "Q & A Law Forum"
page(s), it reads:

"The FreeAdvice Forums are intended to enable consumers to
benefit from the experience of other consumers who have faced
similar legal issues. FreeAdvice does NOT vouch for or warrant
the accuracy, completeness or usefulness of any posting."

I am not an attorney, but it seems the statement in the patent
says the following:

There are many variations of the patent, which the patent
holder's patent application did not specifically mention or
address, but the patent holder is stating he holds the rights
to these variations even though they were not specifically
mentioned or addressed in the patent application.

I will use a copyrighted artwork as an example:

If an artist submits an original colored illustration to be
copyrighted, another artist cannot simply change some of
the colors and claim it as an original piece of artwork.

The determination of originality is subjective, and it is up to
the judges and/or juries to determine if another patent/copyright
is original in nature. I don't know to what degree, if any, if
the U.S. Patent office tries to make such a determination when
approving a patent, unless the patent is being opposed by
another party prior to approval.

Since you are hesitant about providing the patent number you
are wanting to challenge, you must ask yourself, what are the
financial resources of the owners of the patent you are wanting
to challenge? What are the financial benefits for holding the
patent? This should give you an idea as to whether or not they
hired "top notch" patent attorneys to do "front end" research
prior to submitting their application.

 

[Bluexcell]

Bluexcell says:

Attorney or layman, it doesnt matter to me who replies on this subject, that is what forums are for!..all 10 cents worth gratefully received.
T DESIGNER offered the following translation of the text in my original post..
"There are many variations of the patent, which the patent
holder's patent application did not specifically mention or
address, but the patent holder is stating he holds the rights
to these variations even though they were not specifically
mentioned or addressed in the patent application."

Bluexcell says:
T`s translation takes care of this part;

"While the invention has been described in connection with several exemplary embodiments thereof, it will be understood that many modifications will be apparent to those of ordinary skill in the art; and that this application is intended to cover an adaptations or variations thereof."

Bluexcell agrees with your interpretation,

Using T`s artwork example, The patent applicant has no rights to a particular color...or the brush or pen.. or the paper.. or elements of the artwork that are common knowledge, the method of drawing a square or a circle , if those elements existed as prior art, unless those could be claimed...as novel, non obvious....
Here are my own thoughts...

Using the example on this site:
http://www.lawnotes.com/patent/claims.html#Example

Could the text apply to a chair with five legs? is a chair with five legs an adaptation or variation of a chair with four?
No, because chairs exist in prior art. Chairs are obvious to a person of ordinary skill and are not novel.

Assume an inventor looks at a process, which is not novel, is common knowledge, and obvious to a person of ordinary skill and exists as prior art.
The inventor takes an element of that process and isolates it.

Can the inventor claim the process? i dont think so.
Can the inventor claim the isolated part of that process? i dont think so.
Can the inventor claim the method used to isolate that part of the process, Yes if they are novel, non obvious and meet the prior art requirement. each part of the method could become a claim.
Can the inventor then claim infringement if someone else looks at the process,and adapts and isolates the same part? Only if the method infringes the claims the inventor has made.
Example 1.
The method may be a machine that enhances the isolated part, and the inventor can claim the parts of that machine that meet the requirements for claims, but he cannot claim the original process or the isolated part.
Example 2.
I have copyright on a drawing, patents on parts of the pen i used to make the drawing, but i cannot claim the art of drawing as a whole, or part, or variations of pens unless the variations infringed claims made in the pen patent.

So if i find a patent, that makes a claim to a process that is not novel, obvious to a person of ordinary skill in the art, i would question the validity of that claim.
If i find in the same patent, claims to an isolated part of that process, i would question the validity of those claims.
If i find in that patent, claims to parts of a machine used to isolate the part of the process, those claims are valid, if they meet the requirements, in as much as they cannot claim the process or part.

The result may be different from the original process, as it is isolated, adapted, refined. That result could be claimed, for example , a new type of glass made from sand, using a novel method and machine parts not obvious or existing as prior art.
I couldnt claim the art of making glass, or an isolated part of the process that was obvious.

In the patent i have in question, claims are made on a process which is obvious, not novel, and would be apparent to someone of ordinary skill in the art, in fact, the isolated part the inventor has used is a fundamental part of the process, that process could not exist without the isolated part. The isolated part is well understood and is common knowledge.
What the inventor has done is to refine the isolated part using common techniques found in the art generally, to achieve a different result.

I dont know how this patent achieved approval in the way it is written.throughout it lays claim to processes that are common knowledge.

The result is novel, and has uses.and particular parts of the machine can be claimed.

As the patent claims are written, the inventor could claim infringement by anyone carrying out the original process or the isolated part by any means not just the method claimed in the patent, which is absurd.


Regarding the last part of the text in question;

"Therefore, it is manifestly intended that this invention be only limited by the claims and the equivalents thereof. "


The inventor claims the process, the isolated part, the refinement, the result and all eqiuvalents.

Doesnt leave much room for progress does it?

 

[T-DESIGNER]

Are you wanting to invalidate a patent because you are wanting
to produce/manufacture a machine (or whatever) to
accomplish the same thing as the patent in question, or are
you just wanting to invalidate the patent as a matter of
principle?

It would be unrealistic of us to expect the U.S. Patent Office
to have patent examiners be experts on all of the various
and possible technical fields for which patents can be applied.
The same applies to patent attorneys. The wording you
questioned in the patent is fairly common; e.g.

5,476,616 and 6,013,223 submitted by inventor
5,368,825 5,667,216 5,616,258 5,368,825 and 5,218,969
submitted by attorney (patent attorney?)
5,218,969 and 5,170,482 submitted by law firm (specializing
in patents?)

If you are wanting to manufacture your own equipment/
machine/whatever, I suggest you contact a patent attorney
to (1) submit your own patent, (2) see what chances you have
of having the patent application accepted/rejected, (3) see what
chances of having a claim brought against you (with or without
submitting a patent), and (4) see what chances you have
of losing/winning (with or without submitting a patent).
This is your due process because I suspect most patents
are invalidated when one patent owner brings a claim
of infringement against another patent owner/manufacturer/etc.

If you do not agree with the system, you need to write your
congressman.