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patent question

Discussion in 'Electronic Design' started by R.Lewis, Jul 2, 2004.

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  1. R.Lewis

    R.Lewis Guest

    (in Europe)
    Is it possible to patent a device after it has been placed on the market
    (for a few weeks) ?

    Thanks in anticipation.
  2. John Miller

    John Miller Guest

    No (only the US has a "grace period"). I found this at


    It is important to keep in mind that the one-year "grace period" for
    publication under 35 U.S.C. 102(b) is unique to U.S. patent practice. Patent
    rights outside the U.S. may be destroyed at the time that an invention is
    disclosed in an electronic publication if a patent application has not been
    filed. Under the European Patent Convention, for example, an invention is
    considered new if it does not form part of the "state of the art" before the
    date of filing of the European patent application (Article 54 EPC). The
    Guidelines for Examination in the EPO instruct examiners that the state of
    the art is very broad, and that there "are no restrictions whatever as to
    the geographical location where, or the language or manner in which the
    relevant information was made available to the public" (Id. at Part C,
    Chapter IV, 5.1). The Guidelines also explain that "[a]vailability to the
    public . . . includes all possibilities which technical progress may
    subsequently offer of making available the aspect of the state of the art
    concerned" (Id. at Part D, Chapter V, 3.1.1). Thus, the European Patent
    Office clearly focuses on the availability of a disclosure, regardless of
  3. John Larkin

    John Larkin Guest

    On Fri, 2 Jul 2004 14:47:27 +0100, "R.Lewis" <h.lewis-not this
    I think you have a year.

  4. Leon Heller

    Leon Heller Guest

    Just guessing, but it might be possible if the novel feature(s) that will be
    the subject of the patent haven't been disclosed to anyone.

  5. This still leaves the question open about patenting something that has
    been on the market for a time. The EU law seems to concern itself with
    the publication of technology, not so much its implementation. I can see
    a case in which the product might be made available to the public, but
    the underlying technology held as a trade secret for a time.

    P.S. None of this seems to apply to Microsoft. I read (in the latest
    Economist) where they have been granted a patent for something that MIT
    and IBM developed a decade ago.
  6. K Williams

    K Williams Guest

    Also note that the (US) one-year "bar" clock starts the instant you
    receive "commercial advantage" for your invention. If you promise a
    product that includes the widget the clock starts, whether or not you
    disclose the widget itself. It gets real interesting when you promise
    a product that requires the here-to-for uninvented widget to work. ;-)

    There is a reason patent attorneys make good money.
  7. K Williams

    K Williams Guest

    I don't know EU law at all, but in the US you'd be barred from a patent
    one year after "commercial advantage", whether you'd disclosed the
    invention or not. Thus a "trade secret" is not patentable one year
    after it is offered for sale.
    The USPTO is broken, and that's not argued my many. However, there are
    details of patents that many miss. One has to look *carefully* in both
    the teachings and the claims to figure out what's going on. Yes, often
    bad patents are rammed through. Others are rejected for ages (Gould is
    famous here) and then won in court. The USPTO is a clerk. The patents
    are won in court.
  8. Robert Baer

    Robert Baer Guest

    Does this mean that many of the Microsoft patests are invalid
    (remember the "Not There" Os that took over 2 years to show?)?
  9. Steve Taylor

    Steve Taylor Guest

    John Miller wrote:

    Thus, the European Patent
    Absolutely my understanding under European Patent law - I can check with
    my old friend who is a Patent attorney for final confirmation, and I'll
    do that later.

    Once its on the market, once its published (like saying here what it
    does), once you shoot your mouth off in public in any archival form
    you're screwed.

    Quite how M$ will get away with trying to patent FAT here 20 years after
    it first appeared will be fascinating.....


  10. K Williams

    K Williams Guest

    Not until a court declares them so.
  11. R.Lewis

    R.Lewis Guest

    For the case in question it is not what the equipment does (this has been
    marketed by ourselves and others for some years) but how it does it ( better
    faster, more reliably, blah, blah, -- and cheaper to manufacture).
    The hardware has not changed (much) the 'technique' - and hence the
    software - has.
  12. Steve Taylor

    Steve Taylor Guest

    So you have made no announcements about any of the under the bonnet
    stuff at all anywhere ? And the thing you are potentially patenting is
    not obvious to one skilled in the art ?

    You need to find a proper patent attorney.

  13. Don Lancasters (anti)Patent guides are worth a read:
    He makes a very good case for not patenting anything.

    Dave :)
  14. We can't figure out how they patented it over here either. But
    apparently, they have.

    The US gov't is now busy convincing (coercing) foreign governments to
    protect US intellectual property rights regardless of their legal status

    So, if the USPTO grants a patent for 'MS Wheel', everyone must honor it
    regardless of the existence of prior art going back to cave paintings.
  15. True, but that won't protect you from someone else patenting your

    If you are a small outfit that can't afford to defend your own patents,
    following Don's advice might make sense. If you can't afford to pursue
    your patent rights in court against a well funded adversary, its just a
    worthless piece of paper.

    But since the USPTO will hand anybody a patent for pretty much anything
    (20 year old technology or technology published by others), you have to
    be prepared to defend yourself if that well funded competitor takes
    apart your gizmo and files patents on its innards.
  16. Guy Macon

    Guy Macon Guest

    Publishing does that.
    Publishing does that.
  17. Guy Macon wrote...
    That's correct, and one way to publish all the gory details
    is to include a complete manual with your product shipments,
    and to include in that manual complete schematics, program-code
    descriptions, and flow charts, etc. Don't worry about being
    ripped off by your competition seeing this. Product reputation,
    customer acceptance, marketing and good field performance will
    take care of your sales dominance. Besides, most competitors'
    engineers will have an bad NIH attitude to your work anyway.

    - Win

    (email: use hill_at_rowland-dot-org for now)
  18. Guy Macon

    Guy Macon Guest

    ....and those who don't will be able to get all of the information
    they need by reverse engineering. Withholding schematics, program-
    code descriptions, flow charts, etc. only inconveniences your
  19. Evidently not. Microsoft has been granted a patent for something that
    MIT and IBM developed _and_published_ (I can recall an article on the
    topic) about 10 years ago.

    Evidently, the USPTO has devolved into a clerk with a rubber stamp.

    True, this patent may not stand up in court. But that really doesn't
    matter, since most of us can't hope to persevere against someone with a
    $56 billion war chest.
  20. Guy Macon wrote...

    - Win

    (email: use hill_at_rowland-dot-org for now)
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